The literal meaning of abduction is the action of forcibly taking someone away against their will. Abduction is defined u/s 362 of IPC. This section merely gives a definition of the word ‘abduction’ which occurs in some of the penal provisions which follows. There is no such offence as abduction under the code, but abduction with certain intent is an offence. Force or fraud is essential.
Meaning :
Abduction in common language means carrying away of a person by fraud or force. In United Kingdom, Kidnapping is used for both minors and adults, whereas in India kidnapping is used for minors and abduction for adults. Section 362 in The Indian Penal Code – Abduction Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person. In view of the definition, the word ‘force’ connotes actual force and not merely show or threat of force. It would be an offence to carry a grown-up woman by force against her own will even with the object of restoring her to her husband. [Allu vs Emperor, AIR 1925 Lah 512] The expression deceitful as used here, is wide enough to include inducing a girl to leave her guardian’s house on a pretext. It also implies the use of misrepresentation and fraud by act or conduct. (R. vs Cort (2004) 4 All ER 137 (CA)]
Examples –
(1) If the intention is to cause secretly or wrongfully a person, section 364 IPC applies;
(2) If the intention is that the person abducted maybe murdered or so disposed of as to be put in danger of being murder section 364 of IPC applies;
(3) If the intention is to cause grievous hurt or to dispose of the person abducted as to put him/her in danger of being subjected to grievous hurt or slavery, or the unnatural lust of any person section 367 IPC applies;
In the case of Gurucharan Singh v. State of Haryana AIR 1972 SC 2661 the accused had put the victim under his pistol and threatened him. The accused then took her to the fields outside the village. The court observed that the accused in this case used an excess amount of force, and such use of force leads to abduction.
Essentials of Section 362
Abducting by use of force or any deceitful means: – The abduction should be done by compelling or inducing a person by use of force or deceitful means. The expression force means consent obtain by force or use of force to commit abduction. Whereas, the expression deceitful means includes any misleading statement. The intention of the offender is the deciding element of the offence.
Taking of a person from one place to another: – in order to commit the offence of abduction the movement of the abducted person is must and that to be with the use of force or any deceitful means. For example, if A enters the house of a girl B and lifted her in order to take her away, but when B raises alarm A dropped her and ran away, A will not be liable for abduction but he will be guilty for attempt to abduct.
In the case of Bahadur Ali v. King EmperorAIR 1923 Lah 158 a girl was kidnapped, although she tried to escape from that place, on the way she met the accused who made misrepresented her by saying that he is a police constable. The accused then fraudulently took her to his house and then demanded 600 Rupees from her mother. The court held the accused guilty of abduction and punished him.
Punishment:
Abduction is an auxiliary act, not punishable by itself, unless accompanied with some intent specified u/s 364-366. Hence, a particular purpose is necessary to punish an accused . Abduction is only an auxiliary act and is not punishable in it. Therefore, there is no general punishment for abduction in the Indian Penal Code. But some specific types of abduction attract the following punishments:
Abduction in order to murder- section, punishment 10 years + Fine
Abduction with intent to wrongfully confine a person- section, punishment 7 years + Fine
Abduction so as to compel a woman to marry- section, punishment 10 years + Fine
Abduction so as to subject a person to grievous hurt- section, punishment 10 years + Fine
Abducting a child less than 10 years of age in order to steal from a person- section, punishment 7 years + Fine
The distinction between Kidnapping and Abduction
BASIS
KIDNAPPING
ABDUCTION
Age of the Aggrieved Party
For the offence of Kidnapping, section 361 of IPC lays down that the age of the aggrieved person should be below 16 in case of males and below 18 in case of females.
For the offence of Abduction, there is no provision of age. Any person who by force and deceit compelled another person to move from one place to another becomes liable for abduction
Removal from lawful Guardianship
During the offence of Kidnapping the aggrieved is removed from his/her lawful guardianship.
In abduction, there is no concept of lawful guardianship.
Means
In kidnapping, a person is taken away or is enticed from his/her lawful guardian. There is no such means of taking in Kidnapping.
In abduction, certain improper means like force, fraud, deceit comes into play.
Consent
For kidnapping, the consent of the person who is kidnapped is not necessary, it is only the consent of the lawful guardian that matters.
For abduction, consent plays a vital role, if there is a presence of express and voluntary consent of the abducted person then such an act will not be a punishable offence.
Intention of the Accused
In kidnapping, the intention of the person committing the offence is immaterial and irrelevant.
In abduction, the intention of the accused plays a very vital role in order to ascertain whether he is guilty or not.
Continuity of the Crime
Kidnapping completes as soon as the minor or the person who is of unsound mind is removed from the custody of his/her lawful guardian. Hence, it is not a continuing offence.
Abduction continues from the time the person is removed till the time he is sent to another place. Hence, it is a continuing offence.
Conclusion:
Co-operation between legal systems, governmental agencies, and non-governmental organisations is crucial to combating child trafficking. To combat this issue, cooperation among states should be fostered through consistency in punitive measures. The national application of these international humanitarian tools and the endorsement of international instruments can achieve this consistency.
The number of abduction and kidnapping cases is enormous and is only increasing. There is a dire need to prevent these horrendous crimes and stop the culture of kidnapping and abduction from spreading, especially when it is done for marriages, forced sexual intercourses and forced begar etc. These children require safe release, medical, psychological and legal assistance as such acts take away the good days of childhood away from them as they are subjected to mental and physical torture.
In addition to the states working together to combat these offences, it is also important to foster international cooperation. Furthermore, it must be recognised that a criminal would engage in these behaviours while avoiding the law. Together with increased public awareness, non-governmental organisations and official entities must act to prevent these crimes.
Kidnapping,Section 359 according to Walker, is the common name for the common law offence of carrying away, or secreting, of any person against his will,or against the will of his lawful guardians. It may be constituted by false imprisonment, which is total restraint of a person and his confinement without lawful authority or justification.
The word “kidnapping” has been derived from the word ‘kid’ meaning child and ‘napping’ to steal. Thus the word literally means “child stealing”. Kidnapping under the code is not confined to child stealing. It has been given wider connotation as meaning carrying away of a human being against his/her consent, or the consent of some person legally authorized to accord consent on behalf of such person.
Conditions, Of Kidnapping In IPC:
India has comprehensive legislation to counter kidnapping,with the Indian Penal Code outlining 10 specific offences related to the purpose of the kidnapping. These are-
Kidnapping a minor for purposes of begging;
Kidnapping in order to murder;
Kidnapping for ransom;
Kidnapping with the intent to secretly and wrongfully confine a person;
Kidnapping a woman to compel her into marriage;
Procuration of a minor girl;
The importation of a girl from a foreign country;
Kidnapping in order to subject a person to grievous harm, including slavery kidnapping a child under 10 years old;
Stealing or buying a minor for the purpose of prostitution.
Scope: –
The offence of kidnapping has a wide scope under the penal code as Sec. 359 and 361, IPC do not spell-out any territorial jurisdiction for committing the offence. Moreover, these provision is gender neutral which ensure the protection of male as well as girl child. The rig our of the law travels with the ward/ subject and any person involving himself or herself in the offence of kidnapping or procuring a minor girl at any point of time would also come within the purview of provisions of kidnapping
Kinds of Kidnapping:
Kidnapping is of two kinds: kidnapping from India, and kidnapping from lawful guardianship.
Kidnapping from India: Section 360
Whoever conveys any person beyond the limits of India without the consent of that person,or of some person legally authorized to consent on behalf of that person, is said to kidnap that person from India.
Essential ingredients: The following are the essential ingredients of the offence under this section:
1) Conveyance of a person: To convey means to carry from one place to another. The conveyance or carrying is a continuous process until the destination is reached. In the case of any offence under this section,the destination must be some foreign territory.
2) Beyond the limits of India: these words in the section indicate that for an offence under it must be to some foreign territory.
3) Without the consent of that person or of some person legally authorized to consent on behalf of that person: A consent given under a misapprehension of fact, is not true consent.
Kidnapping from lawful guardianship: Section 361
Whoever takes or entices any minor under sixteen years of age male, or under eighteen years of age if a female, or any person of unsound mind,out of the keeping of the lawful guardian of such minor or person of unsound mind,without the consent of such guardian,is said to kidnap such minor or person from lawful guardianship The offence under this section may be committed in respect of either a minor or a person of unsound mind. To kidnap a grown-up person, therefore would not amount to an offence under it.
The object of this section is at least as much to protect children of tender age from being abducted or seduced for improper purposes, as for the protection of the rights of parents and guardians having the lawful charge or custody of minors or insane persons.
Ingredients: This section has four main essentials:
1. Taking or enticing away a minor person or a person of unsound mind.
2. Such minor must be under the age of sixteen years ,if male, or under the age of eighteen years, if a female.
3. Thetakingawayorenticingmustbeoutofthekeepingofthelawfulguardianof such minor or person of unsound mind.
4. Such enticing away must be without the consent of the lawful guardian.
Meaning of Taking or Enticing: There has been a lot of deliberation in Indian Courts from time to time on the connotation of the terms “taking” or “enticing” used in section 361. Although it is sufficient to show that there was either taking or enticing for the offence to be committed, the terms vary a lot in their literal and legal content. ‘Taking’ excludes the idea of force on the part of the kidnapper and means “to cause to go” or “to escort”.9 In fact, the kidnapper may take the minor’s (or the unsound person’s) consent and still “take” him/her out of the keeping of his/her lawful guardian. The connotation of the term “Taking” was discussed in an in-depth manner in the case of S. Varadarajan v. State of Madras. AIR 1965 SC 942
‘Enticing’ is inducing a minor to go of her own accord to the kidnapper. There is distinction between taking and enticing. The mental attitude of child is immaterial in the case of taking when the child is taken away. But the word ‘entice’ involves the idea of inducement or allurement. Biswanath Mallick vs State of Orissa, 1995 Cr.LJ 1416 (Ori)
Punishment for Kidnapping: Sec 363
Whoever kidnaps any person from India or from lawful guardianship shall be punished with imprisonment of either description for a term which may extent to seven years, and shall also be liable to fine.
The term ‘abetment’ in criminal law indicates that there is a distinction between the person abetting the commission of an offence (or abettor) and the actual perpetrator of the offence or the principal offence or the principal offender. Chapter V of the IPC on ‘Abetment’ provides for the law covering the responsibility of all those considered in law to have abetted the commission of offence. The chapter on abetment contains 15 sections. Abetment basically means the action of instigating, encouraging or promoting a person into committing an offence. It can also mean aiding the offender while he is committing a crime.When more than one person contributes to committing an offence, each person’s involvement may vary. This variation may be either in the manner or in the degree to which the involvement occurs.
Definition of Abetment
Section 107-120 of Indian Penal Code 1860, talks about abetment. According to section 107 which explains the meaning of abetment, in general to abets means to instigate, to help, to encourage to put in execution his criminal intention. Abetment consist of three act which is laid down in section 107
In the case of Sanju v. State of Madhya Pradesh(2002) 5 SCC 371. the honorable Supreme court defined ‘abet’ as meaning to aid, to assist or to give aid, to command, to procure, or to counsel, to countenance, to encourage, or encourage or to set another one to commit.[2] The definition of ‘abet’ as laid down, makes it clear that abetment only occurs when there are at least two person involved, which further directs us towards the arrangement and operation of the act.
Types of Abetment:
The Section says that abetment basically takes place when a person abets the doing of a thing by:
(1) instigating a person to do that thing; or
(2) engaging with another person (or persons) in a conspiracy to do that thing; or
(3) intentionally aiding a person to do that thing.
When any of these requirements exists, the offence of abetment is complete. Sometimes a person may commit more than one of these three circumstances in a single offence.
(1) Abetment by Instigation
Instigation basically means suggesting, encouraging or inciting a person to do or abstain from doing something. Instigation may take place either directly or indirectly, by written or oral words, or even by gestures and hints.
The instigation must be sufficient to actively encourage a person to commit an offence. It should not be mere advice or a simple suggestion. The Instigator need not even possess mens rea (a guilty intention to commit the crime).
Explanation 1 of this Section throws some lights on what instigation may mean in this context. It says that instigation may generally happen even by:
(a) wilful misrepresentation; or
(b) willful concealment of a material fact which a person is bound to disclose.
For example, a court directs Amit, a police officer, to arrest Raj under an arrest warrant. Brijesh informs Amit that Chandan is Raj despite knowing that he is not. Under this misrepresentation, Amit ends up arresting Chandan instead of Raj. In this case, Brijesh is guilty of abetting Amit in wrongfully apprehending Chandan.
(2) Abetment by Conspiracy
Conspiracy basically means an agreement between two or more persons to commit an unlawful act. Merely intending to commit an offence is not sufficient for this purpose.
Thus, the conspirators must actively agree and prepare themselves to commit that offence, it becomes a conspiracy. Furthermore, the act which the conspirators conspire to commit itself must be illegal or punishable.
For example, in dowry death cases, the in-laws of the victim are often guilty of abetment by conspiracy. They may do so by constantly taunting, torturing or instigating the victim. Even suicides may take place in this manner through abetment by conspiracy.
(3) Abetment by Aiding
The third manner in which abetment may take place is by intentionally aiding the offender in committing that offence. This generally happens when the abettor facilitates the crime or helps in committing it. The intention to aid the offender is very important.
Aid by Act
For example, A instigates B to commit suicide and C puts poison in the hand of B. Here A and C both are abettors. A is liable by instigation and C by intentional aiding.
Aid by illegal omission
For example, a policeman has a legal duty to interfere if an offence is being committed in front of him. If he remains a silent spectator on this, then he will be liable as himself to encourage the commission of the offence.
Who is an Abettor ?
The definition of the term Abettor is mentioned in Section 108 of the Code. According to this Section, an abettor is a person who abets the commission of such a wrongful act that will be deemed as an offence in the eyes of law An abettor can be an instigator, or a conspirator, or helper in the commission of a crime as defined in section 107.
It is important that the Abetment shall necessarily be for the commission of a legal offence. For example. A instigate B to run away all the street dogs from the city. B did the same. This is not an offence of Abetment as running away the street dogs is not a legal offence.
The exclusive scope and clear interpretation of the term Abettor is mentioned in 5 explanations of Section 108 which includes –
Abetment of illegal omission – This states that the person may be held liable for abating a person for an act which he is legally required to do and the abettor is legally exempted for it.
For example, a police constable will be guilty of an illegal omission of his duty by not interfering in a fight whereas a private individual cannot be held guilty of such offence.
The effect of Abetment is immaterial.
As per this explanation, it is not necessary that the act abetted must give the intended effect or result. For example. An instigated B to kill M by way of stabbing. B did so but M recovered as the wound was not sufficient to cause death. Now, A is guilty to abet B for committing the murder.
A person abetted need not necessarily be capable of committing the offence.
It is not necessary that the person abetted must be capable in the eyes of the law to commit offence. For example, a person can employ a child below the age of seven years to commit the offence. In this case, the child is not punishable as he is exempted under section 82 of IPC and would be treated as an innocent, where the person that directs him to do the act would be liable as an abettor.
Abetment of Abetment is an offence.
Sometimes, there is a series of abetments that led to the commission of the offence. In that case, all the people will be held equally liable for the same. For example, X instigates Y to murder M. Y again instigated Z to kill M. In the influence of Instigation, Z does so and M was murdered in the end. Now, X and Y are equally liable for the offence of Abetment.
Engagement in the conspiracy on account of which the offence is committed is enough to make him liable as an abettor.
For example. Ram makes a plan with Mohan to kill Raju. It was decided that Ram will give the poison. Mohan explains the plan to Ravi who arranges the poison and delivers it to Mohan. Ram gave the poison and Raju dies in consequence. Here, Ravi has committed the offence although he did not conspire with Ram he engaged himself in the conspiracy to kill Raju.
Abetment of offences outside India:
Section 108A was added in the Penal Code in 189846 with a view to overrule a decision of the Bombay High Court in the case of Queen Empress v. Ganapatrao Ramachandra47 (1984) ILR 19 Bom 105. in which it was held that the abetment in India by an Indian citizen of an offence committed in a foreign country was not punishable under the Code. The section states that a person would be guilty of n an abetment, if he abets the commission of an act outside India, which if done in India, would constitute an offence.
Gurcharan Singh vs. State of Punjab(2017) 1 SCC 433 – In this recent case, the Apex Court observed that the basic ingredients of Section 306 of IPC are suicidal death and the abetment thereof. To constitute abetment, the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. Any severance or absence of any of these constituents would militate against this indictment.
PUNISHMENT FOR ABETMENT
For the public at large, the very concept of Abetment being tried as a separate offence and being punishable might sound really bizarre because it is so imbibed in most people that only the perpetrators of the crime will be punished. The Penal Code in its abetment laws clearly lays down the sections, explaining extensively, the different walks of punishments that the abetment laws notify. They are covered as follows:
In Section 109 of the Indian Penal Code, the one who abets an offence is given the same punishment as that of the principal perpetrator of the crime if the actus reus of the principal offender has occurred as a result of the inducement made by the abettor. Section 109 of the Penal Code is applicable in case no separate provision is made for the punishment of such an abetment.
Section 109 of the Penal Code ends up being relevant regardless of whether the abettor is absent when the offense abetted is committed given that he has instigated the commission of the offense or has connected with at least one or more different people in a conspiracy to commit an offense and in accordance with that conspiracy, some unlawful act or unlawful exclusion happens or has purposefully helped the commission of an offense by an act or illicit oversight.
This section explains that if the Penal Code has not independently accommodated the punishment of abetment as such then it is punishable with the discipline accommodated for the original offense. Law does not expect instigation to be in a specific structure or that it should just be in words. The instigation might be by behaviour or conduct. Whether there was instigation or not, is an inquiry to be settled on the distinct facts of each case.
It isn’t essential in law for the prosecution to demonstrate that the real intention in the brain of the individual abetting was instigation and that was it, provided there was instigation and the offense has been committed or the offense would have been committed if the individual who was the main offender had the same intention and knowledge as the thing that was likely to have been done by the person who is instigated.
It is only if this condition is satisfied that an individual can be blameworthy of abetment by instigation. Further the actus reus abetted ought to be done as a consequence of the abetment or in pursuance as given in the Explanation to this Section.
Section 110 of the Indian Penal Code gives that even if the individual abetted commits the offense with an intention different than the intention possessed by the main perpetrator of the crime, yet the abettor will be charged with the punishment provided for the offence abetted. The liability of the individual abetted isn’t influenced by this section.
Section 111 of the Indian Penal Code continues the development on abetment laws around the phrase “each man is deemed to intend the corollary outcomes of his act.” If one man actuates another to execute specific wrongdoing, and that other, in pursuance of such instigation, executes not just that wrongdoing but carries out another wrongdoing in the advancement of it, the former is criminally liable as an abettor in regard of such last-mentioned wrongdoing, in the event that it is one which, as a person with the intelligence of a reasonable man, at the time of inducement would have known to be committed in order to carry out the original crime.
Section 112 of the Indian Penal Code expands the guidelines articulated in the previous section. Under it, the abettor is held liable for the offense abetted and also the offense committed. Joint scrutiny of Sections 111, 112 and 133 make it richly evident that if an individual abets another in the commission of an offense and the chief goes further from there on and accomplishes something more which has an alternative outcome from that planned by the abettor and makes the offense an aggravated one, the abettor is liable for the consequences of the acts of his principal.
The essence of the issue is an enquiry of this sort is whether the abettor as a sensible man at the time that he is being instigated or has been purposefully supporting the main perpetrator would have predicted the likely results of his abetment.
Section 113 of the Indian Penal Code ought to be read together with Section 111. Section 111 accommodates the doing of the actus reus which is not the same as the one abetted, though this section manages the situation when the actus reus done is equivalent to the guilty act abetted however its impact is not the same.
Section 114 of the Indian Penal Code is possibly only brought into activity when conditions adding up to abetment of specific wrongdoing have first been proved, and after that, the presence of the accused at the commission for that wrongdoing is demonstrated furthermore. Section 114 talks about the case, where there has been the wrongdoing of abetment, however, were additionally there has been real commission of the wrongdoing abetted and the abettor has been present there, and the manner by which it manages such a case is this. Rather than the wrongdoing being still abetment with circumstances of aggravation, the wrongdoing turns into the very wrongdoing abetted. The section is clearly not punitory.
Section 114 isn’t relevant for each situation in which the abettor is present at the commission of the offense abetted. While Section 109 is a section which talks about abetment, Section 114 applies to those cases in which not only is the abettor present at the time of the commission of the offense but abetment was done beforehand and done independently of his presence.
There is a very fine line between Section 34 of the Indian Penal Code and Section 114 of the Indian Penal Code. As per Section 34, where a criminal act is done by numerous people, in promotion of the basic aim of all, every one of them is liable as though it were finished by himself alone; so that if at least two or more people are present, helping and abetting in the commission of the murder, each will be tried as the main perpetrator of the crime, however, it probably won’t be clear which of them really perpetrated the crime.
Section 114 alludes to the situation where an individual by abetment, prior to the commission of the wrongful act, renders himself obligated as an abettor, is present when the actus reus takes place, however, takes no active part in its doing. A joint act falling under Section 34 however does not include a mere order from one person to another and the carrying out of that order by the other which may only be the instigation of the latter’s act.
Section 115 of the Indian Penal Code criminalizes the abetment of specific offenses which are either not committed at all, or not committed in pursuance of abetment or only in part committed.
The detainment discussed in this section is for a term which may stretch out to seven years, and will likewise be obligated to fine. What’s more is that, if any act for which the abettor is liable in consequence of the abetment, and which causes hurt to any person, is done, the abettor shall be liable to imprisonment of either description for a term which may extend to fourteen years and shall also be liable to fine.
DIFFERENCE BETWEEN ABETMENT AND COMMON INTENTION
ABETMENT
COMMON INTENTION
1. Abetment is a stand alone offence and can be punished all by itself.
1. Common intention is no offence on its own and has to be read with in consonance of other crimes.
2. The accused may not be present at the crime scene .
2. Common Intention, his presence is an indispensable element and participate whether actively or passively.
3. The crime need not be committed.
3. The crime must be committed.
Conclusion
The offence of abutment is based on the principle of natural justice which provides for punishment for maintaining just and fair law. It is based on jurisprudence that the accomplices in the crime shall also be punished with the main offender. Abetment as a provision has been sufficient both from the view of the offence as well as the penalty for the offenders of abetment. However, with the development of technology and looking at the current scenario, the legislation of India has tried to bring the required changes in this provision. Through the Information Technology (Amendment) Act, 2008, the section has been amended so as to give a wider meaning to the act and omission by the use of encryption or any electronic method.
The offence of criminal conspiracy is defined under Section 120-A of Chapter V-A of the Indian Penal Code, 1860. According to Section 120-A, when two or more persons come together and agree to do, or cause something to be done, which constitutes an illegal act or a legal act obtained of carried forward by illegal means, such persons would be guilty of the commission of the offence of criminal conspiracy.
However, a unique feature of the offence under section 120A is that an “agreement to commit an offence” can by itself amount to a criminal conspiracy. This means that it is sufficient for the prosecution to prove that there was an agreement between two or more persons.
Therefore the basic ingredients of criminal conspiracy are,
1) There must be two or more persons;
2) There must be an illegal act or an act in an illegal way;
3) There must be a meeting of minds and
4) There must be an agreement regarding the same thing.
In Pratapbhai Hamirbhai Hamirbhai Solanki Vs State of Gujarat & Anr (2013) 1 SCC 613 the Supreme Court held that the most important ingredient is the intent to cause an illegal act. In B.H. Narasimha Rao Vs Government of Andhra Pradesh 1995 CriLJ 4181 the appellant was convicted of an offence of criminal conspiracy along with seven others. However, he alone was charged with offences under Ss. 120-B, 409 and 471, IPC under section 5(1)(c) and 5(l)(d) read with section 5(2) of the Prevention of corruption Act, 1947. Simultaneously, all the other co-conspirators were trial acquitted by the Trail Court and the High Court. In the end, the Supreme Court acquitted the accused on the facts that there had to be another person to communicate with and carry out the agreement and that a single person can never be accounted for conspiracy.
Punishment for Conspiracy
Section 120-B prescribes the punishment for the commission of the crime of criminal conspiracy. According to Section 120-B, if the parties involved in the conspiracy, conspired to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or more, shall be punishable in the same manner as if he/she had abetted the commission of such an offence, if no explicit punishment for the commission of such a conspiracy has been provided for, by the Code.
However, if the parties involved in the conspiracy, conspired to commit an offence punishable with terms not prescribed previously, such persons shall be sentenced to imprisonment for a term not exceeding six months, or a fine, or both
Proof of a Conspiracy
Immediate or fortuitous proof may be utilised to lay out a criminal conspiracy charge. A criminal conspiracy typically happens in a confidential and private setting. This makes it difficult to deliver any positive proof about the date of the conspiracy’s development, the individuals engaged with it, the conspiracy’s article, or how the conspiracy’s item will be completed. Nevertheless, all of this might be derived based on the situation at hand.
Indian Evidence Act of 1872, Section 10
The reason expressed in Section 10 of the Indian Evidence Conduct is that once a conspiracy to play out an unlawful demonstration is demonstrated, one conspiracy’s demonstration turns into the demonstration of another conspirator.
In a conspiracy case, Section 10 makes arrangements with proof acceptability. It conveys that anything expressed, done, or composed by conspirators with the assistance of their everyday object is enough to prove that there indeed was a conspiracy. Before such a reality might be recognised, the following prerequisites should be met:
There should be reasonable grounds to feel that at least two individuals have plotted to lead an illicit demonstration or damage that might be prosecuted
Anything spoken, done, or composed by one of them concerning their joint goal will be utilised against the others, assuming it is articulated, done, or written after that period
Purpose of Insertion of Section 120A & 120B IPC, 1860
Sections 120A and 120B IPC were added to prevent people from engaging in illegal conversation or activity (even if you don’t act right away or with illegal means). People who plan to do wrong, even if they don’t act on their plan, are called conspirators in the law.
Section 120A has a provision that says that if one engages in an agreement to do something illegal is illegal. The prosecution doesn’t have to show that everyone part of the deal agreed to do or let someone else do something illegal. The agreement can be shown by what the prosecution needs to show.
Conclusion
Criminal conspiracy is an undeveloped crime, since it doesn’t require the fruition of an unlawful demonstration. A criminal conspiracy is when at least two individuals join together and are fully intent on committing a crime. These days, it is customary to see the arrangement of the criminal conspiracy being utilized very generously, which conflicts with the Supreme Court’s perspectives. Thus, the predominant courts should watch out for the maltreatment of the arrangement while protecting law and order.
Self help is the first rule of criminal law. The India penal code has given the right of private defence of body and property to every individual. Section 96 to 106 states the law relating to the right of private defence of person and property.
Chapter IV of the IPC, which includes Section 76 to Section 106, explains general defences which can be pleaded as an exception for any offence. The right of private defence explains that if something is done in private defence then it is no offence. A right to defend does not include a right to launch an offence, particularly when there is no more a need to defend.
In the word of Bentham “The right of private defence is necessary for the protection of life and liberty and property. ”
The law of private defence is based on two different principles
1- Everyone has the right to private defence of his own body and property and another body and property.
2-The right of private defence is not applicable to those cases where the accused himself is an aggressive party.
It is primary duty of the State to protect life and property of citizens. But the fact is that State cannot watch each and every activity of the citizens. There may be situations in which the State cannot help person immediately when his life or property is in danger. In view of this Indian Penal Code has given the right of private defence of body and property of every individual.
The right of private defence has to be exercised directly in proportion to the extent of aggression. There is no as such hardcore formula to test that the act of the person falls within the ambit of private defence or not. It depends upon the set of circumstances in which the person has acted. Whether in a particular circumstance, a person has legitimately acted to exercise his right of private defence is a question of fact.
In determining this question of fact, the court must consider the surrounding facts and circumstances. If the circumstances show that the right of private defence has been legitimately exercised, the court is open to consider the plea. Certain factors need to be kept in mind in considering the act of private defence:
If there was sufficient time for recourse to public authorities or not
If the harm caused was more than what was necessary to be caused or not
If there was a necessity to take such action or not
If the accused person was the aggressor or not
If there was a reasonable apprehension of death, grievous hurt or hurt to the body or property.
Nature of Right of Private Defence
In Shankar Balu Patil v. State of Maharashtra2007 (5) MhLj 663hon’ble Supreme Court stated that right to private defence is purely preventive and not offensive, retributive or punitive. The right is a right of ward of danger must not be illusory but must be so imminent, potent and real that it cannot be averted otherwise than by a counter attack. The rule is quite clear on the point that it has to be established that the accused person were under such grave apprehension about the safety of their lives and property that retaliation done to the extent done was absolutely necessary. The Court has made it clear that Section 97 of IPC recognizes the right of person not only to defend his own or another’s property even against an attempt to inflict any offensive act as against the property.
When Private Defence Extends to Cause Death
It is a rule that a person exercising the right of private defence is allowed to inflict reasonable harm to protect body or property. But there are certain occasions when this right extends to causing of death. They are:
In the case of Body (Sec 100 IPC)
In the case of Property (Sec 103 IPC)
The right of self-defence to cause death and the doctrine of necessity
The doctrine of necessity states that if an act is an offence, it will not be considered as one if the following conditions are satisfied :
The act was done to avoid other harm which could not be avoided otherwise. If that situation was not avoided, it would have inflicted upon him or another person’s body or property, inevitable and irreparable evil.
The force inflicted was reasonable as per the necessity
The evil inflicted was proportionate to the evil avoided
As stated in KENNY on Outlines of Criminal, where the man has inflicted harm upon others person or property for the purpose of saving himself or others from greater harm, he is saved under this defence. One person, in private defence can kill any number of aggressors to protect himself alone. private defence overlaps the doctrine of necessity. Unlike necessity, the private defence does not.
What is the extent of private defence against body in a situation which is not mentioned in the seven categories of Section 100? If there is any situation which is not mentioned in Section 100, the person cannot exercise his right of private defence against the body to cause death of any person. He can only exercise the right to the extent of causing any other harm or injury except death. In the case of Mahinder Pal, when small mischief was committed in the factory by the workers, the owner was not justified in doing his act when he shot dead one of the workers.
What are the Exceptions to the rule of private defence? (Section 99) :
Act of a public servant or under the direction of a public servant:
A person cannot exercise his right of private defence if the following conditions are satisfied:
There was no fear of death or grievous hurt
The act was done or attempted to be done by a public servant or under the direction of public servant
The public servant was acting in good faith
The public servant was under colour of his office
It does not matter if the act or direction was justified by law or not.
Section 99 specifically says that there is no right of private defence against an act which does not cause reasonable apprehension of death or grievous hurt, if done or attempted to be done on the direction of a public servant acting under good faith under the colour of his office. The protection extents to acts which are not even justified by law .
However, there is a difference between acts which are not strictly justified by law and acts which are wholly illegal. If a public servant acts without jurisdiction, it cannot be said that he acted in good faith and his act should be protected even if it is not justified by law. The law does not protect illegal acts and the acts committed by officers without jurisdiction. ‘Act not justified by law does not cover an act which is wholly illegal and totally without jurisdiction. Section 99 applies to acts where jurisdiction is wrongly applied but not in cases where jurisdiction is absent.
However, there is a difference between acts which are not strictly justified by law and acts which are wholly illegal. If a public servant acts without jurisdiction, it cannot be said that he acted in good faith and his act should be protected even if it is not justified by law. The law does not protect illegal acts and the acts committed by officers without jurisdiction. ‘Act not justified by law does not cover an act which is wholly illegal and totally without jurisdiction. Section 99 applies to acts where jurisdiction is wrongly applied but not in cases where jurisdiction is absent.
When a person has time to recourse:
If a person has reasonable time to have recourse to the protection of the public authorities; he has no right to use its private defence. For example, if a person is threatened that he will be killed after three days, he has sufficient time to inform the police. If in case he waits for the person who threatened him and shot him dead. He cannot say that he was using his right of private defence.
A per the Supreme Court of India, when a person has time to get recourse and there is no need to take law in hands, right of private defence cannot be exercised.
This does not mean that a person must run away to have recourse of the public authorities when he is attacked instead of defending himself .
In the case of Jai Dev v. state of Punjab,(AIR 1963 SC 612 the Supreme court said that “In a civilized society, the state is assumed to take care of person and properties of Individual. This, however, does not mean that if a person suddenly faces an assault, he must run away and protect himself. He is entitled to resist the attack and defend himself.”
The law of private defence itself states that there is no right of private defence available unless the situation was so urgent that there was no time to have recourse to the protection of public authorities. The urgency of the situation must naturally depend upon several facts and circumstances. These circumstances may include:
Immediate danger to person or property that if it is not immediately protected, would be lost by the time the protection from public servants is obtained.
Reasonable apprehension of the danger to person or property arises out of committed, attempted or threatened crime. The act was going to affect person and property and justifies the particular injury inflicted.
When the act of private defence extends to inflicting of more harm than it is necessary to inflict for the purpose of defence
The right of private defence is restricted to not inflicting more harm than necessary for the purpose of defence. To determine the amount of force which was necessary to be inflicted, the facts and circumstances are needed to be considered. There is no protection available in case the harm is inflicted unnecessarily and is much extended than what was reasonable.
For instance, if a person is going to slap you, you cannot shoot the person with a gun in self- defence.
There have been instances where the force inflicted was more than necessary. Some of them are:
A person killed old woman found stealing at night.
A person caught a thief at night and deliberately killed him with a pick-axe.
A thief was caught committing housebreaking and was subjected to gross maltreatment
The right of private defence arises when an aggressor has struck or a reasonable apprehension of a grievous hurt arises depending upon the facts of each case. But such a right in no case extends to the inflicting of more harm than is necessary to inflict for the purpose of defence
Right to private defence of body up to causing death
Section 100 of IPC specifies six situations in which the right of private defence of body extends even to causing death.
Section 100 – The right of private defence of the body extends under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the assailant if the offence which occasions the exercise of the right be of any of the descriptions here in after enumerated, namely –
First – such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault.
Second – such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault.
Third – An assault with the intention of committing rape.
Fourth – An assault with the intention of gratifying unnatural lust.
Fifth – As assault with the intention of kidnapping or abducting.
Sixth – An assault with the intention of wrongfully confining a person under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.
Even though this section authorizes a person to cause death of another in certain situation, it is also subject to the same restrictions as given in section 99. Thus, a person cannot apply more force than necessary and must contact the authorities if there is an opportunity.
Yogendra Morarji vs State of Gujarat 1980 is an important case in which SC observed that when life Yogendra Morarji vs State of Gujarat 1980 is an important case in which SC observed that when life to use and summarized the law of private defence of body as under –
There is no right of private defence against an act which is not in itself an offence under this
Section 101: When such rights extend to causing any harm other than death.
If the offence be not of any of the descriptions enumerated in the last preceding section, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in section 99, to the voluntary causing to the assailant of any harm other than death.
Case law for Section 101
In Dharmindar v. State of Himachal Pradesh, that onus of proof to establish the right of private defence is not as onerous as that of a prosecution to prove its case. Where the facts and circumstances lead to a preponderance of probabilities in favor of the defence case it would be enough to discharge the burden to prove the case of self-defence.
Section 102: Commencement and continuance the right of private defence of the body.
The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; it continues as long as such apprehension of danger to the body continues.1
Example: A, B, and C were chasing D to kill him in order to take revenge, but suddenly they saw a policeman coming from another side. They got afraid and turned back to run. But D shoots B in his leg, even when there was no imminent danger of harm. D will be liable as there was no apprehension of death or risk of danger.
Section 103: When the right of private defence of property extends to causing death.
Robbery;
House-breaking by night;
Mischief by fire committed on any building, tent or vessel, building, tent or vessel used as a human dwelling, or a place for the custody of property;
Theft, mischief, or house-trespass, under such circumstances, as may reasonably cause apprehension that death or grievous hurt will be the consequence if such right of private defence is not exercised.
Example: C Attempts to stab D maliciously while committing burglary in D’s house. There is a reasonable apprehension in the mind of D that C will hurt him grievously, so in order to save himself and property, C throttled D with a knife in his chest, causing Death. C will not be liable.
Case law for Section 103
In Mohinder Pal Jolly v. State, the deceased worker and some of his colleagues were shouting slogans for demands outside the factory. Some brickbats were also thrown by them which damaged the property of the owner who fired two shots from outside his office room, one of which killed the deceased worker. The court held that it was a case of mischief and the accused will not get the defence of this section.
Section 104: When such right extends to causing harm other than death.
If the offence, the committing of which, or the attempting to commit which occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in section 99, to the voluntary causing to the wrong-doer of any harm other than death.
Example: If A has committed criminal trespass in order to annoy B or hurt him, then B will have the right to harm A in proportional manner, not causing death of the person.
Case law for Section 104
In VC Cheriyan vs. State, the three deceased along with other persons had illegally laid a road through private property of the church. A criminal case was pending against them. The three accused belonging to church put up barricades across this road. The deceased was stabbed by accused and Kerela HC held that private defence does not extend to causing the death of a person in this case.
Section 105: Commencement and continuance of the right of private defence of property.
The right of private defence of the property commences when:
A reasonable apprehension of danger to the property commences. The right of private defence of property against theft continues until the offender has effected his retreat with the property
Or, either the assistance of the public authorities is obtained,
Or, the property has been recovered.
The right of private defence of property against robbery continues as long as the,
Offender causes or attempts to cause to any person death or hurt
Or, wrongful restraint
As long as the fear of instant death or
Instant personal restraint continues.
The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief.
The right of private defence of property against house-breaking by night continues as long as the house-trespass which has been begun by such house-breaking continues.
Example: Suppose a thief into the house of an individual, and attempts to hurt him instantly with a knife, then that individual has the right to act in private defence and harm that thief to save life and property.
Case law for Section 105
In Nga Pu Ke v. Emp, paddy sheaves belonging to the accused were removed illegally by a person. Accused attacked the cartmen and that cartmen jumped off the carts and ran away leaving sheaves. The accused still chased him and attacked him leading to death. The court held him as guilty of offence
Section 105: Commencement and continuance of right to private defence to property
To what extends this right is justified depends not on actual danger but on whether there was reasonable apprehension of such danger and when the same is commenced.
The right of private defence of property against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered.
The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal restraint continues.
The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief.
The right of private defence of property against house-breaking by night continues as long as the house-trespass which has been begun by such house-breaking continues.
Section 106: Right to private defence against a deadly assault.
This section provides for the risk a person may have to run in order to defend himself against a deadly assault reasonably causing the apprehension of death. The defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk.
Example: C is attacked by a mob who attempts to murder him. He cannot exercise his right to private defence without firing on the mob. In order to save himself, he is compelled to hurt innocent children while firing so C committed no offence as he exercised his right.
Conclusion
Right of private defence is a good weapon in the hand of every citizen to defend himself. This right is not of revenge but toward the threat and imminent danger of an attack. But people can also like misuse this right. Its very difficult for court to find out whether this right had been exercised in good faith or not. So these were the general exceptions which are available to the accused to escape liability or save himself from the offence committed. It may extend to even causing the death of a person or harm an innocent person too depending upon the circumstances. The accused should also have the right to be heard, keeping in view the democratic character of our nation. That’s why these exceptions are provided so as to represent oneself in the court of law.
Punishment is a process by which the state inflicts some pain to the persons or property of person who is found guilty of Crime. The Object of Punishment is to protect society from mischievous and undesirable elements by deterring potential offenders, by preventing the actual offenders from committing further offenses and by reforming and turning them into law abiding citizens. The importance of theories of punishment has been recognized even in ancient times for the protection and welfare of the State and its people. In ancient India, the King was duty-bound to punish the offender. The purpose of the administration of criminal justice is to punish the offender. The state is the main body that punishes Criminals. Punishment is some kind of pain or loss given to the offender for his criminal act which may either be intended to deter him from repeating the offence or maybe an expression of society’s disapprobation for his anti-social conduct or it may also be directed to reform and regenerate him and at the time protect the society from law-breakers. The topic, theories of punishment will give you all the information about the theories and forms of punishment.
1.Deterrent theory of punishment
The term deterrent, comes from the word deter which aims at preventing criminals or individuals from committing the offence of any crime. This keeps in mind that an individuals probability of committing any crime is future is lowered and it will generate a fear in their minds so that they are aware of the consequences of their criminal act. The idea of Deterrent theory of punishment is a Utopian idea.
The objective of deterrent theory is to prevent or deter crime by establishing fear in the minds of the society or by creating an example before individuals and since death penalty is an extreme form of punishment, it has the power to stop such crimes from being committed in future.
This can be understood in the words of Dr. Bernett J, who said: Thou art to be hanged not for having stolen a horse, but in order that other horses may not be stolen. This mean that deterrent theory of punishment aims not only at punishing a criminal but ensuring that the same kind of act is not repeated again in the future.
Three major components of the deterrent theory
Severity- The punishment must be severe so that the people should afraid to do the crime and obey the law.
Certainty- the punishment must happen every time when the crime occurs.
Swiftness- The punishment must be given fast in order to make it more deterrent.
After knowing these facts, the person will think 10times before doing the crime. Although the deterrent theory was harsh, it was considered the deterrent theory as the best theory of punishment as the crime rate was very low due to this theory of punishment. In India, inhuman punishments such as mutilation, beheading, flogging were in vogue till the end of the 18th century.
2. Retributive Theory
The Retributivist bases the theory of punishment on the belief that an offender deserves to receive suffering that matches the severity of the crime committed.Retributive justice is defined as a form of justice that is committed to giving wrongdoers punishments that are proportionate to their crimes. Retribution, meaning ‘‘repayment”, comes from the Old French retribution, retribucion and also directly from the Latin retibutionem meaning ”recompense, repayment”. The root Latin word, tribution means ”I pay back”. Modern use has restricted the word to the meaning ”evil given for evil done”. It is the belief that individuals should receive what they deserve according to their actions. Retribution law is therefore defined as a law system that is focused on retributive justice as the main method of resolving cases.
The 3 core principles of retribution are:
Those who commit certain crimes morally deserve to suffer a proportionate punishment.
This punishment is intrinsically morally good if a legitimate punisher gives them the punishment they deserve. and
It is morally wrong and unallowable to intentionally punish the innocent or inflict punishment that is disproportionate to wrongdoers.
Retributive justice requires that the punishment be proportionate and meted out at the same level as the crime. In biblical times, retribution was explained with the example of ‘an eye for an eye’ or a ‘tooth for a tooth’,
3. Preventive theory
According to Paton ” The Preventive theory concentrates on the prisoner and seeks to prevent him from offending again in the future. The death penalty and exile serve the same purpose. This theory too aims to prevent the crime rather than avenging it. As per this theory, the idea is to keep the offender away from the society. The criminal under this theory is punished with death, life imprisonment etc.
By instilling the fear of punishment in the mind of a probable offender
By disabling an actual offender, either permanently or temporarily
By educating the public at large about the threat of the punishment.
The Supreme Court held in Dr. Jacob George v. State of Kerala1994 SCC (3) 430 that the aim of punishment should be punitive, reformative, preventive, retributive, and compensatory. It is not a good punishment policy to favour one hypothesis over the other. Each principle of retribution should be applied separately or in combination depending on the case’s merits. “Every saint has a history, and every sinner has a future,” it is often said. Since offenders are an important part of society, it is also the duty of society to improve and correct them to make them active members of society. Since crime avoidance is a significant objective of both culture and law, none of which should be neglected.
4. Reformative Theory
The main objective of punishment should be to reform the criminal. Kautilya regarded the object of punishment as reformatory. He felt that crime was inherent in every social set-up and it spread like a contagious disease from man to man. He, therefore, suggested that the criminal must be reformed by finally doing away with the criminal tendency in him.
“Every saint has a past, every sinner has a future.” -V. R. Krishna Iyer, J12. “… the humanistic approach should not obscure our sense of realities.”When a man commits a crime against society by committing a diabolical, coldblooded, pre-planned murder of one innocent person the brutality of which shocks the conscience of the court, he must face the consequence of his act. Such a person forfeits his right to life.” – A. P. Sen, J13
According to this theory crime is like a disease. This theory maintains that you can cure by killing. The ultimate aim of reformists is to try to bring about a change in the personality and character of the offender, so as to make him a useful member of society15. But that is the beginning of a new story–the story of the gradual Renewal of a man, the story of his gradual regeneration, of his Passing from one world into another, of his initiation into a new Unknown life.
Punishment is, therefore, said to be justified because-
(i) It provides an opportunity for state to take steps to reform offender and control crime.
(ii) It is both a deterrent and an effective condemnation and as such it has reformative consequences.
(iii) The ultimate aim of the punishment is to ‘rationalize’ the offender, to ‘readjust’ him to society, to ‘rehabilitate’ him or to ‘change him deep inside.
Criminals are to be ‘treated’ in order to cure them of their sickness and make them emotionally healthy, law abiding citizens just like the rest of us. The goal of rehabilitation is to re-socialize offender by building into them the motivation to obey the law.'”
In the landmark case of DK Basu v. State of West Bengal (1997 ) 1 SCC 416 the Supreme Court ruled that a victim who is under the protection of the state has every right to compensation because the officer of the state has violated her Right to Life, which is covered under Article 21 of the Constitution.
5.Theory of Compensation / Expiatory
The word “Expiate” means ” to make complete atonement for, or to make satisfaction or reparation for”.This theory is based on morals.
Hagal & Kohler are the main supporters of this theory. Hagel defines ” the punishment makes the criminal to expiate for the wrong done” According to this theory, expiation or repentance by offender itself is a punishment. if the offender expiates or repents, he must be forgiven.
This theory relies on compensation to the victim for the loss caused by the accused. In this way, the offenders are made to realise the same sufferings they have caused to the victim. First, the offender who caused harm to the person or property is responsible for making up for their wrongdoing. Second, the State is responsible for protecting its citizens; if it cannot do so, it must recompense the victims.
this type of punishment was prevalent in ancient Indian criminal law. Expiations were performed by way of uttering manthras, fasting, self-immolation, or even burning onself to death.
Conclusion
Punishment under the Indian Penal Code is not based on any one theory mentioned above. It is a combination of deterrent, preventive and retributive theories. Criminal are not born but are products of the society set up is to correct the wrong doer. Keeping in view the present position of criminal administration of justice the Supreme Court of India held in Bachan singh V. State of PunjabAIR 1980 SC 898 the death sentence should be awarded for murder in the rarest of rare cases. None of the above theories can be adopted as sole standard of punishment for the perfect penal code. The perfect system of criminal justice is the result of a compromise between the underlying principles of all the theories.
In India, the reformative theory is followed to provide punishment. The punishment awarded should neither be so harsh nor so easy so that it fails to serve its purpose in generating impact on the offender and as an eye-opener for others.it is considered that punishment should be of such a nature that it brings reform in a person’s personality and thinking.
Object of punishment
The object of punishment is to protect society from disobedient and undesirable elements by deterring potential offenders, by proving the actual offenders from committing further offences and by reforming and turning them into law-abiding citizens
Sec 53 of the Indian Penal Code, 1860 prescribes 5 kinds of punishments.
Death Penalty
Life imprisonment
Imprisonment
Rigorous
Simple
Forfeiture of property
Fine
Considering the above punishments, the courts are supposed to follow the procedures and provisions which are prescribed under other adjective and substantive laws.
As per the scheme of the Code the maximum punishment is prescribed, leaving the minimum to the discretion of the Judge. The Judge has all the means to form an opinion on the sentence which would meet the end of justice in a particular case. If the offence is grave in nature then the Code had prescribed the maximum and the minimum duration of the punishment.
1. Death Penalty
Death penalty is also called the capital punishment. Under this punishment, a person is hanged till he dies. The infliction of death sentence or taking away the offenders life by authority as a punishment for an offence is capital punishment or death penalty. In India it is awarded in rarest of rare cases.
The provisions under which the death penalty is given as punishment under IPC are as follows:
Section 115– Abetment for an offence punishable with death or imprisonment for life (if offence not committed);
Section 118– Concealing design to commit an offence punishable with death or imprisonment for life.
Section 121– When armed rebellion (i.e. waging, abetting to waging of war or attempting to wage war) is made against the constitutionally and legally established government;
Section 132– Uprising, supporting and encouraging the formation of the mutinous group of people in the nations armed forces;
Section 194 With the intent to obtain a death sentence to an innocent by presenting concocted vexatious proof;
Section 302– Causing murder of another;
Section 305– Abetting suicide to an insane or minor person;
Section 303– When a life convict person murders another person;
Section 396– Causing dacoity with murder;
Section 364A– Kidnapping;
Section 376A (as per the Criminal Law Amendment Act, 2013)- Rape
Some other Acts under which the death penalty covered as punishment are:
Section 4, part II of the Prevention of Sati Act- Abetting or aiding an act of sati.
Section 31A of the Narcotic Drugs and Psychotropic Substances Act- Drug trafficking in cases of repeat offences.
However, the death penalty as a punishment is an exception to certain persons like intellectually disabled, pregnant women and minors.
Case Laws
Bachan Singh Vs the State of Punjab (AIR 1980 SC 898,1980) Upheld the validity of the death penalty, but the court restricted the provision of the death penalty in rarest of rare cases only. If the case falls under this theory, then capital punishment may be given.
Jagmohan Singh Vs State of Uttar Pradesh (1973 AIR 947,1973 SCR (2)541) The death penalty is unconstitutional and hence invalid as a punishment. The Supreme Court held the death penalty as valid. It held that deprivation of life is constitutionally lawful if that is done according to the procedure set by law.
2. Life Imprisonment
“Imprisonment means, at minimum, the loss of liberty and autonomy, as well as many material comforts, personal security, and access to heterosexual relations.”
The words imprisonment for life was substituted for transportation for life by Act XXVI of 1955.In its ordinary connotation imprisonment for life means imprisonment for the whole of the remaining life period of the convicted person’s natural life. According to Sec57 imprisonment for life shall be reckoned as equivalent to imprisonment for 20 year’s. But only for calculating fractions of terms of punishment imprisonment for life shall be reckoned as equivalent to imprisonment for 20yrs. But otherwise the sentence of imprisonment for life is of indefinite duration.
Case Law
Bhagirath And Ors Vs.Delhi Administration (1985 AIR 1050) The supreme court of India defined imprisonment for life as imprisonment for the remainder of the natural life of the convict. If life imprisonment is given to a person, he shall stay in the prison for a minimum of 14 years and the maximum is the rest of his life.
Naib Singh V.State of Punjab And Ors. (AIR 1986 SC 2192) The supreme court of India cleared the confusion with the duration of life imprisonment and section 55 of IPC. The court held that a life convict cannot claim for his release after serving 14 years in prison. Life imprisonment continues until the death of the prisoner. The only exception to this is commutation and remission.
In the case of Duryodhan Rout Vs. State of Orissa (2014), the Apex Court clearly stated that reading Section 55 of the Code and Section 433 and 433 A of Cr.P.C, life imprisonment is not confined to 14 years of imprisonment, only the appropriate government can commute the life imprisonment of the prisoner
3. Imprisonment –
It refers to the confinement of a convict in a place used to detain persons convicted of crimes. The IPC recognizes two forms of imprisonment, namely:
Rigorous and
simple. Rigorous imprisonment involves putting the convict to hard labor such as grinding corn, digging the earth, drawing water, cutting wood, bowing wool, making furniture, etc. whereas a convict is not put to any work in case of simple imprisonment. The Supreme Court in State of Gujarat vs Hon’ble High Court of Gujarat clarified that the prisoners who are put to hard labor should necessarily the paid minimum wages for the work extracted. It has also been noted by the Supreme Court that S.53-fourthly mandates the jail authorities to impose hard labor on the convict sentenced to rigorous imprisonment. In the course of doing so, the jail official cannot be said to have been committing any offense under section 374 IPC. This will not, however, be applicable in cases where the accused is awarded simple imprisonment or detained under preventive detention laws or under trial prisoners.
4.Forfeiture of Property
Under this punishment, the government seizes all the property or assets of the convicted. The seized property or asset may be movable or immovable. Forfeiture of property as punishment is for offences under section 126 and section 127.
In two provisions the forfeiture of the property has been abolished:
Under Section 126 for committing depredation on territories of power at peace with government of India.
Under Section 127 for receiving property taken during war or depredation mentioned in section 126 of IPC
Solitary Confinement
Solitary confinement means keeping the convict isolated and away from any interaction with the world. It comes under Section 73 of the Indian Penal Code.
5. Fine –
It means forfeiting money as a form of penalty. This form of punishment has been considered valid on the ground of its universality; however, the fine imposed should be proportionate to the offense committed because it not only affects the convict but also his dependents. Under IPC, a fine can be imposed as the sole punishment or an alternative punishment or for a limited amount or unlimited amount. Judges have broad discretion while quantifying the fine to be imposed, especially where the provision makes no stipulation as to the amount of fine. Courts being the administrators of justice, it is expected of them that the fines imposed should be fair, just, reasonable, and not excessive. The fine imposed should be within the convict’s capacity to pay but he must feel the pinch in paying it. The imposition of a sentence of fine should be on an individual basis and not collectively. Various cases of non-payment of fine and its various forms have been dealt with under Ss. 64-69 IPC.
Case Law
Palaniappa Gounder Vs. State of Tamilnadu (1977 AIR 1323) The apex court stated that the sentence given by the court shall be proportionate to the nature of the offence which includes the sentence of fine. And the punishment shall not be unduly excessive.
Conclusion
All the punishments are retributive, reformative and deterrent in nature. It is stated that a reformative approach to punishment should be the object of criminal law. Here we have also discussed the important decisions made by the supreme court and when the death sentence may be passed. We have discussed various punishments which are imposed differently in different offences, the term, nature, etc varies in each case and offences and also according to courts. All the punishments are retributive, reformative and deterrent in nature. It is stated that a reformative approach to punishment should be the object of criminal law.
The concept of white-collar crime found its place in criminology for the first time in 1941 when Sutherland first published his research paper on white-collar criminality in the American sociological review. He defined white-collar crime as a crime committed by persons of high social status in the course of their occupation. e.g. -misrepresentation through fraudulent advertisement, infringement of patents, copyrights, and trade-marks, a publication of fabricated balance sheets and profit and loss account of business,etc.
“White-collar crimes are committed by persons of status, not for need but for greed” sir Walter reckless
White Collar Crimes are committed by people who are involved in otherwise lawful businesses and cover a wide range of activities. The perpetrators hold respectable positions in the communities unless their crime is discovered. The laws relating to white-collar crimes depend upon the exact nature of the crime committed.
Types of White Collar Crimes.
Extortion:
When a person illegally obtains someone’s property by actual or threatened force.
Insider-Trading:
When someone uses the confidential information to trade in shares of publicly held corporations.
Money-Laundering:
it means the concealment of origin of illegally obtained money.
Tax fraud:
It means evading tax by providing wrong information in tax forms or illegally transferring property in order to avoid tax etc.,
The term wrong means an act causing injury or damage to the other. a wrong against society proclaimed by law and, if committed under certain circumstances punishable by society
Crime is defined in Halsbury’s Laws of England as “an unlawful act or default which is an offense against the public and renders the person guilty of the act or default liable to legal punishment.
Unlawful assembly, rioting public nuisance, bribery trespass offense relating to kidnapping etc., all the above wrongs are punishable under Indian Penal Code and Code of Criminal Procedure Code.
An offense is a crime that breaks a particular rule/law and requires a particular punishment.
An offense is a transgression of the law, by action or omission. That means there may be some cases where the law requires you to abstain or refrain from performing a particular act. There may also be cases where the law requires you to take a positive action, failing which you may be held liable for the offense
Civil offenses are against private persons (individuals like you and me) but criminal offenses are against the State. The State, represented by the Prosecutor, will argue the case against the defendant. So now, the prosecutor will make the case against the suspect, by submitting the issue sheet (pleadings) and the necessary evidence.
What is the difference between crime and offense?
Every society has a system of written rules and regulations to deal with people who deviate from normal, accepted behavior. People who violate these rules are treated as criminals and punished according to the enactment.
Offense: any act that violates civil or criminal law. This violation of such a nature brings harm to the society and makes the culprit liable to serve a sentence in prison with a possible financial penalty.
Sec. 2(n) of Cr.P.C Act defines the word “ Offense “ to mean any act or omission made punishable by any law for the time being in force and sec.40 of the I.P.C which states that ‘offense denotes a thing made punishable by the code.
CLASSIFICATION OF OFFENCES
An offence is an illegal act or crime punishable in the eyes of law, The Code of Criminal Procedure Code, 1973 has recognised offences under three categories:-
Cognizable & Non-Cognizable offence
Bailable & Non-Bailable offence
Compoundable & Non-Compoundable offence
COGNIZABLE AND NON- COGNIZABLE OFFENCE
COGNIZABLE OFFENCE
A cognizable offence is an offence where the police officer in accordance to the first schedule or under some other law can convict an accused without a warrant, usually, these offences are of heinous nature like murder, rake, kidnap, theft, dowery death…etc. In such offences the accused must be produced before the court in the stipulated time.
It is essential to file a First Information Report (FIR), under section 154 Cr.P.C, it mandatory for a police officer to note the commission of a cognizable offence in writing, which gives him the opportunity to collect evidence. In-State of Haryana v/s Bhajan Lal, the supreme court held that the FIR must contain a piece of information disclosing the commission of the cognizable offence.
It is the duty of the police officer to lodge an FIR and investigate the same, The courts have no power under section 482 Cr.P.C to interfere with the investigation by the Police or staying of arrest in cognizable cases.
EXAMPLES OF COGNIZABLE OFFENCE
Hiring or engaging persons to take part in an unlawful assembly or taking part in itself
Negligently or deliberately engaging into an act which is likely to spread infection of any dangerous disease
Counterfeiting Indian coin, selling false weights or measures for fraudulent use
Rioting armed with dangerous weapons
BAIL OF COGNIZABLE OFFENCE
After investigation, if the charge sheets turn out to be against the accused then the magistrate can order an arrest.
During the Trial, bail application can be filed against the concerned magistrate, In appropriate cases, interim bail can be granted pending disposal of the final bail application, since arrest or detention can cause harm to a person’s reputation causing irreparable loss
Cognizable offences are both bailie and non- bailable.
NON- COGNIZABLE OFFENCE
Non- cognizable offences are those where a police officer cannot arrest the accused without the warrant, as listed under the first schedule of Indian penal code. These are usually not as serious as cognizable offence such as forgery, cheating, defamation,..etc
In such offences, FIR is lodged to the magistrate after which the concerned police officer initiates the investigation. A charge sheet is further filed by the police officer which is followed by the trial and final order of arrest if the case has been made out. Any investigation without the requisite permission or order by the magistrate would be one without the jurisdiction[5]. Under section 155 of CrPC, if two or more offences are committed and one of them is cognizable then the officer will not be debarred from the further investigation as well as arrest can take place.
EXAMPLES OF NON- COGNIZABLE OFFENCE
A public servant disobeying law with intent to cause harm to any person.
Bribing during elections
The false claim in a court of justice
Buying a slave
Misappropriation of movable property
BAIL OF NON-COGNIZABLE OFFENCE
If the case is fit for trial, accused is put forward the magistrate and if the case turns out against him then arrested.
In Hamid v/s Rashid alias, in case of addition of serious non-cognizable offence is required to surrender and apply for bail for newly added offences to save him from arrest.
The non-cognizable offence is bailable
2. BAILABLE OFFENCE AND NON- BAILABLE OFFENCE
BAILABLE OFFENCE
A Bailable offence is a one where bail is an absolute and indefeasible right, it could be granted by the police officer in whose custody he is or concerned magistrate. Such offences are being a member of an unlawful assembly, giving false evidence in a judiciary, causing a disturbance in an assembly..etc. In Rasiklal v/s Kishor, it was held that under section 436 of the code a bailable offence is entitled to be released on bail pending his trial. The offender is released on the basis of a “Bail Bond”.
BAIL UNDER BAILABLE OFFENCE
Bail can be granted on the basis of “Bail Bond” which contains the following conditions :-
Not to leave the territorial jurisdiction without the permission of the court.
Shall be present before the police whenever required to do so.
Not to tamper with the evidence.
In Public prosecutor v/s Raghuramaiah, it was held under section 496 of the code, it is envisaged to realize the accused person on bail, further, the bond or sureties will be decided by the court itself. The court may refuse to grant bail to a bailable offence if the offender does not comply with the bail bond.
NON BAILABLE OFFENCE
A Non- bailable offence is the one where bail is not the matter of right, bail can only be granted in discretion of the court, such offences usually include murder, rape..etc. In State of Maharastra v/s Ramesh Taurani, it was held that along with other considerations, nature and gravity of the offence are essential to decide whether bail seal be granted to a Non- Bailable offence. Here,“ Bail Bond “ is used to grant bail along with more stringent conditions than of bailable offence. In state v/s Caption Jagjit Singh, it was held that a non – bailable offence cannot be granted bail if convicted for life imprisonment or the death sentence.
If the accused has been arrested for two offences the. He must get a bail bond for both the offences and satisfy conditions under them; At any point, if at any point the conditions of a bail bond are fulfilled then the bail will be forfeited. In such conditions any Appel can be made against a forfeited order, Appel shall lie against the same judge and court where the order of forfeiture was passed.
BAIL UNDER NON- BAILABLE OFFENCE
The application of bail is granted before the magistrate conducting the trial.
Under section 497 of CrPC, it well settled that a judge has the discretion to grant or refuse bail to a person accused of a non – bailable offence.
He may be refused of bail if attempted to abscond or is doubtful of his credentials.
Accused may apply for anticipatory bail to either high court or session court in order to get direction under section 438 of CrPC if he thinks he might get arrested. Anticipatory bill id different from that of normal bail, it is issued before an arrest takes place and becomes operative after the arrest has taken place.
Anticipatory Bail
It is applicable on bailable and nonbailable offences, the power given under anticipatory bail is privileged to a person who is under the apprehension of arrest thus when abused it can be taken back under section 439 of CrPC. In K. Gajendra Baidu v/s State of A.P, it was held that granting bail is necessary as at times influential persons implicate their rivals into false cases.
3. COMPOUNDABLE OFFENCE AND NON- COMPOUNDABLE OFFENCE
COMPOUNDABLE OFFENCE
The compoundable offence is where the complainant can drop his charges and enter into a compromise, the compromise must be Bonafide and not something to which he is not entitled, the court grants permission when convinced that the offence is entirely personal in nature and therefore does not affect public tranquility and compromise would bring peace as well as the secure end of justice, in such cases pursuing prosecution would be waste of time and energy.
Section 320 of CrPC splits up compoundable offences into two:-
Taking permission of the court is not necessary- such as criminal trespass, causing her, defamation…etc
Taking permission of the court is necessary:- There are offences where the complainant has to take the permission of the court to drop the charges, the permission is usually required for offences grievous in nature and a bad example for the society such as voluntarily hurting someone with dangerous weapons, intentional alteration or destruction of valuable property during delivery…etc
Application for such offences shall be made before the same court where the trial is proceeding, once the charges are drop, the case is treated as the accused has been acquitted of the charges.
NON- COMPOUNDABLE OFFENCE
A Non- compoundable offences cannot be compounded, can only be quashed as they are generally of heinous and criminal nature, thus the accused cannot be allowed to go Scot-free. All offences not mentioned in section 320 of Cr.P.C fall under Non- compoundable offenses. The complaint is generally filled by: the state” like police..etc hence the question to drop charges does not arrive, even the court does not have the power to compound such offences , the trial ends with acquittal or conviction of the offence, with the final order, the criminal trial ends.
