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I.P.C

UNILATERAL OPTION CLAUSES

A unilateral option clause (UOC) is a dispute resolution provision that allows only one party to choose between a certain dispute resolution procedure, typically between litigation and arbitration. Some UOCs also restrict the opposite party to a specific jurisdiction while permitting one party to pursue litigation across numerous jurisdictions. The following is an illustration of a UOC in a sales agreement:

Section 10 Dispute Resolution

a) The courts in XYZ country shall have exclusive jurisdiction over any dispute arising out of this contract, subject to BUYER’s right to elect arbitration in clause (b).

b) The BUYER has the right to refer any dispute arising out of this contract to arbitration under the BIMACC Institutional Arbitration Rules, which rules are deemed to be incorporated by reference into this clause.
…

Any party may sue under such a multi-tiered clause, but only the buyer (one of the parties) has the right to request arbitration. Starting off, there appears to be a fundamental imbalance between the two parties’ positions on UOCs. It appears to be patently unfair to limit one party’s ability to choose from a variety of dispute resolution forums while allowing only one party to do so. However, these UOCs are becoming more and more common in different commercial settings.

These UOCs are typically seen in financing and lending agreements, where the lender frequently has the choice to file a lawsuit in several jurisdictions but the borrower may only have a limited number of options. This is due to the fact that the lender assumes a sizable risk in these transactions and needs to be able to seek legal action in a country where it may recover its debt. However, UOCs are now often used in agreements between different commercial companies. The side with greater bargaining power may seek the adaptability of a UOC because the suitability of a certain conflict resolution process relies on the specifics of a given case.

Due to the widespread acceptance of the New York Convention, arbitration may be advantageous because an arbitral award is enforceable in a lot more nations than a court judgment would be. In circumstances where the matter cannot be arbitrated or if the party prefers a public hearing, it may be referred to litigation in public courts. In cases where the party would prefer confidential proceedings to protect their goods, they may choose arbitration.

Potential issues with UOCs
The inherent unbalancedness of UOCs has prompted many people to challenge the legality of such clauses for a number of different reasons. There appear to be several answers to this issue in different parts of the world. Such clauses have been upheld as legitimate in nations including the UK, Singapore, Hong Kong, and Spain, but have been invalidated in France, Russia, and Bulgaria. Decisions on the validity of UOCs frequently involve striking a balance between party sovereignty and the requirements of the arbitral process. The following discussion addresses several prevalent objections to the legitimacy of UOCs.
Equality: The need that all parties be treated equally and given an equal chance to submit their case to the Tribunal is the most important concept of arbitration. The success of a challenge alleging that a UOC violated the equality standard hinges on how broadly the arbitration agreement’s law applies to the equality principle.A UOC appears to be unbalanced because it primarily serves the interests of one party and requires the other party to follow the first party’s preference for the dispute resolution forum.

Such sections are said to be in violation of the fundamental principles of equality and the right to an effective defence, according to a common argument. The UNCITRAL Model Law and the Arbitration and Conciliation Act both include the equality principle, although it only applies to the procedures in a procedural sense. Checking if one side has a stronger potential to influence the case’s result is one of the criteria for identifying a breach of equality.


A typical UOC would permit one party to decide the venue but would grant equal rights to the parties once the arbitral process had started, including the ability for them to select an equal number of arbitrators, present their arguments in writing and orally, and present evidence. In other words, the start of the proceedings effectively corrects any imbalance, and neither party gains an unfair procedural advantage over the other. The venue chosen cannot by itself affect the outcome of the case. As a result, a UOC would not go against the UNCITRAL Model Law or the Indian Arbitration Act’s definition of equality.


Unconscionability: Arbitration clauses are ultimately contractual clauses and therefore, must satisfy all the conditions for a valid contractual term. Some courts have considered UOCs to be unconscionable if the party with the restricted choice is compelled to agree to manifestly unfair terms, due to its weaker bargaining position. For such a claim to succeed, the UOC needs to satisfy two elements – Procedural unconscionability, wherein the process of reaching the agreement was riddled with oppression due to unequal bargaining power; and substantive unconscionability, wherein the contractual terms agreed upon are manifestly unfair and one-sided.

Unlike equality, a claim of unconscionability depends on the facts of the individual case. Courts across the world have generally rejected claims of unconscionability between commercial entities. This is because these entities engage in extensive contractual negotiations, which reduces the chances of establishing procedural unconscionability. Further, their agreements may include a number of imbalanced clauses, favouring either party. Invaliding contractual clauses merely because of their one-sided nature would result in invalidating a large number of clauses, which may favour one party over the other. However, in cases of consumer and employment contracts, UOCs may be found to be unconscionable if they are included as standard terms in a contract or if they prevent the other party from seeking any legal recourse altogether. Thus, claims of unconscionability of a UOC depend on the nature of the contract and the parties.

Lack of mutuality: Invalidating UOCs for lack of mutuality stems from the common law doctrine of mutuality, which states that ‘either both must be bound, or neither is bound’. In these cases, the challenge is based on the fact that the weaker party does not receive any consideration for agreeing to a UOC. Such a narrow view arises if the UOC is viewed standalone from the rest of the contract. However, Courts have looked at the contract as a whole to come to the conclusion that contractual provisions need not give parties the exact same positions. It would seem illogical to require this because the basis of a contract is that value is given to both parties. If the law required that every contractual term be exactly symmetrical, no exchanges between parties would take place. This ground has been rejected in a majority of the jurisdictions for invalidating UOCs.

Public Policy: The public policy concerns with respect to UOCs are twofold – that of the law of the arbitration agreement and that of the jurisdiction of enforcement. Public policy grounds are intrinsic to the country and can be wide-ranging. While some countries might have domestic laws that do not permit UOCs, some countries might refuse to enforce awards arising out of such clauses. In India, an arbitral award may be set aside if it is in conflict with the public policy of India. At the stage of enforcement of an award, the court shall not review the merits of the dispute and shall only set aside an award if it shocks the conscience of the court.

Indian position on Unilateral Option Clauses
The discussion of UOCs in India is polarizing and rife with legal misconceptions. The Delhi and Madras High Courts have issued the only important judgments. However, a review of the relevant cases and legal framework reveals that Indian law should support the legality of UOCs.
The Delhi High Court, in Bhatia Cutler Hammer v AVN Tubes, 1995 (33) DRJ 672 invalidated a UOC stating that a party could have an exclusive right to initiate arbitration as the Arbitration and Conciliation Act, 1996 envisaged a mutual arbitration agreement with opportunity for bilateral invocation. However, the Madras High Court relied on section 7 of the Act to state that the law did not require arbitration clauses to necessarily have mutuality and upheld the UOC in Castrol India Ltd. v. Apex Tooling Solutions. (2015) 1 LW 961 (DB). Section 7 of the Arbitration Act lists out the requirements for a valid arbitration clause. It requires an ‘agreement by the parties’, meaning that the parties should have consented to it, and not mutuality of invocation or consideration. This is in line with the Madras High Court’s reasoning. However, it is observed that the insistence of the Delhi High Court on mutuality of consideration stems from Section 25 of the Indian Contract Act, which invalidates contracts lacking consideration.  However, this issue is resolved when an arbitration agreement is viewed in the context of the whole contract, where substantive concessions and benefits may be given to the other party in exchange for the UOC. However, in the absence of a clear authority on this point, uncertainty continues to exist in this regard.

In another case, Emmsons International Ltd. v. Metal Distributors2005 (80) DRJ 256. the Delhi High Court invalidated a UOC as it restrained one party’s recourse to legal proceedings and contravened section 28 of the Contract Act. It also stated that the UOC was against public policy in India.  However, post the 2015 Amendment of the Arbitration Act, the scope of public policy has been drastically narrowed. Thus, it is doubtful if UOCs would be invalidated on such grounds anymore. Concerning the argument on Section 28 of the Contract Act, it states that agreements restraining legal proceedings are invalid. However, this provision is attracted only when there is an absolute restraint on legal proceedings and not a partial one. In cases of UOCs, the option of a party to approach arbitration does not undermine the other party’s right to approach the default forum for dispute settlement. Thus, in light of these provisions and legislative changes, Indian law seems to favour the validity of UOCs. However, caution must be exercised in the absence of an authoritative word in this regard.

Practical Steps while Dealing with Unilateral Option Clauses


Although UOCs are finding widespread acceptance internationally, there are potential legal pitfalls associated with them. Therefore, careful consideration should be paid to their inclusion and drafting. Some practical considerations to be mindful of are:

  • Always seek specialist advice about unilateral dispute resolution options, including their validity in various jurisdictions such as the law governing the arbitration agreement, the law of the seat of the arbitration and the law of the jurisdiction of enforcement of award;
  • Assess the benefits of the UOC and whether that outweighs the costs and risks associated with the option;
  • Draft the UOC precisely and clearly, and draft the arbitration and litigation aspect of the UOC as separate clauses to ensure that each of them can operate on their own, in case they are severed;
  • In case the UOC fails, make sure that the default position is acceptable and adequate;
  • The beneficiary of an option to arbitrate should avoid taking any substantive step in court proceedings before exercising the option to limit the risk of the clause becoming unenforceable. Similarly, the beneficiary of an option to litigate should avoid taking any substantive step in arbitration before exercising its option;
  • The UOC should only restrict the initiation of proceedings to one party, but should not confer any procedural advantages on one party over the other;
  • The UOC should not absolutely restrict any party from legal recourse.

Offences Related to Weight and Measures (IPC)

Introduction

The terms ‘weights’ and measurements are not defined in the Indian Penal Code of 1860, but Section 2 of the Standard of Weights and Measures Act of 1976 defines “weighing or measuring equipment” as “equipment used for measurement in terms of length, area, volume, capacity, weight, or number, regardless of whether the equipment has been constructed to give an indication of the measurements made or any other information that is determined with reference. Chapter XIII of the Indian Penal Code deals with offences relating to weights and measures.

What are the offences relating to weights and measures?

The term “Weights and measures” refers to the uniform standards that are ascribed to the quantity, capacity, volume, or dimensions of anything. The need for these standards arises for many reasons:

  • Having a standardised measurement for purposes of science, commerce and industry transactions.
  • To provide protection to the aggrieved party when they are deceived by another person to believe that a particular weight or measure is authentic when in reality it is false.

Section 264-267 of the Indian Penal Code, 1860 defines 4 types of offences that relate to weights and measures. They are:

  • Fraudulent use of false instruments for weighing (Section 264)
  • Fraudulent use of false weight or measure (Section 265)
  • Being in possession of false weight or measure (Section 266)
  • Making or selling false weight or measure (Section 267)

Section 25 of the Indian Penal Code (hereinafter referred to as IPC) states that a person is said to do something fraudulently when he does that thing with the intent to defraud but not otherwise.

The ingredients of each of the offences are as follows:

Fraudulent use of false instruments for weighing

  • Fraudulent use
  • Of any instruments for weighing
  • Which the person knows to be false

Fraudulent use of false weight or measure

  • Fraudulent use
  • Of any false weight or false measure of length or capacity OR
  • Use of any weight or any measure of length or capacity as a different weight or measure from what it is

Being in possession of false weight or measure

  • Possession
  • Of any instrument for weighing, or of any weight, or of any measure of length or capacity
  • Which the person knows to be false

Making or selling false weight or measure

  • Making, selling or disposal
  • Of any instrument for weighing, or any weight, or any measure of length or capacity
  • Which the person knows to be false
  • In order that the same may be used as true, or knowing that the same is likely to be used as true

An injury that is caused dishonestly usually includes injury which is only pecuniary in nature. However, an injury that is caused fraudulently includes injury that is not only pecuniary but non-pecuniary in nature, i.e., it includes injury caused to the body, mind, reputation and property.

Possession does not necessarily imply ownership of the weight and measurements. Thus, it is not necessary to prove the ownership of the instrument for weighing, or any weight, or any measure of length or capacity, the possession alone is sufficient.

Section 24 of the Standard of Weights and Measures Act, 1976 states that if any weighing or measuring equipment is found in the possession of any person carrying on a trade or on any premises that are used for trade that person or, the occupier of those premises shall be deemed to have that equipment in his possession for use for trade.

Punishments for the offences contained under Sections 264-267 of IPC

Cognizable offences are those in which the police officer can without a warrant, arrest the convict and start an investigation without the permission of the court. A non-cognizable on the other hand refers to those in which the police cannot arrest the accused without a warrant nor can they initiate an investigation without the permission of the court.

Bailable offences refer to those which are provided for as bailable under the First Schedule or those which are made bailable by any other law for the time being in force. Non-bailable refers to all the offences that are not considered bailable. Under bailable offences, bail is claimed as a Matter of Right while under non-bailable offences it is claimed as a Matter of Discretion.

Fraudulent use of false instruments for weighing (Section 264)

The classification of this offence is non-cognizable and bailable. Any Magistrate can try a case under this Section. Under this Section, a person may be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

Fraudulent use of false weight or measure (Section 265)

The classification of this offence is non-cognizable and bailable. Any Magistrate can try a case under this Section. Under this Section, a person may be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

Being in possession of false weight or measure (Section 266)

The classification of this offence is non-cognizable and bailable. Any Magistrate can try a case under this Section. Under this Section, a person may be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

Making or selling false weight or measure (Section 267)

The classification of this offence is cognizable and non-bailable bailable. Any Magistrate can try a case under this Section. Under this Section, a person may be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both. Thus, while the punishment for all the offences under Section 264-267) is the same, the classification of the offences contained under Section 264-266 is that of being non-cognizable and bailable but the offence under Section 267 is classified as a cognizable and non-bailable offence.

In addition to criminal culpability under the IPC, the Consumer Protection Act of 2019 provides a civil remedy in the form of compensation. According to Section 2 of the aforementioned Act, “unfair trade practice” refers to any trade practice that, for the purposes of selling, using, or supplying any goods or providing any service, employs any unfair method or deceptive practice, including falsely representing that the goods or services are of a particular standard, quality, quantity, grade, composition, style, or model.

Section 22(3) of the Standard of Weights and Measures Act of 1976 also states that if any of the Act’s provisions are violated, the offender faces a fine of up to 2,000 and imprisonment for up to one year, or both.

Important case Laws

Emperor vs Kanayalal Mohanlal Gujar, (1939) 41 Bom LR 977

In this case, it was determined that purpose is a necessary component of the Section 264 offence. It involves two things: (1) the fraudulent use of any fake weighing device, and (2) knowledge that it is false. In this and subsequent parts, the term ‘false’ refers to anything other than the instrument, weight, or measure that the offender and the person cheated have agreed upon, expressly or implicitly, in their mutual dealings. Where the vendor and customer agreed to use a certain measure for a commodity offered, it was determined that even though the measure was not standardised, it was not ‘false’ and there was no fraudulent intent in this case.

Hamirmal Case (1890) Unrep Cr C 514.

The mere presence of forged weights and measures does not raise a strong suspicion of fraud. It is necessary to demonstrate that the accused was aware of the scales’ falsity and intended to use them fraudulently.

Bansidhar vs the State of Rajasthan AIR 1959 Raj 191

In this case, the applicant had two sets of weights, one of which was lighter than the specified weight. In this case, the court determined that the applicant had the weight with the intent to defraud. The fact that the bogus weights were discovered buried beneath a bag on which the accused had been seated suggested that he was actively fooling his customers. The accused was in possession of the fraudulent weights, knowing they were false and intending to use them to defraud others, according to the Court.

Conclusion

The Standard of Weights and Measures Act of 1976 allows for the regulation of weights and measures-related trade and commerce, as well as inspections to prevent the use of fraudulent techniques. The Legal Metrology Act of 2009 also provides for the enforcement of weights and measures standards, as well as other items sold or supplied by weight, measure, or number.

Guidelines For Appointing “Support Persons” For Victims Under The POCSO Act Are Issued By The Supreme Court

Bachpan Bachao Andolan v. Union of India WP C. No. 427/2022

The Supreme Court on Friday(Aug 18), passed an order relating to the appointment of support persons under the POCSO Act and their qualifications. The Court issued directions for framing guidelines on their appointment. It is pertinent to note that POCSO Rules, 2020 define a ‘support person as “someone assigned by a child welfare committee to render assistance to a child during the process of investigation and trial, or any other person assisting a child pre-trial or during the process of a trial pertaining to the offences under the POCSO Act, 2012.”

Key Directives by the Supreme Court include-

1. Reporting Mechanism Establishment: The Authorities are mandated to establish a robust and effective reporting mechanism.

2. Standard Operating Procedure (SOP): The Court emphasized the creation of a meticulous SOP to guide the reporting process. This SOP should be shared with Juvenile Justice Boards and Child Welfare Committees to ensure uniformity in response.

3. Role of Support Persons: The court recognized the challenging nature of victim interactions, especially in hostile environments.

4. Remuneration of Support persons to be commensurate with Qualification and Experience: While the rules stipulate payment for support persons akin to skilled workers, the Supreme Court has highlighted the need for remuneration to be aligned with qualifications and experience.

5. Model Guidelines and Precedent Consideration: “For framing of guidelines, Model guidelines prepared prior to POCSO rules may be considered,” the court said.

6. Comprehensive Victim Support: The Supreme Court observed that justice transcends apprehending the culprits; it is equally important to ensure victims receive proper care, support, and security throughout the entire legal process.

7. Role of Support Institutions: Stressing the vital role of support institutions, the court emphasized that true justice is achieved when victims are reintegrated into society with their dignity and worth restored.

8. State’s Responsibility for Implementation: After the establishment of POCSO Rules, 2020, it falls to the state to be the main stakeholder in ensuring the strict implementation of these directives.

Rape can be proved even if there is no injury to genitals or semen stains

The word rape is derived from the Latin term rapio, which means to seize. Thus, it literally means a forcible seizure and that is the essential characteristic feature of the offense. In common parlance, it means intercourse with a woman without her consent by force, fear, or fraud

Sec.375 of IPC explains that Rape is “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation, or fraud or at a time when she has been intoxicated or duped or is of unsound mental health and in any case if she is under 18 years of age.”

Ingredients Of The Offence Of Rape:

The following are the essential ingredients of the offence of rape

  1. There must be sexual intercourse with a woman by a man;
  2. Such sexual intercourse should be under any of the following circumstances:
    1. Against her will
    2. Without her consent,
    3. With consent obtained under fear of death or hurt,
    4. With consent given under the misconception of the fact that the man is her husband but the man knows that he is not her husband,
    5. Consent is given because of unsoundness of mind, intoxication, or under the influence of any stupefying or unwholesome substance,
    6. With a woman under 16 years of age with or without consent.

Under the Criminal Law (Amendment) Act, 1983, Section 375 inserted a new clause fifthly dealing with consent because of unsoundness of mind or intoxication, besides the addition of words or any person in whom she is interested in clause thirdly; and thus the scope of Section 375 IPC has been widened.

The High Court of Jammu & Kashmir and Ladakh recently observed that the offence of rape can be established even if there is no injury to the genitals of the survivor or semen stains left behind by the accused. [Bodh Raj v. State of Jammu and Kashmir & Ors.]

Justices Sanjay Dhar and Rajesh Sekhri also noted that a medical expert treating a rape survivor can only certify if there is any evidence of recent sexual activity and they cannot have a final say on whether the offence of rape has been committed.

That is the task of the courts, the High Court underlined.

“Rape cannot be diagnosed by a doctor. A medical expert treating a rape survivor can only certify any evidence of recent sexual activity. It is none of his business to opine whether rape is committed or not. Rape is a judicial determination,” the Court said.

The judges explained that since rape is a crime, it is only for a court to determine whether rape within the meaning of Section 375 of the Indian Penal Code is made out or not, the bench said.

“Offence of rape can be established even without producing any injury to the genitals or leaving any seminal stains,” the bench added.

The High Court observed while dismissing an appeal filed by one Bodh Raj who was convicted for the rape of his one-year-old granddaughter.

On a medical examination, a doctor found that the child’s hymen had been torn and there were fresh injuries on her genitals. The doctor had initially opined that it could be a sexual assault, although other possibilities could not be ruled out.

Among other contentions, Raj’s counsel argued that the absence of any clear-cut opinion and semen stains cast doubt on the prosecution’s case against Raj.

However, the doctor later testified that the injuries on the child indicated that she was sexually assaulted and that there was penetration.

The High Court ultimately upheld the conviction and life imprisonment sentence imposed on Raj.

“The doctor has opined that given the injuries found on the victim, it was surely a case of penetration. In such circumstances, absence of seminal stains pales into insignificance and would not come to the rescue of the appellant,” the Court observed.

Riot / Rioting Sec 146-148

Definition of Rioting

Section 146. Rioting

Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.

Section 148. Rioting armed with deadly weapon

Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Section 147. Punishment for Rioting

The section states that anyone who participates in a riot can be punished with imprisonment for up to two years, or with a fine, or with both.

Rioting is defined as the criminal behavior of five or more people acting jointly to attain an illegal shared goal by force or violence in Section 146 of the IPC. Each and every participant is held accountable for the riot because it was primarily devoted to further a common goal. The accused would be entitled to an acquittal if the prosecution failed to prove that they shared a same goal.

Essential Ingredients of Roiting

  1. Assembly of 5 or more person shall be unlawful;
  2. They were animated by a common unlawful object;
  3. Force or violence was used by unlawful assembly or any member thereof;
  4. That such force or violence was used in the prosecution of their common unlawful object.

Liability of owner of land on which Riot takes place

Sec.154-156 deals with constructive liability on the person for whose benefit riot takes place. Sec.154 imposes criminal liability on the owner or occupier of land on which unlawful assembly is held.

Section 154. Owner or occupier of land on which an unlawful assembly is held.—

Whenever an unlawful assembly or riot occurs, the owner or occupant of the land on which such unlawful assembly or riot is being held, and having an interest in or claiming to own such land Any person who does so shall be subject to a fine of up to 1 million yen. Any person or agent acting on behalf of a senior officer if he or she knew that such violations were being committed or had been committed or had reason to believe that such violations were likely to be committed; The person or supervisor shall be fined Rs.1,000. Please report to the nearest police station as soon as possible and if you have reason to believe that the action is about to take place, do not use any lawful means to stop the action. All legal means at your disposal to disperse or suppress a riot or unlawful assembly.

Section 155. Liability of person for whose benefit riot is committed.—

When the riot takes place for the benefit of or on behalf of a person who is an owner or resident of, or has a right to be the subject of, that land or the riot is connected to the place where the riot is taking place; At any time, a person who initiates a riot, or who accepts or derives any benefit from a riot, that such person or his or her agent or manager is likely to have committed such a riot, or A fine shall be imposed if there is reason to believe that there has been misconduct. If there is a possibility that such a rally or riot may occur, even if it is a rally that caused such a disturbance, use all legal means to prevent the holding of such a rally or riot or suppress or suppress it. must not. 

Section 156. Liability of agent of owner or occupier for whose benefit riot is committed.—

Whenever an insurrection takes place in or for the benefit of any person who is the owner or resident of the land on which the insurrection is taking place or has a right to an interest in such land or the subject matter of the insurrection. If there is reason to believe that such rioting is likely to have occurred or that an illegal assembly has taken place, the person’s representative or manager shall be fined if they cause such dispute. The country in which such riots occur will not use all authorized and lawful means to prevent, suppress or disperse such riots or gatherings. 

Precisely and simply, section 154 requires the owner or occupant of land on which an unlawful assembly or unlawful riot has occurred to have his servants or managers failure to take appropriate legal action. Failing to notify the authorities of an illegal assembly or an occurrence of an illegal assembly or riot on land owned by its owner or occupant; . These failures can be further elaborate as-

  1. Failure to provided the earliest information to principle officer of the nearest police station.
  2. Intentional failure
  3. Failure to take adequate legal measures on its own to suppress or disperse or prevent riot or unlawful assembly

Here, as provided owners liability does not depend upon Servant or manager intention or act.

An individual may be held accountable for the crime of rioting with a dangerous weapon upon the proof of the aforementioned conditions. According to Section 148 of the Indian Penal Code, 1860, the penalty for this offense is a term of up to three years in jail, a fine, or both.

The accused may be found guilty of the crime of rioting with a dangerous weapon if the prosecution can establish these factors. It is crucial to remember that in order for an offense to be established, the use of a weapon must be deliberate and not accidental.

UNNATURAL OFFENCES

The word ‘unnatural’ means contrary to nature, abnormal but not spontaneous.  ‘Voluntarily’ requires that unnatural offence must be accompanied by intention. As the word ‘Carnal’ implies something relating to the physical, especially the sexual needs and the activities

According to Section 377, which deals with unnatural offenses, anybody who voluntarily engages in sexual intercourse with any man, woman, or animal in violation of the natural order will be punished with either type of imprisonment for a duration that may last up to ten years and will also be required to pay a fine. During the British control of India, section 377 of the IPC was first adopted in 1862. Prior to that, there were no rules governing sexual relations in India. It is forbidden to act against native authority. Section 377 of the IPC, which relates to homosexuality generally and is not just a legislation involving ANAL SEX, turns gays into criminals.

Infractions against nature are regulated by section 377 of the IPC. According to Section 377 of the IPC, “whoever voluntarily engages in carnal intercourse with any man, woman, or animal against the order of nature shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine.”

ESSENTIALS TO UNNATURAL OFFENCES

  1. There must be “voluntary carnal intercourse.”
  2. It must be “against the order of nature – it may be with any man or woman or animal.”
  3. There must be a presence of “penetration.”

*if these essential are met then that particular act is offensive under section 377 of IPC.

What is the amendment for unnatural Offences?

Section 377 refers to unnatural offence and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animals, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to pay a fine.

IMPLICATIONS OF SECTION 377 OF IPC

The idea of sex without the possibility of conception has been used for the last 140 years to characterize homosexuality as a perversion, as an abhorrent crime, results of a perverted mind etc. The judicial understanding of section 377 only legitimises and reinforces state power to persecute and harass those of an alternative sexual identity.

The real danger of section 377 lies in the fact that it permeates different social settings including the medical establishment, media, family and the state. Thus it becomes a part of the ordinary conversations and ultimately of the overall social fabric. This creates an environment where violence against queer people acquires a legal sanctity. Section 377expresses deep social repugnance towards queer people and provides the fig leaf of legitimacy for the harassment of queer people by friends, family as well as other societal and governmental institutions.

The criminalization of homosexuality, by condemning into perpetuity an entire class of people forces them to live their lives in a shadow of harassment, humiliation, and degrading treatment at the hands of the law enforcement machinery, further denying them the right to a full moral citizenship.

Types of unnatural sexual offences

As we know, unnatural sexual offences have been present in our society since time immemorial. It is important to know and understand the types of unnatural sexual offences. These are the following:

  • Tribadism/ Lesbianism
  • Bestiality
  • Sodomy/ Buggery

Tribadism/ Lesbianism

It refers to homosexuality in women. Women who are attracted to other women romantically or sexually are referred to as lesbians. Tribadism is the practice of engaging in sexual activity with another woman or another individual who has vulvae. Tribadism is viewed as being outside the order of nature and hence falls under the category of unnatural sexual offences. Sexual encounters are often between a man and a woman.

Bestiality

It refers to carnal intercourse between a person and an animal. Under this type too, there is an act that is considered against the order of nature and, thus, not legal.

Consent also plays a significant part in this type. Communication and ability to consent are thought to be the two components of consent. Neither of these two components is listed under bestiality. The animals are incapable of verbally expressing their assent and lack the capacity to do so. We do not take a person’s lack of capacity to offer permission into account when it comes to humans. In a same vein, permission cannot be regarded as legal in this situation.

Sodomy/ Buggery

Sodomy is described as any sexual penetration that is not vaginal. Laws against sodomy typically target gay men. Nowadays, the term “sodomy” often refers to anal sexual activity, which is comparable to rape, between two men, a man and a woman, or a man and a child, either male or female. This behavior is also viewed as a violation of nature’s order and a sexual offense under the law.

Conclusion 

For many years now, unnatural sexual offenses have been in the news. The laws have been given several different interpretations, and their scope has also been researched. There is still a need to draft clauses that are explicit about the scope of the operation. Nevertheless, a lot of things have become evident since the Navtej Singh Johar ruling, and the Supreme Court has granted the LGBTQ community a number of rights. An important factor in determining whether an act is constitutional or not has been identified as consent. My opinion is that the word “penetration” restricts the section’s applicability and leaves many offenses with murky legal definitions.

Joint liability under IPC

When two or more people come together to commit a crime, each of them will be held accountable as though they had each committed the crime on their own. Under IPC, this is referred to as the joint liability principle. A criminal act must be committed by two or more people with a shared intention and a sense of prior arrangement for it to fall within the umbrella of the principle of joint culpability.

The fundamentals of this joint liability principle are covered in Sections 34 and 149. In fact, Section 34 states that everything done with intent by two or more people will be regarded as having been done by them individually if done together. When people get together with the aim to complete an agreed-upon task, each person becomes responsible for the conduct of the other parties; because they have the same goal, they must share the same responsibility.

Section 34 of the IPC

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

From the Above reading, we can conclude that if the common intention leads to the commission of a crime each one of the persons sharing the common intention is constructively held liable for the criminal offense done by one or more of them.

Essential Elements to apply the principle of Joint liability

To attract the principle of joint liability there have to be the following necessary elements in the case

  1. there should be a criminal offense
  2. involvement of two or more persons in the above-stated criminal act
  3. presence of a common intention

There are a few other elements that should be seen as per the situation and circumstances of the case

  • Pre-arranged plan
  • Participation
  • Physical presence

Pre-arranged plan: indicates a prior agreement or gathering of the minds, i.e., the accused should have met separately and talked about their shared objective. Each of them was aware of the crime before committing it. It is possible, though, for the accused to create a shared intention on the spot even though they had never met before the crime was committed.

Application of Section 34

In terms to discuss the applicability of Section 34, the scope of the liability was to be decided first. The courts required sincere guidelines to decide whether section 34 is applicable to a certain case or not.

A systematic approach to apply section 34 was provided in the famous case of Mahboob Shah Vs Emperor.

For the application of section 34, the following principles were laid down by the court in the Mahboob Shah Vs Emperor.

  1. According to Section 34 of the Penal Code, the essential element of liability is the existence of a Common intention that drives the accused and results in the commission of a crime.
  2. For the application of section 34, there must be a criminal act that has been carried out by one of the accused in furtherance of the common intention. In such a situation the liability for the crime may be imposed on any one of the persons in the same manner as if the acts were done by him alone.
  3. Common intention, as defined by section 34, implies a pre-arranged plan.
  4. In order to convict the accused of an offense under section 34, it must be shown that the unlawful act was carried out in accordance with the concerted or pre-arranged plan.
  5. When the intention of an individual cannot be proved directly from the evidence then, the intention of that individual must be inferred from the conduct and relevant circumstances of the case.
  6. A proper distinction must be done between ‘similar intention’ and ‘common intention’ before concluding the case. Similar intention may vary from common intention drastically according to the circumstances of the case.
  7. Inference of common intention should be drawn only when there is a certain degree of assurance and it is a necessary inference deductible from the circumstances of the case.

Supreme Court’s comment on the application of Section 34.

In Suresh V. State of U.P., the Supreme Court held that the accused must have taken some action that has a connection to the offense in order to attract the application of section 34 of the I.P.C. If the defendant does not try any act at the scene but keeps the common intention in mind, he or she is not liable under section 34.

The Court held that it is even if the person is guarding the scene of the crime to facilitate other accused, it will be enough to be booked under section 34. The act need not be overt, it would be enough if it is only a covert act provided that such act is proved to have been done by the co-accused in the furtherance of the common intention.

Hurt (Section 319-338)

Hurt (Section 319): This section does not define the offence of causing hurt. It defines only the term ‘hurt’. Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.

When is a Person said to have Caused Hurt Voluntarily?

In according to section 323 of the Indian Penal Code, anyone who engages in conduct knowing that it may result in injury to another person is guilty of voluntarily causing harm, with the exception of situations covered by section 334 (voluntarily causing harm on provocation). Let’s use an illustration to better recognize this.

In one instance, the man fatally struck his wife with an iron rod weighing around 200 grams while they were having a heated fight. According to the medical data, the victim had a straightforward injury that was not capable of ending his or her life. Due to the fact that the accused did not intend to kill the victim but rather to intentionally harm him or her, the accused was only held accountable in this case for intentionally inflicting bodily harm.

In a case where the accused pushed a person’s chest, causing them to fall to the ground and die, the court determined that the accused did not intend to kill the victim and only found him liable under section 323 of the IPC for intentionally inflicting harm.

Thus, “intention to cause harm” and “knowledge that the act is likely to cause harm” are the two prerequisites for section 321 of the IPC. According to the Indian Penal Code, a person cannot be charged with intentionally inflicting harm if they did not have the necessary information and/or intent when they committed the conduct.


To constitute hurt (battery under English Law) any of the
following essentials needs to be caused:-

  1. Bodily pain, or
  2. Disease, or
  3. Infirmity to another.
  1. Bodily Pain
    There need not be any direct physical touch in order to damage someone. Whatever the means used to generate it, it hurts when an act’s immediate effect is the infliction of bodily pain. It is physical pain, not mental suffering, that defines hurt. In the absence of an intention to cause death, or grievous bodily hurt, where a person died as a result of two kicks on the abdomen, the accused was held guilty of causing hurt only. [In re Marana Goundan AIR 1941 Mad 560 Dragging a person by hair or fisting him falls under this section.

In the State vs Ramesh Dass on 22 May 2015 in a hospital, passing through the corridor, in the new surgical block location, an unknown public individual came from the front and attacked the woman. That individual pulled her hair and threw her to the ground. He hit her on her head together with his hand. Accused was convicted for the offences under Section 341 and 323 of the IPC and acquitted for the offence under Section 354 of the IPC.

2. Disease
A person would be guilty of injury if they spread a specific ailment to another. The Bombay High Court held in Raka v. Emperor 1887 ILR 11 Bom 59 that a prostitute who had a sexual relationship with the complainant and thus transmitted syphilis was liable under section 269 of the IPC for spreading infection and not for causing harm because the time between the act and the disease was too long to be covered by sections 319 and 321 of the IPC. In Raka vs. Emperor, the accused was a prostitute and she inflicted syphilis to her customers. It was held that accused, the prostitute was liable under Section 269 of IPC- negligent act likely to spread infection of any disease dangerous to the life of another person.

3. Infirmity denotes an unsound or unhealthy state of the body.

It refers to an organ’s temporary or permanent incapacity to carry out its typical function. It indicates frenzy, fright, or a momentary mental impairment.Brahmanand Sarupananda v. Jashanmal Jhamatmal (AIR 1944 Sind 19)
harm resulting in Death: The accused will only be found guilty of “hurt” if the injuries were not significant in nature and there was no intent to cause death or knowledge that death was likely to be caused.AIR 1941 Mad 560, In re Marana Goundan

Hurt resulting in Death: Where there is no intention to cause death, or no knowledge that death is likely to be caused, and death is caused, the accused will be guilty of ‘hurt’ only if the injuries are not serious in nature.

Is IPC 323 bailable or not?

Hence, IPC 323 states the prescribed punishment which leads to imprisonment for 1 year or with the fine depending upon nature and gravity of the offence committed. The act also states that offence committed is a Non-cognizable and bailable offence, which is triable by any Magistrate.

When Hurt is Caused Voluntarily using Dangerous Weapons or Means

Unless specifically exempted by Section 334, anyone who intentionally injures another person by using a weapon that can be used to shoot, cut, or otherwise cause death, by using fire or a heated substance, by using a poison or corrosive substance, by using an explosive substance, by inhaling, ingesting, or otherwise exposing themselves to a substance that is harmful to human health, is guilty of a misdemeanor..

Punishment: Whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Voluntarily Causing Hurt using Acid

According to Indian Penal Code Section 326A, “Whoever makes changeless or halfway harm or distortion, or consumes, or mutilates, or distorts, or cripples, any part or parts of the body of an individual, or causes offensive hurt by tossing corrosive on or by regulating corrosive to that individual, or by using some other methods with the expectation of causing or with the knowledge that he is probably going to cause such hurt, will be reb.


“According to Section 326B of Indian Penal Code,” Whoever tosses or endeavors to toss corrosive on any individual or endeavors to control corrosive to any individual, or endeavors to utilize some other methods, with the aim of causing lasting or fractional harm or deformation or distortion or inability or grievous hurt to that individual, will be rebuffed with detainment of either depiction for a term which will not be under five years yet which may reach out to seven years, and will likewise be subject to fine.”

Section 357B of Code of Criminal Procedure 1973 sets down, ” The remuneration payable by the State Government under Section 357A will be notwithstanding the payment of fine to the unfortunate casualty under Section 326A or Section 376D of IPC. Section 357C of Code of Criminal Procedure 1973 sets out, “All emergency clinics, public or private, regardless of whether run by the Central Government, nearby bodies or some other individual, will quickly give the emergency treatment or therapeutic treatment, free of cost, to the casualties of any offense secured under Section 326A, 376, 376A, 376C, 376D or 376E of IPC and will promptly educate the police about such an incident.

Recently included seventh provision of Section 100 of the IPC sets out that the privilege of private barrier of body stretches out to deliberately causing death or of some other damage to the attacker in the event of a demonstration of tossing or managing corrosive or an endeavour to toss or regulate corrosive which may sensibly cause the dread that terrible hurt will generally be the result of such act. For the first time remuneration was given to corrosive unfortunate casualty on account of Laxmi v UOI. In Morepally Venkatasree Nagesh v State of AP, the accused was suspicious about the character for his significant other and emptied mercuric chloride into her vagina, she later kicked the bucket because of renal disappointment. The accused was charged under Section 302 and 307 of the IPC. In the State of Karnataka by Jalahalli Police Station v Joseph Rodrigues, one of the most popular cases including corrosive assault. The accused tossed corrosive on a young lady named Hasina for declining his employment bid. Because of the corrosive assault, the shading and presence of her face changed which left her visually impaired. The accused was convicted under Section 307 for IPC and condemned to detainment forever (life imprisonment). Remuneration of Rs 2,00,000 notwithstanding Trial Court fine of Rs 3,00,000 was to be paid by the accused to the guardians for the victim. The above-mentioned cases are obvious of the brutal repercussions looked by the unfortunate casualties because of the corrosive assaults. The administration is still in the quest for stringent measures.

When Hurt is Caused Voluntarily due to Sudden Provocation

As stated above, voluntarily causing hurt is a punishable crime under section 323 of the Indian Penal Code. However, if hurt is voluntarily caused due to grave and sudden provocation as provided for under section 334 of the Indian Penal Code, the offender will be legally responsible under section 334 and not under section 323 of the Indian Penal Code and will be liable to be punished with imprisonment of one month along with fine of Rs. 500.

What is the Punishment under Section 323?

When a person commits an offence of voluntarily causing hurt as mentioned under section 321 of IPC, he will be liable to be punished for a term up to 1 year and fine which may extend up to Rs. 1000. The extent of punishment under this section will depend upon the seriousness of the offence.

What is the Trial Procedure in a Section 323 case?

The trial procedure for a case instituted under Section 323 of IPC is similar to that of any other criminal case. The procedure is as follows:

1. First Information Report: A FIR, or First Information Report, is filed in accordance with Section 154 of the Code of Criminal Procedure. The case is started with a FIR. A FIR is information about an offense that has been committed that has been provided to the police by someone who is upset.

2. Investigation: The investigating officer’s probe comes after the FIR has been filed. The investigating officer draws a conclusion after carefully examining the relevant facts and circumstances, gathering relevant evidence, questioning witnesses, obtaining written statements from them, and taking all other steps required to wrap up the investigation. This conclusion is then submitted as a police report to the magistrate.

3. Charges: If the offender is not exonerated after taking into account the police report and other crucial documents, the court sets the charges to be used in his trial. The charges in a warrant case ought to be put in writing.

4. Plea of guilty: Following the formulation of the charges, the accused is given the chance to enter a plea of guilty, and it is the judge’s job to ensure that the plea of guilt was entered voluntarily. This is covered in Section 241 of the Code of Criminal Procedure, 1973. The judge has the discretion to find the accused guilty..

5. Prosecution evidence: The court orders the prosecution to present evidence to support the accused’s guilt after the charges are filed and the defendant enters a not guilty plea. The prosecution must provide statements from its witnesses to back up its evidence. “Examination in chief” is the name of this procedure. Any person may be summoned as a witness or required to present any document by the magistrate.

6. Statement of the accused: Section 313 of the Criminal Procedure Code gives an opportunity to the accused to be heard and explain the facts and circumstances of the case. The statements of accused are not recorded under oath and can be used against him in the trial.

7. Defence evidence: The accused is given the chance to appear in court if he is not being exonerated in order to provide evidence in support of his defense. Both oral and written evidence may be offered by the defense. Since the burden of proof in India rests with the prosecution, the defense is typically not required to provide any defense evidence..

8. Judgment: Judgment is the final ruling of the court that includes the grounds for the accused’s acquittal or conviction. The prosecution is granted time to file an appeal against the court’s decision in the event that the accused is exonerated. After the defendant has been found guilty, both parties are invited to present their cases regarding the appropriate sentence. This typically occurs after a conviction for a crime carrying a life sentence or the death penalty..

OFFENCES BY OR RELATING TO PUBLIC SERVANTS

The Sections areas 161 to 165 A (both in conniving) have been excluded by Section 31 of the Prevention of Corruption Act, 1988. By The Criminal Law Amendment Act, 2013, new sections 166 An and 166 B have been embedded in Indian Penal Code w.e.f. second April 2013

We don’t care for heading off to an administration office or managing a public servant due to their laid back mentality, red-tapism, debasement, organization, and the list goes on. We should know the cures that are accessible to us if a local official hits or affront us. Be that as it may, before knowing the system and cures accessible to an individual against a public servant.

Who Is A Public Servant?

Public Servant’ has been characterized in the Indian Penal Code and this definition is an exhaustive one.

  • Each Commissioned Officer in the Military, Naval or Air Forces of India
  • Each Judge including any individual engaged by law to release any adjudicatory capacities;
  • Each official of a Court of Justice (counting a liquidator, collector or magistrate);
  • Each juryman, assessor, or individual from a panchayat assisting a Court of Justice or local official
  • Each arbitrator or others to whom any reason or matter has been alluded for choice or report by any Court of Justice, or by some other skilled public power;
  • Each individual enabled to keep another in confinement;
  • Each official whose obligation is to forestall offenses, give data of of fences, deal with wrongdoers, or ensure the general wellbeing, security, or convenience;
  • Each official is enabled to direct elections.[2]

Section 166: Public worker resisting of Disobeying law, to make injury to any individual

Whoever, being a Public servant, purposely ignores or disobeys any instruction of the law concerning how he is to behave as such public servant, expecting to cause, or realizing that it generally will be likely that he will, by such disobedience, cause injury to any individual, will be punished  with straightforward detainment for a term which may reach out to one year, or with fine or both.

Classification Of Offence

  • Punishment-Simple Detainment of 1 year, or fine, or both
  • Non-cognizable
  • Bailable-Triable by Magistrate of the First Class
  • Non-compoundable.

Section 166A Public servant disobeying direction under law

Whoever, being a Public Servant:

intentionally resists any course of the law which denies him from requiring the participation at wherever of any individual with the end goal of examination concerning an offense or some other, or

Intentionally defies, to the partiality of any individual, some other course of the law directing how he will lead such examination, or

Neglects to record any data given to him under sub-section (1) of section 154 of the Code of Criminal Procedure, 1973, corresponding to cognizable offense culpable under section 326A, section 326B, section 354,354B,370,370A, 376, 376A,376B,376C,376D,376E or section 509,

Will be punished with thorough detainment for a term which will not be under a half year however which may stretch out to two years, and will likewise be obligated to fine

Characterization Of Offence

  • Punishment -Imprisonment for a half year which may reach out to 2 years and fine
  • Cognizable Bailable-Triable by Magistrate of the First Class
     

166B. Punishment for Non-Treatment of Victim

Whoever, being accountable for a Hospital, public or private, regardless of whether run by the Central Government, the State Government, neighborhood bodies, or some other individual, contradicts the arrangements of Section 357C of the Code of Criminal Procedure, 1973 will be Punished with detainment for a term which may reach out to one year or with fine or with both.

Characterization Of Offence

  • Punishment -Detainment for 1 year or fine or both
  • Non-Cognizable Bailable-Triable by Magistrate of the first class.

167. Local officials surrounding a wrong document with a plan to cause injury.

Whoever, being a Public Servant, and being, as such local official, accused of the readiness or interpretation of any record, outlines or deciphers that document in a way which he knows or accepts to be inaccurate, proposing consequently to cause or realizing that it generally will be likely that he may in this way cause injury to any individual, will be punished with the detainment of either depiction for a term which may stretch out to three years, or with fine, or with both.

Categorization Of Offence

Punishment-Imprisonment for a long time, or fine, or both

  • Cognizable-Bailable-Triable by Magistrate of the first class
  • Non-compoundable.

168. Public Servant unlawfully captivating in exchange.

Whoever, being a Public Servant, and being lawfully bound as such community worker not to participate in the exchange, takes part in the exchange, will be punished with basic detainment for a term which may extend out to one year, or with fine, or with both.

Categorization Of Offence

Punishment-Simple detainment for 1 year, or fine, or both-non-cognizable-Bailable-Triable by Magistrate of the first class

  • Non-compoundable.

169. Public Servant unlawfully engaging in trading

Whoever, being a public servant, and being legitimately bound as such local official, not to buy or offer for certain property, buys or offers for that property, either in his name or for the sake of another, or mutually, or in shares with others, will be punished with basic detainment for a term which may reach out to two years, or with fine, or with both; and the property, whenever bought, will be seized.

Categorization Of Offence

Punishment -Simple detainment for a long time, or fine, or both and appropriation of property, whenever bought-Non-cognizable-Bailable-Triable by Magistrate of the first class -Non-compoundable.

170. Personating a Public Servant.

Whoever proclaims to hold an office as a Public Servant, realizing that he doesn’t hold such office or erroneously personates some other individual holding such office, and in such expected character does or endeavors to do any demonstration under the shade of such office, will be punished with the detainment of either portrayal for a term which may reach out to 2 years or with fine, or with both.

Characterization Of Offence

Punishment -Imprisonment for a long time, or fine, or both-Cognizable-Non-bailable-Triable by any Magistrate-Non-Compoundable.

171. Wearing garb or conveying token utilized by public servants with the fraudulent aim.

Whoever, not having a place with a specific class of Public Servant, wears any attire or conveys any token taking after any clothing or token utilized by that class of public servant, with the goal that it might be accepted, or with the information that it is probably going to be accepted, that he has a place with that class of public servant, will be punished with the detainment of either portrayal for a term which may reach out to a quarter of a year, or with fine which may stretch out to 200 rupees, or with both.

Categorization Of Offence

Punishment-Imprisonment for 3 months, or fine of 200 rupees, or both-Cognizable-Bailable-Triable by any Magistrate-Non-compoundable.

Section 197 Of Criminal Procedure Code 1973

Under Section 197 of the Criminal Procedure Code (Cr.PC), no court should take cognizance of criminal allegations against a Public Servant except if past assent to indict him is gotten from a capable power. This shield is intended to help public servant play out their obligations genuinely unafraid of the malignant indictment. Be that as it may, the arrangement has generally become a stratagem to defer prosecution in cases of corruption.

Landmark Cases

  • In State of Gujarat v. Mahesh Kumar Dhirajial Thakkar A.I.R. 1980 S.C. 1167.The respondent had gone into a concurrence with the Railway Administration not to lock in in exchange, business or profession, however for the sole motivation behind getting preparing, so that on the finish of the preparation, he could be utilized by the Railway Administration. The simple truth that he was paid an allowance during the preparation time frame, as a student, didn’t make him a representative of the Railway Administration.

    Undoubtedly, C. 17 of the arrangement scheduled in clear terms that the Railway Administration didn’t tie itself to utilize him on the consummation of the preparation. It was held that the demonstration of the blamed respondent didn’t add up to participating in the exchange. Regardless of whether the more extensive understanding was to be put on “trade” in Sec. 168, Indian Penal Code, the commitment of the respondent as an understudy learner would not bring him inside.
     
  • Veli Bhai Marji v. State A.I.R. 1963 Guj. 145 at p. 146:
    For a situation falling under Sec. 161 of the Penal Code or under Sec. 5 (1) (d) of the Prevention of Corruption Act, an offense hereunder is finished when an illicit gratification is acknowledged by an accused individual.

     
  • The Court saw that S. 197 CrPC unmistakably demonstrates that the arrangement is compulsorily material to every one of those people who is or was a local official at the hour of the commission of the offense and alluded to State of Orissa v. Ganesh Chandra Jew.
     
  • The Court inferred that the whole indictment started by the State is terrible in law by the resistance of the obligatory prerequisite under Section 197 CrPC was awful in law expressing that letting the solicitor go through the injury of preliminary now would be an unnatural birth cycle of equity and maltreatment of cycle of law. As needs are, the request was permitted and the procedures against specialist subdued. [Dr. R.K. Gupta v. State of Chhattisgarh, 2017 SCC OnLine Chh 198, settled on 15.02.2017]
     

Wrongful Restraint

Meaning :

An individual’s freedom can be restricted without their consent. Keeping a man from traveling from one location where he has a right to be and wishes to go to another is considered wrongful Restraint. A man being prevented from moving in a direction he chooses and has the right to move is considered to be exercising .

Definition

Section 339 of Indian Penal Code defines wrongful restraint – whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person .

The expression ‘Wrongful restraint’ means “infliction of a bodily restraint upon the freedom of a person”. If the restraint is partial, it is called wrongful Restraint and is an offence under Sec 339 I.P.C. If the restraint is total it is called ‘Wrongful Confinement” and is an offence under I.P.C Sec. 340. To Constitute Wrongful restraint physical obstruction or presence of the accused is not necessary. Mere words would constitute the offence. There must exist imposition of bodily restraint upon the freedom of a person. Such restraint must be partial and to prevent the ordinary movements of the person.

Illustration :

Amar obstructs a path along which Ram has a right to pass. Amar not believing in good faith that he has a right to stop the path. Ram is thereby prevented from passing. Amar wrongfully restrains Ram.

Essentials :

1) A person causes to obstruction to any person

2) Such obstruction is caused voluntarily

3) The obstruction must be such as to prevent that person from proceeding in any direction in which he has right to proceed.

If obstruction is made in good faith and the accused believes himself to have a lawful right to obstruct, no offence is committed, A person is justified in obstructing another from entering into a private way, over land or water, over which he has a legal right obstruct.

Punishment for Wrongful Restraint (Section 341)

Whoever wrongfully restraints any person shall be punished with simple imprisonment for a term which may extend to one month, or which fine may extend to five hundred rupees ,or with both.

Exception –

The obstruction of a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this section 339.of I.P.C

Sobha Rani Vs. The King,1950 Cr. L.J 668 The accused, a landlord obstructed/ prevented the tenant from using the bath room. The accused was held guilty of wrongful restraint under Sec.339.

In the case of State of Gujarat vs. Keshav Lai MaganbhaiGujoyan (1993 CrLJ 248 Guj), it was discussed by the court that “For a charge of wrongful confinement, proof of actual physical restriction is not essential. It is sufficient if the evidence shows that such an impression was produced in the mind of the victim, a reasonable apprehension in his mind that he was not free to depart. If the impression creates that the complainant would be forthwith seized or restrained if he attempts to escape, a reasonable apprehension of the use of the force rather than its actual use is sufficient and important.”

In the case of Shankarlal Sarma (Bhatra) vs State of Assam And Another on 4 March 1975. There was one common Ejmali passage among a few brothers where their vehicles would come and go. There was also a garage where their vehicles were parked. The complainant had parked his Fiat car inside the garage. Shankarlal Sharma, the complainant’s elder brother (the petitioner) parked his car in front by blocking the passage. As a result of which, the complainant was obstructed to take out his car from there. The court held that the Ejmali passage was a common passage to be used by the brothers and not a private passage. Therefore, the petitioner who parked his vehicle in the passage believed it to be done in good faith, he also had a lawful right to do so. Hence, they have not obstructed anyone’s private way or prevented anybody from passing. This comes under the exceptions of Section 339. Thus, he cannot be held guilty under wrongful restraint.

Conclusion:

According to section 339 of Indian Penal Code, 1860, “Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person”.Wrongful Restraint can be thought of as a circle because it comprises several sorts, in contrast to constraint of life, which affirms restriction on a person’s movement.