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I.P.C

Wrongful confinement (Section 340)

Section 340, Indian Penal Code: Whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said wrongfully to confine that person.Wrongful confinement is a form of wrongful restraint under which a person is wrongfully prevented from proceeding beyond certain circumscribed limit.

Wrongful confinement is defined under Section 340 of the Indian Penal Code. 1860. It is serious offence. Section 342 of the Indian Penal Code provides punishment for wrongful confinement.

Definition :

Wrongful confinement Section 340 of the Indian Penal Code 1860 defines wrongful confinement as, “whoever wrongfully
restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits, is said “wrongfully to confine” that person.”

Illustration

  1. A moves Z into a walled location and locks him there. As a result, Z is unable to move beyond the wall’s circumscribing line in any direction. Z is wrongly imprisoned by A.
  2. A causes Z to go within a walled space, and locks Z. Z is thus prevented from proceeding in any direction beyond the circumscribing line of wall. A wrongfully confines Z.

Essential ingredients

  • Unlawful restraint of a person, and
  • The restraint must be aimed at preventing that person from going beyond specific circumscribing bounds beyond which (s)he has the legal right to go. There must be complete restraint, not partial restraint. 

Punishment for wrongful confinement:


Section 342 of the Indian Penal Code says that, whoever wrongfully confines any person shall be punished with simple imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. The offence under Section 340 of the Code is cognizable, bailable compoundable and triable by
any magistrate.

Types of Wrongful Confinement:

1. Wrongful confinement for three or more days ( Section 343):

Any individual who unjustly imprisons someone for three days or more will be punished with either general or specific imprisonment for a term that may be as long as two years, a fine, or both. This offense is categorized as being cognizable, bailable, and triable by any magistrate. Additionally, it is compoundable by the person who has been imprisoned with the court’s permission.

2. Wrongful confinement for ten or more days (Section 344)

“Anyone who wrongfully imprisons any person for ten days or more shall be punished by imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.” This crime is categorized as being cognizable, bailable, and triable by any magistrate. Additionally, it is compoundable by the person who is imprisoned with the court’s permission.

3. Wrongful confinement of person for whose liberation writ has been issued (Section 345)

“Whoever keeps any person in wrongful confinement, knowing that a writ for that person’s liberation has been duly issued, shall be punished with imprisonment of either description for a term which may extend to two years in addition to any term of imprisonment to which he may be liable under any other section of this Chapter.” This offense is categorized as being cognizable, subject to bail, and triable by a magistrate of the first class. Additionally, this crime is not compoundable.

4. Wrongful confinement in secret (Section 346)

“Whoever unlawfully confines any person in such a way as to show an intent that the confinement of such person may not be known to any person interested in the person so confined, or to any public servant, or that the place of such confinement may not be known to or discovered by any such person or public servant as herein before mentioned, shall be punished with imprisonment of either description for a term that may extend to two years in addition to any other punishment, shall be punished with imprisonment of either description for a term that.The classification of this offence is that it is Cognizable, Bailable and Triable by Magistrate of the first class, further, it is also Compoundable by the person confined with the permission of the court.

5. Wrongful confinement to extort property, or constrain to illegal act (Section 347)

“Whoever wrongfully confines any person for the purpose of extorting any property or valuable security from the person confined, or from any person interested in the person confined, or of restraining the person confined, or any person interested in such person, to do any unlawful act, or to provide any information which may facilitate the commission of an unlawful act, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be required to pay a fine.” This offense is categorized as being cognizable, bailable, and triable by any magistrate. It is also not compoundable.

6. Wrongful confinement to extort confession, or compel restoration of property (Section 348)

According to Section 348 of the Indian Penal Code, anyone who unlawfully confines a person with the intent to coerce that person or anyone else interested in that person into making a confession or providing information that could be used to identify an offense or misconduct, or to compel that person or that person’s interested party to restore or cause the restoration of any property or valuable security, is guilty of the crime. The Indian Penal Code’s Section 348 defines the offense as one that is cognizable, bailable, non-compoundable, and subject to trial by any Magistrate. Along with a fine, the penalty includes incarceration that can last up to three years and can be either strict or simple.

Conclusion:

Wrongful confinement is a circle, therefore it includes all forms of restraints that take place within a defined area, like being prohibited from leaving a room, building, park, etc.

Encounters/Custodial Violence and the Role of the Courts : Few Leading Authorities

Custodial violence primarily refers to violence in police custody and judicial custody. Custodial violence, which includes torture, death and other excesses in police custody or prison.

In 2020, the Supreme Court asked the Government’s response pertaining to the implementation of Section 176(1A) of the CrPc, which calls for mandatory judicial inquiry related to incidents of deaths, disappearance, rape, etc. in judicial custody.

Custodial Violence – Key Points

  • Custodial violence is the violence that takes place in judicial and police custody where an individual who has done a crime is tortured mentally or physically
  • Most of the custodial deaths were attributed to reasons other than custodial torture, which included suicide and death in hospitals during treatment
  • One of the biggest issues with custodial violence is that it has put human rights at stake. This crime is an outburst against humanity and is one of the many root obstacles in a Democratic country
  • Although, overcrowding, malnutrition, unhygienic conditions and lack of medical care are some of the factors of death in police and judicial custody, but custodial violence remains the common cause of deaths in prisons and lock-ups
  • Many human rights activists and social workers have found that the worst violations of human rights take place during the course of an investigation when the police, with a view to securing evidence or confessions, often resort to third-degree methods including torture and techniques of arrests by either not recording them or describing the deprivation of liberty merely as “prolonged interrogations”

Types of Custodial Violence

There are different types of custodial violence. Discussed below are the same:

  • Physical Violence
    • Through physical force or bashing which may lead to the exhaustion and fear of death
  • Psychological Violence
    • Not providing correct information and mentally torturing them. This may also be done through humiliation and threats
  • Sexual Violence
    • This may include verbal sexual abuse and humiliation of one’s dignity. This may leave a long-lasting psychological impact on the victim.

Legal Provisions for Custodial Violence in India

The following provisions were enacted to curb the tendency of policemen to resort to torture to extract confessions, etc.:

  • Sections 330, 331 & 348 of Indian Penal Code (IPC)
  • Sections 25 & 26 of the Indian Evidence Act
  • Section 76 of Code of Criminal Procedure (CrPC) and Section 29 of the Police Act, 1861

Other important constitutional provisions are as follows:

  • Protection from torture is a fundamental right enshrined under Article 21 (Right to Life) of the Indian constitution
  • Section 41 of the Criminal Procedure Code (CrPC) was amended in 2009 to include safeguards under 41A, 41B, 41C and 41D, so that arrests and detentions for interrogation have reasonable grounds and documented procedures, arrests are made transparent to family, friends and public, and there is protection through legal representation
  • Article 21 of the Indian Constitution provides that no person shall be deprived of life or personal liberty except according to the procedure established by the law

Indian Police Act, 1861:

  • Sections 7 & 29 of the Police Act, 1861 provide for dismissal, penalty or suspension of police officers who are negligent in the discharge of their duties or unfit to perform the same
  • Role of State Government:
    • Police and public order are State subjects as per the  7th Schedule of the Constitution of India.
    • It is primarily the responsibility of the state government concerned to ensure the protection of human rights.
  • Role of Central Government:
    • The Central Government issues advisories from time to time and also has enacted the Protection of Human Rights Act (PHR), 1993.
    • It stipulates establishment of the NHRC and State Human Rights Commissions to look into alleged human rights violations by public servants.

Case Laws:

1. D.K. Basu v. State of West Bengal 1997 : Laid down 14 guidelines regarding custodial torture and police brutality ( Also read : https://lawwire.in/custodial-death/ )

  • “….Transparency of action and accountability perhaps are two possible safeguards which this Court must insist upon. Attention is also required to be paid to properly develop work culture, training and orientation of the police force consistent with basic human values. Training methodology of the police needs restructuring. “

2. Om Prakash and Ors. v. State of Jharkhand 2012 : Police and State Authorities vis-a-vis Extra-Judicial Killings

  • “….It is not the duty of the police officers to kill the accused merely because he is a dreaded criminal. Undoubtedly, the police have to arrest the accused and put them up for trial. This Court [The Hon’ble Supreme Court] has repeatedly admonished trigger-happy police personnel, who liquidate criminals and project the incident as an encounter. Such killings must be deprecated. They are not recognised as legal by our criminal justice administration system. They amount to State-sponsored terrorism”

3. People’s Union of Civil Liberties (PUCL) v. State of Maharashtra 2014 : 16 point guidelines were laid down as the “standard procedure to be followed” for thorough, effective, and independent investigation in the cases of death during police encounters

i) Any intelligence or tip-off regarding criminal activities pertaining to the commission of a grave criminal offence must be recorded either in writing or electronic form
ii) If encounter takes place and firearm is used by the police party and as a result of that, death occurs, an FIR to that effect shall be registered and forwarded to the Court under Section 157 of the CrPC, whilst following the procedure u/s. 158
iii) The investigation, as far as such death is concerned shall be conducted by an independent CID/ a police team of ANOTHER police station
iv) Mandatory magisterial inquiry (under Section 176 of the CrPC) into all cases of encounter deaths MUST be held and a report thereof must be sent to the Judicial Magistrate
v) The information of the incident without any delay must be sent to NHRC or the State Human Rights Commission, as the case may be
vi) Medical Aid to be provided to the criminal/victim
vii) No delay shall be caused in sending FIR, diary entries, panchnamas, sketch, etc., to the concerned Court.
viii) To ensure the trial to be carried out expeditiously, a report shall be sent to the competent court under Section 173 of the CrPC post investigation
ix) In the event of death, the next of kin of the alleged criminal/victim must be informed at the earliest
x) Bi-annual statements of all encounter killings MUST be sent to the NHRC by the DGPs ( set date + format )
xi) Disciplinary Action, where death is caused by a firearm amounting to an offence under the Indian Penal Code, 1860 SHALL be promptly initiated and the said officer be placed under suspension
xii) Victim Compensation Scheme (Section 357-A of the CrPC) to be invoked/extended for the benefits dependants of the dead
xiii) Subject to Article 20 of the Constitution, the concerned police officer(s) MUST surrender their weapons for forensic and ballistic analysis
xiv) An intimation about the incident must also be sent to the police officer’s family and legal aid services to be offered
xv) No out-of-turn promotion or instant gallantry rewards shall be bestowed on the concerned officers SOON after the occurred
xvi) Lastly, the family of the victim may make a complaint to the Sessions Judge having territorial jurisdiction over the place of incident if aggrieved by the (lack) of abovementioned procedure followed by the Police

Section 309 IPC – Attempt to Commit Suicide

The WHO estimates that 800,000 persons die by suicide each year worldwide; of these, 135,000 (17%), according to the Government of India, are Indian citizens. Has the epidemic of suicide always been, and all this time we’ve been powerless to combat it because of our ignorance?

Definition:

Section 309 of the Indian penal code declares that attempting suicide is a punishable offence, and the survivor will be punished accordingly.

It says, “Whoever attempts to commit suicide and does any act towards the commission of such offence shall be punished, with simple imprisonment for a term which may extend to one year or with fine, or with both.”

The essential ingredients of section 309 of IPC are:
1. The person must have been unsuccessful in an attempt to commit suicide.
2. The act of attempt must be intentional and not by mistake or accident.

Section 309 of the Indian Penal Code (commonly known as the IPC) remains to be one of the most problematic provisions in the IPC due to its sarcastic tone and the absurdity it displays due to its obsolescence. Anyone who makes a suicide attempt or engages in any behavior that would be considered a suicide offense is subject to a punishment of simple imprisonment for a period not to exceed one year, a fine, or a combination of the two. Despite several attempts to decriminalize it through subsequent Law Commission conclusions and judgements of the Supreme Court and other High Courts, suicide attempt is still categorized as a crime under Section 309 of the IPC in the law book.

In P. Rathinam v. Union of India, AIR 1994 SC 1844, (1994) 3 SCC 394 the constitutional validity of 309 of the IPC was challenged on the grounds that it is violative of Article 21. The Supreme Court held that Right not to live a forced life is a part of Right to Life. Suicide is a psychiatric problem and not a manifestation of criminal instinct. What is needed to take care of suicide-prone persons are soft words and wise counseling (of a psychiatrist), and not stony dealing by a jailor following harsh treatment meted out by a heartless prosecutor.

However, this judgement was overruled by the Hon’ble Supreme Court in Gian Kaur v. State of Punjab, AIR 1996 SC 946, (1996) 2 SCC 648, the court upheld constitutional validity of Section 309 of the IPC. According to the view taken by the court, Right to Life could not be stretched to the extent of including Right to die under the ambit of article 21.

The Law Commission’s 42nd report placed more focus on prosecuting individuals who encourage suicide than on those who actually attempt it. The 210th Law Commission report had a more tolerant stance and placed more emphasis on comprehending the psychology of suicide. The significance of realizing that punishing the victim directly would be absurd and have no moral or legal justification. As a result, attempts to commit suicide have been “decriminalized” as a result of this law commission study. The Mental Healthcare Act, 2017 (also known as the MHCA) went into effect as a result, and under the purview of section 115 of the act, the government was obligated to give rehabilitation and appropriate care to people who made an attempt at suicide, in addition to the fact that they cannot be tried for or punished under this code.

But despite that, we must remember that every coin has two sides. Even though there is cause for concern regarding suicide and repealing Section 309 of the IPC seems to be the only option, there are other factors that should also be taken into account. There have been cases of people publicly threatening to kill government officials if things don’t go their way or starving themselves to death voluntarily. Without Section 309 of the IPC, how can such phony problems be handled?

The urgent need is to acknowledge the attempts made by the 210th Law Commission report, comprehend suicide as a socio-legal issue, and stop treating those who attempt suicide as the perpetrators and making matters worse by locking them up with criminals, where their mental health is sure to deteriorate further. But also making decisions based on each case’s merits and metting out punishment when it is deserved.

To quote the 210th law commission report, which gave humanity hope, “The criminal law must not act with misplaced overzeal and it is only where it can prove to be apt and effective machinery to cure the intended evil that it should come into the picture.“

For a case to be considered as an attempt to commit suicide, there are two important points :

  1. The intention of dying is necessary -Doing an action that could lead to the death of the person doing it, with the intention of dying means attempting to suicide. But if someone performs an action in self-defense or with any other intention other than taking his/her own life would not come under attempting to suicide. For example- In a village, a couple had some disagreement and fought. After which the husband threatened to beat up his wife. That night, the wife tried to elope with her 6-month-old baby. But she thought that somebody was following her. Thinking it was her husband, she got scared that he would beat her up, along with her baby jumped in a nearby well, thinking she would be safe from her husband. but that step led to the death of the baby but she was saved. This case would not be a case of an attempt to suicide because she had no intention of dying, she just tried to save herself from her husband. An action if performed with the intention and purpose of death is necessary for it to be an attempt to suicide. Nonetheless, in this case, the court can hold the lady for the death of her child because, at the time of jumping into the well, the lady must and should have thought of the consequences which might lead to the death of the baby. If the lady had jumped into the good thinking to end her life but still was saved, then it would be considered as an attempt to commit suicide because she had the intent and plan of dying.
  2. Action must be taken for committing suicide and not only mere preparation to do it – Only by mere thinking of committing suicide, a person cannot be held liable for the attempt of it. He has to take some action and then only he can be charged with the offence under Section 309 of IPC. Similarly, only preparing the things needed to commit suicide is not enough for it to charge as an offence. For example- a boy thinking of committing suicide, arranged the woods necessary so that he could burn himself to death. He made a pile of wood and sat in between them but did not burn fire. Before he could light the fire, police came and arrested him under Section 309. But in this case, he would not be guilty because he had not lit up the fire yet and his mind could have changed any second before actually the fire was lit.

Is IPC 309 bailable?

Yes, IPC Section 309 is bailable

Is IPC 309 a cognizable offence or a non-cognizable offence?

IPC Section 309 is a  Cognizable Offence and can be tried by any magistrate.

punishment for IPC 309

The person can be imprisoned for up to 1 year or can be asked to pay some amount of fine or both.

Waging War

Sections 121 to 123 of the Indian Penal Code deal with waging war against the government. The following are considered as offences that need to be proven to constitute an offence against the government under Section 121.

IPC Provisions on Waging War

Section 121 of the IPC prohibits waging, trying to wage, or assisting in the conducting of war against the government of India. This part specifies the utmost penalty for such offences as death or eternal imprisonment. It also provides for the forfeiture of goods used in the commission of such a crime.

Furthermore, Section 122 of the IPC addresses the acquisition of weapons, ammunition, or materials to be used in war in order to conduct war against the Government of India. For such offenses, the highest penalty is life imprisonment under this provision.

Section 123 of the IPC  deals with concealing the presence or whereabouts of anyone who has done a crime under Sections 121 or 122 of the IPC. This provision specifies a potential penalty of ten years in prison, a fine, or both.

Elements of Waging War against the State

Under the IPC, waging war against the government is an offence under Section 121. The following are the key components of this offence:

  • Actively participating in or trying to conduct war against the government: This component entails actively participating in or attempting to participate in actions of war against the government. Acts such as assaulting government facilities or people, plotting and carrying out acts of terrorism or insurrection, or scheming to wage war against the government are examples of terrorism.
  • Abetting the conduct of such an offence entails encouraging, facilitating, or assisting in the execution of an infraction of making war against the government. It could include giving money or material support, harbouring or concealing criminals, or taking part in the planning or execution of such a crime.
  • Obtaining, possessing, or gathering weapons, ammunition, or war materials with the purpose of using them to wage war against the government: This aspect entails acquiring, possessing, or collecting arms, ammunition, or war materials with the intent of using them to wage war against the government.
  • Intention to conduct war against the government: This aspect entails the explicit desire to destabilize the government or damage its sovereignty, territorial integrity, or security. It must be demonstrated that the offender intended to conduct war against the government and not just cause damage or participate in criminal activity.

Offences related to Marriage (Sec 493 to 498 A)

Chapter XX of IPC deals with offences relating to marriage. All these offences are within the institution of marriage. chapter XX-A containing only one section (s.498A) dealing with cruelty to a woman by her husband or relatives to coerce her and her parents to meet material greed of dowry was added to the IPC by criminal law (Second amendment Act,1983).

Following are main offences under this chapter:

1. Mock or invalid marriage (section 493 and 496).

2. Bigamy (section 494 and 495).

3. Adultery (section 497)

4. Criminal elopement- seduction (section498)

5. Cruelty by husband or relatives of husband (section 498A)

What is the new rule for 498A?

The key guideline issued is that after lodging of the F.I.R. or the complaint case without exhausting the “Cooling-Period” of two months, no arrest or any coercive action shall be taken against the husband or his family members in order to derail the proceedings before the Family Welfare Committee.

1.Mock or invalid marriage (section 493 and 496)

Mock marriage is invalid marriage/deceitful or fraudulent marriage. Any man who, through deception, leads a woman who is not legally wed to him to believe that she is and leads her to cohabit with him or engage in sexual activity with him in that belief is punishable by imprisonment of either kind for a term that may ten years and is also subject to a fine. It is non-cognizable and non-bailable.

INGREDIENTS

  1. Deceit or causing false belief.
  2. Cohabitation or sexual intercourse with the person causing such believes.
  3. In other words , Section 493, IPC only punishes a man for obtaining the body of a woman by a deceitful assurance that he is her husband. The essence of the section is therefore the deception caused by a man on a woman in the consequence  of which  she is led to believe that she is lawfully married to him while in the fact that they are not lawfully married.

2. Bigamy (section 494 and 495)

This under English law is known as Bigamy. This section applies to Hindus, Christians, Paris whether male or female but in case of Muslims, it applies only to females as under the muslim personal law, males are allowed in bigamy but not women. In other words, BIGAMY – Bigamy is the condition of having two wives or two husbands at the same time. The second marriage to someone who is already legally married is void and may be annulled, while there is no effect on the first marriage. Bigamy may be commited knowingly or unknowingly. When it is commited knowingly, the person is  guilty of a crime, but it is seldom prosecuted unless it is part of a fraudulent scheme to get another’s property or some other felony.

The offence of Bigamy is Non-Cognizable, Bailable, Compoundable and triable by a magistrate of first class. Except for Muslim males, bigamy is an offense in case of all person living in India irrespective of religion, caste, sex. Muslim personal laws insists for monogamy for females  However, if a Muslim man marries under a Special Marriage Act and not under the Muslim Law, he would be guilty of Bigamy.

INGREDIENTS


1) The accused must have contracted the first marriage
2) Whilst the first marriage was subsisting, the accused must have contacted a second marriage
3) Both the marriages must be valid.What is important to keep in mind is that not only the first but the second marriage must also be a valid marriage in accordance with the Hindu Marriage Act.

Exceptions:

1. Any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction
2. Where the spouse has been continually absent for a period of 7 years and not heard to be alive within such period

Punishment:

The person guilty of the offence of bigamy shall be punished with imprisonment, which may extent to seven years and shall also be liable to fine. Section 494 prescribed punishment up to 10 years and also fine for concealment of the former marriage from person with whom subsequent marriage is contracted.

3. Adultery (section 497)

Adultery means ” sexual intercourse” by a man with a married woman, who is not his wife, with her consent and without the consent or connivance of her husband, not amounting to rape.Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such a case, the wife shall not be punishable as an abettor.

INGREDIENTS

In order to constitute the offence of adultery, the following must be established:–

(i) Sexual intercourse between a married woman and a man who is not her husband;

(ii) The man who has sexual intercourse with the married woman must know or has reason to believe that she is the wife of another man;

(iii) Such sexual intercourse must take place with her consent, i.e., it must not amount to rape;

(iv) Sexual intercourse with the married woman must take place without the consent or connivance of her husband.

Punishment:

In adultery, man alone is punishable with imprisonment for a term which may extend to five years or with fine or with both. The woman is not subject to punishment even as an abettor, though she is a consenting party.

4. Criminal elopement- seduction (section 498)

1) Taking or enticing  away or  concealing or detaining the wife of another man from 
a) that man; or 
b) any person having care of her on behalf of that man

2) Knowledge or reason to believe that she is wife of another man;
3) Such taking , concealing or detaining must be with the intent that she may have illicit intercourse with any person.

This section punishes person who takes away or entices or detains the wife of another with criminal intent. The main locus of the offence is taking the wife of a husband from his custody. It does not have to be forceful. This section therefore provides protection to husbands, The subject-matter of this offence is married women only.

5. Cruelty by husband or relatives of husband (section 498 A)

Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation. — For the purposes of this section, “cruelty” means—

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

Period of Limitation

As per Section 468 CrPC, a complaint alleging commission of an offence under Section 498-A can be filed within 3 years of the alleged incident. However, Section 473 CrPC enables the Court to take cognizance of an offence after the period of limitation if it is satisfied that it is necessary so to do in the interest of justice.

The essence of the offence in Section 498-A is cruelty. It is a continuing offence and on each occasion on which the woman was subjected to cruelty, she would have a new starting point of limitation, Arun Vyas v. Anita Vyas, (1999) 4 SCC 690.

INGREDIENTS

  • Woman must be married;
  • Such woman should be subjected to harassment or cruelty and
  • Such harassment or cruelty should have been caused by that woman’s husband or his relatives

Punishment:

As per the provision under 498A IPC, the husband or his relative who commits cruelty against a married woman can be punished with imprisonment upto 3 years along with fine.

In this case, too, the Supreme Court gave directions to prevent misuse of Section 498-A IPC which were further modified in Social Action Forum for Manav Adhikar v. Union of India,2018 SCC online SC 1501. These directions include:

(a) Complaints under Section 498-A and other connected offences may be investigated only by a designated Investigating Officer of the area.

(b) If a settlement is reached between the parties, it is open to them to approach the High Court under Section 482 seeking quashing of proceedings or any other order.

(c) If a bail application is filed with at least one day’s notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not, by itself, be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected.

(d) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine.

(e) These directions will not apply in case of tangible physical injuries or death.

Reema Aggarwal v. Anupam AIR 2004 SC 1418

It was argued that ‘husband’ of ‘second wife’ who marries her during the subsistence of his earlier legal marriage, is not husband within the meaning of section 498 A and the second wife, therefore, cannot invoke section 498 A for cruelty and harassment caused to her by him or his relatives. The appellant, Reema Aggarwal, who was harassed by her husband and his relatives for not bringing sufficient dowry, consumed poisonous substance .She admitted that she married him during lifetime of his first wife. Based on this fact her husband with others, was charged-sheeted under sections 307 and 498 A.

Conclusion:

Marriage-related offences are protected, and women have the right to report abuse if their husbands or other family members treat them badly. Additionally, it aims to put an end to crimes including dowry deaths, dowry demands, and harassment of women.

Elements of Crime

Meaning of Crime:

An action committed or omitted, which constitutes an offence and is punishable by law, is a crime. A crime is an unlawful act that is forbidden and punished by the state or the law. In other words, anything that is injurious to the public’s welfare is a crime. It is a ‘Crime ‘ is a public wrong. It is an offence against the community or society as a whole. It causes a threat to social security and creates social disorder. Actually, crime does not have a properly and precise definition. However, many attempts were made to define the term ‘Crime’ prominent among them are given below:

According to Blackstone’s Definition: Sir William Blackstone, in his ‘Commentaries on Law of England’, defines ‘Crime’ as an act committed or omitted in violation of public law forbidding or commanding it.

“Crime is an act, that is both forbidden by law and revolting against the moral sentiments of society, as” defined by Sir James Stephen.

Kenny defines crime as “wrongs whose sanction is punitive and in no way remissible by any private person, but is remissible by the Crown alone, if remissible at all.

an offence takes place in two ways 1. commission of an act; and 2. omission of an act. Therefore, all acts and omissions are described as offences under the penal code. Crime is public wrong in the sense; any member of the public can institute criminal proceedings against the person accused of an offence.

the fundamental principal of criminal liability is that there must be a wrongful act combined with wrongful intention. This Principle is laid down in the Maxim “Actus Non Facit Reum Nisi Mens Sit Rea,” which means intent and act both must concur to constitute a Crime.

Elements of Crime:

  1. Human being
  2. Mens Rea (mental element or evil intent)
  3. Actus Rea (Act or Omission)
  4. Injury
  1. Human being: The first element of crime is that it must have been committed by a human being. The IPC makes every person liable for punishment for every act or omission contrary to law. ” Person” means a natural person, i.e., a human being. In ancient days, the theory of retribution was in vogue. ” A tooth for a tooth and an eye for an eye” was the law. Hence, animals were punished. it means if a dog kills a child or a horse kicks a man, the animal could be punished. At present, its owners is subject to civil or tortuous liability.
  2. Mens Rea (mental element or evil intent): The second constituent of crime is Mens rea, guilt of mind, or evil intent. the mental element is necessary for element of a Crime. An act itself is no crime, unless it is coupled with evil intent or guilt of mind. a) mens rea (guilty mind); b)  Actus reus ( guilty act ). Motive and Intention are both aspects in the field of law and justice both are very important. They are also associated with the purpose of proving or disproving a particular case or crime. A wrong motive with guilty intention is necessary to prove criminal liability. The word ‘mens rea’ has never been used in I.P.C but it applied in two different ways to avoid confusion.

a) The actual intent required for the offence was used in defining the offence.

b) The expression was fraudulent. dishonestly, unintentionally, etc., are used in definition to indicate the criminal intent.

Although mens rea is an essential element of crime, some offences can occur without it. For example, Section 304-A of IPC makes death by negligence a criminal offence. In such cases, a “negligent act” would not include the intention to cause death. However,  negligence or mistake itself is sufficient to constitute a crime.

3. Actus Rea (Act or Omission): The third element, ‘Actus Reus’ denotes ‘Physical Act’ Actus reus basically refers to an act or omission which leads to the completion of an offence. Both mens rea, as well as actus reus, are important to create an offence. Actus reus can be a positive act, such as stabbing a person to cause his death. It can also be an omission (failure) to perform an action. An act also includes omissions. A man is also held liable if some duty is imposed upon him by law, and he omits to discharge that duty. An omission must be a breach of a legal duty. The act committed must be one that is forbidden or punished by the law. Omission as a subset of Act. All omissions are acts, but not all acts are omissions.

4. Injury: The fourth requirement of a crime is injury to another person or to society at large. It means a cause must be illegal. The injury should be illegally caused to any person’s body, mind, reputation, or property. ‘Injury’ has been defined in Section 44 of the I.P.C. as ‘any harm whatever illegally caused to any person in body, mind, reputation, or property.

Conclusion:

Elements of crime are a set off acts that must be shown in order for a defendant to be convicted of a crime. Criminal elements are defined in criminal statutes or cases in jurisdictions where common law crimes are permitted. Mens Rea embodies the essence of the crime. It is not a crime in the eyes of the law if there is no intent to act in such a way that it causes harm to another person or property. Mens rea is also employed in some civil disputes, requiring the defendant to have been aware of the consequences of their conduct in order for civil culpability to arise, but in most cases of civil liability, the Actus Reus takes precedence.

Dowry Death under IPC

Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

A dowry is transfer of parental property, gifts or money at the marriage of a daughter. Dowry contrasts with the related concepts of bride price and dower. While bride price or bride service is a payment by the groom or his family to the bride’s parent’s dowry is the wealth transferred from the bride’s family to the room or his family, ostensibly for the bride. Similarly, dower is the property settled on the bride herself, by the groom at the times of marriage and which remains under her ownership and control. Dowry prohibition Act, 1961 was enacted to prohibit in giving or taking of dowry and related offences.

Dowry death, in 1986 a new offence know as dowry death was inserted in the IPC by the virtue of section 304-B. The provision under sec 304-B are more stringent than provided U/s 498-A of IPC

Section 304 B:

The essentials of Section 304B are as follows: 

  • (1) The death of a woman must be caused within by burns or bodily injury or otherwise than  under normal circumstances 
  • (2) The death must occur within 7 years of marriage  
  • (3) Woman must have been subjected to cruelty or harassment by her husband or his relatives. 
  • (4) Cruelty or harassment should be in connection with the demand of dowry and soon before death. 
  • (5) Such cruelty or harassment is shown to have been meted out to the woman soon before  her death 

Section 304B imposes a statutory obligation on a court to presume that the accused has  committed the dowry death when the prosecution proves that:

  • (i) The death of his wife has  occurred otherwise than under normal circumstances within seven years of her marriage; and
  • (ii) soon before her death she was subjected to cruelty or harassment by her husband or his relatives in connection with a demand for dowry.

If any accused wants to escape from the catch, the burden is on him, to disprove it. If he fails to rebut the presumption the court is bound to act upon it.  

Dowry’s death is a non-bailable and cognizable offense. 

The Supreme Court in Kunhiabdulla vs the State of Kerala Appeal; (cril) 419 of 1997 observed that the words ‘soon before’ used in Section 304B have to be used relatively depending upon the facts and circumstances of the case and no straightjacket formula can be laid down for deciding as to what constitutes soon before the period in the context of occurrence of dowry death.  

In Shanti v State of Haryana,Criminal Appeal No. – 368 of 1990 the death of a woman took place within seven years of marriage, the in-laws of the deceased did not inform the deceased’s parents about the death and hurriedly cremated the deceased. The prosecution succeeded in establishing cruel treatment towards the victim. The death could not be said to be a natural death and the presumption under  S.113B of the Evidence Act was attracted. 

Dowry

  • The term dowry has not been defined in IPC but in Dowry Prohibition Act, 1961. According to the act, it has been defined as any property or valuable security given or agreed to be given directly or indirectly:
    • By one party to a marriage to the other party to a marriage or
    • By the parents of either party to a marriage or by any other person to either party to the marriage or any other person at or before or any time after (on three occasions) the marriage in connection with the marriage of the said parties.
  • However, customary payments as are prevalent in different societies, such as at the time of birth of child etc, are not covered within dowry.
  • Giving & taking dowry both are offences.
  • In addition to the Dowry Prohibition Act, 1961, the laws have been made more stringent namely,

Presumption as to Dowry Death

Section 113B of the Indian Evidence Act, 1872 states about the Presumption as to Dowry Death. If a woman dies in relation with any demand for dowry and it was shown that soon before her death she was subjected to harassment or cruelty by any person. Then the court will assume such a person responsible for her death

Is Dowry death a bailable and a cognizable offence?

Bailable Offences- Offences in which the permission from the court to release the arrested person is not required. The arrested person by fulfilling the necessary requirements can be released and the police cannot refuse the person.

Cognizable Offences- Offence in which the police have the authority to arrest any person without any warrant and also has the authority to start an investigation with or without any permission of the magistrate by filing FIR.

Dowry death is a non-bailable and cognizable offence. 

As per Section 41 of the Code of Criminal Procedure , 1973  the police officer while arresting any person without a warrant, be satisfied with the complaint registered against a person and fulfill all the provision of Section 41 of CrPC.

Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.]

Conclusion:

 In  1986 a new offence known as dowry death was inserted in the Indian Penal Code by the Virtue of Section 304-B. The provisions Under Section 304B of Indian Penal Code are more stringent than provided under Section 498A of Indian Penal code. The offence under Section 304-B is cognizable, non-bailable, non-compoundable and triable by Court of Session.

Robbery

Robbery is the crime of stealing money or property from a bank, shop, or vehicle, often by using force or threats. The gang members committed dozens of armed robberies. The man was serving a sentence for robbery with violence. Synonyms: theft, stealing, fraud, steaming [informal] More Synonyms of robbery.

The word “rob” came via French from Late Latin words (e.g., deraubare) of Germanic origin, from Common Germanic raub “theft”.1 Criminal slang for robbery includes “blagging” (armed robbery, usually of a bank) or “stick-up” (derived from the verbal command to robbery targets to raise their hands in the air), and “steaming” (organized robbery on underground train systems)..

Section 390 of the Indian Penal Code defines robbery . According to this section robbery is the aggravated form of either theft or extortion because in all robbery there is either theft or extortion. The offence of theft becomes robbery if , in order to the committing of the theft , or while committing the theft , or in carrying away or attempting to carry away the property obtained
by theft , the offender , for that end ,voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint , or fear of instant death or of instant hurt , or of instant wrongful restraint .
The offence of extortion becomes robbery if , the offender , at the time of committing the extortion , is in the presence of the person put in fear , and commits the extortion by putting that person in fear of instant death or of instant hurt , or of instant wrongful restraint to that person or to some other person , and , by so putting in fear, induces the person so put in fear
then and there to deliver up the thing so extorted .

Explanation to the section clarifies that the offender is said to be present if he is sufficiently near to put the other person in fear of instant death or of instant hurt , or of instant wrongful restraint .

Essential ingredients of the offence of robbery are as follows :-

i) Offender committed theft as defined in section 378 in the process

ii) Offender caused or attempted to cause to some persons —
a) fear of death , or hurt or wrongful restraint ,
b) fear of instant death , or of instant hurt or of instant wrongful restraint ,


iii) Offender did such act either —-
a)in order to the committing of the theft , or
b) while committing the theft , or
c) in carrying away or attempting to carry away the property.

While, Extortion is robbery if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person, so put in fear then and there to deliver up the thing extorted. Sec. 392 deals with the punishment for robbery. Section 394 of the IPC prescribes the punishment for voluntarily causing hurt while committing or attempting to commit robbery.

IN WHAT CIRCUMSTANCES ROBBERY AMOUNTS TO DACOITY?


Section 391 of the Indian Penal Code provides that when five or more persons conjointly commit or attempt to commit a robbery , or where the whole number of persons conjointly committing or attempting to commit a robbery , and persons present and aiding such commission or attempt , amount to five or more , every person so committing , attempting or aiding , is said to commit the offence of dacoity. The offence of robbery takes the character of dacoity when it is committed conjointly by five or more persons . The words conjointly refers to united or concerted action of the persons participating in the transaction .

State of Maharashtra v. Vinayak Utekar,Cri. L.J. 3988 (Bom.) the accused snatched the gold buttons from the shirt of a person and ran away. While running away, he was caught by the informant to whom the accused gave a knife- blow. The Court held the accused guilty under Section 390 for the offence of robbery as it could not be contended that the accused gave knife blow only to get himself freed from the clutches of the informant and not to ensure the taking away of the gold buttons which was a stolen property.

Hardayal Prem v. State of Rajasthan, AIR. 1991 S.C. 269 two accused persons were charged for the offence under Section 302, 304 and 392 for murder and robbery However, one of them appealed against his conviction and sentence and he was acquitted by the appellate Court. The Court also ordered the acquittal of the other accused who had not appealed holding that it was the demand of justice to recognise his right of acquittal when the accused who had appealed was acquitted by the Court..

Harinder Singh v. State of Punjab,AIR. 1992 S.C. 1976 the gunman working Punjab State Transport Corporation robbed the cashier of his own corporation and locked him inside the room after causing him injuries. Thereafter he was absconding for about 212 months. The cashier had reported this incident to one of the prosecution witnesses immediately after this robbery. The gunman was held guilty of the offence under Section 392/397 and his conviction was upheld by the Supreme Court and appeal was dismissed.

WHEN EXTORTION IS ROBBERY?

Extortion becomes robbery when the offender at the time of committing the offence of extortion is in the presence of the person put in fear and commits extortion by putting that person in fear of instant death, instant wrongful restraint or instant hurt to that person or some other person and by doing so induces the person, so put in fear to then and there deliver the thing that has been extorted.

Thus, extortion becomes robbery when the following conditions are satisfied;

1) When a person commits extortion by putting another in the fear of instant death, wrongful restraint or hurt 2) Then the offender induces the person under such fear to deliver the property at that very instant; then and there. 3) The offender is in the near presence of such a person put in fear at the time of

WHEN THEFT IS ROBBERY ?

Theft is robbery when in order to commit theft or while committing theft, or while carrying away or attempting to carry away property obtained by theft, the offender voluntarily causes or attempts to cause to any person death, subject him/her to wrongful restraint or cause hurt or induce fear of instant death, instant wrongful restraint or causing instant hurt. Thus, theft becomes robbery when the following conditions are satisfied;

when the offender voluntarily causes or attempts to cause: 1) Death, wrongful restraint or hurt or 2) Fear of instant death, instant wrongful restraint or instant hurt.

And the above act(s) is done 1) while committing the theft 2) To commit the theft 3) While carrying away the property obtained by theft or 4) While attempting to carry away property obtained by theft

Punishment for robbery

Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.

CLASSIFICATION OF OFFENCE
Para I: Punishment—Rigorous imprisonment for 10 years and fine—Cognizable— Non-bailable—Triable by Magistrate of the first class—Non-compoundable.
Para II: Punishment—Rigorous imprisonment for 14 years, and fine— Cognizable—Non-bailable—Triable by Magistrate of the first class—Non-compoundable.

Conclusion:

Robbery is seen as the more severe variation of theft or extortion. Therefore, the elements of theft as described under Section 378 and extortion as specified under Section 383 must be present in transitively to constitute theft amounting to robbery or extortion amounting to robbery. However, there must be a component of immediate threat, immediate injury, or imminent death for robbery to become robbery from extortion or robbery from stealing. Therefore, it is crucial to grasp the distinctions between the three offences since, although they may seem similar to the layperson, they are distinct in the legal world.

Theft

The dictionary meaning of Theft is “the act of stealing”, specifically “the felonious taking and removing of personal property with intent to deprive the rightful owner of it.” The offence of theft is provided in Section 378 to Section 460, Chapter 17, Offence Against Property, of Indian Penal Code, 1860. Theft, in layman terms means the taking of a person’s property without the consent of the owner and Section 378 of the Indian Penal Code, 1860 (IPC) has provided a proper legal definition of theft.

It is defined under Section 378 of the Indian Penal Code. It states that any person with a dishonest intention to take any movable property out of the possession of a person without the person’s consent to whom it belongs move that property is said to commit theft. 

There are five main ingredients of theft:

  • Dishonest intention to take property;
  • Property should be moveable;
  • The property must be taken out of possession of another person;
  • Property should be taken without the person’s consent;
  • Property should be moved, in order to such taking.
  1. Dishonest intention to take property

It is the main ingredient of the theft. Any property which is taken will not amount to theft until the intention was dishonest. And the intention of the person who is taking the property was to cause wrongful gain to one person and wrongful loss to another person.Taking the definition of Dishonestly in Section 24 and Wrongful gain and Wrongful loss in section 23 together a person can be said to have dishonest intention if in taking a property, it is his intention to cause gain by unlawful means of the property to which the person who is gaining is not legally entitled.

Illustration: A owns a necklace, and B finds it in A’s house. The necklace is in A’s possession and if B dishonestly takes it. B commits theft. 

2. Property should be movable

To commit theft property should be movable. Property which is capable of being carried around is said to be a movable property. Any property or a thing which is permanently attached to the earth said to be an immovable property and will not be a subject of theft. But it will become a subject of theft when it is severed from the earth and capable of being moved without the consent of a person in whose possession it is.

Illustration: A standing tree which is attached to the earth is said to be immovable property. But it will become movable when it is cut down. 

Further, immovable property can be converted into movable property and once it has been converted such property becomes capable of stealing. In Avatar Singh v. State of Punjab AIR 1965 SC 666  Electricity was categorised as immovable property but stealing of electricity has been made punishable offence by the Indian Electricity Act, 1910 which was letter replaced by Electricity Act, 2003.

Case Law: Pyarelal Bhargava Vs. the State of Rajasthan 1963 AIR 1094 1963 SCR SUPL In this case, an office file from the chief engineer office was removed temporarily and was given to the private party for a day, it amounts to theft. The Hon’ble court held that to commit theft the loss needed to be permanent. Even property dispossession is temporary, a person taking the property intended to restore it is said to commit theft. 

3. The property must be taken out of possession of another person

Any property which is stolen should be in possession of another person. Until the property is removed no offence has been committed.If a property belongs to no one there cannot be theft that is res nullius (things belonging to no one). The offence of theft comes in to existence when property is removed from somebody’s possession without his consent. There cannot be a theft of a dead body buried in a cemetery or theft or other thing which belongs to no one. However, if a corpse lying out of the deceased’s house for being taken to buried ground, it is seized by some person and carried without the consent of the relatives of deceased and thrown into river, it is no theft under section 378 but it is an offence under Section 297(offering indignity to a human corpse) Indian Penal Code.

Illustration: Y finds a mobile phone which belongs to X on a sofa in X’s house. A mobile phone was in the possession X if Y removes it dishonestly, Y commits theft. Here mobile phone was in possession of X.

Case Law: Rakesh Vs. State of NCT of Delhi 2015, In this case, the Hon’ble court held that mere intention of the offender to take property dishonestly out of the possession of a person without his consent is no offence. Until the property is removed, no offence has been committed. The actual removal of property from another person’s possession is necessary, as mentioned in Section 378 of IPC.

4. Property should be taken without the person’s consent

If a property of a person in possession is taken without his prior consent (express or implied) will amount to commit theft. The offence will take place when the offender takes the property dishonestly and without the consent of that person. 

Illustration: S, being an R’s friend, enters the house of R and runs away with the ring which was on R’s table, without R’s consent. S has committed theft. As here R’s consent is not present.

Case Law :K.N. Mehra Vs. the State of Rajasthan AIR 369, 1957 SCR 623 In this case, the Supreme Court held that proof of intention to cause permanent deprivation of property or to obtain wrongful gain is not necessary for the purpose of proving dishonest intention. Absence of a person’s consent to whom the property belongs at the time of moving it and the presence of dishonest intention at the time of taking that property are the essentials to commit theft.

5. Property should be moved, in order of such taking

Moving a property with a dishonest intention is an initial stage of committing a theft. So, the property should be moved, to commit an offence. 

Illustration: A goes to B’s house, and sees a diamond necklace lying on the table. A hides that necklace at B’s place and thinks whenever he will visit next time. He’ll take it. Here, A commits no theft as the property has not been moved.

Punishment for theft is given under Section 380 of IPC.  Whoever commits theft shall be punished with 3 years of imprisonment or fine or with both.

Section 381: Theft by Clerk or Servant of property in possession of Master. Any Person being a clerk or servant commits theft in respect of any property in the possession of his master or employer, shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine.

Section 382: Theft after preparations made for causing death, hurt or restraint in order to the committing of theft.. Any person who commits theft, having made preparations for causing death or hurt or restraint or fear of any of these in order to commit theft or in order to the effecting of his escape after the committing of such theft or in order to the retaining of property taken by such theft, shall be punished with rigorous imprisonment for a term which may extend to ten years with fine.

Conclusion:

Theft in the broad sense and theft as defined by the IPC are similar to two separate paths. Even ownership is irrelevant to theft. Possession is all that is required for theft. If the first move is done dishonestly, a theft has already occurred. The stealing offence requires dishonest motives. Only material possessions are considered stolen. Consent is another element in the theft crime. Consent may be expressed or implicit. However, transporting any physical object without permission will be considered larceny.

Criminal Breach of Trust

The Indian Penal Code of 1860 under Chapter XVII provides for offences against property. Criminal breach of trust is considered as an offence against property under this Chapter and Sections 405 to 409 deals with the specific provisions concerning the criminal breach of trust.

  • Criminal: Criminal refers to something related to a wrong or crime or something prohibited by law.
  • Breach: Breach can be defined as breaking the agreement, violating rules and regulations, or contravention of some rule.
  • Trust: Trust can be defined as some kind of fiduciary relationship or a belief in something; to be honest and sincere. For example, the relationship between master and servant, lawyer and client, etc. 

The definition of criminal breach of trust provided under Section 405 can be construed as any dishonest use or disposition of property by one person upon whom the other person has entrusted his property and owing to this dishonest use or disposition the latter should have suffered breach of trust as the act must have been committed in discharge of such trust. For example, A may lend his car to his friend B to use it for transportation. B, instead, uses it for transporting illegal goods like ivory. Here, B is guilty of criminally breaching A’s trust.

Essentials of Criminal Breach of Trust

The following essentials must be fulfilled to hold anybody liable for the offence of criminal breach of trust:

  1. A person must be entrusted with some property or should have any dominion (control or authority) over the property.
  2. That the person:
    (a) must have dishonestly misappropriated or converted the property for his own use, or
    (b) should dishonestly use or dispose of that property or willfully make any other person to misappropriate the property.
  3. Such an act must be done in violation of any law of trust or any legal contract of trust.

Entrusting a Property
The word “entrusting” does not contain any legal definition under the Code. In general terms, it basically means handing over possession of some property onto another person. Generally, such transfer of possession does not alienate ownership or other proprietary rights.
Furthermore, “entrusting” property requires the creation of some fiduciary relationship. In other words, the person receiving the property must be in a legal position of trust. In other words, the person entrusting the property must only transfer possession over it for a specific purpose.
Dishonestly violating the Trust
The crux of this offence requires the person in possession of the property breaches trust with mala fide intentions. This is clear from the use of the word “dishonestly” in Section 405. Therefore, a dishonest intention is important; merely committing a mistake is not enough. Secondly, this dishonest intention must translate into misappropriation or misuse of the
property. Even its disposal is sufficient is such disposal violates a law or a legal contract regulating the trust.

Dishonest Misappropriation, Conversion for own use, or dishonest disposal of Property

There must be misappropriation, conversion for own use, or disposal of property to constitute a criminal breach of trust. Not only that, such misappropriation/ conversion/ disposal must be with a dishonest intention, viz., with an intention to cause ‘wrongful losses’ to the owner.

In the case,Jaikrishnadas Manohardas Desai Vs. STate of Bambay, it was held that criminal breach of trust can be inferred by proving that there was entrustment of property, or dominion over property, and the person who was entrusted with it failed to account for it.

Violation of direction of law or legal Contract

There must be a violation of the direction of law or a Contract. The direction of law refers to statutory as well as departmental directions, rules, practices, and directions issued by authorities in the exercise of their administrative powers

Punishment for Criminal Breach of Trust

Punishment for the offence of criminal breach of trust is provided under Section 406 of IPC. Therefore whoever commits the offence of criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

In certain special transactions like transportation of goods, some persons may be in positions of trusts. For example, they may work as carriers, or warehouse-keepers. The punishment for breaching trust under such cases includes imprisonment up to 7 years with fine.
Similarly, persons like office clerks and employees also enjoy a position of trust inherently under their duties. If they criminally breach that trust, their punishment also includes imprisonment up to 7 years with fine.
Even public servants, bankers, merchants, brokers, attorneys or agents enjoy positions of trust with respect to properties. For example, a person may entrust his property with his advocate under a power of attorney agreement. Breach of trust by such persons is punishable with higher imprisonment up to 10 years with fine.

Criminal Trust Breach Forms by Particular Group of People

Criminal Breach of Trust by Carrier, or wharfinger, or warehouse-keeper (Section 407)

Section 407 encompasses Criminal breach of trust by the following categories of persons:

1. Carrier: A common carrier is defined under the Carriers ACT of 1865 as an individual, enterprise, or company (other than the government) that conveys products for money from one location to another, through land or inland waterways, for all individuals (consignors).

2. Wharfinger: A wharfinger is defined as “one who owns or keeps a wharf, for the purpose of receiving and shipping merchandise to or from it, for hire”

 Warehouse-keeper: In ordinary usage, a warehouse keeper is one who is in charge of operating, storing and handling cargo deposited in the warehouse.

Criminal Breach of Trust by clerk or servant (Section 408)

Section 408 encompasses Criminal breach of trust by the following categories of persons:

1. Clerk: A clerk is a white-collar employee who does routine office activities. Recordkeeping, filing, staffing service counters, screening callers, and other administrative duties are standard responsibilities for clerical employees.

2. Servant: In the general sense, a servant is an employee who works for the master, however, does not hold any power to exercise authority on behalf of the master.

Criminal Breach of Trust by Public Servant, or by Banker, Merchant, or Agent (Section 409)

This is a graver form of criminal breach of trust as it involves persons who hold a special trust with the public at large or have enormous control over the property entrusted to them. Under the section, persons in such an arrangement are broadly identified as:

1. Public servant: Section 21 of the IPC defines ‘public servant’. Broadly, the term refers to a person holding any office or position in a public body.

2. Banker: A banker is a person who conducts banking operations such as receiving deposits, lending money, withdrawing funds, and exchanging money. In other terms, a banker is someone who works directly in the banking industry.

3. Merchant: A merchant is someone who trades in items made by other people, particularly in other countries.

4. Factor: A factor is a commission-based trader who receives and sells items on commission. A factor is a mercantile fiduciary who transacts business in his own name while keeping his principal undisclosed.

5. Broker: A broker is a person or company that facilitates transactions between buyers and sellers in lieu of a commission after the transaction is completed. A broker who also serves as a seller or a buyer is considered a principal in the transaction.

6. Attorney: The term “attorney” refers to a person who has been designated by another to do a task in his or her absence and who has the power to act in the place and on behalf of the person to whom he or she has been authorized.

 Agent:Sec 182 of the Indian Contract Act, 1872 defines an ‘agent’ as a person employed to do any act for another, or to represent another in dealings with a third person. An agent can be made liable under the section only when he or she dishonestly misappropriates or converts for personal use. It must be noted that an agent cannot be made liable for merely exercising control or taking decisions against the principal’s lawful directions as the agent is not bound by them.

Ram Narain Popli vs Central Bureau of Investigation (2003)3 SCC 641.In this case, the court defined the term ‘entrustment‘ of any property. Entrustment means handing over the possession of the property for some purpose that may not infer the proprietary rights.

Conclusion:

By going through Section 405 of the Indian Penal Code,1860 it is clear that there are two main ingredients of criminal breach of trust that are entrustment and dishonest misappropriation of the property. Therefore, in order to constitute an offence under Section 406 of the Indian Penal Code, 1860 it is pivotal that both the ingredients of the criminal breach of trust are fulfilled. The person handing over the property must have confidence in the person taking the property. so as to create a fiduciary relationship between them or to put him in position of trustee. The accused must be in such a position where he could exercise his control over the property i.e; dominion over the property. The term property includes both movable as well as immoveable property within its ambit. It has to be established that the accused has dishonestly put the property to his own use or to some unauthorized use. Dishonest intention to misappropriate is a crucial fact to be proved to bring home the charge of criminal breach of trust.