Вы находитесь на странице: 1из 166

LECTURES ON

CRIMINAL
LAW

EMRAAN AZAD
LL.B. (HONS.)
37th BATCH
DEPARTMENT OF LAW

UNIVERSITY OF
DHAKA
LECTURE – ONE

ON
1. Origin And History Of Criminal Law.

1.1 Criminal Jurisprudence In Primitive Ages.

2. Development Of Criminal Law In Indian Sub-Continent.

2.1 Criminal Law Of The Hindu System.

2.2 Mohammedan Criminal Law.

2.3 Development Of Criminal Law In India Under British Rule.

3. Meaning Of Crime.

3.1 Two Visions Of Crime.

3.2 Crime As A Breach Of Law.

4. Penal Code Of 1860 And Its Some Preliminary Provisions.

5. Incorporation Of Different Crimes In The Penal Code of 1860 And A Contextual


Underpinning.

1. Origin And History Of Criminal Law : The law of crimes has


been known to us through all ages of our civilization. It is, in fact, as
old as our civilization. It has always been of immense interest to
mankind. Wherever men and women formed themselves into an
organized society, the need for a criminal law has always been felt. It is
debatable question
whether man in the state of Nature, of which the early poets have sung
so rapturously, or a man as a member of an organized society is more
disposed to crime. A savage living in a state of nature, having little or
no contacts with other fellow beings, or a man living in a smaller group
would naturally have less opportunities to commit evil deeds. The truth
of this observation can still be verified when we come in close contact
with the so-called aborigines and primitive races of mankind. In every
organized society, however, certain acts of commission or omission are
6
forbidden on pain of punishment which may even extend to the
forfeiture of life itself.

Now what acts or omissions should be singled out for punishment or be


branded as crimes has always depended on the force, vigor and
movement of public opinion from time to time and country to country
and even in the sane country from decade to decade. It is in no other
field more true than in the field of criminal law that law reflects the
public opinion of the time. In fact, it is the mirror of the culture and
civilization of the society then prevailing.

In the light of our present knowledge of the development of the society


and civilization, it would not be proper to regard any age or any
civilization as representing the infancy of mankind. We consider
ourselves more civilized and much more advanced than our forefathers
inasmuch as we deal with the criminal more gently and humanly. The
severe punishments of the past have vanished and have yielded place
to reformatory theories of punishment. Our ancestors might have
ridiculed us for providing lenient punishments to the anti-social
elements in the society and would have denounced us as a set of
organized hypocrites. It therefore seems necessary to trace the
development of criminal law through the successive ages of
development of the society, which we propose to do in this writing.

1.1 Criminal Jurisprudence In Primitive Ages : The history of


criminal law is not only of fascinating interest but an imperative
necessity for modern societies where rule of law prevails. Seemingly,
the criminal law of the ancient and primitive societies appears to be a
bundle of faggots tied together haphazardly in a code, but a closer
examination will reveal to us that they are all based on scientific
principles. Self-preservation is the first instinct of Nature and so it is in
6
man, which he possesses in common with all sentient beings. Had it
been so, there would have been an end of the world. Providence, while
it ensures the preservation of the individual, does not neglect the
perpetuation of the species and therefore we find that there is a desire
of procreation in all the creatures of the world, man and animal alike.
Locke in his Civil Government has observed very nicely about how the
family life developed in the inception of socities. It consisted of sons
and daughters, brothers and sisters under the suzerainty of the eldest
member. Many joint families made up the society. The head of the
family was, so to say, the king of the family, its lawgiver, judge and
priest. This is known as the patriarchal system, the first form of
government known to history, the power of the father in these families
was absolute, and he could even put to death any of his children. It
was Patria Potestas as known to the Twelve Tables.

Application Of Criminal Law In Ancient Societies : The above


account shows that from individual to family and from family to state
was the evolution of ancient society. In these two stages of the
development of society there was little appreciation of criminal
responsibility because the sole anxiety of the individual was, self-
preservation and in the second stage the sole anxiety of the family
was to protect it against foreign attacks as a necessary means for its
preservation. Of course, in the family stage of the society, some sort of
a discipline was enforced amongst the members of the family by the
Patria Potestas. If there was some quarrel between them it was
referred to the arbitrament of the head of the family, and he would
redress the wrong of the aggrieved member of the family. But the
head of one family had no jurisdiction beyond his family. Therefore, it
became necessary to evolve some device for bringing several families
together; this was done by the development of the clans. With the
development of the clan, we find that the dawn of law appeared
6
though in a very crude from; and thus the societies developed. Maine
in his Ancient Law has observed that the penal law of ancient
communities is not the law of crimes, it is the law of wrongs;
or to use the English technical word, of Tort. The person
injured proceeds against the wrongdoer by an ordinary civil
action, and recovers compensation in the shape of pecuniary
damages, if he succeeds.

Weakness Of Criminal Laws And Courts : According to Diamond,


courts appear in the first and the second agricultural grades of the
society in the primitive stages. In these courts, the very limited acts of
the members of the society were noticed and punished. There is no
systematic trial also with regard to these anti-social acts nor is there
any organized public action against them. Some person or persons are
made responsible for meting out appropriate punishment for these
offences, but the punishment is not dealt with immediately. It is often
delayed and sometimes the offender even escapes unharmed.

Penal Codes Of Different Ages : After these two stages of the


development of the society, we find gradually that society becomes
more compact and organized, until we come to the era of codes. But in
these codes of ancient time, bringing with the Code of Hammurabi of
1914 B.C. the volume of criminal law remains very small. Under these
codes, attention is paid to the direction of civil law. Of course, some
anti-social acts were looked upon as crimes, especially those that
involved disloyalty or insult to the king, the punishment for which was
given by the king himself without even the semblance of a trial. In the
codes of the later age, we find that some of the civil wrongs are
erected into crimes gradually. But this happened only after the end of
the primitive law, when the royal power was extended and any
resistance to this royal power was considered to be an affront to the
6
king’s dignity and therefore a crime. This was the position in the later
codes of the middle ages. In these stages of the development of
society and criminal law, we find that the criminal offences were tried
by the kings or the king’s court and the punished is also often not
specified in the code and was to be determined and imposed by the
king or his court. It was remissible by the king alone.

Development Of Administration Of Criminal Justice : Let us


also study the development of the administration of criminal justice. In
the primitive society, the damages to be awarded to the victim of a
crime were determined on the basis of vengeance. If an offender was
caught red-handed, he was given a more severe punishment than one
who was detected afterwards. Roman law as well as Hindu law of theft
affords instances of this differentiation of penalties. The Twelve Tables
of the Romans divided thefts into two classes, namely, manifest and
non-manifest. The germs of the administration of criminal law are
traceable to the statute Lex Calpurnai De Reputundis 1
What was
significant in this statute was the setting up of a permanent
commission as contrary to occasional and temporary ones to inquire
into certain crimes or anti-social acts committed by the governor. It
later on became a regular criminal tribunal. Its members were not
nominated but were selected from particular classes according to the
provisions of the law, which was made to constitute it. The tenure of
the judges thus selected was renewed according to the definite rules.
The offences which could be taken into cognizance of by these
tribunals were expressly defined in the statute.

Four Stages Of Primitive Criminal Law : The history of


primitive criminal law may be said to have passed through four stages
in the initial stages, we find that it involved the idea of injury to the
1
1. Passed by L. Calpurnius Piso in 149 B.C.
6
state or collective injury, but the state allowed the wronged to avenge
himself on the wrongdoer. Then in the second stage, we find that when
crimes are multiplied the state is compelled to delegate its power to
particular commission and not individual persons wronged, not only to
investigate the crime committed but also to punish the particular
offender if he is proved to be guilty. In the third stage, we find that a
further development is made. Here the legislature did not wait for the
commission of a crime in order to appoint a commission to investigate
and punish the criminal. It appointed a permanent commission to try
certain classes of crimes in the exception that they would be
perpetrated. The fourth stage is reached when these commissions
instead of being periodical or occasional, are constituted into
permanent benches, their judges being appointed according to definite
roles and their jurisdiction defined and the specified offences and the
penalties imposed also definitely laid down.

2. Development Of Criminal Law In Indian Sub-Continent :


The history, evolution and development of criminal law in Indian Sub-
continent can be discussed in the following mentioned sections.

2.1 Criminal Law Of The Hindu System : From the earliest


times to history the Aryan race settled in the Indian Sub-continent as
peaceful peasants. It was a society which had developed its own
institutions and which had long since adopted a tolerable form of
government and ethics.

Naturally its laws were fully developed. So also was its criminal law.
The Hindu law of punishment occupied a more prominent place than
compensation for wrongs. If the injury inflicted by the wrongdoer was
serious in character, the wrongdoer was not only compelled to
compensate the injured but also in addition to this had to undergo a
6
punishment imposed by the king. For Manu enjoins: A king who
punishes those do not deserve to be condemned and fails to punish
those who deserve punishment becomes infamous and is ultimately
doomed to hell. Artha-sastra, Manu Smriti and Yajnavalkya Smriti are
the three leading law codes of ancient India. Description of Criminal
Law in Manu Smriti - Among those Manu Smriti marks an epoch in the
legal history of India and contains not only the ordinances relating to
law but also is a complete digest of the then prevailing religion,
philosophy, customs and usages observed by the people. Chapter VII
concerns the duties of the kings and Chapter VIII relates to secular law
and lays down rules according to which the king should administer
justice in the courts.

In Chapter VIII, the author first defines the constitution of the courts
and then gives 18 principal titles of law, viz.(1) debt or loans; (2)
deposits and loans for use; (3) sale without ownership; (4) partnership;
(5) sub-traction of what has been given; (6) non-payments of wages or
hire; (7) breach of agreements; (8) rescission of sale and purchase; (9)
dispute between master and servant; (10) boundary disputes; (11)
assault; (12) slander; (13) theft; (14) robbery and other violences; (15)
adultery; (16) altercation between husband and wife, and their several
duties; (17) inheritance; (18) gambling with dice and with living
creatures. Apart from these 18 titles, if a dispute is brought the king,
not covered by one of them, he may decide it justly according to the
primeval law.2 Later on in the same chapter, he develops them into
ten, adding cheating, trespass or transgressions and fornication. He
elaborates these crimes and brings out fine distinctions between one
another just like any jurist of the modern times.

2
2. Manu, Chapter VIII, Verse 1 to 8.
6
Before prescribing punishments for the various offences, Manu also
embodied in the same chapter certain rules which more or less are on
a line with the general exceptions laying down principles of non-
imputability. Anything said or done under compulsion or by fraud is
declared by him to be null and void.3 The law on the right of private
defense is not only fully developed but is analogous to the law
contained in our Penal Code.4 De minimis non curat lex5 was also
known to them. For instance, if a person, who had no six consecutive
meals, took another’s property just sufficient to provide himself with
meals was not punished.

Principles Of Punishment Under Manu Smriti : As regards


the punishment prescribed for the offences, they were based on
scientific principles. They were (1) censure, (2) rebuke, (3) fine, (4)
forfeiture of property, and (5) corporal punishment which included
imprisonment, banishment, mutilation and death. The measure of
punishment was regulated by the principles laid down in the codes.

Determining The Amount Of Punishment Under Yajnavalkya


Smriti : Yajnavalkya, following Manu, lays down that the king should
inflict punishment upon those who deserve it after taking into
consideration (a) the nature of the offences, (b) the time and place of
the offence, and (c) the strength, age, avocation and wealth of the
accused. On this text the commentator, Vijnaneshwara, observes that
along with these factors, the question whether the offence was
committed with or without deliberation, whether it was a first offence
or a repetition of the offence should also be taken into consideration

3
3. Ibid, Verses 179-92.
4
4. Ibid., Verses 238-351.
5
5. It means “law does take notice of trifles.” See for details, S. 95 of the Penal Code.
6
while determining the amount of punishment to be awarded to the
accused. The above factors are only illustrative and not exhaustive.

In addition to these, we find that the principles of Individualisation of


Punishment was meticulously worked out in laying down the penalties
for the offences. If the accused was a Brahman, belonging to the
highest class of society, he was to be given lasser punishments in
some offences, even a quarter of the prescribed punishment in others.
Instead of capital punishment he was to be banished, as it was
considered to be a greater punishment for him than even death
penalty.

A Scope Of Criticism : Foreign writers, as also Gour, have criticized


Manu Smriti for placing Brahman above the law, for he says it is the
work of a Brahman. But it may be observed that the critics fail to
appreciate the scientific basis of these so-called unequal punishment.
However, rather than discussing the merits and demerits of these
punishments and their underlying basis, it may be observed that the
principles laid down by these leading law codes of ancient India lead us
to the irresistible conclusion that their justice ideas in the field of
criminal law were well advanced and can compare favorably with the
developed notions of modern penology.
2.2 Mohammedan Criminal Law : The origin and fountain of
Mohammedan criminal law is the Koran which is believed to owe its
origin to divine inspiration. Sin, crime, religious, public and moral
obligations are all found in the Koran blended together in the
conception of duty or we can say that no distinction is made between
crime and civil obligation or mere social duties. All these are based on
religious sanction. Thus the Prophet Mohammad (sm) said: Kill not your
children for fear of being brought to want; we will provide for them and
for you, for, verily, killing them is a great sin! Apart from the Koran, the
6
development of Mohammedan law took place through Hadis, the
sayings of the Prophet Mohammad (sm), Ijmma, i.e. analogical
deductions from the text laid down in the Koran, and lastly, the Kiyas,
i.e. views of the learned scholars.

The substantive criminal law was, however, divinely settled. What


remained for the human hands was only to prescribe the rules of
procedure by which it was to be enforced and applied to individual
cases.

Muslim Rulers And Criminal Law : The Muslim rulers in India


were despots who ruled the country at the point of sword rather than
by the strength of their constitution. Their function of government was
to collect taxes and acquire fresh territory. Seldom could they get time
to think of legislation. The policy of Muslim rulers was to entrust the
expounding and elucidation of the laws of their Kazis whose notions of
crimes were not adapted to any fixed and rigid system of rulers but
differed according to the power and purse of the offenders before
them. As Koran was the fountain source of all laws, it could not be
expected to be human cyclopedia. This offered a chance for the Kazi’s
cupidity and ingenuity. The result was the evolution of a legal system,
which was as elastic and was bewildering. However, some of the main
principles of criminal law and punishment that were enforced may be
noticed. The punishment was threefold, namely, retaliation,
compensation, and deterrence. Even personal retaliation was
permitted.

Opinions Of Different Muslim Scholars As To Criminal Law And


Punishment : According to Abu Hanifa, the weapon or the manner of
the murder, irrespective of the intention on the part of the criminal,
were to be taken into consideration in deciding a case of murder as
6
also in awarding the punishment, while Abu Yusuf and Abu Mohammad
emphasized the importance of intention and not the manner and
weapon of crime.

2.3 Development Of Criminal Law In India Under British Rule :


The Mohammedan system of administration of criminal justice was in
force when the East India Company spread its dominion in India. The
British judiciary was enjoined to preserve status quo in the matter of
civil and criminal justice and their administration but later on they
realized that Mohammedan criminal law was defective in many
respects. For example, in cases of sexual offence the testimony of four
men, who must be eyewitnesses to the fact and of ascertained credit,
were required to be produced. The result was, as Stephen remarked, a
hopelessly confused, feeble indeterminate system of which no one can
make anything at all.

Before we trace the stages of the imposition of British criminal law in


this sub-continent we have to sketch very briefly certain historical
events connected with it. Vasco Da Gama, a subject of Portugal, first
discovered the passage to India around the Cape of Good Hope, the
southernmost point of Africa. Thereafter, the Portuguese began to
carry on trade with India. The Portuguese were followed by the by the
Dutch. Subsequently, the English came on the scene and began to
carry on trade with India. As they were very successful, several
charters were granted and then renewed in time to time for the benefit
of the East India Company. Now a box of certain recognized charters of
different years are given in the below :

List Of Certain Recognized Charters Of Different Years In


British Period : A list of certain well known charters of British
Period is given below :
6
NO. CHARTERS OF CHARACTERISTICS
YEARS IN BRITISH
PERIOD
01. Charter Incorporated the East India Co.
of and by this charter the Co. was
1600 given the right of trading all
(In 1609, James I parts of Asia, Africa and
renewed this America beyond the Cape of
Charter, and in Good Hope, eastward to the
1661 Charles II gave Straits of Magellan and it
similar powers while empowered the Co. to make
renewing it.) laws.

02. Charter Transferred Bombay to the East


of India Company, and directed
1668 proceedings in Court should be
like unto those that were
established in England.
03. Charter Charles II granted this charter
of for establishing a Court of
1683 Judicature at such places as
the Co. might decide.

6
04. Charter It was granted by which a
of Mayor and Corporation were
1687 established at Fort St. George,
Madras, in order to settle small
disputes.
05. Charter This charter was passed under
of which Mayors were not
1753 empowered to try suits between
Indians; and no person was
entitled to sit as a judge who
had an interest in the suit.
06. The Charter It introduced a single
Act of 1833 Legislature for the whole of
British India.

By these above mentioned Charters Englishmen who came to India


were entrusted with administration of justice, both civil as well as
criminal. In these Courts, the powers exercised by the authorities were
very arbitrary. Strange charges were framed and strange punishments
were inflicted.

Prior to the Charter of 1687, the Court of Judicature which was


established in 1672 sat once a month for its general sessions and any
cases that remained undisposed of were adjourned to “Petty Sessions”
which were held after general sessions. This Court inflicted punishment
of slavery in cases of theft and robbery. In ordinary cases of theft the
offender had to pay monetary compensation, or else he was forced to
work for the owner of the article stolen.

In 1726, the Court of Directors made a representation to the Crown for


proper administration of justice in India in civil and criminal matters.
Thereupon, Mayor’s Courts were established for proper administration

6
of justice. But the laws administered were arbitrary because the Mayor
and Aldermen were the Company’s mercantile servants, and they
possessed very little legal knowledge. The law that was administered
was utterly incapable of suiting the social conditions of either the
Hindus or the Mohammedans.

After the Charter of 1753, the English law was no more applicable to
Indians, and they were left to be governed by their own laws and
customs.

The Practice And Procedure In Criminal Courts System :


from 1765 to 1833 : In 1765, Robert Clive came to India for the
third time and Nazim
succeeded in obtaining
the grant of the Dewani
from the Moghul Naib\Sudder
Emperor. The grant of Nazimat Adalat
the Dewani included not
only the holding of
Dewani Courts, but the Foujdari Adalat,
Nizamat also, i.e. the Dist.
right of superintending
the whole
administration in Kotwal
Bengal, Bihar and Orissa.In 1772, Warren Hestings took steps for
proper administration of criminal justice. A Fouzdari Adalat was
established in each district for the trial of criminal offences. With these

6
Courts the Company’s European subjects had no connection, nor did
they interfere with their administration. The Kazi or

Graph: Nizamat, The Hierarchy of Criminal Courts in City and Capital.

Mufti sat in these Courts to expound the law and determine how far
criminals were guilty of the offence charged. The Collector of each
district was ordered to exercise a general supervision over their
procedure.

In addition to District Courts a Sudder Nizamat Adalat was also


established. This Court was to revise and confirm the Sentences of
Fouzdari Adalat in capital cases and offences involving fines exceeding
one hundred rupees. The officers who presided over these Courts were
assisted by Mohammedan law officers. The scheme of justice adopted
by Warren Hastings had two main features. First, he did not apply
English law to the Indian provinces; and, secondly, Hindu and
Muslim laws were treated equally. The administration of criminal
justice remained in the hands of Nawabs, and therefore Mohammedan
criminal law remained in force. These were the Courts in the capital.

In the rest of the country, the administration of justice was in the


hands of Zaminders. In Bengal and Madras, Mohammedan criminal law
was in force. In the Bombay Presidency, Hindu criminal law applied to
the Hindus, and Muslim criminal law to the Muslims. The Vyavahara
Mayukha was the chief authority in Hindu law. But the Hindu criminal
law was a system of despotism and pries craft. It did not put all men on
equal footing in the eye of law, and the punishments were
discriminatory.

6
In 1773, the Regulating Act was passed, which affected the
administration of criminal justice. Under that Act a Governor-General
was appointed and he was to be assisted by four Councillors. A
Supreme Court of Judicature was established at Fort William, Bengal.
This Court took cognizance of all matters, civil, criminal, admiralty and
ecclesiastical. An appeal against the judgment of the Supreme Court
lay to the King-in-Council. All offences were to be tried by the Supreme
Court were to be tried by a jury of British subjects resident in Culcatta.
Any crime committed either by the Governor-General, a Governor, or a
judge of the Supreme Court, was tri-able by the King’s Bench in
England. The Charter of Justice that laid the foundations of the
jurisdictions of the Supreme Court was dated March 26, 1774, and the
justice administered in Calcutta remained so until the establishment of
the High Court under the Act of 1861.

In 1781, an amending Act was passed to remedy the defects of the


Regulating Act. This Act expressly laid down and defined the powers of
the Governor-General in Council to constitute provincial Courts of
justice and to appoint a Committee to hear appeals there form. The
Governor-General was empowered to frame regulations for the
guidance of these Courts. Mohammedan criminal law was then
applicable to both Hindus and Mohammedans in Bengal.

In 1793, towards the close of Lord Cornwallis’ Governor-Generalship,


fresh steps were taken to renew the Company’s Charter. Accordingly,
the Act of 1793, which consolidated and repealed certain previous
measures, was passed.

In the Mofussil towns in Bengal the law officers of the Zilla and City
Courts, who were Sudder Ameens and Principal Sudder Ameens, were
given limited powers in criminal cases. They used to decide petty theft
cases and criminal offences. They could fine up to Rs. 50 and award
6
imprisonment, with or without labor, for one month only. An appeal
from their decision lay to the Magistrate or Joint Magistrate. Offences
for which severe punishment was prescribed were tried by Magistrates,
who were empowered to inflict imprisonment extending to two years
with or without hard labor. There were also Assistant Magistrates and
Deputy Magistrates but they had not full magisterial powers. Offences
requiring heavier punishment were transferred to the Sessions Judge.
Death sentence and life imprisonment, awarded by Sessions Judges,
were subject to confirmation by the Nizamat Adalat. Such was the
criminal administration in Bengal up to 1833.

In Madras, District Munsiffs had limited criminal jurisdiction. They could


fine up to Rs. 200 or award one month’s imprisonment. By Regulation
X of 1816, Magistrates were empowered to inflict imprisonment for
one year. There were also Sudder Ameens who tried trivial offences.
Offences of heinous nature were forwarded for trial to the Sessions
Judges. Offences against the State were referred to the Fouzdari
Adalat. The Fouzdari Adalat was the chief criminal Court in the Madras
Presidency, and was vested with all powers that were given to the
Nizamat Adalat in Bengal.

The administration of criminal justice in Bombay was on the pattern of


Bengal and Madras Presidencies with certain minor changes.

The practice and procedure in Courts in Bengal, Madras and Bombay


were prescribed by Regulations which were passed from time to time
in Bengal 675 Regulations were passed from 1793 to 1834; in Madras
250 Regulations were passed from 1800 to 1834; and in Bombay 259
Regulations were passed during the same period as Madras.

Related Questions :

6
1. Describe the development of modern criminal law in
Indian Sub-Continent.
2. What were the similarities and differences of the
administration of the criminal justice in Hindu, Muslim
and British Periods?

History Of The Enactment Of Penal Code Of 1860 : It may


be observed that Bombay was the first province in India in which a
brief penal code was enacted in 1827 under the guidance of
Elphinstone-the then Governor of Bombay-for the Mofussil. When
Punjab was annexed in 1844, a short code was drawn up for that
province by then governor-General, as the Mohammedan criminal law
which was in force in Bengal was not recognized in the Punjab. In the
province of Madras, Bengal, Bihar, Orissa and other territories acquired
by the Britishers then known as North-West Provinces, the criminal law
as introduced by Regulations was enforced. These Regulations were
more or less similar.

In 1833, Macaulay moved the House of Commons to codify the whole


criminal law in India and bring about uniformity. He told the House of
Commons that Mohammedans were governed by the Koran and in the
Bombay Presidency Hindus were governed by the institutes of Manu.
Pandits and Kazis were to be consulted on points of law, and in certain
respects, the decisions of courts were arbitrary. Thus the year 1833 is
a great landmark in the history of codification in India. The Charter Act
of 1833 introduced a single Legislature for the whole of British India.
The legislature had power to legislate for Hindus and Mohammedans
alike for Presidency towns as well as for Mofussil areas. Parliament,
while recognizing that a complete uniformity of laws was impossible,
set up a commission to give India a Common Law-that is to provide a
general law applicable prima facie to everyone in British India, though
6
particular classes might have to be exempted from its rules as to
particular matters. Under S.40 of the Charter Act of 1833 the first Law
Member, T.B. Macaulay, was appointed, who assumed charge of his
office on June 27, 1834. his firm conviction was that India’s salvation
lay in her wholesale Anglicisation. S. 53 of the said Act of 1833 also
made a provision for the appointment of a law commission to inquire
into the state of laws in force and to make reports thereon. Accordingly
a law commission was appointed in 1834, which is known as the first
Law Commission, with Macaulay, J.M. Mcleod, G.W. Anderson and F.
Millett as Commissioners. They submitted their report on June 15,
1835, and the Draft Penal Code on May 2, 1837. it was returned to
them in order that the two things might be printed under their
superintendence. It might be observed that no Indian was employed in
the commission as a Law Commissioner, nor existing Indian law was
used as a basis of the Penal Code. The Indian opinion of the times also
resented the importation of the complex foreign laws in our country. 6
The commissions justified their rejection of the Indian existing laws as
their basis as it landed them in a hopeless quandary.

Related Question :

1. Describe the history of the enactment of the Penal Code


of 1860?

3. Meaning Of Crime : As for crime, everyone knows what it is;


information about it reaches the public through newspapers, television
programs, films, and novels. Some of us have accumulated experience
with crime by having ourselves been victims or knowing others who
have been victims or some being offenders (or at least defendants) or
knowing such individuals.
6
6. Banga Darshan, December and January 1872,1873.
6
Crime is apparently widespread nowadays, although it is difficult to be
certain of this without knowing what is meant by the term. It affects
our daily lives, and reaches into the highest political circles in home
and abroad. Social scientists seek to know the conditions under which
crime increases; the characteristics of offenders and victims; why
some acts are illegal and others are not. For these and other important
purposes, one must again ask: What is crime? How is the term
defined?

Let us start with simple definitions. Thorsten Sellin refers to crime as


any form of conduct which is forbidden by law under pain of
some punishment. Paul Tappan, along similar lines, writes, Crime is
an intentional act or omission in violation of criminal law,
committed without defense or justification and sanctioned by
law as felony or misdemeanor. Most scholars – though not all – then
proceed to exempt from their definition events forbidden by law but
too insignificant to be considered criminal offences. Thus, Tappan
would distinguish between lesser violations, such as vagrancy, and
criminal acts, thereby avoiding the unnecessary attribution of
criminal status to individuals who offer little or no real threat
to the safety of the community. But it may well be that Tappan is
really making a distinction between the behavior – which after all is
commonly deemed criminal if it is against the law – and status of
individuals – who are not seen and treated as criminals when their
violations are of a minor nature.

We suggest, as a working definition, that crime is any form of


conduct forbidden by law and for which authorized
government personnel can inflict punishment, when those

6
violations carry relatively severe penalties and provoke moral
outrage against the offenders.7

Furthermore, crime is conduct, not condition. That is, it requires one or


more individuals who are responsible for the conduct. It is not useful to
say that garbage on the street is a crime. If there is crime here at all, it
would have to be in the act of placing the garbage on the street, the
failure of persons with the responsibility of removing it to do so, or the
taking of bribes or use of extortion resulting in garbage-filled streets.
Poverty cannot be a crime, but it would be possible to criminalize (i.e.,
make illegal) those actions that are responsible for poverty. This
distinction between condition and conduct may appear to be technical,
but it is extremely significant; without the concept of conduct, there
cannot be culpable individuals and a process of arrest, trial, and
punishment or exoneration.

Definition Of Crime Under English Law : The House of Lords, the


highest English Tribunal for most Criminal Law purposes, essayed a
definition in Board of Trade v. Owen (1957) AC 602 : “Crime is an
unlawful act or default which is an offence against the public
and renders the person guilty of the act liable to legal
punishment.” Such a definition tells us nothing about why conduct is
made criminal. A crime may cause less harm than a tort or breach of
contract.

A work which summaries the whole of English Law is Halbury’s Laws


of England, Vol. 11(1), Para. 1 (Butterworths, 1990 re-issue). The fourth
edition contains the following :

7
7. E. Allan,Harry; C. Friday, Paul; B. Roeback, Julian; and Sagrin, Edward; Crime and
Punishment – An Introduction to Criminology,The Free Press, New York, 1981.
6
Ordinarily a crime is a wrong which affects the society or well-
being of the public generally so that the public has an interest
in its suppression…..However…..an act may be made criminl
process, rather than civil, which afects the mor effective
means of controlling the conduct in question.

3.1 Two Visions Of Crime – For essentially there are two approaches
to a definition of crime: the legalistic and the social.

The legalistic approach defines crime as conduct forbidden in the penal


codes. It has been criticized because it implies agreement on the part
of criminologists with authorities who make the laws and acceptance of
the statements of authorities on what is and what is not criminal. Such
a criticism, we believe, is entirely unwarranted. Max Webber pointed
out that to say that an act is within the law is not to say that is good or
bad.8 While there is certain types of behavior are crimes and ought to
be punishable as such, there is disagreement as to other types. In
many parts of the world, for example, people have been sentenced to
long prison terms for possession of marijuana, and it seems to us
illogical to refuse to conceptualize as criminal an act for which people
are arrested, tried in a court of law, and sent to prison simply because
one does not approve of the illegalization and imprisonment process.

Some scholars would abandon the legalistic approach to crime


altogether and define crime in terms of an antisocial. Sellin, however,
rejects such a view: Crime, he writes, is a legal concept, although
some writers have used the term indiscriminately to denote
antisocial, immoral, or sinful behavior.

8
8. The statement is made by Max Rheinstein in his Introduction to Max Webber on Law in
Economy and Society (New York: Simon and Schuster, 1967), pp. 5-6.
6
Is poverty amid plenty a crime? Is the failure to pass laws against
pollution a crime? Is it a crime that Bangladeshi tax laws have been
formulated in such a way that many people with annual incomes of a
million taka or more do not have to pay any income tax whatsoever?
As examples of social injustice, these situations certainly deserve the
scholars and the public. Perhaps it can even be said that in the opinion
of large numbers of people they ought to be considered crimes. This
would mean that they should be illegal and punishable, and hat
agitation along that line is desirable. It is important, however, to make
a distinction between legal and illegal outrageous acts, for without
such a distinction study of the criminalization process would not be
possible, nor could one understand those power structures that
criminalize certain forms of behavior but not others that are equally
antisocial or dangerous.

3.2 Crime As A Breach Of Law : The definition of crime as being


what the criminal law says it is was summarized with all its apparent
shortcomings and tautologies by Lord Atkin (quoted by J. E. Williams in
the UNESCO Dictionary of the Social Sciences). Atkin wrote: The
domain of criminal jurisprudence can only be ascertained by
examining what acts at any particular period are declared by
the State to be crimes, and the only common nature they will
be found to possess is that they are prohibited by the State
and those who commit them are punished.

If crime is what the criminal law says it is, then, in the view of
some people, without criminal law there would be no crime.
Hence criminal law is the cause of crime. This argument was
stated quite boldly, and taken rather seriously, by two scholars,
Jerome Michael and Mortimer J. Adler: If crime is merely an
instance of conduct which is proscribed by the criminal

6
code it follows that the criminal law is the formal cause
of crime. But there is no logic in this contention. The authors
themselves go on to say that they do not mean that the law
produces the behavior, but even in the formal sense law is not
the cause of crime: it is the codification by which governmental
bodies officially declare that certain forms of behavior will be
regarded as crime. It would be more accurate to say that
crime is the cause of criminal law then the converse.

Whether Crime Is A Static One : An offence is a breach of a legal


duty which may be followed by criminal proceedings and sentence.
Criminal procedure defines what is criminal law. Unfortunately we do
not know whether criminal proceedings are needed until we know that
the criminal law has been broken. By enacting a law, Parliament is
seen to be doing something about a social problem. Parliament may
convert a tort into a crime or what was previously lawful into one, or it
may make lawful that which was previously illegal. What was
previously redress able only civilly may be converted into a crime, and
the public becomes involved in suppressing what Parliament has
deemed to be unlawful behabior. Moreover, it is not always clear why
an offence has been created. Sometimes it seems simpler to institute
an offence than to do anything else.

Knowing that there are procedural differences between criminal and


civil law does not justify distinguishing the two types of law in terms of
substance. Williams noted that he could give only a list of factors
indicating criminal law had to be balanced against factors indicating
civil law. Nevertheless, in most instances the criminal law is like an
elephant: we know it when we see it. Accepting that it is difficult to
define a crime for all purposes, the following suffices for our purposes:
a legal wrong the remedy for which is the punishment of the
6
offender at the instance of the state (Professor Cross). Accordingly
there must be (a) some wrong doing, or indeed a wrongful situation;
(b) a legal wrong; (c) a wrong where the state in whichever guise
intervenes to punish the wrong-doer; and (d) a remedy for the wrong in
terms of punishment. Criminal law is that part of law which cannot be
left to private individuals to enforce.
From above discussion many of us may think that crime is very much
static, meaning it follows strict rules and procedures. It is not incorrect.
Nevertheless crime is not static in a single point of view.

It is well known proposition that although crime and morality are not
the same, there are some areas of overlap. Just as some aspects of
morality change, so does the criminal law. The usual example under
English Law is homosexuality. Until quite recently it was an offence
among consenting males, of whatever age, to perform homosexual
acts wherever in England and Wales. In 1967 Parliament changed the
law to make homosexual activities in private between two men over 21
lawful. The age was reduced to 18 in 1994 abd later to 16. It should be
noted that these changes in law can be consistent with the European
Convention. Homosexuality was illegal in the states, which signed the
Convention in the 1950s, and the European Commission on Human
Rights permitted such laws. However, just as national laws have
changed, so has the interpretation of the Convention with the result
that states can, for instance, no longer lay down separate ages of
consent for homosexual and homosexual intercourse.9

Which forms of behavior are criminal is a matter for Parliament and the
courts. Sometimes coverage is non-existent. If I misappropriate trade
secrets, I am not guilty of theft. Sometimes coverage is only partial. If I

9
9. This example is cited from Jefferson, Michael, Criminal Law,7th Ed.,2006, Pearson
Longman,Harlow,England.
6
tell lies to have sexual intercourse, I am not guilty of rape, unless I lie
about the nature of the act or my identity. If I tell lies to gain an item of
property, I may be guilty of obtaining by deception. One aspect of the
problem is thst Parliament and the courts create offences of enormous
width with the result that acts of vastly different depravity are included
within the same offence.

There is also the fact that the criminal law is changed only solely and
partially by Parliament to reflect social development. The language
both in judge-made and Parliament-made criminal law may be out of
date. Since the development of the law has been piecemeal over
centuries it is not surprising that there is no single definition which
encapsulates why this conduct is a crime and that conduct is not
.
At most, criminal law causes certain types of behavior to be
officially labeled as crime and reacted to by authorities in the
officially designated and accepted manner, but the act itself -
whether homicide, robbery, or whatever - would take place
without criminal law, probably with greater frequency. Along these
lines one is reminded of the statement of Emile Durkheim, the
great French sociologist, that an act does not outrage the
public because it is a crime, it is a crime because it
outrages the public. This important observation deserves some
modification, for there are acts that first become crimes and as a
result of government and social pressure then begin to outrage
the population (as with pornography or blasphemy), but
Durkheim’s formulation nonetheless is a succinct observation on
the relationship between crime and public attitudes.

Individual types of crime are defined in the penal code, but


crime itself is not. The definitions in the penal code are
6
necessary in order to guard against the harassment and
imprisonment of individuals on charges so vague and poorly
defined that the person might not have known that what he was
doing was against the law.

Related Questions :

1. Define the term “crime”.


2. Is crime static? Answer it with examples.

4. Penal Code Of 1860 And Its Some Preliminary


Provisions : In this section we will discuss about certain preliminary
provisions of the Penal Code of 1860. These are a) Extent of operation
of the Penal Code, b) Intra-territorial operation of the Code, and c)
Extra-territorial operation of the Code.

a) Extent Of Operation Of The Penal Code : S. 1 declares that the


Penal Code is applicable to the whole of Bangladesh. It lays down that
the Penal Code extends only to offences committed in Bangladesh and
not to offences committed outside Bangladesh.10

b) Intra-Territorial Operation Of The Penal Code : S. 2 deals with


the intra-territorial operation of the Code. It lays down that “every
person shall be liable to punishment under the Code and not otherwise
for every act or omission contrary to the provisions thereof, of which
he shall be guilt within Bangladesh.” Under this section all persons
irrespective of rank, nationality, caste or creed, are equally liable for
offence committed within Bangladesh. The Code is applicable to all
persons whether he is a foreigner or not. It is no defense on behalf of a

10
10. Abdul Haque v. State (1994) BLD 204.
6
foreigner that he did not know that he was doing wrong, the act not
being an offence in his own country.11

What is the position if an offence is committed under this code on


Water? So far as rivers are concerned, there is no difficulty as they are
on land. But what is the legal position if an offence is committed on
the high seas? The reply is that the territorial jurisdiction of our State,
as per the Proclamation of 1966 made by the President of the then
Pakistan, extends into the high seas up to 12 nautical miles.12 This is
called its maritime territory. This jurisdiction is conferred on the State
and the Courts are empowered to try offences committed within that
area. For example- an offence committed within the belt of 12 miles in
the sea near Chittagong will be cognizable by the Chittagong Court.
Anything beyond that, will also be cognizable by our Courts under the
Admiralty jurisdiction.

We have noted above that under S.2 every person is liable to


punishment for an offence committed under the Code. But there are
certain exceptions to this rule. The following person are exempted
from the jurisdiction of the Criminal Courts :

b1) The President Of Bangladesh : Under Art. 51 of the


Constitution of the People’s Republic of Bangladesh, the President is
exempted from criminal proceedings.

b2) Foreign Sovereigns : A foreign sovereign cannot be punished


under the Code according to the rules of International Law.

11
11. Crown v. Esop 1836 7 C. & P. 456.
12
12. Proclamation dated December 29, 1966 : Keesing’s Contemporary Archives, January 23-
February 4, 1967, p. 21845.
6
b3) Ambassador : An Ambassador being accredited as a
representative of an independent sovereign or State is entitled to the
immunity his sovereign would be entitled. He is, for all judicial
purposes, supposed still to be in his own country. If he commits a gross
offence, he may be sent home and accused before his master. The
principle on which this immunity is based is that he should be free to
perform official business on behalf of his country without interference
or interruption.

b4) Alien Enemies : In respect of acts of war, alien enemies cannot


be tried by Criminal Courts but they shall be dealt with by martial law.
On the contrary, if an alien enemy commits a crime not connected with
war, he is triable by ordinary Criminal Courts.

b5) Foreign Army : When armies of one State are sent by consent
on the soil of a foreign State, they are exempted from the jurisdiction
of the State on whose soil they stay.

b6) War Ships : Men-of-war of a State in foreign waters are


exempted from the jurisdiction of the State within whose territorial
jurisdiction they are. This principle of International law is illustrated in a
decision of the Supreme Court of U.S. in the case of Schooner v. M.
Faddon.13 In this case the Emperor Napoleon had commissioned a
French ship. As per the laws of France, it was a French warship. The
ship was in the American territorial waters. An American citizen M.
Faddon claimed that the ship originally belonged to him and requested
the Supreme Court to deliver the same to him. It was held that the
Supreme Court of U.S. could not exercise jurisdiction over the warship.
Though this case is an authority on a claim of a civil nature, yet the
principle of the case would be applicable to Criminal jurisdiction.

13
13. (1812) 7 Granch 116.
6
c) Extra-Territorial Operation Of The Penal Code : The Courts of
Bangladesh have jurisdiction to try offences committed beyond the
limits of Bangladesh either on the land or on the high seas by virtue of
S. 3 and 4 of the Penal Code. These sections deal with the extra-
territorial operation of the Code by laying down that an offence
committed outside Bangladesh may be tried as an offence committed
in Bangladesh in the following cases :

An offence committed by (a) any citizen of Bangladesh in any place


without and beyond Bangladesh; (b) any person on ant ship or aircraft
registered in Bangladesh wherever it may be. Some illustration will
make it clear : (a) A, a Bangladeshi subject, commits a murder in
Uganda. He can be tried and convicted of murder in any place in
Bangladesh in which he may be found; (b) B, a European British
subject, commits a murder in Rangpur. He can be tried and convicted
of murder in any place in Bangladesh in which he may be found; (c) C,
a Foreigner who is in the service of the Bangladesh Government,
commits a murder in Khulna. He can be tried and convicted of murder
at any place in Bangladesh in which he may be found; (d) D, a British
subject living in Khulna, instigates E to commit a murder in Chittagong.
D is guilty of abetting murder.

We may now consider the liability of a foreigner in Bangladesh for an


offence committed by him outside Bangladesh. In such cases our
courts cannot try such foreigners. They may be extradited under the
Extradition Act, 1903. Extradition means the surrender of a fugitive
offender is liable to be punished. The law of extradition is found upon
the broad principle that it is to the interest of civilized communities
that crimes should not go unpunished. So far we have considered the
extra-territorial jurisdiction of our courts to try offences committed
6
beyond the limits of Bangladesh on land.the jurisdiction of of a Court
to try offences committed on the high seas is known as its Admiralty
jurisdiction. Our Courts have power to try offences committed on high
seas. It is founded on the principle that a ship on the High seas is a
floting island belonging to the nation whose flag she is flying. It
extends over, (1) offences committed on Bangladesh ships, (2)
offences committed on foreign ships in Bangladesh territorial waters
and (3) pirates. Piracy consists of any illegal act of violence, detention,
or any act of depredation committed for private ends, by those
aboard a private ship or private aircraft and directed against a ship or
persons or property in the high seas. A pirate is one who is a
dangerous to the vessels of all nations. Irrespective of the nationality
of the pirate, he is triable everywhere.

Related Questions :

1. What is the scope of the Penal Code of 1860? Does it have


extra-territorial jurisdiction?
2. What is the jurisdiction of a Court of Bangladesh to try
offences committed by a Citizen of Bangladesh within
Bangladesh and beyond Bangladesh?
3. What is the jurisdiction of a Court of Bangladesh to try
offences committed by a foreigner within Bangladesh and
beyond Bangladesh?

5. Incorporation Of Different Crimes In The Penal Code Of 1860


And A Contextual Underpinning : In all there are 511 sections in
the Penal Code. We may divide the Code into two parts. The first part
deals with the general provisions and the second part deals with the
specific offences. The following statement gives an outline of the
scheme of the Penal Code :
6
General Provisions

 Territorial operation of the Code - Intra-territorial & Extra-territorial


[Ch. I]
 General Explanations – Definitions (Ss. 6-33 & 39-52A)
Joint liability in a crime (Ss. 34-38) [Ch. II]
 Punishments – Kinds of punishments (Ss. 53-70,73 & 74)
Rules for assessment of punishment (Ss. 71,72 &75)
[Ch. III]
 General exceptions (Ss. 76-106) [Ch. IV]
 Abetment (Ss. 107-120) [Ch. V]
 Criminal conspiracy (Ss. 120A-120B) [Ch. VA]
 Attempts (S. 511) [Ch. XXXIII]

Specific Offences

1. Affecting the State


 Offences against state : (Ss. 121-130) [Ch. VI]
 Offences relating to the Army, Navy, and Air Force (Ss. 131-140)
[Ch. VII]
 Offences against the public tranquility (Ss. 141-160) [Ch. VIII]
 Offences by or relating to the public servants (Ss. 161-171) [Ch. IX]
 Contempts of the lawful authority of public servants (Ss.172-190)
[Ch. X]

2. Affecting the Common Weal


 Offences relating to elections (Ss. 171A-171B) [Ch. IXA]

6
 False evidence and offence against public justice (Ss. 191-229) [Ch.
XI]
 Offences relating to coin and government stamps (Ss. 230-263A)
[Ch. XII]
 Offences relating to weights and measures (Ss. 264-267) [Ch. XIII]
 Offences affecting the public health, safety, convenience, decency
and morals (Ss. 268-294A) [Ch. XIV]
 Offences relating to religion (Ss. ) [Ch. XV]
 The criminal breach of contracts of service (S. 491) [Ch. XIX]
 Offences relating to marriage (Ss. 493-498) [Ch. XX]

3. Affecting the Human Body


 Offences affecting human body (Ss. 299-377) [Ch. XVI]

4. Affecting Corporeal or Incorporeal Property


 Offences against property (Ss. 378-460) [Ch. XVII]
 Offences relating to documents and to trade or property marks (Ss.
463-489E) [Ch. XVIII]

5. Affecting Reputation
 Defamation (Ss. 499-502) [Ch. XXI]
 Criminal intimidation, insult and annoyance (Ss.503-510) [Ch. XXIII]

LECTURE – TWO
6
ON
1. Distinction Between Crime and Civil Wrong or Moral Wrong.

2. General Principles and Essential Conditions of Criminal Liability – Actus non facit
reum nisi mens sit rea.

3. Four Elements of Crime: In Brief.


3.1 Wrong Doer
3.2 Mens Rea
3.3 Actus Rea
3.4 Injury to Human Being.

4.Physical Element of Crime: Actus rea (conduct by act or omission)

5. Mental Elements of Crime.


5.1 Mens Rea (state of mind)
5.2 Intention
5.3 Motive
5.4 Malice

1. Distinction Between Crime And Civil Wrong Or Moral


Wrong : In order to draw a distinction between civil and criminal
liability, it becomes necessary to know clearly what is a wrong.
There are certain acts done by us which a large majority of
civilized people in the society look upon with disapprobation,
because they tend to reduce the sum total of human happiness,
to conserve which is the ultimate aim of all laws. Such acts may
be called wrongs, for instance, lying, gambling, cheating, cheating,
stealing, homicide, proxying in the class, gluttony, and so on. The
evil tendencies and the reflex action in the society of these acts
or wrongs differ in degree. Such wrongs may be designated as
Moral Wrongs, for instance, lying, over-eating or gluttony,
disobedience of parents or teachers, and so on. Moral wrongs are
restrained and corrected by social laws of religion.

There are other wrongs which are serious enough to attract the notice
of the law. The reaction in the society is grave enough and is
expressed either by infliction of some pain on the wrongdoer or

6
by calling upon him to make good the loss to the wronged
person. In other words law either awards punishment or damages
according to the gravity of the wrong done. If the law does not
consider it serious enough to award punishment and allows only
in indemnifrention of damages, we call such a wrong as a Civil
Wrong or Tort. In order to make out the distinction between
crimes and torts, we have to go deep into the matter and study
it rather elaborately.

a) Civil And Criminal Wrong : We may state, broadly speaking,


first, that crimes are graver wrongs than tots. There are three
reasons for this distinction between a crime and a tort.

First, they constitute greater interference with the happiness of


others and affect the community as a whole.

Secondly, because the impulse to commit them is often very


strong and the advantage to be gained from the wrongful act
and the facility with which it can be accomplished are often so
great and the risk of detection so small that human nature,
inclined as it is to take the shortest cut to happiness, is more
likely to be tempted, more often than not, to commit such
wrongs. A pickpocket, a swindler, a gambler are all instances.
Thirdly, ordinarily they are deliberate acts and directed by an
evil mind and are hurtful to the society by the bad example
they set. Since crimes are graver wrongs, they are singled out for
punishment with fourfold objects, namely, of making an example
of the criminal, lf deterring him from repeating the same act, of
reforming him by eradicating the evil, and of satisfying the
society’s feeling of vengeance. Civil wrongs, on the other hand,
are less serious wrongs, as the effect of such wrongs is supposed
6
to be confined mainly to individuals and does not affect the
community at large. Secondly, the accused is treated with greater
indulgence than the defendant in civil cases . The procedure and
the rules of evidence are modified in order to reduce to a
minimum the risk of an innocent person being punished. For
example, the accused is not bound to prove anything, nor is he
required to make any statement in court, not is he compellable
to answer any question or give and explanation. However, under
the Continental Laws an accused can be interrogated.

Thirdly, if there is any reasonable doubt regarding the guilt of


the accused, the benefit of doubt is always given to the accused.
It is said that it is better that ten guilty men should escape
rather than an innocent person should suffer. But the defendant
in a civil case is not given any such benefit of doubt.

Fourthly, crimes and civil injuries are generally dealt with in different
tribunals. The former are tried in the criminal courts, while the latter in
the civil courts.

Fifthly, in case of a civil injury, the object aimed at is to indemnify the


individual wronged and to put him as far as practicable in the position
he was, before he was wronged. Therefore he can compromise the
case, whereas in criminal cases generally the state alone, as the
protector of the rights of its subjects, pursues the offender and often
does so in spite of the injured party. There are, however, exceptions to
this rule.

Lastly, an act in order to be criminal must be done with malice or


criminal intent. In other words, there is no crime without an evil intent.
Actus, which means that the act alone does not make a man guilty
6
unless his intentions were so. This essential of the crime distinguishes
it from civil injuries.

b) Criminal And Moral Wrong : A criminal wrong may be


distinguished from a moral wrong. It is narrower in extent than a moral
wrong. In no age nor in any nation an attempt has ever been made to
treat every moral wrong as a crime. In a crime, an idea of some
definite gross undeniable injury to someone is involved. Some definite
overt act is necessary, but do we punish a person for ingratitude, hard-
heartedness, absence of natural affection, habitual idleness, avarice,
sensuality and pride, which are all instances of moral lapses? They
might be subject of confession and penance but not criminal
proceeding. The criminal law, therefore, has a limited scope. It applies
only to definite acts of commission and omission, capable of being
distinctly proved. These acts of commission and omission cause
definite evil either on definite persons or on the community at large.
Within these narrow limits there may be a likeness between criminal
law and morality. For instance, offences like murder, rape, arson,
robbery, theft and the like are equally abhorred by law and morality.
On the other hand, there are many acts which are not at all immoral,
nonetheless they are criminal. For example, breaches of statutory
regulations and bye-laws are classed as criminal offences, although
they do not involve the slightest blame. So also “the failure to have a
proper light on a bicycle or keeping of a pig in a wrong place,” or the
neglect in breach of a bye-law to cause a child to attend school during
the whole of the ordinary school hours; and conversely many acts of
great immorality are not criminal offences, as for example, adultery in
England,14 or incest in India. However, whenever law and morals unite
in condemning an act, the punishment for the act is enhanced.

14
14. R. v. Windle (1952) 36 Cr. App. R. 85,89.
6
Related Questions :

1. What are the differences between crime and moral


wrong?
2. What are the differences between crime and civil wrong?

2. General Principles And Essential Conditions Of Criminal


Liability : Actus non facit reum nisi, mens sit rea : If anyone ask
what is the test of criminality or criminal liability? The test of criminal
liability has had a gradual development. In the very beginning only the
most serious crimes were recognized and were singled out for
punishment. The list of crimes at that time was short. In the next stage
we find that the machinery for administration of justice was refined
and developed, and procedural laws for the trial of criminal cases were
also reformed. In the process of development we find that certain
fundamental principles were evolved. The first was that nobody should
be held liable unless he had the evil intent to commit it, and the
second was that the accused was to be punished to be innocent unless
he was proved to be guilty. The former principle assumed a Latin garb
and became known as actus non facit reum, nisi mens sit rea,
and was first cited as a principle by Lord Kenyon C.J. in Fowler
v..Pedget15 thus: “It is a principle of natural justice and of our
law that actus non facit reum, nisi mens sit rea” This principle
has even in modern times been accepted to be a leading doctrine of
criminal law, for Lord Goddard C.J. observed in a case16 in 1949 :
“Actus non facit reum, nisi mens sit rea is a cardinal doctrine
of the Criminal Law.” This maxim which has been accepted not only
by the courts of England but also our own courts recognize that there
are two necessary elements in a crime, namely, first, a physical
15
15. (1798) 7 T. R. 509.
16
16. Younghusband v. Luftig (1949) 2 K.B. 354,370.
6
element, and, secondly, a mental element. The former is known
technically as actus reus and the latter as mens rea. These are the
tests of criminality known to our law and to the laws of England.

The actus reus may be an act of commission or an act of omission. It


may be punishable by a statute or by common law. The actus reus
may be the disobedience of the orders of a competent tribunal or may
even be of a rule made by an executive but in order that the actus
reus may be punishable it must generally be accompanied by a guilty
mind. However, in some cases, law awards a punishment although the
actus reus is not consummated. They are known to us as attempt,
conspiracy or even some cases of preparation.

3. Four Elements Of Crime : Apart from mens rea and actus rea,
that go to make up a crime, there are two most indispensable
elements, namely, first, “a human being under a legal obligation to act
in a particular way and a fit subject for the infliction of appropriate
punishment,” and secondly, “an injury toanother human being or to
the society at large.” Thus the four elements that go to constitute a
crime are as follows: first, a human being under a legal obligation to
act in a particular way and a fit subject for the infliction of appropriate
punishment; secondly, an evil intent or mens rea on the part of such a
human being; thirdly, actus reus, i.e. an act committed or omitted in
furtherance of such an intent; and fourthly, an injury to another human
being or to society at large by such an act.

6
CRIME CRIME
WRONGDOER
+
MENS REA
+
ACTUS REA
+
INJURY TO
HUMAN
BEING

CRIME CRIME

Graph : Constituting Element of Crime

3.1 Wrong Doer : We shall discuss these four elements generally in


the sequel. The first element inquires that the act should have been
done by a human being before it can constitute a crime
punishable at law. It would, however, be interesting to observe that
examples are not wanting in the earlier societies of punishments being
inflicted on animals or inanimate objects for injury done by them.

The principles of mens rea is considered to be a necessary element of


crime. This presupposition is that the offender should be a human
being who must have developed a sufficient maturity of understanding
to know the nature of the act of which he is to be held liable. With the
development of the notion of mens rea as an essential of a crime, the
trials and punishments of animals and inanimate objects were given
up, although at a time animal trials and acceptation of animals as
witnesses were presumed natural. As we have mentioned above, the
first essential requires that the human being must be, “under a legal

6
obligation to act, and capable of being punished.” The first restriction
has been placed in this essential in order to exclude an outlaw,
because he is placed outside the pale and protection of law. The other
restriction is that the human being should be “capable of being
punished,” namely, he should have a body. Apparently, it would seem
that corporation or other artificial persons known to modern
jurisprudence are not capable of being punished. For a very long time
in our legal history the common belief was that a corporation as such
has neither a “soul to be damned not a body to be kicked.” Later on,
we find that corporations were punished for quasi-criminal acts, for
which fines were imposed. In this essential, the expression used is a
“fit subject for the infliction of appropriate punishment.” The
appropriate punishment would here mean both bodily and pecuniary
punishment or fine.

3.2 Mens Rea : The second element, which is an important


essential of a crime, is mens rea or evil intent. As we have observed
before, actus non facit reum, nisi mens sit rea is a well known maxim
of criminal law. From this maxim follows another proposition, namely,
actus me invito factus non est mens actus, i.e. an act done by me
against my will is not my act. The principle of mens rea brings in
several other states of mind, namely, will, intention, motive, and so on.
It also introduces those cases where there is no liability, because there
is an absence of mens rea, for example, compulsion, mistake, infancy,
insanity, intoxication, necessity, and so on.

The above two elements alone, namely, the human being, that is, the
wrong-doer and mens rea on his part do not go to constitute a crime.
The criminal law does not punish a mere criminal law. The reason was
that the courts were not possessed of facilities for investigating the
working of a man’s mind and were uncertain as to the possibility of
6
ascertaining it accurately. This difficulty illustrated by a much quoted
observation of Brian C.J. “For it is common knowledge that the
intention of a man will not be probed, for the devil does not know the
man’s intentions.”17

3.3 Actus Rea (conduct by act or omission) : In every criminal


offence, there must be either an act or omission on the part of the
accused. By act meant doing of something which the law prohibits and
omission means not doing of something which the law requires to be
done.

The act or omission must be of the accused, that is, it nust have been
done by the accused himself or by someone, whose act will be treated
as that of the accused for the purpose of fixing liability e.g. the act of
a servant or of an agent is treated as the act of the master or the
principal respectively. But the accused cannot be held liable for acts or
omissions of any stranger and on the same principal for certain acts of
nature. If somebody throws a stone on another person, who is injured
or he catches my hand and strikes it at the face of the victim I am not
to be blamed. It is not my act which injuries. I am merely a tool in the
hands of another person and, therefore, cannot be held liable.

3.4 Injury To Human Being : The fourth element, as we have


pointed out above is an injury to another human being or to society at
large. This injury to another human being should be illegally caused to
any person in body, mind, reputation or property. Therefore, it
becomes clear that the consequences of harmful conduct may not only
cause a bodily harm to another person, it may cause harm to his mind
or to his property or to his reputation. Sometimes by a harmful conduct
no injury is caused to another human being, yet the act may be held
17
17. Y.B. 17 Ed. . IV f.o. 2.
6
liable as a crime, because in such a case a harm is caused to the
society at large. All the public offences, specially offences against the
state, e.g., treason, sedition, etc. are instances of such harms. They
are treated to be very grave offences and punished very severely also.

We may state again that there are four essential elements that go to
constitute a crime. First, the wrongdoer who must be a human being
and must have the capacity to commit a crime, so that he may be a fit
subject for the infliction of an appropriate punishment. Secondly, there
should be an evil intent or mens rea on the part of such a human
being. This is also known as the subjective element of a crime. Thirdly,
there should be an actus reus, i.e., an act committed or omitted in
furtherance of such evil intent or mens rea. This may called the
objective element of a crime. Lastly, as a result of the conduct of the
human being acting with an evil mind, an injury should have been
caused to another human being or to the society at large. Such an
injury should have been caused to any other person in body, mind,
reputation or property. If all these elements are present, generally, we
would say that a crime has been constituted. However, in some cases
we find that a crime is constituted, although there is no mens rea at
all. These are known as cases of strict liability. Then again, in some
cases a crime is constituted, although the actus reus has not
consummated and no injury has resulted to any person. Such cases are
known as inchoate crimes, like attempt, abatement or conspiracy. So
also, a crime may be constituted where only the first two elements are
present. In other words, when there is intention alone or even in some
cases there may be an assembly alone of the persons without any
intention at all. These are exceptional cases of very serious crimes
which are taken notice of by the state in the larger interests of the
peace and tranquility of the society.

6
4. Physical Element Of Crime : Actus Reus : Therefore to
constitute a crime the third element, which we has called actus reus or
which Russell18 has termed as “ physical event”, is necessary. Now
what is this actus reus. It is physical result of human conduct. When
criminal policy regards such a conduct as sufficiently harmful it is
prohibited and the criminal policy provides a sanction or penalty for its
commission. The actus reus may be defined in the words of Kenny to
be such result of human conduct as the law seek to prevent. Such
human conduct may consist of acts of commission as well as acts of
omission. S. 32 of the Penal Code of 1860 lays down – “Words which
refer to act and done extend also to illegal omissions.”

It is of course, necessary that the act done or omitted to the done must
not constitute. Suppose, an executioner hangs a condemned prisoner
with the intention of hanging him. Here all the three elements
obviously are present, yet he would not be committing a crime.
Suppose, an executants hangs a condemned prisoner without the
intention of hanging him. Here all the three elements obviously are
present, yet he would not be committing a crime because he is acting
in accordance with a law enjoining him to act. So also if a surgeon in
the course of an operation, which he knew to be dangerous, with the
best of his skill and care, performs it and yet the death of the patient is
accused, he would not be guilty of committing a crime because he had
no mens rea to commit it.

As regards the acts of omission which make a man criminally


responsible, the rule is that no one would be held liable for the lawful
consequences of his omission unless it is proved that he was under a
legal obligation to act. In other words, some duty should have been
imposed upon him by law, which he has omitted to discharge. Under
18
18. Russell,On Crime 11th ed. vol 1, p. 20.
6
the Penal Code of 1860, S. 43 lays doen that the word “illegal” is
applicable to everything which is an offence or which is prohibited by
law, or which furnishes a ground for a civil action; and a person is said
to be “legally” is applicable to everything which is an offence or which
is prohibited by law, or which furnishes a ground for a civil action; and
a person is said to be “legally bound to be whatever it ia illegal in him
to omit.” Therefore, an illegal omission would apply to omissions of
everything which he is legally bound to do. However, the two elements
actus reus and mens rea are distinct elements of a crime. They must
always be distinguished and must be present in order that a crime may
constituted. The mental element or mens rea in modern times means
that the person’s conduct must be voluntary and it must also be
actuated by a guilty mind, while actus reus denotes the physical result
of the conduct, namely, it should be a violation of some law statutory
or otherwise, prohibiting or commanding the conduct.

Related Question :

1. Describe the general principles and essential conditions


of criminal liability.

5. Mental Elements Of Crime :

5.1 Mens Rea (state of mind) : It is one of the cardinal principles


of the English Criminal Law that to constitute guilt there must be a
guilty intent behind the act itself and that a crime is not committed if
the mind of the person doing the act is innocent. The principle is based
on the maxim actus non facit reum, nisi mens sit rea, i.e. the act itself
does not constitute guilt unless done with a guilty intent. Thus mens
rea in the case of theft an intention to steal and in the case of
receiving stolen goods knowledge that the goods were stolen.
6
The maxim, therefore, connotes that the act itself does not make a
man guilty unless his intention was to commit a crime. For example, a
person shoots a jackal but actually killed a man behind committed if he
was not negligent and the act will be excusable as an accident.
Similarly, A is working with a hatchet and the head flies off, killing a
man who is standing by. There is no offence if he has taken proper
precaution and act is excusable as an accident. But if a person kills a
man under circumstances which afford him no legal justification, he is
guilty of murder.

It was held in the case of Sherras v. De Rutzen19 that mens rea is an


essential ingrident in every offence in three cases : (1) cases not
criminal in any real sense but which in the public interest are
prohibited under a penalty, e.g. Revenue Acts; (2) public nuisance; and
(3) cases criminal in form but which are really only a summary mode of
enforcing a civil right.

The maxim has not so wide an application to the offences under the
Penal Code; because the definition of the various offences contain
expressly a statement as to the state of mind which constitutes the
mental element of a particular offence. Thus the definitions state
whether an act, in order to constitute an offence, must have been done
voluntaryily, knowingly, intentionally, negligently, rashly, dishonestly,
fraudulently or the like. In other words every ingredient of the offence
is stated in the definitions. So mens rea will mean one thing or another
according to the particular offence. The guilty mind may thus be a
fraudulent mind or a dishonest mind, or a negligent or rash mind
according to the circumstances of the case and each of these minds
differs widely from the other. It is thus said that mental elements of
19
19. (1895) 1 QB 918.
6
different crimes differ widely. Similarly there are crimes (e.g. mental
element is necessary to constitute the act a crime. The Chapter on
general exceptions deals with the general conditions which negative
mens rea and thus exclude criminal liability.
5.2 Intention : Salmond defines intention as the purpose or design
with which an act is
done. It is the foreknowledge of the act, coupled with the desire of it,
such foreknowledge and desires being the cause of the act, inasmuch
as they fulfill themselves through the operation of the will. An act ios
intentional if it exists in idea before it exists in fact, the idea realizing
itself in the fact because of the desire by which it is accomplished.

Intention does not necessarily involve expectation. I may intend a


result which I well know to be extremely improbable. So an act may be
intentional with respect to a particular circumstances, although the
chance of the existence of that circumstances is known to be
exceedingly small. Intention is the foresight of an undesired issue,
however improbable – not the foresight of an undesired issue, however
probable. If I fire a rifle in the direction of a man a mile away, I may
know perfectly well that the chance of hitting him is not one in a
thousand; I may fully expect to miss him; nevertheless I intend to hit
him if I desire too do so. He who steals a letter containing a cheque,
intentionally steals the cheque also if he hopes that the letter may
contain one, even though he well knows that the odds against the
existence of such a circumstances are every great.

Conversely, expectation does not in itself amount to intention. A


Surgeon may know very well that his patient will probably die of the
operation; yet he does not intend the fatal consequence which he
expects. He intends the recovery which he hopes for but does not
expect.
6
As a general rule, every man is presumed to intend the natural and
probable consequences of his acts, and this presumption of law will
prevail unless from a comsideration of all the evidence the Court
entertains a reasonable doubt whether such intention existed. This
presumption, however, is not conclusive nor alone sufficient to justify a
conviction and should be supplemented by other testimony. An
accused must be judged to have the intention that is indicated by his
proved acts. The burden of proving guilty intention lies upon the
prosecution where the intent is expressly stated as part of the
definition of the crime.

Mere Intention To Commit A Crime : Mere intention to commit a


crime, not followed by an act does not constitute an offence.20 The will
is not to be taken for the deed unless there be some external act which
shows that progress has been made in the direction of it or towards
maturing and effecting it.

Related Question :

1. “Mere intention to commit a crime does not constitute an


offence.” – discuss the proposition with examples.

5.3 Motive : Intention and motive invariably go together. An


intention is the immediate
desire and foreknowledge behind an act. Such a desire might be a
means for another desire. Such ulterior intent is called the motive of
the act. For example, the immediate intent of the thief is to
appropriate another’s money, while his ulterior intent or motive may
be to buy food with it or to pay a debt. Every wrongful act may raise
20
20. Queen v. Baku (1899) ILR 24 Bom. 287
6
two questions with respect to the intent of the doer. Firstly, whether
the act is done intentionally, why it is done. The first question refers to
the immediate intention of the man and the second question refers to
the ulterior intent or motive of the man.

Distinction Between Intention And Motive : A distinction


exists between intention and motive. The law takes into account only a
man’s intention and not his motive. Motive is directed to the ultimate
end, good or bad, which a person hopes to secure; his intention is
concerned with the immediate effect of his acts. In judging a man’s
criminality, regard must be had to his primary and immediate intention
and not to his secondary or remote intention, for in reality it is the
motive which the law ignores. A person may act from a laudable
motive, but if he intentionally causes wrongful loss, his crime is
complete, irrespective of his motive. Thus where several Hindus acting
in concert and under the influence of religious feeling forcibly removed
an ox and two cows from the possession of a Mohamedan, not for the
purpose of causing wrongful gain to themselves or wrongful loss to the
owner of the cattle, but for the purpose of preventing the killing of the
cows, it was held that they were guilty of rioting under S. 146 of the
Penal Code, however laudable and virtuous their object might be from
the viewpoint of their own religion.21 Similarly, where the creditors of A
complained of their debts to B, the master of A, and B without referring
to the Civil Court, took the law into his own hand and taking three cows
of A without his consent handed them over to his creditors to satisfy
their claims, B was held to have done it dishonestly and therefore
guilty of theft.22 So also the motive of the creditor seizing his debtor’s
goods to coerce him to pay up his debt was certainly not to cause
permanent loss of the goods to the debtor and was not, therefore,
21
21. Queen v. Roghunoth Rai (1892) ILR 15 All.
22
22. Queen v. Maduree (1865) 3 WR (Cr.) 2.
6
criminal : but he did cause him loss, however temporily, and he did so
intentionally. He was, therefore, held guilty of theft.23 In short, in
criminal cases, the end cannot justify the means, i.e. the motive does
not justify the intention. Hence, a righteous motive is not a good
defense when the intention of the person is criminal.

Whether Prosecution Is Bound To Prove Motive : Though


the prosecution is not bound to prove motive for the crime, absence of
any motive is a factor which may be considered in determining the
guilt of the accused. But if the actual evidence as to the commission of
the crime is believed, then no question of motive remains to be
established. It is sufficient if the prosecution proves by clear and
reliable evidence that certain persons committed the offence,
whatever the motives may be which included them to commit that
offence. The question of motive is not material where there is direct
sufficient to disclose the intention of the actor. But in cases of
circumstantial evidence, absence of motive is a factor in favor of the
accused.

Motive When Relevant : The following are the exceptions to the


general principle that intention is relevant and motive irrelevant :

1) The first exception is to be found in the cases of criminal attempts.


Every attempt is an act done with intent to commit the offence so
attempted. The existence of this ulterior intent or motive is the
essence of an attempt. For example, one might strike a matchstick
with the intention of setting fire to a hay stack and thus cause wrongful
loss to the owner. When the matchstick is struck and is taken near the
hay stack, if he is prevented from setting fire, to assess whether he is a
wrong-doer or not it would be necessary to examine his motive. His
23
23. Queen v. Srichuran Chungu (1895) ILR 22 Cal. 1017 FB.
6
intentionally stricking a match in itself is no wrongful act but if such
intentionally stricking of the match was done with ulterior intent of
setting fire to the hay stack. Then it becomes an attempt to commit
criminal mischief. Thus it is the motive that makes the act wrongful
though the act in itself could not be wrongful.

2. The second exception comprises of those cases in which a particular


intent forms part ot the definition of a criminal offence. For example,
house trespass is an offence punishable under the Penal Code. In this
case the motive with which the house trespass was committed
becomes relevant. Another example is found in the case of the offence
of forgery. This offence contains two main ingredients: (1) the making
of any false document and (2)with the intent to cause damage or injury
to the public or to any person. Making of the false document is
intentional, whereas the ulterior intent of making a false document is
the motive. In all such instances the ulterior intent is the source, in
whole or in part, of the mischievous tendency of the act and is
therefore material in law.

3. In civil liability, motive or the ulterior intent is seldom relevant; but


there are some exceptional cases where motive might become
relevant as in the cases of civil wrongs of defamation and malicious
prosecution.

Related Questions :

1. What are the differences between intention and motive?


2. “Motive is the feeling which prompts or leads the
intention” – discuss with examples.
3. How far is motive applicable in case of criminal liability?

6
5.4 Malice : Malice may be good or bad the word malice refers to the
latter. In criminal law generally existence of malice is not necessary at
the time of committing an offence. Malice is used in two different
senses, viz, (1) malice in law (2) malice in fact or actual malice.

Malice in law is merely a formal allegation in certain crimes and


denotes that the crime was committed knowingly without just cause or
excuse. A person who inflicts an injury upon another person in
contravention of law is not allowed to say that he did so with innocent
mind. Malice in fact, on other hand, means an improper motive which
among other things, includes spite or ill-will.

General Explanation Of Rome Statute Of The International


Criminal Court (ICC)24 :

The provisions of the Statute and the general principles set out in Part
3 (Elements of Crime), are applicable to the Elements of Crimes. As
stated in article 30, unless otherwise provided, a person shall be
criminally responsible and liable for punishment for a crime within the
jurisdiction of the Court only if the material elements are committed
with intent and knowledge. Where no reference is made in the
Elements of Crimes to a mental element for any particular conduct,
consequence or circumstance listed, it is understood that the relevant
mental element, i.e., intent, knowledge or both, set out in article 30

24
24. Text of the Rome Statute circulated as document A/CONF.183/9 of 17
July 1998
and corrected by process-verbaux of 10 November 1998, 12 July 1999, 30
November
1999, 8 May 2000, 17 January 2001 and 16 January 2002. The Statute
entered into force
on 1 July 2002.

6
applies. Exceptions to the article 30 standard, based on the Statute,
including applicable law under its relevant provisions, are indicated
below:

a) Existence of intent and knowledge can be inferred from relevant


facts and circumstances.

b) With respect to mental elements associated with elements involving


value judgment, such as those using the terms inhumane or severe, it
is not necessary that the perpetrator personally completed a particular
value judgment, unless otherwise indicated.

c) Grounds for excluding criminal responsibility or the absence thereof


are generally not specified in the elements of crimes listed under each
crime. The requirement of unlawfulness found in the Statute or in other
parts of international law, in particular international humanitarian law,
is generally not specified in the elements of crimes. The elements of
crimes are generally structured in accordance with the following
principles:

a) As the elements of crimes focus on the conduct, consequences and


circumstances associated with each crime, they are generally listed in
that order;

b) When required, a particular mental element is listed after the


affected conduct, consequence or circumstance;

c) Contextual circumstances are listed last.

As used in the Elements of Crimes, the term .perpetrator is neutral as


to guilt or innocence. The elements, including the appropriate mental
6
elements, apply, mutatis mutandis, to all those whose criminal
responsibility may fall under articles 25 and 28 of the Statute. A
particular conduct may constitute one or more crimes.

LECTURE – THREE
ON
1. Some Other Mental Elements Of Crime.

1.1 Dishonestly In S. 24 of the Penal Code,1860.

1.2 Fraudulently In S. 25 of the Penal Code,1860.

1.3 Intentionally And Knowingly In S. 34 & 35 of the Penal Code,1860.

1.4 Voluntarily In S. 39 of the Penal Code,1860.

1.5 Without Due Care Or Negligently In S. 52 of the Penal Code,1860.

2. Rules Regarding Joint Offenders And Joint liability In Doing A Criminal Act.

3. Doctrine Of “Common Intention” (Ss. 34, 35, 36 & 37 of the Penal Code of 1860)
And “Different Intention” (S. 38 of the Penal Code of 1860) And “Common Object”
(S.149 of the Penal Code of 1860).

1. Some Other Mental Elements Of Crime :


1.1 Dishonestly In S. 24 Of The Penal Code,1860 :
S. 24 : ( Dishonestly) :
Whoever does anything with the intention of causing wrongful
gain to one person or wrongful loss to another person, is said
to do that thing "dishonestly".

6
a) Dishonestly : As “dishonestly” involves wrongful gain or wrongful
loss, obviously it does not apply where no pecuniary question arises.
The definition of dishonestly in S. 24 of the Code applies only to
wrongful gain or wrongful loss and although there are conflicting
rulings on the question of the definition of the word fraudulently the
consensus of opinion has been that there must some advantage on the
one side with a corresponding loss on the other.25 And a thing is said to
be done dishonestly according to the definition in S. 24, not only when
it is done with the intention of causing wrongful gain to one person in
the first mentioned sense of the words “wrongful gain” ( and this is in
accordance with the ordinary popular signification of the term), but
also when it is done with the intention of causing wrongful gain in the
other sense, or done only with the intention of causing wrongful loss to
some26 one, though such loss to one person may not be accompanied
by any wrongful gain to another. All that is required to be proved in
order to establish that the person doing the act was doing it
dishonestly is that by that act he is gaining by unlawful means
property to which he is not legally entitled to gain, or that any person
is losing property by reason of that act which the person losing is
legally entitled.

b) Wrongful Gain : Wrongful Loss : Wrongful gain includes


wrongful acquisition or wrongful retention. Losing wrongfully includes
wrongfully being kept out of property or being wrongfully deprived of
property. The words “gaining wrongfully” or “losing wrongfully” as
defined in S. 23, need not be confined only to the actual acquisition or
to the actual deprivation of property and would cover also cases of

25
25. 22 Cal 1017 FB.

26
26. 25 Cal 416.
6
wrongful retention of property in the one case and wrongfully being
kept out of property in the other. Again, the element of actual loss to
any member of the community should not be conceived as essentially
included in the meaning of the word “fraudulently” as defined in S. 25
it being enough that the accused has aimed at an advantage by
deception which, if it would have succeeded, would have secured the
same to him, such advantage being always regarded as having an
equivalent in loss or risk of loss to some other member or members of
the community. Of course, when the owner is kept out of possession
with the object of depriving him of the benefit arising from the
possession even temporarily, the case will come within the definition.
But where the owner is kept out of possession temporarily noy with
any such intention, but only with the object of causing him trouble in
the sense of mere mental anxiety, and with ultimate intention of
restoring the thing to him without exacting or expecting any
recompense, it is difficult to say that the detention amounts to causing
wrongful loss in any case.27

c) By Unlawfulness : The Code does not define ‘unlawful’ which


means the same thing as ‘illegal’ which is defined in S. 43. The words
“by unlawfulness means” in the definition of “wrongful gain” and
“wrongful loss” are intended to refer to an act which render the doer
liable either to a civil action or to a criminal prosecution.28 It is not
unlawful to do something on your own land without trespassing on
your neighbor’s land which something necessarily causes injurious
effects to the property of your neighbor.

27
27. Ibid.

28
28. 1 Cr.LJ 730 FB.
6
d) Gain Or Loss To Be Material : In the definition of
“dishonestly” the word “gain” must be taken to mean a material gain.
A recognition from a Settlement Officer that a person was entitled to
the title of Loskur was not “gain”, within the meaning of S. 24.29

e) Deterioration Is Not Loss : There is wrongful loss of property


only if person is KEPT OUT OF or DEPRIVED OF property. Therefore, if
property deteriorates as a result of use by the pledge there is not loss
of the property.30

f) Dishonest Intention : Intention has got to be proved. A


dishonest intention may be presumed only if an unlawful act is done
or if a lawful act is done by unlawful means. 31 The determining factor is
the intention. Intention must be inferred from the acts done and the
circumstances.32 The obvious and known effect of the advantage to be
gained and even the intention to profit by it are insufficient to prove an
intention to defraud. An intention to gain an advantage for one’s self
may incidentally involve loss to another. But it is not identical with an
intention to cause such loss. “When a person takes another man’s
property, believing, under a mistake of fact and in ignorance of law,
that he has a right to take it, he is not guilty of theft because there is
no dishonest intention, even though he may cause wrongful loss within
the meaning of the Code. Mere intention to deceive does not
necessarily imply a dishonest intention. Intention to convert an illegal
or doubtful claim into an apparently legal one is dishonest. Sending a
forged certificate or signing a certificate in a false name or giving an
address which is not his may not necessarily be dishonest. But

29
29. 10 Cal 584.
30
30. 3 MHCR (App) 6.
31
31. AIR 1934 AII 711.
32
32. 1955 Andhra WR 239.
6
presenting a false certificate was held to be dishonest.33 For dishonest
intention, it is not necessary that there must be wrongful gain to the
thief. It is enough if removal causes a wrongful loss to owner.34

g) Claim Of Right And Intention : If a person enters on land in


the possession of another in the exercise of a bona fide claim of right,
but without any intention to intimidate, insult or annoy the person in
possession, or to commit an offence, then although he may have no
right to the land he cannot be convicted of criminal trespass, because
the entry was not made with any such intent as constitutes the
offence. But the mere assertion of the Court to inquire whether
the claim is bona fide or is a mere pretence and to determine
what was the intention of the alleged offender, and if it arrives
at the conclusion that he was not acting in the exercise of a
bona fide claim of right, then it cannot refuse to convict the
offender, assuming of course that the other facts are established
which constitute the offence.35

h) S. 24 If Exhaustive : S. 24 is not an exhaustive definition of


the word “dishonestly”. The section does not say that the word
“dishonestly” is applicable only when there is an intention of
causing wrongful gain to one person or wrongful loss to another
person but properly construed means that case of intention of
causing such wrongful gain or loss are to be considered as
coming within the wider class of dishonest actions.

1.2 Fraudulently In S. 25 Of The Penal Code,1860 :


S. 25 : ( Fradulently) :

33
33. 15 AII 210.
34
34. 1967 Raj 190.
35
35. AIR 1931 Pat 337
6
A person is said to do a thing fraudulently if he does that thing
with intent to defraud but not otherwise.

a) Fraud : Where there is an intention to deceive and by means of


the deceit to obtain an advantage there is a fraud and if a document is
fabricated with such intent, it is a forgery. 36

By fraud is meant an intention to deceive; whether it be from any


expectation of advantage to the party himself or from ill-will towards
the other is immaterial. In the ordinary legal sense the expression
“intent to defraud” implies conduct coupled with an intention to
deceive and thereby to injure. The word “defraud” involves two
conceptions, viz., deceit and injury to the person deceived, that is an
infringement of some legal right possessed by him, but not necessarily
deprivation of property. The word “fraud” or “fraudulently” must be
understood in the general popular sense. It involves two elements, viz.,
(1) deceit and (2) injury caused or likely caused to the person deceived
or someone else in consequence of the deception.37

b) Intent To Defraud : Intention to defraud is another essential


ingredient. Unless there is an intention to defraud, no act can be
fraudulent. Intent to defraud does not mean an intention to deceive. It
means an intent to cause a person to do or omit to do something as a
result of deception. There may be intention to defraud without the
power or the opportunity to defraud…..It is not necessary that any
person should be in a situation to be defrauded. There may be an
intention to defraud although no person could be defrauded. A general
intention to defraud without the intention of causing wrongful gain to
one person or wrongful loss to another, would, if proved, be sufficient

36
36. Jahangir Hossain v. State 40 DLR 545.
37
37. AIR 1968 Mad 349.
6
to support a conviction.38 Intention, ex necessitate rei, relates to some
future occurrence and not to the past. It cannot be said when wrongful
loss or wrongful gain has already been caused, or a person has already
defrauded, anything can be subsequently done which could be dictated
with the intention to cause that which has already occurred.

c) Deceit, Secrecy And Intention To Cause Injury : The


word “fraudulently” in the Code ordinarily connotes firstly, an element
of deceit or secrecy and secondly, an intention to cause injury. The
accused having so recently given an undertaking must have known
that the transfer in breach of the undertaking would have the effect of
impending the execution of the decree and he must have intended
that it would have the effect. It is quiet immaterial whether it would be
possible for the decree-holder by taking other proceedings to defeat
that attempt. If there was an intention to prevent this property being
taken in execution of the decree and if intention had as its motive the
object of injuring the creditor, it does not matter whether the object
was likely to be achieved or not. The words “dishonestly” and
“fraudulently” do not mean exactly the same thing. A dishonest act is
not necessarily a fraudulent act. The elements which make an act
fraudulent are deceit or intention to deceive nor secrecy, the act
though dishonest is not fraudulent.39

d) Deceit Plus Unlawful Or Unfair Advantage : As Mr. Mayne


puts it, “of course there can be no intention to defraud where no
wrongful result was intended or could have arisen from the act of
accused.”40 There must be some advantage on the one side with a

38
38. AIR 1926 Mad 1072
39
39. AIR 1934 Hyd 56.
40
40. Mayne, Mr., Criminal Law, 3rd Ed., p. 817
6
corresponding loss on the other. Altering the age in a certificate of
passing an examination is fraudulent even if it is not dishonest.

e) Deprivation Of Property Not Necessary : The word


“fraudulently” should not be confined to transactions of which
deprivation of property forms a part.41

f) Concealment Of Fraud Is Fraud : ONE VIEW: A man who


deliberately makes a false document with false signatures in order to
shield and conceal an already perpetrated fraud is himself acting with
intent to commit fraud. It is a fraud to take deliberate measures in
order to prevent persons already defrauded from ascertaining the
fraud practiced on them and thus to secure the culprit who practiced
the fraud in the illicit gains which he secured by the fraud.

CONTRARY VIEW: The alternative of accounts so as to show the


receipt of a sum of money criminally misappropriated and in order to
remove evidence of such misappropriation, is not an offence either
under S. 465 and S. 477A, there being no intent to commit fraud. A
clerk who had committed criminal breach of trust, subsequently made
false entries in an account book with the intention of concealing such
offences, did not intend to cause wrongful loss or wrongful gain to
any person or intent to defraud any one.

Distinction Between Dishonestly And Fraudulently :


Sometimes it has been said that the term "dishonestly" as defined in
Section 24 in synonymous with "fraudulently" . But this view is not
correct. The former view perhaps is based on the notion that since the
intention to cause an injury is an essential part of the meaning of the
term "fraud" the distinction between a dishonest and a fraudulent act
41
41.25 Cal 512 FB.
6
practically disappears. But this is not so. There still remains a clear
distinction between the meaning of the two words. The term
"dishonest" is used in the Penal Code of 1860 in a technical sense. It
has nothing to do with probity, i.e. honesty. It is used in connection
with property. If a person causes wrongful gain or loss intentionally, he
is dishonest. The point of difference between the two terms may be
stated thus:

1. If there is the intention by the deceit practiced to cause wrongful


loss that is dishonestly, but even in the absence of such an
intention, if the deceitful act willfully exposes anyone to risk of
loss, there is fraud.
2. "Fraud" necessarily involves deception, while "dishonesty" does
not.
3. "Dishonestly" necessarily involves the idea of injury to property,
while "fraud" covers injury to property, as well as injury of every
other kind.
4. Although "dishonestly" includes wrongful gain as well as wrongful
loss of property, there can hardly be a wrongful gain without a
wrongful loss to somebody else.
5. A dishonest intention is intention to cause loss of specific
property, actually belonging to a definite individual known or
unknown and it must be property belonging to an individual at
the time of the act described as dishonest. This is fairly clear
from the words of Section 24. "Fraudulently", on the other hand,
even where it implies injury to property may refer to injury in
respect of unspecified property, unknown and unascertained
individuals.

The Legislature advisedly uses the terms “dishonestly” and


“fraudulently”. To say that to do a thing fraudulently there must be the
6
intention to cause wrongful loss or wrongful loss or wrongful gain
would be attributing to the Legislature redundancy. On the other hand,
the words “dishonestly” and “fraudulently” are used to denote two
intention to defraud has to be inferred from the conduct of the accused
and must necessarily involve something in the nature of cheating.

Related Question :

1. What are the differences between dishonestly and


fraudulently under Ss. 24 and 25 of the Penal Code?

1.3 Intentionally And Knowingly In S. 34 & 35 Of The


Penal Code,1860 :
A) S. 34 : (Acts done by several persons in furtherance of
common intention) :
When a criminal act is done by several persons, in furtherance
of the common intention of all, each of such persons is liable
for that act in the same manner as if it were done by him
alone.

a) Ingredients Of S. 34 : For the applicability of S. 34, the


following must be proved –
1. Commission of some criminal act;
2. Commission of criminal act by several persons (including the
accused)
3. They had a common intention;
4. What the common intention was;
5. Commission of criminal act in furtherance of common intention.

b) Principle Of S. 34 : S. 34 does not create a distinct offence; it only


lays down the principle of joint criminal liability. The necessary
6
conditions for the application of this section are common intention to
commit an offence and participation by all the accused in doing act or
acts in furtherance of that common intention. If these two are present,
all the accused would be liable for the said offence.

A meeting of minds to commit an offence and participation in the


commission of the offence in furtherance of that common intention
invite the application of S.34. But this need not in all cases be by
physical presence also. A common intention pre-supposes prior
concert. The plan need not be elaborate, nor is a long interval of time
required. It could arise and be formed suddenly. There is then
necessary meeting of the minds.

The section does not say, “Common intention of all” nor does it say,
“an intention common to all.” It emphasizes the doing of a criminal in
furtherance of such intention.

c) S. 34 Enunciates Principle Of Constructive Joint Criminal


Liability : S. 34 is only a rule of evidence and does not create a
substantive offence. In order to attract S. 34 it is not necessary that
any overt act must be done by the particular accused. The provision
shall be applicable if it is established that the criminal act has been
done by any one of the accused persons in furtherance of the common
intention of all. The essence of joint liability is to be found in the
existence of a common intention animating the accused in the doing of
a criminal act in furtherance of such intention. Before application of S.
34 of the Penal Code to a case it must be shown that (1) a criminal act
was done by several persons; (2) all of them intended the commission
of the criminal act; and (3) the criminal act was done in furtherance of
common intention. Common intention of several persons is to be
inferred from their conduct, manner of doing the act and the attending
6
circumstances. If one has intention to do any act and others share his
intention, then their intention becomes common intention of them all.
If the act is done in furtherance of the common intention, then all who
participated in the act are equally liable for the result of the act.

d) Criminal Act : No liability can arise under S. 34 unless some


criminal act is done. Mere intention is not punishable. An act includes a
series of acts. It need not necessarily mean one single and indivisible.

e) Criminal Act Done By Several Persons : S. 34 can be


applied only when a criminal act is committed by several persons and
there can be a criminal act which cannot be committed by several
persons. If in such a case the criminal act is done by several person it
amounts only to repetition of the criminal act. Proof that a particular
person committed crime is not necessary. It must be proved that all
persons sought to be made liable did participate in the criminal act. S.
34is not applicable except in a case where there is participation in
action to commit a crime with a common intention. If it is established
that the offence which resulted was committed in furtherance of the
common intention of all the participants, the fact that any of them did
not take part in the commission of that offence will not prevent his
being held liable for the offence.42

f) In Furtherance Of The Common Intention : Each of the persons


joining in the commission of a criminal act is liable for any such act
committed by any of the persons joining as was done in furtherance of
the common intention and it is not necessary for the liability of all that
they must have the common intention about the exact result which
was to follow from the act or about the offence which would be made
out on account of the actual physical act and its result. It is practically
42
42. 53 DLR 287.
6
impossible for any set of people to decide beforehand all the acts
which may have to be performed in order to carry out the common
intention. Only such acts are not to be deemed to be the acts done in
furtherance of common intention as could not have taken place
ordinarily in 0carrying out of the common intention.

g) Common Intention, When Applicable : Unless the court is told


what the exact words were used by the accused persons it cannot act
on the inference supplied by the witnesses.

h) Common Intention Must Exist When The Criminal Act Is


Done : A mere common intention to commit murder in certain
circumstances, e.g. in the event of interference with escape, might not,
of itself, be sufficient to justify a finding that the accused and his
companions had, at the time of actual occurrence, the common
intention of murdering Ramjan. In order to decide whether or not the
accused and his companions had the common intention of murdering
R it is necessary to consider what happened immediately before R
was shot.

i) Common Intention To Commit A Crime : The words ‘in


furtherance of the common intention of all’ are a most essential
part of S. 34 of the Penal Code. It is common intention to
commit the crime actually committed. The common intention of
same persons may be to commit simple hurt and the intention
of one of that may be to commit murder which is actually
committed. In some cases it was held that the common intention
referred to in S. 34 is intention to commit the crime actually
committed.43

43
43. AIR 1955 AII 230
6
B) S. 35 : (When such an act is criminal by reason of its being
done with a criminal knowledge or intention) :
Whenever an act, which is criminal only by reason of its being
done with a criminal knowledge or intention, is done by several
persons, each of such persons who joins in the act with such
knowledge or intention is liable for the act in the same manner
as if the act were done by him alone with that knowledge or
intention.

a) When Such An Act Is Criminal By Reason Of Its Being


Done With A Criminal Knowledge Or Intention : The word
“such” is found in the marginal note but not in the section but it is
clear from S. 35 that it refers to such an act as referred to in S. 34.
Every word in the section is important. The expression ‘in furtherance
of the common intention of all’ is absent in S. 35. Moreover, S. 35 deals
with act which is criminal only by reason of its being done with a
criminal knowledge or intention. S. 35 applies also to criminal
knowledge whereas S. 34 does not. In S. 34 all must have the same
common criminal intention; others may have a different criminal
intention and others may have only criminal knowledge. In such a case
all are responsible for the criminal act but only for their individual
criminal intention or knowledge.

b) Act is Done By Several Persons : As in the case of S. 34, this


section deals with joint constructive liability where an act is done by
several persons.

c) Joint Crime : Like S. 34, this section also requires that the crime
committed must be a joint crime which is the result of a joint action of
two or more persons. A pre-concerted plan will not be necessary to
make this section applicable. For example – A and B make an attack
6
on C. A’s intention is to cause grievous hurt to C and murder him. B’s
intention is to assist A in the attack. Grievous hurt is caused to C as a
result of which he dies. Here A and B share in the common intention of
causing grievous hurt to C and by virtue of S.34, B also is liable for the
Grievous hurt, although the primary actor in the crime is A. but, unless
it is proved that B also shared A’s intention of murdering C, B will not
be liable for the murder but A alone will be liable for it.44

d) Distinction Between S. 35 And S. 38 : S. 35 contemplates only


cases of a single at constituting an offence although done by two or
more persons. The S. 38, on the other hand, contemplates cases in
which different persons do different acts and thereby become liable for
different offences. But it is not necessary that the accused should be
guilty of offences falling under different sections of the Code as the
acts of the different accused may constitute offences falling under the
same provision of the code.

1.4 Voluntarily In S. 39 Of The Penal Code,1860 :


S. 39 : (Voluntarily) :
A person is said to cause an effect "voluntarily" when he
causes it by means whereby he intended to cause it, or by
means which, at the time of employing those means, he knew
or had reason to believe to be likely to cause it.

Illustration :
A sets fire, by night, to an inhabited house in a large town, for
the purpose of facilitating robbery and thus causes the death
of a person. Here, A may not have intended to cause death,
and may even be sorry that death has been caused by his act:

44
44. (1838) 173 ER 610
6
yet, if he knew that he was likely to cause death, he has
caused death voluntarily.

To understand S. 39 about “voluntarily” we need to read S. 26 of the


Penal Code of 1860, which defines " reason to believe" in these words;
a person is said to have 'reason to believe' a thing if he has
sufficient cause to believe that thing but not otherwise.

An act done willing without being influenced or compelled, as contrary


to an act compelled, is called a voluntary act in common parlance. It is
opposed to an act done accidently or negligently.

In the illustration to S. 39, where A sets fire by night to an inhabited


house in a large town for the purpose for facilitating robbery and thus
causes the death of a person, although A may not have intended to
cause death and may even be sorry that death has been caused by his
act, yet if he knew that he was likely to cause death or had reason to
believe that death would be caused as in this illustration, he has
caused the death voluntarily.

A voluntary act is the physical expression of an effort of the will. As we


have seen already belief is somewhat weaker than knowledge, but a
well-grounded belief that a certain consequence will follow a certain
act is ordinarily as good as knowledge. To know a thing is to have a
mental cognition of it. To believe a thing is to assent to a proposition or
affirmation, or to accept a fact as real or certain, without immediate
personal knowledge. In the illustration to S. 39 referred to above the
person had not the knowledge that the above the person had not the
knowledge that the house was inhabited, he was held liable.

6
However, in some cases mere reason to believe is considered
insufficient. For instance, under Ss. 321 and 322 which define
"voluntarily causing hurt" and voluntarily causing grievous hurt, the
words "reason to believe" have been omitted. It is, however, not clear
why reasonable grounds of belief should be excluded in these cases.
Knowledge and reasonable grounds of belief supply the place of
intention in most cases. The term “voluntarily" is a compendious term
and covers intention, knowledge and reasonable grounds of belief.

a) Intention, Knowledge And Reason To Believe : It is not


necessary in order to constitute an offence under S. 296. viz., the
offence of voluntarily causing disturbance to a religious assembly that
the accused should have intended to cause disturbance to such
assembly. If the accused knew or had reason to believe that this act
would cause such disturbance, he would be guilty under the Section. 45

Where the accused threw brickbats at another’s house as result of


which an inmate of the house was injured, the accused may be
convicted of voluntarily causing hurt under Ss. 323. All accused
persons travelling in a long distance bus with prior plan to commit
dacoity - More than one person armed with pistols and cartridges - One
accused asking bus driver to stop bus in a lonely place - Bus driver
shot dead - In execution of their plan 2 victims were robbed of cash
worth Rs. 2 lahks - Held : that the common object of the unlawful
assembly was to commit dacoity at all costs including use of firearms -
Murder could not be said to constitute separate transaction.46

b) Causing An Effect Voluntarily : Voluntarily causing an effect


embraces (1) with intention to cause the effect, (2) with the knowledge
of likelihood of causing the effect, (3) having reason to believe that the
45
45. (1896) ILR 20 Cal 60 (DB)
46
46. (1980) CriLJ (NOC) 131
6
effect is likely to be caused. In all the three cases, there is criminal
responsibility for causing the effect. The principle of exemption from
criminal responsibility in respect of a harmful consequence is that of
bona fide ignorance of the connexion existing between the mere
mechanical act and its consequence. That principle ceases to operate
where the connexion is known to be either certain or probable. If the
doer of an act knows or believes that a noxious consequence will result
from that act, he is just as culpable in both Law and Morals as if he had
acted with the most direct intention to hurt.

c) Intention Presumed : Everyone is ordinarily presumed to intend


the natural and probable results of the Acts. A man is not guilty of
culpable homicide if his intention was directed only to what he
believed to be a life-less body. Complications may arise when it is
arguable that the two acts of the accused should be treated as being
really one transaction or when the facts suggest a doubt whether
there may not be imputed to the accused a reckless indifference and
ignorance as to whether the body he handled was alive or dead.

d) Knowledge Presumed : A person is said to cause an effect


voluntarily when he causes it by means whereby he intended to cause
it, or by means, which at the time of employing those means, he knew,
or had reason to believe, to be likely to cause it.

e) Distinction Between "Voluntarily" And "Intentionally" :


Though it is sometimes difficult to discover the distinction between
"voluntarily" and "intentionally", yet, there is a difference between
them. This difference becomes clear to us if we study Ss. 184 and 186
of the Penal Code closely. The former Section lays down:

6
"whoever intentionally obstructs any sale of property offered
for sale by the lawful authority of any public servant, as such,
shall be punished with imprisonment….."

While S. 186 lays down:


" whoever voluntarily obstructs any public servant in the
discharge of his public functions shall be punished with
imprisonment....."

Thus S. 184 penalizes anyone who intentionally obstructs the sale of


property offered for sale by the lawful authority of any public servant
as such while S. 186 penalizes any person who voluntarily obstructs a
public servant in the discharge of his public function .Therefore, the
difference between the two words lies in the fact that "intentionally"
refers to the obstruction to an act and the term "voluntarily" refers to
an obstruction to an individual. The distinction is apparent and not a
real one. When we speak of obstructing a person, we really mean
obstructing some act of such a person.

f) Act Done Under Threat : Where a person aids in the


commission of a murder under a threat that otherwise he will
himself be put to death, it must be held to have acted voluntarily
within the meaning of S. 39.

Related Question :

1. What are the differences between intentionally and


voluntarily under Ss. 34, 35 and 39 of the Penal Code?

1.5 Without Due Care Or Negligently In S. 52 Of The


Penal Code,1860 :
6
S. 52 : (Good faith) :
Nothing is said to be done or believed in "good faith" which is
done or believed without due care and attention.

a) Scope And Applicability Of S. 52 : A plea of good faith will be


negative on the ground of recklessness indicative of want of due care
and attention. In criminal law unless a thing is done with due care and
attention, it cannot be held to be done in good faith. The mere fact
that it has been done with a pure motive or without any impure
intention or that the actor has been quite honest and free from malice
will not justify his action and make it done in good faith.47 in order to
establish the want of good faith, it is not necessary to prove that the
person in question acted dishonestly. It is enough if it is found that he
has acted without due care and attention. ‘Good faith’ does not require
logical infallibility but only such care and attention as in the
circumstances of each case, considered along with the capacity and
the intelligence of a person and the position he occupies, is held by the
Court to be sufficient to constitute due care and attention on his part.
Under the section the expression ‘good faith’ is used both in
connection with an act and a belief. Thus in S. 499, Exception 9, the
expression ‘good faith’ refers to an act and in S. 300, Exception 3, the
expression refers to a belief. In either case it must be taken in the
sense explained in this very section.48 The definition of ‘good faith’ in
this section will apply to the Code of Criminal Procedure (CrPC). Also by
virtue of S. 2(2) of the latter Code inasmuch as there is no separate
definition of the phrase ‘good faith’ under the CrPC and S. 2(2) thereof
provides that in such cases the definition in the Penal Code will apply.

47
47. AIR 1957 Orissa 130.
48
48. AIR 1929 AII 1.
6
b) Good Faith : Penal Code And General Clauses Act : In
General Clauses Act Of 1897, good faith is defined as follows : A
thing shall be deemed to be done in ‘good faith’ where it is in fact done
honestly, whether it is done negligently or not [S. 3(22)]. But the
definition in the Penal Code is different and it requires due care and
attention. In the Penal Code of 1860, absence of good faith does not
mean “want of honesty” but “want of care”. The element of “honesty”
which is prescribed by the General Clauses Act is not introduced by
the definition of the Code. Honest, though negligent, conduct will
satisfy the test of good faith under the General Clauses Act, while
negligence will negative good faith for the purpose of the Penal Code.

The definition of “good faith” in the Limitation Act, S. 2(h) is also on


the same lines as the definition in the Penal Code and hence, ‘good
faith’ for the purposes of S. 14 of the Limitation Act is incompatible
with negligence and unless due care and attention are established,
“good faith” within the meaning of that section cannot be held to
exist.49

c) Moral Honesty And Good Faith : While an honest blunder


acts in good faith within the meaning of the General Clauses Act of
1897, an honest blunder can never act in good faith within the
meaning of the Penal Code for being negligent. S. 52 makes no
reference to the moral elements of honesty and right motive which are
involved in the popular significance of “good faith” and which are
predominant in the positive definition enacted in the other Acts of the
Legislature.

d) Belief : The expression “good faith” can be used both in


connection with something done and in connection with something
49
49. AIR 1956 Orissa 124 (DB).
6
believed. For example - in S. 300, exception 3, the expression “good
faith” has been used in connection with a belief.

e) Belief Must Be On Strong Grounds : There must be


sufficiently strong and just grounds for the belief. When a question
arises as to whether a person acted in good faith, then it devolves
upon him to show not merely that he had a good intention but that he
exercised such care and skill as the duty reasonably demanded for its
due discharge.

f) Due Care And Attention : Care and attention would verify bona
fides. Due care and attention implies genuine effort to reach the truth
and not the ready acceptance of an ill-natured belief. Good faith
requires not, indeed, logical infallibility but due care and attention. It
does not constitute good faith necessarily that the person making the
imputation believed it to be true. It is only to be expected that the
honest conclusions of a person excited by sectarian zeal and untrained
to habits of precise reasoning. At the same time it must be
remembered in mind that good faith in the formation or expression of
an opinion, can afford no protection to an imputation which does not
purport to be based on that which is the legitimate subject of public
comment. Question of good faith must be considered with reference to
the position of the accused and the circumstances under which he
acted.

g) Good Faith, When Presumed : When a pleader is charged with


defamation, in respect of words spoken or written, while performing his
duty as a pleader, the Court ought to presume good faith and not
criminally liable, unless there is satisfactory evidence of actual malice
and unless there is cogent proof that unfair advantage was taken of his
position as apleader for an indirect purpose.
6
Related Question :

1. “When a question arises as to whether a person acts in


good faith then it devolves upon him to show not merely
that he has a good intention but that he exercises such
care as the duty reasonably demanded from its duty due
discharges” – discuss it in reference to the Penal Code of
1860.

2. Rules Regarding Joint Offenders And Joint Liability In


Doing A Criminal Act :
2.1 Doctrine Of “Common Intention” (Ss. 34, 35, 36 & 37 Of
The Penal Code Of 1860) And “Different Intention” (S. 38 Of
The Penal Code Of 1860) And “Common Object” (S.149 Of The
Penal Code Of 1860) : Doctrine of “Common Intention” under Ss.
34, 35, 36 and 37 and “Different intention” under S. 38 and “Common
object” under S. 149 have been described in the following parts of this
writing -

A) Doctrine Of “Common Intention” :


A1) S.34 : (Acts done by several persons in furtherance of
common intention) :
When a criminal act is done by several persons, in furtherance
of the common intention of all, each of such persons is liable
for that act in the same manner as if it were done by him
alone.

a) Common Intention And Common Object : A common


object is different from a common intention in that it does not
6
require prior concern and a common meeting of minds before the
attack, and an unlawful object cam develop after the people get
there. In case under S. 149 there need not be a prior meeting of
minds. It is enough that each has the same object in view and their
number is five or more and that they act as an assembly to achieve
that object. It is true that the two sometimes overlap but they are used
in different senses in law and should be kept distinct.

b) Common Intention And Individual Intention : In addition to


entertaining the common intention, such persons may in addition have
their own individual criminal intention.

c) Common Intention And Primary Intention : The two men were


armed with guns and had plenty of ammunition and they entered the
shop for committing robbery. When they were disturbed, in their act by
a large number of villagers they decided to retreat and in so retreating
they fired a large number of shots. It is clear that their primary
intention was to affect their escape from their pursuers and it was their
determination to prevent the pursuers from arresting them. It was not
their primary intention to kill any of their pursuers. Their intention was
merely to effect escape from the pursuers, but it may be concluded
that there was to affect their escape even though for that purpose it
was necessary to shoot any of the pursuers mortally.50

d) Common Intention And Mens Rea : There are cases in which


common intention is identical with ‘mens rea’ required for the offence
actually committed, and there are others in which its horizon is wider.

50
50. AIR 1955 Pep 81.
6
e) Distinction Between S. 34 And S. 149 : To some extent Ss. 34
and 149 overlap as they provide for joint liability but there are points
of difference, for example :

1. S. 34 applies where 2 or more persons including the accused do a


criminal act and must therefore be present when the act is done. On
the other hand, Common intention is not necessary under S. 149, but
an offence must be committed by any member of an unlawful
assembly in prosecution of the common object of that assembly or
such as the members of that assembly knew to be likely to be
committed in prosecution of that object.

2. A criminal act must be done by 2 or more persons IN FURTHERENCE


of COMMON INTENTION of ALL. But , S. 149 applies only when there is
an unlawful assembly.

3. In S. 34, it is not necessary that one person knew it to be likely that


another would commit an offence. Both must fully share the common
intention. In S. 149 it is not necessary that persons should participate
in a criminal act.

4. Before S. 34 can be applied several persons must actually


participate in the offence. S. 149 imposes liability on every person
who, at the time of the commission of the offence by another, was a
member of the unlawful assembly.

5. S. 34 has a wider application to cases of 2 or more persons but the


range is restricted to participation in a criminal act by all in furtherance
otf the common intention of all. S. 149 creates a distinct offence and it
has a wider scope and criminal range.

6
A2) S. 35 : (When such an act is criminal by reason of its being
done with a criminal knowledge or intention) :
Whenever an act, which is criminal only by reason of its being
done with a criminal knowledge or intention, is done by several
persons, each of such persons who joins in the act with such
knowledge or intention is liable for the act in the same manner
as if the act were done by him alone with that knowledge or
intention.

a) When Such An Act Is Criminal By Reason Of Its Being Done


With A Criminal Knowledge Or Intention : The word “such” is
found in the marginal note but not in the section but it is clear from S.
35 that it refers to such an act as referred to in S. 34. Every word in the
section is important. The expression ‘in furtherance of the common
intention of all’ is absent in S. 35. Moreover, S. 35 deals with act which
is criminal only by reason of its being done with a criminal knowledge
or intention. S. 35 applies also to criminal knowledge whereas S. 34
does not. In S. 34 all must have the same common criminal intention;
others may have a different criminal intention and others may have
only criminal knowledge. In such a case all are responsible for the
criminal act but only for their individual criminal intention or
knowledge.

b) Act Is Done By Several Persons : As in the case of S. 34, this


section deals with joint constructive liability where an act is done by
several persons.

c) Joint Crime : Like S. 34, this section also requires that the crime
committed must be a joint crime which is the result of a joint action of
two or more persons. A pre-concerted plan will not be necessary to
make this section applicable. For example – A and B make an attack
6
on C. A’s intention is to cause grievous hurt to C and murder him. B’s
intention is to assist A in the attack. Grievous hurt is caused to C as a
result of which he dies. Here A and B share in the common intention of
causing grievous hurt to C and by virtue of S.34, B also is liable for the
Grievous hurt, although the primary actor in the crime is A. but, unless
it is proved that B also shared A’s intention of murdering C, B will not
be liable for the murder but A alone will be liable for it.51

d) Distinction Between S. 35 And S. 38 : S. 35 contemplates


only cases of a single at constituting an offence although done by two
or more persons . The S. 38, on the other hand, contemplates cases in
which different persons do different acts and thereby become liable for
different offences. But it is not necessary that the accused should be
guilty of offences falling under different sections of the Code as the
acts of the different accused may constitute offences falling under the
same provision of the code.

A3) S.36 : (Effect caused partly by act and partly by omission) :


Wherever the causing of a certain effect, or an attempt to
cause that effect, by an act or by an omission, is an offence, it
is to be understood that the causing of that effect partly by an
act and partly by an omission is the same offence.

Illustration :
A intentionally causes Z's death, partly by illegally omitting to
give Z food, and partly by beating Z. A has committed murder.

a) Effect Caused Partly By An Act And Partly By An


Omission : The section is clear. But the last two words ‘same offence’
are important. S. 36 applies only when the causing of a certain effect
51
51. (1838) 173 ER 610
6
by the act alone or by the omission alone amounts to the same
offence. It is then only that causing the effect ‘partly by an act and
partly by an omission’ amounts to the same offence. Causing death
partly by beating and partly by a rash or negligent omission is not
murder. That is because causing death by rash or negligent omission
does not amount to murder. But if in both cases there was intention to
cause death, then causing death partly by beating and partly by a
rash or negligent omission would be murder.

b) Illustration : Here although there is only beating and omission to


give food the offences is murder because beating was with intention to
cause death and the illegal omission to give food was also with the
intention to cause death.

C) Scope : This section shows that when an offence is the effect partly
of the act and partly of an omission, it is only one offence which is
committed and not two.

A4) S.37 : (Co-operation by doing one of several Acts


constituting an offence) :
When an offence is committed by means of several acts,
whoever intentionally co-operates in the commission of that
offence by doing any one of those acts, either singly or jointly
with any other person, commits that offence.

Illustrations :
(a) A and B agree to murder Z by severally and at different
times giving him small doses of poison. A and B administer the
poison according to the agreement with intent to murder Z. Z
dies from the effects of the several doses of poison so
administered to him. Here A and B intentionally co-operate in
6
the commission of murder and as each of them does an act by
which the death is caused, they are both guilty of the offence
though their acts are separate.

(b) A and B are joint jailors, and as such, have the charge of Z,
a prisoner, alternately for six hours at a time. A and B,
intending to cause Z's death, knowingly co-operate in causing
that effect by illegally omitting, each during the time of his
attendance, to furnish Z with food supplied to them for that
purpose. Z dies of hunger. Both A and B are guilty of the
murder of Z.

(c) A, a jailor, has the charge of Z, a prisoner. A intending to


cause Z's death, illegally omits to supply Z with food; in
consequence of which Z is much reduced in strength, but the
starvation is not sufficient to cause his death. A is dismissed
from his office, and B succeeds him. B, without collusion or co-
operation with A, illegally omits to supply Z with food, knowing
that he is likely thereby to cause Z's death. Z dies of hunger. B
is guilty of murder, but, as A did not co-operate with B, A is
guilty only of an attempt to commit murder.

a) Co-operation By Doing One Of Several Acts Constituting


An Offence : As in Ss. 34 and 35, in S. 37 also an offence is
committed by means of several acts. In S. 37, the several persons do
not participate in doing the same act but intentionally co-operative by
doing several acts either singly or jointly with any other person. Where
it is established that P and Q were acting in concert in the sense that
their attach was a single indivisible thing, so that both of them would
be liable for the result ensued. That is the consequence of the
provisions of S. 37.
6
b) S. 37 and S. 34 : S. 34 deals with the doing of separate acts,
similar or diverse by several persons; if all are done in furtherance of a
common intention, each person is liable for the result of them all as if
he had done them himself. S. 37 provides that when several acts are
done so as to result together in the commission of an offence, the
doing of any one of them with an intention to co-operate in the offence
(which may not be the same as an intention common to all) makes the
actor liable to be punished for the commission of offence.52

c) Co-operates : This section contemplates two or more persons co-


operating by their several acts and committing one offence by such co-
operation. It is not necessary to constitute intentional co-operation
within the meaning of this section in the commission of an offence,
that each one of the persons alleged to do an act in such co-operation
must know who the other persons co-operating in the commission of
the offence are.

B) Doctrine Of “Different Intention” :


B1) S.38 : (Persons concerned in criminal act may be guilty of
different offences) :
Where several persons are engaged or concerned in the
commission of a criminal act, they may be guilty of different
offences by means of that act.

Illustration :
A attacks Z under such circumstances of grave provocation
that his killing of Z would be only culpable homicide not
amounting to murder. B having ill-will towards Z and intending
to kill him, and not having been subject to the provocation,
52
52. AIR 1925 PC 1.
6
assists A in killing Z. Here, though A and B are both engaged in
causing Z's death, B is guilty of murder, and A is guilty only of
culpable homicide.

a) Scope : This section is one of a batch of Ss. 34, 35, 37 and 38,
which deal with cases in which two or more persons are involved in
one and the same crime. The sections do not create any substantive
offence but only lay down a principle for the determination of the
criminal liability of such persons. In this respect, the sections differ
from S. 149 which deals with the question of vicarious liability of a
person for an offence which he himself has not committed, but which is
committed by another person.53

b) Persons Concerned In A Criminal Act May Be Guilty Of


Different Offences : When a criminal act is done by several persons,
they will all be guilty of the same offence if S. 37 applies, that is if they
intentionally co-operate in the commission of the same offence. But
they will be guilty of different offences if S. 35 or S. 38 applies. When
the criminal intention or knowledge of the several persons is different,
they will be guilty of different offences. This is what S. 38 provides.

c) Ss. 34, 35, 37 And 38 Create No Substantive Offence : They


are merely declaratory of a principle of law and in changing accused
person it is not necessary to cite them in the charge.54

d) S. 38 and S. 37 : S. 37, like Ss. 38 and 110 applies to offences


which the several persons taking part in a crime commit the same
offence. But under this section the persons taking part in a crime
become liable for different offences, although the act done by the
53
53. AIR 1925 PC 1
54
54. AIR 1924 Cal 257 FB
6
criminals in one and the same. Illustration to the section brings out this
point clearly

e) S. 38 and S. 149 : The principle of Ss. 38 and 110 applies to


offences under S. 149 and the liability of individual members of an
individual members of an unlawful assembly under the latter section
depends on the intention or knowledge of the members.

C) Doctrine of “Common object” :


C1) S.149 : (Every member of unlawful assembly guilty of
offence committed in prosecution of common object) :
If an offence is committed by any member of an unlawful
assembly in prosecution of the common object of that
assembly, or such as the members of that assembly knew to be
likely to be committed in prosecution of that object, every
person who, at the time of the committing of that offence, is a
member of the same assembly, is guilty of that offence.

a) Scope : S. 149 does not create any new offence. It is declamatory


of the vicarious liability of the members of an unlawful assembly for
acts done in prosecution of the common object of that assembly or for
such an offence, as members of unlawful assembly knew to be likely to
be committed in prosecution of the object.

b) Ingredients : For application of this section it is ncessary –


(1) that one be a member of an unlawful assembly,
(2) that in prosecution of common object of that assembly an offence
should be committed by a member of that unlawful assembly ; and
(3) that the offence should be of such a nature that members of that
assembly knew the offence to be likely to be committed in prosecution
of their common object.
6
If these three elements are satisfied then only a conviction under S.
149 may be sustained. It is essential to prove that the persons sought
to be charged with an offence by the aid of this section was a member
of the unlawful assembly at the time of the offence was committed and
the burden of proof lies on the prosecution.
c) Member Of An Unlawful Assembly : Once the courts find that an
offence has been committed by any member of an unlawful assembly
in prosecution of its common object, then whether the principal
offender has been convicted or not all other members may be
constructively liable for conviction.55

d) Offence Committed In Prosecution Of Common Object : S.


149 by itself creates no offence. It carries the liability of each member
of an unlawful assembly for the act done in prosecution of their
common object.

e) Constructive Liability : The occurrence appears to have taken


place upon sudden quarrel and in a fit of rage, deadly weapons were
freely used. Both the parties appear to have suppressed material facts.
In such a situation, a charge under S. 149 is not maintainable. Mere
presence of the accused at the scene of the occurrence of murder is
not sufficient to charge him with constructive liability.56

f) Offence Committed With Knowledge : The word ‘likely’, in the


latter part of S. 149 of the Code means some clear evidence that an
unlawful assembly had such knowledge. In view of other offences
committed, such as criminal trespass and assault, it is difficult to hold
that all the appellants are consecutively liable under S. 149 of the
55
55. Abdus Samad v. State 44 DLR (AD) 233
56
56. State v. Giasuddin 45 DLR 267
6
Code when Appellant No. 1 Abdus Satter alone stuck a Katra blow on
the right side of the chest of the deceased which proved fatal and
strickly speaking, S.149 of the Penal Code is not attracted in this case.
There being overwhelming evidence of inflickting Katra blow on the
deceased Aminul Haq by Appellant No. 1, the appeal in respect of
Appellant No. 1 Abdus Satter is dismissed and his conviction and
sentence under S. 302/149 of the Penal Code is altered to S. 320 of the
Penal Code and his sentence of imprisonment for life is maintained.57
g) Common Object And Motive : Common object is distinctly
different from motive. Motive has nothing to do with common object.
Prosecution is not bound to prove motive. Motive may be a matter
based on consideration in a case mainly based on circumstantial
evidence. Settled law is that prosecution does not fail even if motive is
not proved where there is direct evidence.58

h) “If An Offence Is Committed” : Two opposing parities A and B


each consisting of more than five persons indulged in stone-throwing
and a member of party B was hit by a stone throw by a member of
party A was killed. It was held that the accused member of party A
cannot be convicted under this section but only under S. 147.

i) Unlawful Assembly : Where the prosecution fails to show that


there was an unlawful assembly, a charge under this section must fail.

j) Five Or More Persons Necessary : If it is proved that there were


five or more persons with the common object specified in S. 141, it is
not necessary that the identity of all the five or more persons should
be proved.

57
57. Abdus Satter and others v. State 46 DLR (AD) 239
58
58. Bangladesh v. Gaihuddin and other, 4 MLR (1999) (AD) 29
6
k) Right Of Private Defense : An assembly acting in the exercise of
the right of private defense is not an unlawful assembly. This section
cannot be applied to a member of such assembly.

l) “Knew To Be likely” :The expression “know” does not refer to a


mere possibility that might or might not actually materialize. In every
case, it would be a question of fact whether it was an offence which
the members of the assembly knew to be likely to be committed in
prosecution of the common object. The existence of knowledge may be
reasonably inferred from the nature of the assembly, arms carried or
behavior of the members of the assembly at or before the scene of
action.

m) At The Time Of Committing That Offence : A member of an


unlawful assembly who ceases to be a member, as when he retires
from the assembly or gets disabled and separates himself from the
assembly cannot be convicted under this section.

Related Questions :

1. What are the differences between doctrine of “Common


Intention” and “Different Intention” under the Penal
Code of 1860?
2. What are the rules relating to the joint-offenders? If two
persons commit a crime, can they be guilty of different
offences in respect of the Penal Code of 1860?

6
LECTURE – FOUR & FIVE
ON
1. Meaning Of Criminal Punishment.

2. Origin Of Criminal Punishment.

3. Objects Of Criminal Justice And Purposes Of Criminal Punishment.

4. Forms Of Punishment : In General.

5. Types Of Criminal Punishment Mentioning In The Ss. 53, 57, 60, 63, 73 & 74 of the
Penal Code of 1860.

6. Rules Regarding Commutation Of Criminal Punishment In The Ss. 54 & 55 of the


Penal Code of 1860.

In this writing, we propose to study the meaning and origin, objects or


purposes, various types and commutation rules of punishment and
also how these have been provided for under the Penal Code of 1890
in the form of different kinds of punishment, the discretion vested in
6
the judges in awarding punishments and the consideration, if any, that
weight with them in fixing the amount of punishment to be awarded.

The lecture on punishment is really a lecture on adjective law, though


it is naturally connected intimately with the substantive law enacted in
the Code where accordingly it finds a place. Jeremy Bentham in his
Principles of Penal Law59 devoted several chapters on the rationale of
punishment, and thereafter it has received consideration on all hands,
and as a result voluminous literature has developed on this subject.

1. Meaning Of Criminal Punishment : Punishment is, in fact, the


suffering in person or property inflicted by the society on the offender
who has been adjudged guilty of crime under the state or criminal law.
It is the retribution due for the violation of the rules of the society,
which are made punishable. But Salmond writes that “Kant, for
example, expresses the opinion that punishment cannot be
inflicted for the sake of any benefit to be derived from it either
by the criminal himself or by the society and that the sole and
sufficient reason and justification of it lies in the fact that evil
has been done by him who suffers.”60

Administration of punishment always involves the intention to produce


some kind of pain which may be partly physical, for instance, as in a
whipping, or to cause mental suffering, as in imprisonment where
there is a loss of freedom, reputation and sometimes of property. The
amount of pain actually experienced by the offender will vary from
case to case depending on the circumstances in the situation and the
personality of the offender. Nevertheless, it is indisputable that some
pain is always felt in punishment except perhaps in mental cases.
59
59.Vol.- 1, Collected Edition, pp.390-578.
60
60. Salmond, Jurisprudence, 10th Ed., p.118.
6
Stephen says that “Infliction of punishment is justified by hatred
and hating the criminal is morally right”61 on the other hand Fry
observes that “punishment should be in order to ‘adjust the
suffering to the sin”.62 In more modern times, Salmond favours this
aspect of punishment in as much as it cancels or blots out crime. “To
suffer punishment” he observes, “is to pay a debt due to the
law that has been violated. Guilt plus punishment is
innosance.” Saleilles speaks of punishment as a religious ceremony.63

The punishment should be equal to the guilt in order to wipe it out. But
is it possible to award punishment equal to the guilt? How can a judge
look into all the circumstances that led the offender to commit the
crime? To steal for personal gain is one thing and to steal for an ailing
wife is another. How can punishment be equal to the one and the same
offence of stealing for different motives?

Five Criteria Of Punishment : “Punishment,” writes Herbert


Packer, “is a concept; criminal punishment is a legal fact.” It is
criminal punishment that is meant when the term “punishment” is
used in criminology, criminal justice, and criminal law. Packer sets up
five criteria, all of which must be fulfilled in order that criminal
punishment occur: it must be (1) imposed on an actual or supposed
offender, (2) meted out for an offence against legal rules, (3) imposed
by an authority constituted by the legal system against which the
offence was committed, (4) intentionally administered by human
begins other than the offender, and (5) inflict pain or other
consequences ormally considered unpleasant.

61
61. Stephen, History of Criminal Law, Vol.- 2, pp.81-82.
62
62.Brockaway, A New Way with Crime, p.15.
63
63.Saleilles, Individualisation of Punishment, p.29.
6
It can easily be seen that, under this definition, severe spanking of a
child by parents would not be criminal punishment, nor would
imposition of a high sales tax on cigarettes or requiring that a driver
pay damages to someone he has injured in a traffic accident. On the
other hand, the definition is broad enough to include jailing someone
during pretrial detention, or compelling him to pay bail money in order
to be free pending trial; in both cases he is suffering at the hands of
the authorities for being a supposed or suspected offender, although
eventually he may be entirely exonerated.

The terms “punishment,” “penology,” and particularly “punitive” have


gone out of fashion, replaced by the word “corrections.” The latter
embodies the idea that an offender becomes chastised, chastened,
rehabilitated, and hence corrected, and that punishment for its own
sake, as an imposition of suffering without a correcting function, should
be abjured.

Language of course can conceal meanings, but in so doing it reveals


the “up front” part of a society, the supposed and pretended if not
actual and dominant cultural themes.

2. Origin Of Punishment : There has been considerable difference of


opinion regarding the origin of punishment. Some trace it to
vengeance, while others attribute it to the fear of the offended gods,
yet others see its authority upon another. It seems unlikely now that
we shall ever be able to know how, when or why punishment
originated but it seems probable that its roots were already present
when man first appeared as a social being.

6
It should be remembered that both crime and punishment are related
to the culture in which they occur. They are conditioned by the
prevailing social and moral values in the society at the time. The
efficacy or otherwise of the punishment is affected by what the people
in a particular society feel, want and believe.

3. Objects Of Criminal Justice And Purposes Of Punishment –


It is difficult to imagine a world without a system of criminal
punishment. But just what the purposes of punishment may be is
sometimes debated. In long-range, broad sense, punishment, it is
hoped, will diminish crime. The purposes of punishment, like the forms
and mechanisms, are many, and sometimes more than one is
embraced at the same time by a society or a given social thinker.
Among them, the following are prominent:

a) Revenge, or the idea that society has a right to vent its wrath upon
those who have committed heinous acts, is abjured by most modern
thinkers as inconsistent with the values of civilized societies, but
nonetheless appears to appeal to many people during periods of
violent crime.

b) Retribution is often confused with revenge, but there are distinct


differences. Retribution embodies the concept that an offender should
receive what he rightfully deserves (known as “just deserts”), and that
society is “made whole” when a criminal has “paid his debt” to it.

c) Incapacitation constitutes of the removal of the offender from


society (by execution or confinement), or taking such other measures
as to make commission of the crime impossible (amputation,
castration, or some other physical injury).

6
d) Deterrence is based on the idea that punishment of an individual
offender will deter him from committing the same or other offences in
the future (specific deterrence) and will convince others that “crime
does not pay” (general deterrence).

e) Correction is a concept that rejects punishment for its own sake


and for what it may do in dissuading people from committing crime. It
looks upon the task of the government as being to rehabilitate, reform,
treat, cure, or correct the law-breaker, changing him into a law-abiding
citizen or resident of the country.
There are various philosophical ideologies and underpinnings that are
at the basis of the reaction to crime and to the offender. These may
not be mutually exclusive, although one or another is usually dominant
in an era, in a country, or among groups of criminologists.

The Ideology Of Punishment - The punitive ideology accepts the


concepts of punishment for its own sake: the criminal is a danger to
society, he has willfully violated the law , and punishment is both
deserved and necessary for the protection of society.

While the ideology of punishment calls for revenge or retribution, it


does not neglect deterrence. In order for punishment to serve as a
deterrent, professionals who are punitively oriented maintain that it
must be visible to potential perpetrators, swift and certain, so closely
linked to the crime that it is perceived as punishment for its
perpetration, and categorical (i.e. applied so that all persons
committing a certain crime receive approximately equal punitive
treatment). In addition, the state and its representatives must uphold
superior values and behave as ideal examples of good citizenship. If
punishment is in the form of a prison term, ideally at its expiration the

6
offender is allowed to resume his previous station in life, free of stigma
and further disability.

It can be argued that there are five categories of people, whose


probabilities of committing crime are quite diverse. (Figure21-1
indicates these categories, in order of increasing probability for
criminal behavior.)

a) Gyroscopic non-offenders are so tightly enmeshed in the social


fabric of group and society, so committed to noncriminal behavior, and
so dedicated to the moral order, that almost under no circumstances
would they even consider a criminal act, much less perpetrate one.
How large this group is in modern, secular, competitive societies is
debatable. Some contend that considerable proportions of the
population commit at least one serious offense during a lifetime.

b) Favorable Conditions offenders are those who, under extreme


stress and family or personal need, might consider perpetrating a
crime if the situation is favorable (i.e., having a low chance of being
discovered or caught and a high probability that the crime would
constitute an immediate answer to a one-time need). This is a category
of persons generally believed to be easily deterred, although little is
known as to who these people are, how to identify them, and what
proportion of the total population they represent.

c) Potential violators could be characterized as marginal persons


who occasionally perpetrate property crimes but draw their main
livelihood from basically legitimate enterprises. Their potential for
criminal violation theoretically contracts for expands in response to
societal economic cycles, perceived presence of police, availability of
victims, and perception of risk of detection .
6
d) Undetected offenders can be characterized as persons whose
primary source of livelihood is predatory criminal behavior. They
appear to be little deterred by police presence, patrol practice, length
of judicial sentence, or efforts of victims to protect themselves. When
police and community activity becomes sufficiently well organized to
pose a problem for them, these offenders simply shift to a different
neighborhood or district where they can conduct business as usual.

e) Detected offenders could be conceived of as inept property


violators or persons perpetrating crimes whose violence and enormity
make them likely targets for arrest and prosecution.

Only the last two categories are likely to be deterred by the prospect of
punishment, but these are not the groups from which the
overwhelming majority of criminal offenders are believed to be drawn,
although they probably account for a great many of the most serious
offenses.

6
Gyroscopic Nonoffenders
Favorable Conditions Offenders

Potential Violators

Undetected
Offenders
Detected
Offenders

Figure : Categories of Criminal Offenders

Related Questions :

1. What do you mean by punishment? What are the


purposes and justifications of punishment?
2. “Punishment is an award”- discuss it with jurisprudential
spirit.

4. Forms Of Punishment : In general – Criminal punishment has


taken on many forms down through the ages, some now considered
cruel and inhuman – although still practiced in many parts of the world
– and others having become outmoded for a variety of reasons. Most
forms of punishment can be placed into one of the following
categories:

6
a) Capital punishment refers to the authorised execution of a
convicted felon. Once widely used for hundreds of crimes and
conducted in public to serve as an example to the gazing onlookers
and those who might hear of the event, capital punishment has fallen
into disfavor in the United States and Western Europe, although some
public sentiment for its revival appears to have come forward with the
recent increase in violence and crime.

b) Corporal punishment includes all forms of bodily pain inflicted on


an offender by official decree. Hence, psychological and physical
torture to obtain confession or injure a suspect or convict for reasons
of revenge, persecution, racism, or political enmity – even when
conducted by the authorities – would be excluded. Corporal
punishment in the past has included the wheel and the rack, often
resulting in slow death by exceptionally cruel means.

c) Transportation refers to a particular form of banishment in which


an offender is compelled to move to a colony, a desolate outpost in his
own country, or elsewhere. This forced movement was at one time
widely practiced by England, with felons being transported to its
colonies in Virginia, Georgia, Australia, and elsewhere. Transportation
could be for life or a limited period, and in many instances the family
could accompany the felon. With the decline of the colonial system,
transportation has recently been little used, although a form of it –
internal exile- appears to survive in the Soviet Union.

d) Excommunication is the practice of making an individual a


complete pariah, so that no one should have any contact with him. In a
country where all residents obey the order to avoid relationships,
excommunication amounts to a virtual sentence of death. It

6
disappeared as official criminal punishment when theocracies were
replaced by secular states.

e) Exile or banishment is the act of compelling a person to leave the


country in which he resides and of which, usually, he is a citizen. It has
fallen into disuse except for political crime, which generally mean that
a new regime has come into power and those associated with the old
regime have been sent or permitted to go into exile. Exile is of course
dependent upon the offender’s finding asylum or haven elsewhere.

f) Deportation as a form of punishment, either in lieu of


imprisonment or following it, is limited to aliens, who may be returned
to their country of origin or of current citizenship.
g) Slavery, now almost entirely extinct as an official punishment for
crime, was once a widely used form. The lines of demarcation between
slavery and chain gangs, work camps, involuntary labor in prison, and
other forms of involuntary work are not always well drawn.

h) Permanent physical injury is a special form of corporal


punishment in which a part of the body, often the “offending part,” is
removed. Thus, the hand of a thief is amputated and a rapist is
castrated.

i) Confinement or imprisonment is now the most widely used


punishment inflicted on serious offenders. In past centuries in Europe a
small number of prominent offenders were imprisoned in dungeons,
towers, and sometimes castles. This amounted to a form of long-range
or even permanent internal banishment, employed primarily against
political enemies. Imprisonment for a definite or indefinite period of
time came into its own as the major punishment for a crime in the 19 th
century.
6
j) Fines constitute sums of money to be paid by an offender to the
state (specially not to the victims) and are imposed either in lieu of or
in addition to a prison sentence.

k) Supervision of an involuntary nature, in lieu of imprisonment (as in


probation) or as the result of shortening of a prison sentence (as in
parole), has been widely used in the United States. It is part of the
concept of community corrections.

l) Enforced therapy, usually of a psychiatric nature, is sometimes


imposed upon an offender. This can involve confinement in a
psychiatric institution, or it can be substitute for such confinement.

Miscellaneous punishments can be imposed that do not fall under any


of these headings. Mothers, for example, have not infrequently lost
custody of their children upon conviction of a crime, particularly a
sexual offence.

5. Types Of Punishment Mentioning In The Ss. 53, 57, 60,


63, 73 & 74 Of The Penal Code Of 1860 : The Penal Code
provides under S. 53 six kinds of punishment (to which may be added
whipping which was brought on the Statue Book after great hesitation
and which was modified in its application later and finally taken away
from the the Statue Book) to be inflicted on the offenders, namely,
first, death; secondly, imprisonment for life;64 thirdly, penal servitude
(abolished in 1949); fourthly, imprisonment –(a) rigiorous, (b) simple;
fifthly, forfeiture of property; and sixthly, fine.

A) S.53: (Punishments) :
64
64. Subs. By Ord. No. XLI of 1985, for transportation.
6
The punishments to which offenders are liable under the
provisions of this Code are,-
Firstly,- Death;
Secondly,- [ Imprisonment for life];65
Thirdly,-[Omitted by the Criminal Law (Extinction of
Discriminatory Privileges) Act 1949 (Act No. II of 1950].
Fourthly,-Imprisonment, which is of two descriptions, namely:-
(1) Rigorous, that is, with hard labour;
(2) Simple;
Fifthly,- Forfeiture of property;
Sixthly,- Fine.
[ Explanation.-In the punishment of imprisonment for life, the
imprisonment shall be rigorous.]66

A) Death Sentence : The sentence of death stands in the forefront in


the category of punishments. The question whether the state has the
right to take away a man’s life has often been agitated, but it is a
question upon which the moralist and the jurist are never likely to
agree. Reformists have always been and are of the view that capital
punishment is a barbarous relic of the past when life for life, an eye for
eye, or a tooth for tooth was the common form revenge. On the other
hand, the state authorities justify its retention in the penal laws on the
ground that it deters criminals from commenting most heinous crimes
and enables the state authorities not only to maintain law and order in
the land but also tends generally to elevate its conception of and
respect for human life and thus purges the society of its canker worms.

65
64. The words “Imprisonment for life” were substituted, for the word “Transportation” by
section 2 of the Penal Code (Amendment) Ordinance, 1985 (Ordinance No. XLI of 1985).
66
65.The explanation was added by section 2 of the Penal Code (Amendment) Ordinance, 1985
(Ordinance No. XLI of 1985).

6
Death Penalty Under Penal Code : Several sections of the Penal
Code of 1860 and of the Code of Criminal Procedure (CrPC) of 1908
deal with the death sentence.

a) Code Of Criminal Procedure (CrPC) Of 1908 :

a1) S. 368.(1) : (Sentence of death) :


When any person is sentenced to death, the sentence shall
direct that he be hanged by the neck till he is dead.

As regards the mode of executing the sentence of death, the above


section provides that it should be hanged by the neck until the
convicted person is dead. Society had known many different modes
for executing criminals sentenced to death. Drowning, stoning to
death, shooting, burning at the stake had all been used in the past. Of
all the modern modes of administering the death penalty, hanging has
been the most widely used.

a2) S. 382 : (Postponement of capital sentence on pregnant


woman) :
If a woman sentenced to death is found to be pregnant, the
High Court Division shall order the execution of the sentence
to be postponed, and may, if it thinks fit, commute the
sentence to [ transportation for life]67.

It must be remembered that the sentence of death can only be


executed when it has been confirmed by the High Court Division (HCD)
of the Supreme Court (SC). If a woman sentenced to death is found to

66. The words `transportation for life` construed as a reference to `imprisonment for life` by
67

section 3 of the Penal Code (Amendment) Ordinance, 1985 (Ordinance No. XLI of 1985).
6
be pregnant, the HCD shall order the execution of the sentence to be
postponed and may, if it thinks fit, commute the sentence to
imprisonment for life.

b) Penal Code of 1860 :

b1) S.121 : (Waging or attempting to wage war, or abetting


waging of war, against Bangladesh) –Whoever wages war
against Bangladesh, or attempts to wage such war, or abets
the waging of such war, shall be punished with death, or
[ imprisonment]68 for life, and shall also be liable to fine.

Illustration - A joins an insurrection against Bangladesh. A has


committed the offence defined in this section.

b2) S. 132 : (Abetment of mutiny, if mutiny is committed in


consequence thereof) – Whoever abets the committing of
mutiny by an officer, [sailor or airman]69, in the Army, [Navy or
Air Force]70 of [Bangladesh]71, shall, if mutiny be committed in
consequence of that abetment, be punished with death or with
[imprisonment]72 for life, or imprisonment of either description
for a term which may extend to ten years, and shall also be
liable to fine.

68
67. The word of 1973, 2nd “imprisonment” was substituted, for the word “transportation” by
section 9 of the Penal Code (Amendment) Ordinance, 1985 (Ordinance No. XLI of 1985).
69
68. Substituted by the Repealing and Amendment Act, 1927 (Act x of 1927) S. 2 and Sch. 1 for
“or sailor”.
70
69. Ibid, for “or Navy”
71
70.The word “Bangladesh” was substituted for the word “Pakistan” by Act V111 of 1973, 2nd
Sch.
72
71. Ubstituted by Ordiance no. XLI of 1985, for Transportation”
6
b3) S.194 : (Giving or fabricating false evidence with intent to
procure conviction of capital offence; if innocent person be
thereby convicted and executed) – Whoever gives or fabricates
false evidence, intending thereby to cause, or knowing it to be
likely that he will thereby cause, any person to be convicted of
an offence which is capital by any law for the time being in
force, shall be punished with [ imprisonment]73 for life, or with
rigorous imprisonment for a term which may extend to ten
years, and shall also be liable to fine; and if an innocent
person be convicted and executed in consequence of such
false evidence, the person who gives such false evidence shall
be punished either with death or the punishment herein before
described.

b4) S.302 : (Punishment for murder) – Whoever commits


murder shall be punished with death, or 2[ imprisonment]74 for
life, and shall also be liable to fine.

b5) S.303 : (Punishment for murder by life-convict) – Whoever,


being under sentence of 2[ imprisonment]75 for life, commits
murder, shall be punished with death.

b6) S. 305 : (Abetment of suicide of child or insane person) – If


any person under eighteen years of age, any insane person,

73
72. The word “imprisonment” was substituted, for the word “transportation” by section 13 of
the Penal Code (Amendment) Ordinance, 1985 (Ordinance No. XLI of 1985).
74
73. The word “imprisonment” was substituted, for the word “transportation” by section 19 of
the Penal Code (Amendment) Ordinance, 1985 (Ordinance No. XLI of 1985.
75
74. The word “imprisonment” was substituted, for the word “transportation” by section 19 of
the Penal Code (Amendment) Ordinance, 1985 (Ordinance No. XLI of 1985)
6
any delirious person, any idiot, or any person in a state of
intoxication commits suicide, whoever abets the commission
of such suicide shall be punished with death or
[ imprisonment]76 for life, or imprisonment for a term not
exceeding ten years, and shall also be liable to fine.

b7) S. 307: (Attempt to murder Attempts by life-convicts) –


Whoever does any act with such intention or knowledge, and
under such circumstances that, if he by that act caused death,
he would be guilty of murder, shall be punished with
imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine; and, if hurt
is caused to any person by such act, the offender shall be
liable either to [ imprisonment]77 for life, or to such
punishment as is hereinbefore mentioned.

When any person offending under this section is under


sentence of [ imprisonment]78 for life, he may, if hurt is
caused, be punished with death.

Illustration - (a) A shoots at Z with intention to kill him, under


such circumstances that, if death ensued, A would be guilty of
murder. A is liable to punishment under this section.

76
75.The word “imprisonment” was substituted, for the word “transportation” by section 19 of the
Penal Code (Amendment) Ordinance, 1985 (Ordinance No. XLI of 1985)

77
76. The word “imprisonment” was substituted, for the word “transportation” by section 19 of
the Penal Code (Amendment) Ordinance, 1985 (Ordinance No. XLI of 1985).
78
77. The word “imprisonment” was substituted, for the word “transportation” by section
19 of the Penal Code (Amendment) Ordinance, 1985 (Ordinance No. XLI of 1985).

6
(b) A with the intention of causing the death of a child of
tender years exposes it in a desert place. A has committed the
offence defined by this section, though the death of the child
does not ensue.

(c) A, intending to murder Z, buys a gun and loads it. A has not
yet committed the offence. A fires the gun at Z. He has
committed the offence defined in this section, and, if by such
firing he wounds, he is liable to the punishment provided by
the latter part of the first paragraph of this section.

(d) A, intending to murder Z, by poison, purchases poison and


mixes the same with food which remains in A's keeping; A has
not yet committed the offence in this section. A places the
food on Z's table or delivers it to Z's servants to place it on Z's
table. A has committed the offence defined in this section.

b8) S. 364A79 : (Kidnapping or abducting a person under the


age of ten) – Whoever kidnaps or abducts any person under
the age of ten, in order that such person may be murdered or
subjected to grievous hurt, or slavery, or to the lust of any
person or may be so disposed of as to be put in danger of
being murdered or subjected to grievous hurt, or slavery, or to
the lust of any person shall be punished with death or with
3[ imprisonment]80 for life or with rigorous imprisonment for a
term which may extend to fourteen years and shall not be less
than seven years.]

79
78. Section 364A was inserted by section 2 of the Criminal Law (Amendment) Act, 1958 (Act
No. XXXIV of 1958).
80
79. The word “imprisonment” was substituted, for the word “transportation” by section 19 of the
Penal Code (Amendment) Ordinance, 1985 (Ordinance No. XLI of 1985)
6
b9) S. 396 : (Dacoity with murder) – If any one of five or more
persons, who are conjointly committing dacoity, commits
murder in so committing dacoity, every one of those persons
shall be punished with death, or [ imprisonment]81 for life, or
rigorous imprisonment for a term which may extend to ten
years, and shall also be liable to fine.

B) Imprisonment For Life : Imprisonment is ordinarily a


confinement of person in a ail or in a penitentiary by way of
punishment, but such confinement need not necessarily be in a place
prescribed for that purpose. It may be any place, whatsoever, wherein
a person under lawful arrest for a supposed crime restrained of his
liberty whether in the stocks, at the street, or in the common gate or in
the house of a constable or a private person, or the prison of the
ordinary, and properly a prison within the statute for imprisonment is
nothing else but a restraint liberty.
Thus , a man can be imprisoned in his own house if he is not permitted
to go outside, or , he may be sentenced to imprisonment till the rising
of the court and the liberty of the person is thus restrained, though the
person so sentenced is not confined in jail nor subjected to jail
discipline. Imprisonment till rising of the court has been held to be true
imprisonment.

Types of Imprisonment : Imprisonment is of two kinds :

1.rigorous, and
81
80. The word “imprisonment” was substituted, for the word “transportation” by section 21 of
the Penal Code (Amendment) Ordinance, 1985 (Ordinance No. XLI of 1985)

6
2. simple .

In rigorous imprisonment, the prisoner is subjected to hard labor such


as breaking of metal crushing of grain and pressing of oil and the like;
while in the latter, lighten work or sometimes no work at all is taken
from the prisoner. The framers of the Code observed : "We do not
think that penal code is the proper place for describing with
minuteness the nature of either kind of imprisonment."
Therefore all these things are left to the jail discipline and the tasks
allotted to the prisoner vary with the locality, health and culture of the
prisoner. Simple imprisonment is virtually detention in jail custody, the
prisoner being at beauty to do light work to break the monotony of
prison life if he is so disposed. Simple imprisonment is awarded to men
of position or culture to whom the nominee of imprisonment is itself a
sufficient punishment .

While the kind of imprisonment to be awarded in each case is lift to the


discretion of the judge, the Penal Code has prescribed three cases
(now only two cases ) of offences where rigorous imprisonment only is
to be awarded to the offenders, namely, first, offences of giving or
fabricating false evidence with intent to procure conviction for a capital
offence; secondly, unlawful return from transportation under S. 226
(now omitted by the Amending Act 26 of 1955, S. 117 ); and, thirdly,
house-trespass in order to commit an offence punishable with death.
On the other hand, there are a number of sections where the sentence
prescribed is only simple imprisonment, for example, S. 168 – a public
servant unlawfully engaging in trade; S. 169 – a public servant
unlawfully buying or bidding for property; Ss. 172, 173 – evasion of
summons; S. 174- non-attendance in obedience to an order from a
public servant; Section failure to produce documents; S. 176- failure to
give information; S. 177- failure to render assistance; Section 178-

6
refusal to fake oath ; S. 179- refusal to answer questions; Section 180-
refusal to sign a statement; S. 188- disobedience to order duly
promulgated by a public servant; S. 223- escape from confinement
through negligence of a public servant; S. 225A – negligent omission t
apprehend by a public servant; S. 228- interruption to judicial
proceedings; S. 291- continuance of nuisance after injunction; S. 341-
wrongful restraint; Ss. 500, 501 and 502- defamation and knowingly
printing or selling defamatory matter; S. 510- misconduct by a drunken
person. In all other offences where imprisonment is prescribed as a
punishment it is of either description and the judge has to award it in
his discretion.

Rules Regarding Imprisonment :

1) S.57 : (Fractions of terms of punishment) - In calculating


fractions of terms of punishment, [ imprisonment] 82 for life
shall be reckoned as equivalent to 3[ rigorous imprisonment
for thirty years].83

2) S. 60 : (Sentence may be in certain cases of imprisonment,


wholly or partly rigorous or simple) – In every case in which an
offender is punishable with imprisonment which may be of
either description, it shall be competent to the Court which
sentences such offender to direct in the sentence that such
imprisonment shall be wholly rigorous, or that such

82
81. The word “imprisonment” was substituted, for the word “transportation” by section 4 of the
Penal Code (Amendment) Ordinance, 1985 (Ordinance No. XLI of 1985).
83
82. The words “rigorous imprisonment for thirty years” were substituted, for the words
“transportation for twenty years” by section 5 of the Penal Code (Amendment) Ordinance, 1985
(Ordinance No. XLI of 1985).
6
imprisonment shall be wholly simple, or that any part of such
imprisonment shall be rigorous and the rest simple.

Maximum And Minimum Punishment Under The Penal Code :


The maximum term of imprisonment that can be awarded for an
offence is 14 tears (S. 55) and it has fixed the minimum punishment to
be awarded in only to cases, which are very grave offences , namely ,
first, under Section 397- there at the time of committing robbery or
dacioty, the offender uses any deadly weapon or causes grievous hurt
to any person or attempts to cause grievous hurt to any person, the
imprisonment to be awarded to such an offender shall not be less than
seven years; and, secondly, under section 394, if the offender at the
time of attempting to commit robbery or dacoity armed with any
deadly weapon, the imprisonment shall not be less than ten years. The
shortest period of imprisonment that may be awarded to an offender is
prescribed under S. 510 where, misconduct in public by a drunken
offender , he may be awarded simple imprisonment which may extend
to hours or with fine up to Tk. 10 with both. In all other offences the
imprisonment, that is prescribed in the Penal Code, is the maximum
and it is left to the discretion of the judge to award it within the limits
of the maximum prescribed in the section.

Life Imprisonment Under Penal Code :

1) S.121 : (Waging or attempting to wage war, or abetting


waging of war, against Bangladesh) –Whoever wages war
against Bangladesh, or attempts to wage such war, or abets

6
the waging of such war, shall be punished with death, or
[ imprisonment]84 for life, and shall also be liable to fine.

Illustration - A joins an insurrection against Bangladesh. A has


committed the offence defined in this section.

2) S.122 : (Collecting arms, etc, with intention of waging war


against Bangladesh) – Whoever collects men, arms or
ammunition or otherwise prepares to wage war with the
intention of either waging or being prepared to wage war
against Bangladesh, shall be punished with [ imprisonment]85
for life or imprisonment of either description for a term not
exceeding ten years, and shall also be liable to fine.

3) S.304 : (Punishment for culpable homicide not amounting to


murder) – Whoever commits culpable homicide not amounting
to murder, shall be punished with [ imprisonment]86 for life, or
imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine, if the act
by which the death is caused is done with intention of causing
death, or of causing such bodily injury as is likely to cause
death;

or with imprisonment of either description for a term which


may extend to ten years, or with fine, or with both, if the act is
84
83. The word “imprisonment” was substituted, for the word “transportation” by section 9 of the
Penal Code (Amendment) Ordinance, 1985 (Ordinance No. XLI of 1985)

85
84. The word “imprisonment” was substituted, for the word “transportation” by section 11 of
the Penal Code (Amendment) Ordinance, 1985 (Ordinance No. XLI of 1985)
86
85. The word “imprisonment” was substituted, for the word “transportation” by section 19 of
the Penal Code (Amendment) Ordinance, 1985 (Ordinance No. XLI of 1985)
6
done with the knowledge that it is likely to cause death, but
without any intention to cause death or to cause such bodily
injury as is likely to cause death.

4) S.376 : (Punishment for rape) – Whoever commits rape shall


be punished with [ imprisonment]87 for life or with
imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine, unless the
woman raped is his own wife and is not under twelve years of
age, in which case he shall be punished with imprisonment of
either description for a term which may extend to two years,
or with fine, or with both.

3) S. 377 : (Unnatural offences) - Whoever voluntarily has


carnal intercourse against the order of nature with any man,
woman or animal, shall be punished with [ imprisonment]88 for
life, or with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine.

Explanation : Penetration is sufficient to constitute the carnal


intercourse necessary to the offence described in this section.

5) S. 400 : (Punishment for belonging to gang of dacoits) -


Whoever, at any time after the passing of this Act, shall belong
to a gang of persons associated for the purpose of habitually

87
86. The words, comma and figure “ratified by Pakistan on the second June, 1951” were omitted
by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973
(Act No. VIII of 1973)

88
87. The word “imprisonment” was substituted, for the word “transportation” by section 19 of
the Penal Code (Amendment) Ordinance, 1985 (Ordinance No. XLI of 1985)
6
committing dacoity, shall be punished with [ imprisonment]89
for life, or with rigorous imprisonment for a term which may
extend to ten years, and shall also be liable to fine.

Imprisonment Under Penal Code :

1) S. 168 : (public servant unlawfully engaging in trade) -


Whoever, being a public servant, and being legally bound as
such public servant not to engage in trade, engages in trade,
shall be punished with simple imprisonment for a term which
may extend to one year, or with fine, or with both.

2) S. 169 : (Public servant unlawfully buying or bidding for


property) - Whoever, being a public servant, and being legally
bound as such public servant, not to purchase or bid for
certain property, purchases or bids for that property, either in
his own name or in the name of another, or jointly, or in shares
with others, shall be punished with simple imprisonment for a
term which may extend to two years, or with fine, or with both;
and the property, if purchased, shall be confiscated.

3) S. 172 : (Absconding to avoid service of summons or other


proceeding) - Whoever absconds in order to avoid being
served with a summons, notice or order proceeding from any
public servant legally competent, as such public servant, to
issue such summons, notice or order, shall be punished with
simple imprisonment for a term which may extend to one
month, or with fine which may extend to five hundred taka, or
with both;
89
88.The word “imprisonment” was substituted, for the word “transportation” by section 21 of the
Penal Code (Amendment) Ordinance, 1985 (Ordinance No. XLI of 1985)
6
or, if the summons or notice or order is to attend in person or
by agent, or to produce a document in a Court of Justice, with
simple imprisonment for a term which may extend to six
month, or with fine which may extend to one thousand taka, or
with both.

4) S. 173 : (Preventing service of summons or other


proceeding, or preventing publication thereof) - Whoever in
any manner intentionally prevents the serving on himself, or
on any other person, of any summons, notice or order
proceeding from any public servant legally competent, as such
public servant, to issue such summons, notice or order, or
intentionally prevents the lawful affixing to any place of any
such summons, notice or order, or intentionally removes any
such summons, notice or order, from any place to which it is
lawfully affixed, or intentionally prevents the lawful making of
any proclamation, under the authority of any public servant
legally competent, as such public servant, to direct such
proclamation to be made, shall be punished with simple
imprisonment for a term which may extend to one month, or
with fine which may extend to five hundred taka, or with both;
or , if the summons, notice, order or proclamation is to attend
in person or by agent, or to produce a document in a Court of
Justice, with simple imprisonment for a term which may extend
to six months, or with fine which may extend to one thousand
taka, or with both.

5) S. 174 ( Non-attendence in obedience to an order from


public servant) - Whoever, being legally bound to attend in
person or by an agent at a certain place and time in obedience
to a summons, notice, order or proclamation proceeding from
6
any public servant legally competent, as such public servant,
to issue the same, intentionally omits to attend at that place
or time, or departs from the place where he is bound to attend
before the time at which it is lawful for him to depart, shall be
punished with simple imprisonment for a term which may
extend to one month, or with fine which may extend to five
hundred taka or with both; or, if the summons, notice, order or
proclamation is to attend in person or by agent in a Court of
Justice, with simple imprisonment for a term which may extend
to six months, or with fine which may extend to one thousand
taka, or with both.

Illustrations :
(a) A, being legally bound to appear before the [ Supreme
Court of Bangladesh]90 in obedience to a subpoena issuing
from that Court, intentionally omits to appear. A has
committed the offence defined in this section.

(b) A, being legally bound to appear before a Zila Judge, as a


witness, in obedience to a summons issued by that Zila Judge,
intentionally omits to appear. A has committed the offence
defined in this section.

6) S. 175 : (Omission to produce document to public servant by


person legally bound to produce it) - Whoever, being legally
bound to produce or deliver up any document to any public
servant, as such, intentionally omits so to produce or deliver
up the same, shall be punished with simple imprisonment for a
term which may extend to one month, or with fine which may

90
89. The words within square brackets ware substituted for the words “High Court of East
Pakistan” by the Bangladesh Laws (Revision and Declaretion) Act, 1973, 2nd Sch.
6
extend to five hundred taka, or with both; or , if the document
is to be produced or delivered up to a Court of Justice, with
simple imprisonment for a term which may extend to six
months, or with fine which may extend to one thousand taka,
or with both.

Illustration :
A, being legally bound to produce a document before a Zila
Court, intentionally omits to produce the same. A has
committed the offence defined in this section.

7) S. 176 : (Omission to give notice or information to public


servant legally bound to give it) - Whoever, being legally
bound to give any notice or to furnish information on any
subject to any public servant, as such, intentionally omits to
give such notice or to furnish such information in the manner
and at the time required by law, shall be punished with simple
imprisonment for a term which may extend to one month, or
with fine which may extend to five hundred taka, or with both;
or , if the notice or information required to be given respects
the commission of an offence, or is required for the purpose of
preventing the commission of an offence, or in order to the
apprehension of an offender, with simple imprisonment for a
term which may extend to six months, or with fine which may
extend to one thousand taka, or with both; or, if the notice or
information required to be given is required by an order
passed under sub-section (1) of S. 565 of the Code of Criminal
Procedure, 1898, with imprisonment of either description for a
term which may extend to six months, or with fine which may
extend to one thousand taka, or with both.

6
8) S. 177 : (Furnishing false information) - Whoever, being
legally bound to furnish information on any subject to any
public servant, as such, furnishes, as true, information on the
subject which he knows or has reason to believe to be false,
shall be punished with simple imprisonment for a term which
may extend to six months, or with fine which may extend to
one thousand taka, or with both; or, if the information which
he is legally bound to give respects the commission of an
offence, or is required for the purpose of preventing the
commission of an offence, or in order to the apprehension of
an offender, with imprisonment of either description for a term
which may extend to two years, or with fine, or with both.

Illustrations :
(a) A, a landholder, knowing of the commission of a murder
within the limits of his estate, willfully misinforms the
Magistrate of the district that the death has occurred by
accident in consequence of the bite of a snake. A is guilty of
the offence defined in this section.
(b) A, a village watchman, knowing that a considerable body of
strangers has passed through his village in order to commit a
dacoity in the house of Z, a wealthy merchant residing in a
neighboring place, and being bound, under S. 69[ any law for
the time being in force], to give early and punctual information
of the above fact to the officer of the nearest police station,
wilfully misinforms the police-officer that a body of suspicious
characters passed through the village with a view to commit
dacoity in a certain distant place in different direction. Here A
is guilty of the offence defined in the latter part of this section.

Explanation : In section 176 and in this section the word


6
"offence" includes any act committed at any place out of
Bangladesh, which, if committed in Bangladesh, would be
punishable under any of the following Ss. namely, 302, 304,
382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436,
449, 450, 457, 458, 459 and 460; and the word "offender'
includes any person who is alleged to have been guilty of any
such act.

9) S. 178 : (Refusing oath or affirmation when duly required


by public servant to make it) - Whoever refuses to bind himself
by an oath or affirmation to state the truth, when required so
to bind himself by a public servant legally competent to
require that he shall so bind himself, shall be punished with
simple imprisonment for a term which may extend to six
months, or with fine which may extend to one thousand taka,
or with both.

10) S. 180 : (Refusing to sign statement) - Whoever refuses to


sign any statement made by him, when required to sign that
statement by a public servant legally competent to require
that he shall sign that statement, shall be punished with
simple imprisonment for a term which may extend to three
months, or with fine which may extend to five hundred taka, or
with both.
11) S. 397 : (Robbery or dacoity, with attempt with attempt to
cause death or grievous hurt) - If, at the time of committing
robbery or dacoity, the offender uses any deadly weapon, or
causes grievous hurt to any person, or attempts to cause
death or grievous hurt to any person, the imprisonment with
which such offender shall be punished shall not be less than
seven years.
6
12) S. 398 : (Attempt to commit robbery or dacoity when
armed with deadly weapon) - If, at the time of attempting to
commit robbery or dacoity, the offender is armed with any
deadly weapon, the imprisonment with which such offender
shall be punished shall not be less than seven years.

13) S. 449 : (House-trespass in order to commit offence


punishable with death) - Whoever commits house-trespass in
order to the committing of any offence punishable with death,
shall be punished with [imprisonment] for life, or with rigorous
imprisonment for a term not exceeding ten years, and shall
also be liable to fine.

Enhanced Punishment : There is a class of hopeless criminals. It is


impossible to improve or reform them. The incorrigible old offenders do
not care for sentences of 4 to 5 years. The theroy of reformation is
inapplicable to them. To them sentences of 2 or 3 tears are like waters
on duck’s back. They have top be dealt with very strictly. Only long
term of imprisonment can, if not cure them, or reform them, at least
rid society of these pests. S. 75 of the penal Code deals with enhanced
punishment to be awarded in case of, what is known as, “ old
offenders.”

S. 75 : (Enhanced punishment for certain offences under


Chapter XII or Chapter XVII after previous conviction) –
Whoever, having been convicted, - (a) by a Court in
Bangladesh of an offence punishable under Chapter XII or

6
Chapter XVII of this Code with imprisonment of either
description for a term of three years or upwards; [ * * *]91
(b) [Omitted by section 3 and 2nd Schedule of the Bangladesh
Laws (Revision And Declaration) Act, 1973 (Act No. VIII of
1973).]
shall be guilty of any offence punishable under either of those
Chapters with like imprisonment for the like term, shall be

subject for every such subsequent offence to [ imprisonment]


92
for life, or to imprisonment of either description for a term
which may extend to ten years.

Conditions For Enhanced Punishment : To bring the offence


within term of this section, the following conditions must be
fulfilled :
a) The offence of which the accused has been previously convicted and
of which he is subsequently charged with must be
1. under either Ch. XII and Ch. XVII of this Code and
2. punishable with imprisonment for 3 years or more.
b) The previous conviction must have been by a Court in Bangladesh or
by a Court or tribunal .
c) The subsequent offence must have been committed after the
previous conviction.

91
90. The word “or” at the end of clause (a) was omitted by section 3 and 2nd Schedule of the
Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973)

92
91. The word “imprisonment” was substituted, for the word “transportation” by section 19 of
the Penal Code (Amendment) Ordinance, 1985 (Ordinance No. XLI of 1985)

6
C) Fine : Fine is indeed forfeiture of a sum of money by way of
penalty. It was justified by the framers of the Code thus: fine is the
most common punishment in every part of the world and it is a
punishment of the advantages of which are so great and obvious that
we propose to authority of courts to inflict it in every case. Bentham ,
in his Principles of Penal Laws, discusses the advantages and
disadvantages of fine as a punishment . As regards its advantages he
observes :

1.It has the striking advantage of being convertible to profit.


2. It is not exemplary as at its execution no spectacle is exhibited.
However, the true disadvantages of fine, as Court observes, is its
inappropriateness in serious crimes and its true advantage lies in the
means it affords for compensation the complainant.

As regards the imposition of fine as a sentence , the Penal Code may


divided into four parts, namely, first, offences in which the fine is the
second punishment and its amount is limited; secondly, offences in
which fine is the alternative punishment but its amount is limited ;
thirdly, offences in which is an additional imperative punishment but
its amount is limited; and fourthly, offences in which it is both an
imperative punishment and its amount is unlimited . This classification
would clearly show how the Penal Code has carried out its express
intention in affixing the sentence of fine.

Thus, in the following sections of the penal code , fine is the sole
punishment and except in two cases its amount is limited: S. 137, for
negligence suffering a deserter to conceal in a vessel. the maximum
fine is Tk.500. S. 154 , for criminal responsibility for riot held on one`s
land the maximum fine is Tk. 1000 . S. 155, for liability of person for
whose benefit the --- is committed , the fine is unlimited ; Section 156,
6
for liability of agent of owner of occupier for whose benefit riot is
committed, the fine is unlimited.

Fine Under Penal Code :

S. 63 : (Amount of fine) – Where no sum is expressed to which


a fine may extend, the amount of fine to which the offender is
liable is unlimited, but shall not be excessive.

S. 137 (Deserter concealed on board merchant vessel, through


negligence of master) - The master or person in charge of a
merchant vessel, on board of which any deserter from the
Army, Navy or Air Force of Bangladesh is concealed, shall,
though ignorant of such concealment, be liable to a penalty
not exceeding five hundred taka if he might have known of
such concealment but for some neglect of his duty as such
master or person in charge, or but for some want of discipline
on board of the vessel.

S. 154 : (Owner or occupier of land on which an unlawful


assembly is held) - Whenever any unlawful assembly or riot
takes place, the owner or occupier of the land upon which such
unlawful assembly is held, or such riot is committed, and any
person having or claiming an interest in such land, shall be
punishable with fine not exceeding one thousand taka, if he or
his agent or manager, knowing that such offence is being or
has been committed, or having reason to believe it is likely to
be committed, do not give the earliest notice thereof in his or
their power to the principal officer at the nearest police-
station, and do not, in the case of his or their having reason to
believe that it was about to be committed, use all lawful
6
means in his or their power to prevent it and, in the event of
its taking place, do not use all lawful means in his or their
power to disperse or suppress the riot or unlawful assembly.

S. 173 : (Preventing service of summons or other proceeding,


or preventing publication thereof) - Whoever in any manner
intentionally prevents the serving on himself, or on any other
person, of any summons, notice or order proceeding from any
public servant legally competent, as such public servant, to
issue such summons, notice or order, or intentionally prevents
the lawful affixing to any place of any such summons, notice or
order, or intentionally removes any such summons, notice or
order, from any place to which it is lawfully affixed, or
intentionally prevents the lawful making of any proclamation,
under the authority of any public servant legally competent, as
such public servant, to direct such proclamation to be made,
shall be punished with simple imprisonment for a term which
may extend to one month, or with fine which may extend to
five hundred taka, or with both; or , if the summons, notice,
order or proclamation is to attend in person or by agent, or to
produce a document in a Court of Justice, with simple
imprisonment for a term which may extend to six months, or
with fine which may extend to one thousand taka, or with
both.

S. 155 : (Liability of person for whose benefit riot is


committed) - Whenever a riot is committed for the benefit or
on behalf of any person who is the owner or occupier of any
land respecting which such riot takes place or who claims any
interest in such land, or in the subject of any dispute which
gave rise to the riot, or who has accepted or derived any
6
benefit there from , such person shall be punishable with
fine, if he or his agent or manager, having reason to believe
that such riot was likely to be committed or that the unlawful
assembly by which such riot was committed was likely to be
held, shall not respectively use all lawful means in his or their
power to prevent such assembly or riot from taking place, and
for suppressing and dispersing the same.

S.290 : (Punishment for public nuisance in cases not otherwise


provided for) - Whoever commits a public nuisance in any case
not otherwise punishable by this Code, shall be punished with
fine which may extend to two hundred taka.

S. 283 : (danger or obstruction in public way or line of


navigation) - Whoever, by doing any act, or by omitting to take
order with any property in his possession or under his charge,
causes danger, obstruction or injury to any person in any
public way or public line of navigation, shall be punished with
fine which may extend to two hundred taka.

D) Forfeiture Of Property : As regards forefeiture of property we


can say it is a punishment which is proposed to inflict only on persons
guilty of high political offences. The sentence of forfeiture is very
ancient in orign. In England the forfeiture was originally confined to
treason. It was of two kinds, namely, first, of real and secondly
personal estates.

Forfeiture may be of two types in nature : (1) absolute, and (2) specific
forfeiture. There are three sections in the Penal Code where under the
offender is even liable to forfeiture of specific property.
6
Forfeiture Of Propery Under Penal Code :

S. 126 : (Committing depredation on territories of power at


peace with Bangladesh) -Whoever commits depredation, or
makes preparations to commit depredation, on the territories
of any Power in alliance or at peace with Bangladesh, shall be
punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to
fine and to forfeiture of any property used or intended to be
used in committing such depredation, or acquired by such
depredation.

S. 127 : (Receiving property taken by war or depredation


mentioned in Ss. 125 and 126) - Whoever receives any
property knowing the same to have been taken in the
commission of any of the offences mentioned in sections 125
and 126, shall be punished with imprisonment of either
description for a term which may extend to seven years, and
shall also be liable to fine and to forfeiture of the property so
received.

S. 169 : (Public servant unlawfully buying or bidding for


property) - Whoever, being a public servant, and being legally
bound as such public servant, not to purchase or bid for
certain property, purchases or bids for that property, either in
his own name or in the name of another, or jointly, or in shares
with others, shall be punished with simple imprisonment for a
term which may extend to two years, or with fine, or with both;
and the property, if purchased, shall be confiscated.

6
Related Questions :

1. What are the various types of punishment under the


Penal Code of 1860?
2. How can punishment be enhanced under the Penal Code
of 1860?
3. Do you agree with the following propositions?
a) “Awarding death sentence for the punishments
providing in the Penal Code of 1860 is an obligatory
one.”
b) “There are certain offences for which fine is only
awarded.”
c) “Most of the offences are provided in the Code for
imprisonment either descriptive.”
5. Rules Regarding Commutation Of Punishment In The Ss.
54 & 55 Of The Penal Code Of 1890 :

COMMUTATION OF PUNISHMENT :

Under Penal Code ;

S. 54 : (Commutation of sentence of death) - In every case in


which sentence of death shall have been passed, [ the
Government]93 may, without the consent of the offender,
commute the punishment for any other punishment provided
by this Code.

93
92. The words “the Government” were substituted, for the words “Central Government or the
Provincial Government of the province within which the offender shall have been sentenced” by
section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act
No. VIII of 1973)
6
S. 55 : (Commutation of sentence of [ imprisonment ]94 for life)
- In every case in which sentence of [ imprisonment]95 for life
shall have been passed, [ the Government] 96 may, without the
consent of the offender, commute the punishment for
imprisonment of either description for a term not exceeding
[ twenty]97 years.

Under CrPC : PART VI


PROCEEDINGS IN PROSECUTIONS
CHAPTER XXIX
OF SUSPENSIONS, REMISSIONS AND COMMUTATIONS OF
SENTENCES

S. 401.(1) : (Power to suspend or remit sentences) : When any


person has been sentenced to punishment for an offence, the
Government may at any time without conditions or upon any
conditions which the person sentenced excepts, suspend the
execution of his sentence or remit the whole or any part of the
punishment to which he has been sentenced.
94
93. The word “imprisonment” was substituted, for the word “transportation” by section 4 of the
Penal Code (Amendment) Ordinance, 1985 (Ordinance No. XLI of 1985)
95
94. The word “imprisonment” was substituted, for the word “transportation” by section 4 of the
Penal Code (Amendment) Ordinance, 1985 (Ordinance No. XLI of 1985)
96
95. The words “the Government” were substituted, for the words “Provincial Government of the
Province within which the offender shall have been sentenced” by section 3 and 2nd Schedule of
the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973)
97
96. The word “twenty” was substituted, for the word “fourteen” by section 4 of the Penal Code
(Amendment) Ordinance, 1985 (Ordinance No. XLI of 1985)

6
(2) Whenever an application is made to the Government for the
suspension or remission of a sentence, the Government, may
require the presiding Judge of the Court before or by which the
conviction was had or confirmed to state his opinion as to
whether the application should be granted or refused,
together with his reasons for such opinion and also to forward
with the statement of such opinion a certified copy of the
record of the trial or of such record thereof as exists.
(3) If any condition on which a sentence has been suspended
or remitted is, in the opinion of the Government not fulfilled,
the Government may cancel the suspension or remission, and
thereupon the person in whose favour the sentence has been
suspended or remitted may, if at large, be arrested by any
police-officer without warrant and remanded to undergo the
unexpired portion of the sentence.
(4) The condition on which a sentence is suspended or
remitted under this section may be one to be fulfilled by the
person in whose favor the sentence is suspended or remitted,
or one independent of his will.
(4A) The provision of the above sub-sections shall also apply to
any order passed by a Criminal Court under any section of this
Code or of any other law, which restricts the liberty of any
person or impose any liability upon him or his property.
(5) Nothing herein contained shall be deemed to interfere with
the right of the President [ * * *] 98 to grant pardons, reprieves,
respites or remissions of punishment.

98
97. The words `or of the Central Government when such right is delegated to it` were omitted by
section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act
No. VIII of 1973)
6
(5A) Where a conditional pardon is granted by the President [ *
* *]99, any condition thereby imposed, of whatever nature, shall
be deemed to have been imposed by a sentence of a
competent Court under this Code and shall be enforceable
accordingly.
(6) The Government may, by general rules or special orders,
give directions as to the suspension of sentences and the
conditions on which petitions should be presented and dealt
with.

S. 402(1) : (Power to commute punishment) - The Government


may, without the consent of the person sentenced, commute
any one of the following sentences for any other mentioned
after it:-
death, transportation, rigorous imprisonment for a term not
exceeding that to which he might have been sentenced, simple
imprisonment for a like term, fine.
(2) Nothing in this section shall affect the provisions of section
54 or section 55 of the Penal Code.

S. 402A100 : (Sentences of death) - The powers conferred by


sections 401 and 402 upon the Government may, in the case of
sentences of death, also be exercised by the President.]
Related Question :

99
98. The words and commas `or, in virtue of any power delegated to it, by the Central
Government` were omitted by section 3 and 2nd Schedule of the Bangladesh Laws (Revision
And Declaration) Act, 1973 (Act No. VIII of 1973)
100
99.Section 402A was inserted by the Government of India (Adaptation of Indian Laws) Order,
1937
6
1. What are the rules of commutation of sentences under
the Penal Code of 1860?

LECTURE – SIX
ON
1. Rules Regarding Imprisonment In Default Of Fines Under Ss. 64-67 Of The
Penal Code, 1860.

2. Rules Regarding Termination Of Imprisonment On Payment Of Fine Under Ss.


68-70.

3. Rules For Assessment OF Punishment Under Ss. 71-72.

4. Rules For Solitary Confinement As Punishment Under S.73.

1. Rules For Imprisonment In Default Of Fine : These are


about imprisonment in default of payment of fine.

S. 64 : (Sentence of imprisonment for non-payment of fine) – In


every case of an offence punishable with imprisonment as well
as fine, in which the offender is sentenced to a fine, whether
with or without imprisonment,
and in every case of an offence punishable with imprisonment
or fine, or with fine only, in which the offender is sentenced to
a fine,
it shall be competent to the Court which sentences such
offender to direct by the sentence that, in default of payment
of the fine, the offender shall suffer imprisonment for a certain
term, which imprisonment shall be in excess of any other
imprisonment to which he may have been sentenced or to
which he may be liable under a commutation of a sentence.

6
S. 65 : (Limit to imprisonment for non-payment of fine, when
imprisonment and fine awardable) – The term for which the
Court directs the offender to be imprisoned in default of
payment of a fine shall not exceed one-fourth of the term of
imprisonment which is the maximum fixed for the offence, if
the offence be punishable with imprisonment as well as fine.

S. 66 : (Description of imprisonment for non-payment of fine)


– The imprisonment which the Court imposes in default of
payment of a fine may be of any description to which the
offender might have been sentenced for the offence.

S. 67 : (Imprisonment for non-payment of fine, when offence


punishable with fine only) – If the offence be punishable with
fine only, the imprisonment which the Court imposes in default
of payment of the fine shall be simple, and the term for which
the Court directs the offender to be imprisoned, in default of
payment of fine, shall not exceed the following scale, that is to
say, for any term not exceeding two months when the amount
of the fine shall not exceed fifty taka, and for any term not
exceeding four months when the amount shall not exceed one
hundred taka, and for any term not exceeding six months in
any other case.

Imprisonment In Default Of Fine : S. 64 authorizes a Court to


award a sentence of imprisonment in default of payment of fine and
expressly enacts that such imprisonment shall be in excess of any
other imprisonment to which the offender may have been sentenced.
Hence when the sentence of imprisonment in default of fine is ordered
to run concurrently with the substantive term of imprisonment for the

6
offence it is a violation of the mandatory provisions of the law bearing
on the matter.

Where an offence is punishable with imprisonment and fine the


imprisonment in default of payment of fine must noy exceed one-
fourth of the maximum term of the offence (S. 65). The extra
imprisonment may be simple or rigorous. It will be of the same
description prescribed for the offence (S. 66). For example where
simple imprisonment is prescribed for the offence, rigorous
imprisonment cannot be ordered in default of payment of fine. When
thw offence is punishable with fine only the imprisonment in default of
fine shall not exceed (a) 2 months when the amount of the fine does
not exceed Tk. 50; (2) 4 months when the amount of the fine does not
exceed Tk. 100; and for any term not exceeding 6 months in any other
case (S. 67). Such imprisonment must be simple.

Related Question :

1. What are the rules of imprisonment in default of fine


under the Penal Code of 1860?

2. Rules regarding termination of imprisonment on payment of


fine :

S. 68 : (Imprisonment to terminate on payment of fine) –The


imprisonment which is imposed in default of payment of a fine
shall terminate whenever that fine is either paid or levied by
process of law.

S. 69 : (Termination of imprisonment on payment of propor-


tional part of fine) –If, before the expiration of the term of
6
imprisonment fixed in default of payment, such a proportion of
the fine be paid or levied that the term of imprisonment
suffered in default of payment is not less than proportional to
the part of the fine still unpaid, the imprisonment shall
terminate.

Illustration :
A is sentenced to a fine of one hundred taka and four months
imprisonment in default of payment. Here, if seventy-five taka
of the fine be paid or levied before the expiration of one month
of the imprisonment, A will be discharged as soon as the first
month has expired. If seventy-five taka be paid or levied at the
time of the expiration of the first month, or at any later time
while A continues in imprisonment, A will be immediately
discharged. If fifty taka of the fine be paid or levied before the
expiration of the two months of the imprisonments, A will be
discharged as soon as the two months are completed. If fifty
taka be paid or levied at the time the expiration of those two
months, or at any later time while A continues in
imprisonment, A will be immediately discharged.

S. 70 : (Fine leviable within six years, or during imprisonment


Death not to discharge property from liability) – The fine, or
any part thereof which remains unpaid, may be levied at any
time within six years after the passing of the sentence, and if,
under the sentence, the offender be liable to imprisonment for
a longer period then six years, then at any time previous to the
expiration of that period; and the death of the offender does
not discharge from the liability any property which would,
after his death, be legally liable for his debts.

6
If the prisoner pays the fine, imprisonment will terminate (S. 68), if he
pays a portion of it, the imprisonment will be reduced proportionately
(S. 69). Under S. 70 fine may be levied or realized within 6 years or at
any time during the imprisonment if it is more than 6 years. Death of
the offender does not discharge him from liability. His property will be
liable for such fine. Even if the offender has undergone imprisonment
in default of fine he still remains liable for the fine.

Related Question :

1. What are the rules of termination of imprisonment on


payment of fine under the Penal Code of 1860?

3. Rules For Assessment Of Punishment : Ss. 71 and 72 lay


down two rules for assessment of punishment. They lay down what is
known as the law of cumulative punishment. The first part of S. 71 lays
down that :

S. 71 : (Limit of punishment of offence made up of several


offences) – Where anything which is an offence is made up of
parts, any of which parts is itself an offence, the offender shall
not be punished with the punishment of more than one of such
his offences, unless it be so expressly provided.
Where anything is an offence falling within two or more
separate definitions of any law in force for the time being by
which offences are defined or punished, or

Where several acts, of which one or more than one would by


itself or themselves constitute an offence, constitute, when
combined, a different offence,

6
the offender shall not be punished with a more severe
punishment than the Court which tries him could award for any
one of such offences.
Illustrations :
(a) A gives Z fifty strokes with a stick. Here A may have
committed the offence of voluntarily causing hurt to Z by the
whole beating, and also by each of the blows which make up
the whole beating. If A were liable to punishment for every
blow, he might be imprisoned for fifty years, one for each
blow. But he is liable only to one punishment for the whole
beating.

(b) But if, while A is beating Z, Y interferes, and A intentionally


strikes Y, here, as the blow given to Y is no part of the act
whereby A voluntarily causes hurt to Z, A is liable to one
punishment for voluntarily causing hurt to Z, and to another
for the blow given to Y.

The second part of s. 71 states that : “Where anything is an offence


falling within two or more separate definitions of any law in force for
the time being by which offences are defined or punished, or where
several acts, of which one or more than one would by itself or
themselves constitute an offence, constitute, when combined a
different offence.

the offender shall not be punished with a more severe punishment


than the Court which tries him could award for any one of such
offences.

If the two counts are by themselves separate of offences, the accused


can be convicted and sentenced separately on both those counts. But
6
separate sentences under Ss. 147 and 426 and under Ss. 379 and 411
of the Penal code are not valid.

S. 72 : (Punishment of person guilty of one of several


offences, the judgment stating that it is doubtful of which) – In
all cases in which judgment is given that a person is guilty of
one of several offences specified in the judgment, but that it is
doubtful of which these offences he is guilty, the offender shall
be punished for the offence for which the lowest punishment is
provided if the same punishment is not provided for all.

This section says that where it is doubtful as to which of the several


offences a person is guilty, he is punished for the offence for which the
lowest imprisonment is provided.
Related Question :

1. What are the rules for assessment of punishment under


the Penal Code of 1860?

4. Rules For Solitary Confinement As Punishment : Solitary


confinement may be inflicted for offences punishable with rigorous
imprisonment. The offender may be kept in solitary confinement for
any portion or portions of his term of imprisonment, not exceeding 3
months in the whole according to the following scale mentioned in S.
73.

S. 73 : (Solitary confinement) – Whenever any person is


convicted of an offence for which under this Code the Court
has power to sentence him to rigorous imprisonment, the
Court may, by its sentence, order that the offender shall be
kept in solitary confinement for any portion or portions of the
6
imprisonment to which he is sentenced, not exceeding three
months in the whole, according to the following scale, that is
to say

a time not exceeding one month if the term of imprison-ment


shall not exceed six months:
a time not exceeding two months if the term of imprisonment
shall exceed six months and shall not exceed one year:
a time not exceeding three months if the term of imprisonment
shall exceed one year.

S. 74 further limits the scope of solitary confinement by providing :

S. 74 : (Limit of solitary confinement) - In executing a sentence


of solitary confinement, such confinement shall in no case
exceed fourteen days at a time, with intervals between the
periods of solitary confinement of not less duration than such
periods, and when the imprisonment awarded shall exceed
three months, the solitary confinement shall not exceed seven
days in any one month of the whole imprisonment awarded,
with intervals between the periods of solitary confinement of
not less duration than such periods.

Related Question :

1. What are the rules for solitary confinement under the


Penal Code of 1860?

6
LECTURE – SEVEN
ON
1. General Exceptions Or Derfenses Of Crime

2. Onus Of Prove Or Burden of Proof.

3. Mistake Of Fact.

4. Accident.

6
1. General Exceptions Or Defenses Of Crime : General defense is
the justification of whether the accused is innocent or not. In criminal
sense, the general presumption is that the accused is innocent until he
is proved the guilty. There are several sections where this presumption
is reversed. Throughout the Code, every definition of an offence, every
penal provision and every illustration of such definition of the penal
provision shall be understood subject to the exceptions are not
repeated in such definition, penal provision or illustration (S. 6). Under
S. 105 of the Evidence Act of 1872, the burden of proving the
existence of circumstances which bring the case of an accuesed within
any of the general or special exceptions in the Code is upon the
accused and the court shall presume the absence of such
circumstances.

Related Question :

1. What is general defence? When and whom does the


burden of proof lie upon?
2. “Burden of proof always lies upon the prosecution” – is it
correct? Discuss with examples.

2. Onus Of Prove Or Burden Of Proof : The following sections


deal with the burden of prove in various offences.

S. 486 : (Selling goods marked with a counterfeit trade mark


or property mark) –Whoever sells, or exposes, or has in
possession for sale or any purpose of trade or manufacture,
any goods or thing with a counterfeit trade mark or property
mark affixed to or impressed upon the same or to or upon any

6
case, package or other receptacle in which such goods are
contained, shall, unless he proves -
(a) that, having taken all reasonable precautions against
committing an offence against this section, he had at the time
of the commission of the alleged offence no reason to suspect
the genuineness of the mark, and

(b) that, on demand made by or on behalf of the prosecutor, he


gave all the information in his power with respect to the
persons from whom he obtained such goods or things, or

(c) that otherwise he had acted innocently,

be punished with imprisonment of either description for a term


which may extend to one year, or with fine, or with both.

a) Key-Points Relating To Evidence And Prove : This section


punishes those who sell or have in possession for sale of goods
marked with a counterfeit trade mark or property mark. In order to
prove that a trade mark is an imitation of another, it is not necessary
thst there should be a resemblance in every detail. Under this section
the onus of prove lies upon the accused. Evidence of selling goods
marked with counterfeit trade or property are -

1. that the accused sold, or exposed for sale or possessed for sale
the goods and the things in question;
2. that the said goods or things bore the property mark;
3. that such goods were also packed in cases, packages or other
receptacles, such cases, packages and receptacles being
impressed with property marks also;
4. that the said property mark was counterfeit.
6
b) Burden Of Prove : Where it is proved that an accused person
has sold or exposed had in his possession for sale or for any purpose of
trade or manufacture, any goods bearing counterfeit trade marks, the
onus will lie on him to show that he acted honestly and did not
commit the offence. 101
The accused can escape conviction if he shows
that he falls within the exceptions (a) and (b) or (c) of this section. The
accused must prove that he had taken all reasonable precautions
against committing the offence. The complainant must prove that he
had been using his trade mark for many years.

S. 487 : (Making a false mark upon any receptacle containing


goods) – Whoever makes any false mark upon any case,
package or other receptacle containing goods, in a manner
reasonably calculated to cause any public servant or any other
person to believe that such receptacle contains goods which it
does not contain or that it does not contain goods which it
does contain, or that the goods contained in such receptacle
are of a nature or quality different from the real nature or
quality thereof, shall, unless he proves that he acted without
intent to defraud, be punished with imprisonment of either
description for a term which may extend to three years, or
with fine, or with both.

a) Key-Points Relating To Evidence And Prove : 1. That the


accused made some mark upon some case, package or other
receptacle containing goods;
2. That such mark was a false mark;
3. That he did so in a manner reasonably calculated to cause some
public servant or some other person to believe (a) that such receptacle

1oo. AIR 1953 Pat 124.


101

6
contained goods which it did not contain; (b) that it did not contain
goods which it did contain; or (c) that the goods contained in such
receptacle were of a nature or quality different from the real nature or
quality thereof.

b) Burden Of Prove : Where it is proved that an accused person


has some false mark upon some case, package or other receptacle
containing goods; in a manner reasonably calculated to cause some
public servant or some other person to believe that such receptacle
contained goods which it did not contain; or that it did not contain
goods which it did contain; or that the goods contained in such
receptacle were of a nature or quality different from the real nature or
quality thereof, the onus will lie on him to show that he acted without
intent to defraud.

S. 488 : (Punishment for making use of any such false mark) –


Whoever makes use of any such false mark in any manner
prohibited by the last foregoing section shall, unless he proves
that he acted without intent to defraud, be punished as if he
had committed an offence against that section.

This section punishes the making use of false mark. Under this section
the burden of proof lies upon the accused to prove that he acted the
thing in absence of fraudulent intention.

Evidence Act Of 1872 :

S. 105 : (Burden of proving that case of accused comes within


exceptions) – When a person is accused of any offence, the
burden of proving the existence of circumstances bringing the

6
case within any of the General Exceptions in the [ * * *]102 Penal
Code, or within any special exception or proviso contained in
any other part of the same Code, or in any law defining the
offence, is upon him, and the Court shall presume the absence
of such circumstances.

Illustrations
(a) A, accused of murder, alleges that, by reason of
unsoundness of mind, he did not know the nature of the act.
The burden of proof is on A.

(b) A, accused of murder, alleges that, by grave and sudden


provocation, he was deprived of the power of self-control.
The burden of proof is on A.

(c) Section 325 of the [ * * *]103 Penal Code provides that


whoever, except in the case provided for by section 335,
voluntarily causes grievous hurt, shall be subject to certain
punishments.
A is charged with voluntarily causing grievous hurt under
section 325. The burden of proving the circumstances bringing
the case under section 335 lies on A.

3. Mistake Of Fact : The following sections deal with the mistake of


law as a good defense, not the mistake of law. In English Law, mistake

102
101. The word `Pakistan` was omitted by section 3 and 2nd Schedule of the Bangladesh Laws
(Revision And Declaration) Act, 1973 (Act No. VIII of 1973).

103
102. The word `Pakistan` was omitted by section 3 and 2nd Schedule of the Bangladesh Laws
(Revision And Declaration) Act, 1973 (Act No. VIII of 1973).

6
of fact in perspective of civil law is not a good defense. But in Criminal
law it is a good defense.

S. 76 : (Act done by a person bound, or by mistake of fact


believing himself bound, by law) –Nothing is an offence which
is done by a person who is, or who by reason of a mistake of
fact and not by reason of a mistake of law in good faith
believes himself to be, bound by law to do it.

Illustrations :
(a) A, a soldier, fires on a mob by the order of his superior
officer, in conformity with the commands of the law. A has
committed no offence.

(b) A, an officer of a Court of Justice, being ordered by that


Court to arrest Y, and, after due enquiry, believing Z to be Y,
arrests Z. A has committed no offence.

a) Scope of S. 76 : Ss. 76 and 79 are based on the Latin Maxim, that


“ignorance of law is no excuse”. Every man is presumed to know the
law. However, ignorance of fact is a valid defense in law. The
essentials regarding mistake under Ss. 76 to 79 are that : (a) it must
be bona fide; and (b) the mistake must be one of fact. Where an
offence is committed by reason of a mistake of fact in good faith, the
offender is entitled to the benefit of Ss. 76 to 79.

b) Act Done Under Order Of Superior Authority : The mere


fact that the act which constitutes the offence has been done by the
accused under the order of a superior authority will not save him from
liability where the order of the superior authority is an obviously legal
order. Protection might be claimed by a police constable under S. 76
6
for opening fire, under the orders of the superior officer, and killing a
man thereby, if he could reasonably think that the officer had good
reason for ordering to fire into a disorderly crowd but no such
protection could be sought if there was no riot in progress nor was
there any evidence to show that the police party was in danger from
the crowd.104

S.79 : (Act done by a person justified, or by mistake of fact


believing himself justified, by law) – Nothing is an offence
which is done by any person who is justified by law, or who by
reason of a mistake of fact and not by reason of a mistake of
law in good faith, believes himself to be justified by law, in
doing it.

Illustration :
A sees Z commit what appears to A to be a murder. A, in the
exercise, to the best of his judgment, exerted in good faith of
the power which the law gives to all persons of apprehending
murderers in the act, seizes Z, in order to bring Z before the
proper authorities. A has committed no offence, though it may
turn out that Z was acting in self-defense.

a) Scope And Applicability : This section is analogous to S. 76.


While S. 76 deals with cases in which a person acts in the belief that he
is bound by law to act in a particular way. S. 79 deals, on the other
hand, with the cases in which a person acts in the belief that he is
justified by law to act. This section deals with circumstances, which
when proved make the acts complained of not an offence.

104
103. A. Sattar v. Crown 5 DLR 184.
6
b) Mistake Of Law : Where the offence does not require that the act
constituting the offence must have done by the accused with a
particular knowledge, the fact that the accused was ignorant that there
was a law which prohibited the doing of the act or made it an offence
will be no defense. Mistake of law is no justification under this section.

c) Mistake Of Fact : Under this section, although an act may not


be justified by law yet if it is done under a mistake of fact, in the belief
in good faith it is justified by law, it will not be an offence.

d) Good Faith : Even in a case where as a matter of fact, the


accused was not justified by law in doing an act which is alleged to
constitute offence, he will be protected under the section, if he
believed, in good faith, under a mistake of fact, that was justified by
law in doing the thing which is alleged to constitute the offence.

e) Onus Of Proof : The burden of proving that the accused


believed, in good faith, under a mistake of fact he was justified by law
in doing something of speaking some words is on the accused and it is
question of fact. Mistake of fact and good faith must at least appear
from the record of case if plea to that effect not taken and established
by the accused.

S. 77 : (Act of judge when acting judicially) – Nothing is an


offence which is done by a Judge when acting judicially in the
exercise of any power which is, or which in good faith he
believes to be, given to him by law.

a) Scope, Object And Applicability Of S. 77 : This section


should be read with Judicial Officer’s Protection Acts (XVIII of 1850).
“No judge, Magistrate, Justice of the Peach, Collector or other person
6
acting judicially shall be liable to be sued in any Civil Court for any act
done by him in the discharge of his judicial duty, whether or not within
the limits of his jurisdiction provided that he, at the time in good faith,
believed himself to have jurisdiction to do or order the act complained
of”. The object of the protection given under this section and under the
Judicial Officers’ Protection Act (XVIII of 1850) is to ensure the
independence of the judges to enable them to discharge their duties
without any fear of the consequences.

b) In Exercise Of Power Given By Law : Where the act of the


Judge which is alleged to be an offence was done by him while acting
judicially and was within the limits of his legal authority, it is clear that
the act is protected by this section and will not be an offence.

c) In Exercise Of Power believed In Good Faith To Be


Given Be Law : The protection under this section extends not only
to an act done by a Judge in the exercise of a power which given to
him by any law, but also to an act done by him in the exercise of a
power which he, in good faith, believes to be given to him by law. A
mistake of law , though made in good faith, will not be a good defence
under Ss. 76 and 79, but may e under Ss. 77 and 78.

S. 78 : (Act done pursuant to the judgment or order of Court) –


Nothing which is done in pursuance of, or which is warranted
by the judgment or order of, a Court of Justice, if done whilst
such judgment or order remains in force, is an offence,
notwithstanding the Court may have had no jurisdiction to
pass such judgment or order, provided the person doing the
act in good faith believes that the Court had such jurisdiction.

6
a) Scope Of S. 78 : This section is a corollary to S. 77. It affords
protection to the officer acting under the authority of judgment or
order of a Court. This section is supplementary to S.77, which deals
with immunity of Judges from criminal liability for acts done by them
while acting judicially. This section deals with the immunity of
ministerial officers or others executing the process of Court issued in
pursuance of the judgments and orders of Court.

Related Question :

1. “Mistake of fact is a good defense, but not mistake of


law.” – discuss with examples and sections references.

4. Accident : The following sections deal with the concept of accident


as a good defense.

S. 80 : (Accident in doing a lawful act) – Nothing is an


offence which is done by accident or misfortune, and without
any criminal intention or knowledge in the doing of a lawful act
in a lawful manner by lawful means and with proper care and
caution.

Illustration :
A is at work with a hatchet; the head flies off and kills a man
who is standing by. Here if there was no want of proper
caution on the part of A, his act is excusable and not an
offence.

a) Criminal Intention Or Knowledge : To constitute an act a


crime, it must, except in the case of certain statutory crimes, be
6
accompanied by a criminal intent or mens rea. The intention may be
express or implied. It is express if the person doing the act expects the
resulting situation. It will be implied or presumed if the resulting
situation is the natural and probable consequences of his act for, every
person is presumed to intend the natural and probable consequences
of his act.

b) Doing Of A Lawful Act In A Lawful Manner By Lawful


Means : If an act is not lawful or is not done in a lawful manner by
lawful means the section can have no application.

c) Proper Care And Caution : The caution which the law requires
is not the utmost that can be used, it is sufficient if it is reasonable,
such as is usual in ordinary and similar cases, such as have been found
by long experience in the ordinary course of things to answer the end
that end being the safety of life and property.

d) Burden Of Proof : The burden of proving an exception is, by virtue


of S. 105 of the Evidence Act of 1872, on the accused and the Court
shall presume the absence of circumstances excepting the accused
from liability. Even when the accused does not raise the plea of
accident, he would be entitled to benefit of doubt if the prosecution
fails to prove its case beyond reasonable doubt.

Related Question :

1. How far is accident a good defense in criminal law?

6
NEW LECTURE

S. 81 (Act likely to cause harm, but done without criminal intent and to prevent other
harm) : Nothing is an offence merely by reason of its being done with the knowledge that it is
likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith
for the purpose of preventing or avoiding other harm to person or property.

Explanation.-It is a question of fact in such a case whether the harm to be prevented or avoided
was of such a nature and so imminent as to justify or excuse the risk of doing the act with the
knowledge that it was likely to cause harm.

6
Illustrations
(a) A, the captain of a steam vessel, suddenly and without any fault or negligence on his part,
finds himself in such a position that, before he can stop his vessel, he must inevitably run down a
boat B, with twenty or thirty passengers on board, unless he changes the course of his vessel, and
that, by changing his course, he must incur risk of running down a boat C with only two
passengers on board, which he may possibly clear. Here, if A alters his course without any
intention to run down the boat C and in good faith for the purpose of avoiding the danger to the
passengers in the boat B, he is not guilty of an offence, though he may run down the boat C by
doing an act which he knew was likely to cause that effect, if it be found as a matter of fact that
the danger which he intended to avoid was such as to excuse him in incurring the risk of running
down C.

(b) A, is a great fire, pulls down houses in order to prevent the conflagration from spreading. He
does this with intention in good faith of saving human life or property. Here if it be found that
the harm to be prevented was of such a nature and so imminent as to excuse A's act, A is not
guilty of the offence.

1. Comment – An act which would otherwise be a crime may in some cases be excused if the
person accused can show that it was done only in order to avoid consequences which could not
otherwise be avoided, and which, if they had followed, would have inflicted uponhim or upon
others whom he was bound to protect inevitable and irreparable evil, that no more was done than
was reasonably necessary for that purpose, and that the evil inflicted by it was not
disproportionate to the evil avoided.105 As in self-defence so in the prevention of a harm the
accused is faced with two choices both resulting in some harm and of sheer necessity to avoid a
greater harm he has to commit an act which would otherwise be an offence. The test really is like
this : there must be a situation in which the accused is confronted with grave danger and he has
no choice but to commit the lesser harm, may be even to an innocent person, in order to avoid the
greater harm. Here the choice is between the two evils and the accused rightly chooses the lesser
one.106

2. Scope – The principle upon which S. 81 is based is that when, on a sodden and extreme
emergency one or the other of two evils is inevitable, it is lawful so to direct events that the

105
Stephen’s Digest of Criminal Law, 9th ed., Art. 11
106
Wood vs. Richards (1937) 39 Bom LR 1184
6
smaller only shall occur. In other words this section permits their infliction of a lesser evil in
order to avert a greater evil.

Mens Rea is an essential ingredient in every offence except in three cases, namely: (a) Cases not
criminal in any real sense but which in the public interest are prohibited under a penalty, that is
Revenue Act; (b) Public nuisances; and (c) Cases criminal in form but which are really only a
summary mode of a civil right. An intention to offend against the penal provisions of an Act
constitute mens rea. The intention and act that must both concurs to constitute the crime. Every
offence under the Code virtually imports the idea of criminal intent or mens rea.

Where a sepoy was stationed to guard a burning house under orders not to allow any one to
intrude and a chief constable, not in uniform, attempted to enter, and the sepoy, not knowing who
he was, gave him in good faith, not unnecessarily, a violent kick in the course of the fraces, it was
held that the sepoy was protected under this section as the kick was given in good faith for
preventing much greater harm (spreading of fire and looting).107

Where a toddy-vendor placed juice of milk bush in his toddy pots, knowing that if it was taken by
a human being it would cause injury his purpose being to detect some unknown thief who was in
the habit of stealing toddy from such pots and toddy from such pots and toddy was drunk by
some soliders who purchased it from the unknoiwn vendor, it was held S. 81 did not apply as
there was clearly a criminal intent to cause harm to a person or persons.108

3. Application – The application of this section depends upon – (1) the pressure of the particular
motive specified in the section, viz. preventing or avoiding of other harm to person or propery; (2)
the existence of good faith; and (3) the absence of criminal intention.

4. “Without any criminal intention” – Under no circumstances can a person be justified in


intentionally causing harm; but if he causes the harm without any criminal intention, and merely
with the knowledge that it is likely to ensue, he will not be held responsible for the result of his
act, provided it be done in good faith to avoid or prevent other harm to person or property.

107
(1893) ILR 17 Bom 626
108
Reg vs. Dhania Daji (1866-69) 5 Bom HCR (Crown Cases) 59
6
“Criminal intention” simply means the purpose of design or doing an act forbidden by the
criminal law without just cause or excuse. An act is intentional if it exists in idea before it exists
in fact, the idea realizing itself in the fact because of the desire by which it is accompanied. The
motive for an act is not a sufficient test to determine its criminal character. By a motive is meant
anything that can contribute to give birth to, or even to prevent, any kind of action. Motive may
serve as a clue to the intention; but although the motive be pure, the act done under it may be
criminal. Purity of motive will not purge an act of its criminal character.

Where an offence depends upon proof of intention the Court must have proof of facts sufficient to
justify in coming to the conclusion that the intention existed. No doubt one has usually to infer
intention from conduct, and one matter that has to be taken into account is the probable effect of
the conduct. But that is never conclusive.

Where the positive evidence against the accused is clear, cogent and realible, the question of
motive is of no importance.109

5. The “person or property” to be protected – It may the person or property of the accused
himself or of others.110 S. 81 affords protection only where harm is caused without any criminal
intention for the purpose of preventing or avoiding other greater harm. A man, therefore, cannot
intentionally commit a crime in order to avoid other harm.

6. Harm – The word “harm” in this section means physical injury.111 Where there is no
apprehension of any danger to the person or property there is no basis for the application of this
section.

7. Leading English case “Dudley vs. Stephens” – In this case three shipwrecked sailors in a
boat were without food for 7 days and two of them killed the third, a boy, and fed on his flesh
under such circumstances that there appeared to the accused sailors every probability that unless
they, then or very soon, fed upon the boy or one of themselves, they would die of starvation. It
was held that they were guilty of murder.

109
Gurcharam Singh vs. State of Punjab, AIR 1956 SC 460
110
AIR 1923 Mad 523
111
AIR 1966 SC 1773
6
S. 82 : (Act of a child under nine years of age) Nothing is an offence which is done by a child
under [ nine]112 years of age.

1. Comment – Under the age of 7 years no infant can be guilty of a crime; for, under that age an
infant is, by presumption of law, doli incapax, and cannot be endowed with any discretion. If the
accused were a child under 7 years of age, the proof of that fact would be ipso facto an answer
to the prosecution.113 It is, therefore, desirable to bring some evidence regarding the age of the
accused on the record. The age of incapacity has been raised to ten in England by a statute in
1963.

The accused purchased for one anna, from a child aged 6 years, two pieces of cloth valued at 15
annas, which the child had taken from the house of a third person. It was held that, assuming that
a charge of an offence of dishonest reception of property (S. 411) could not be sustained owing to
the incapacity of the child to commit an offence, the accused was guilty of criminal
misappropriation, if he knew that the property belonged to the child’s guardians and dishonestly
appropriated it to his own use.

S. 83 : (Act of a child above nine and under twelve of immature understanding) Nothing is
an offence which is done by a child above [nine] 114 years of age and under twelve, who has not
attained sufficient maturity of understanding to judge of the nature and consequences of his
conduct on that occasion.

1. Comment – Where the accused is a child above 9 years of age and under 12 the in capacity to
commit and often only arises when the child has not attained sufficient maturity of understanding
to judge of the nature and consequences of his conduct, and such non-attainment would have
apparently to be specially pleaded and proved, like the in capacity of a person who, at the time of
doing an act charged as an offence, was alleged to have been of unsound mind under this section
it has got to be shown that the accused is not only under 12 but has not attained sufficient
maturity of understanding. If no evidence or circumstance is brought to the notice of the court, it
will be presumed that the child accused intended to do what he really did. Thus where a child of

112
The word “nine” was substituted, for the word “seven” by section 2 of the Penal Code (Amendment)
Act, 2004 (Act No. XXIV of 2004)
113
Lukhini Agradanini, (1874) 22 WR (Cr) 27
114
The word “nine” was substituted, for the word “seven” by section 3 of the Penal Code (Amendment)
Act, 2004 (Act No. XXIV of 2004)
6
12 or so used a sharp sword in killing a person along with his two brothers and no evidence either
of age or immaturity of understanding was led on his behalf, it was held that he committed an
offence at least under S. 326, Penal Code. What the section contemplates is that the child should
not know the nature and physical consequences of his conduct. 115 The circumstances of a case
may disclose such a degree of malice as to justify the maxim, militia supplet octatem. Where the
accused, a boy over 11 years but below 12 years of age, picked up his knife and advanced
towards the deceased with a threatening gesture, saying that he would not cut him to bits and did
actually cut him, his entire action can only lead to one inference, namely, that he did what he
intended to do and that he knew all the time that a blow inflicted with a kathi (knife) would
effectuate his intention.116 Running away was not by itself sufficient to rebut the presumption of
doli incapax. A naughty child would run away from a parent or teacher even if what he had done
was not criminal.117

S. 84 : (Act of a person of unsound mind) Nothing is an offence which is done by a person


who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the
nature of the act, or that he is doing what is either wrong or contrary to law.

S. 85 : (Act of a person incapable of judgment by reason of intoxication caused against his


will) Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of
intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong,
or contrary to law: provided that the thing which intoxicated him was administered to him
without his knowledge or against his will.

1. Comment – This section lays down the legal test of responsibility in cases of alleged
unsoundness of mind. Under it a person is exonerated fro liability for doing an act on the ground
of unsoundness of mind if he, at the time of doing the act, is either incapable of knowing,
1. the nature of the act, or
2. that he is doing what is either wrong or contrary to law.

The accused is protected not only when, because of insanity, he was incapable of knowing the
nature of the act, but also when he did not know the nature of the act itself. He is, however, not
protected if he knew that what he was doing was wrong, even if he did not know that it was
115
Ulla Mahapatra, (1950) Cut 293
116
ibid
117
A vs. DPP, (1991) COD 442 (DC)
6
contrary to law, and also if he knew that what he was doing was contrary to law even though he
did not know that it was wrong.118
Though the onus of proving unsoundness of mind is on the accused, yet it has been held that
where during the investigation previous history of insanity is revealed, it is the duty of an honest
investigation to subject the accused to a medical examination and place that evidence before the
court and if this is not done, it creates a serious infirmity in the prosecution case and the benefit
of doubt has to be given to the accused. 119 This onus may, however, be discharged by producing
evidence as to the conduct of the accused shortly prior to the offence and his condition, his family
history and so forth.120 Every person is presumed to know the natural consequences of his act.
Similarly, every person is also presumed to know the law. The prosecution has not to establish
these facts.
There are four kinds of persons who may be said to be non compos mentis (not of sound mind) :
(1) an idiot; (2) one made non compos by illness; (3) a lunatic or a madman; and (4) one who is
drunk.

(1) An idiot is one who is of non-sane memory from his birth, by a perpetual infirmity, without
lucid intervals : and those are said to be idiots who cannot count twenty, or tell the days of the
week, or who do not know their fathers or mothers, or the like.121
(2) A person made non compos mentis by illness is excused in criminal cases from such acts as
are committed while under the influence of his disorder.122
(3) A lunatic is one who is afflicted by mental disorder only at certain periods and vicissitudes,
having intervals of reason.123
Madness is permanent. Lunacy and madness are spoken of as acquired insanity, and idiocy as
natural insanity.
(4) As to persons who are drunk see in later.

S. 86 : (Offence requiring a particular intent or knowledge committed by one who is


intoxicated) In cases where an act done is not an offence unless done with a particular knowledge
or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if

118
Geron Ali, (1940) 2 Cal 329
119
Kuttappan, 1986 Cr. LJ 271 (Ker)
120
Bahadur, (1927) 9 Lah 371
121
Russell, 12th ed., vol. 1, p.105
122
1 Hale P.C. 30
123
Russell, 12th ed., vol. 1, p.105
6
he had the same knowledge as he would have had if he had not been intoxicated, unless the thing
which intoxicated him was administered to him without his knowledge or against his will.

S. 87 : (Act not intended and not known to be likely to cause death or grievous hurt, done by
consent) Nothing which is not intended to cause death, or grievous hurt, and which is not known
by the doer to be likely to cause death, or grievous hurt, is an offence by reason of any harm
which it may cause, or be intended by the doer to cause, to any person, above eighteen years of
age, who has given consent, whether express or implied, to suffer that harm; or by reason of any
harm which it may be known by the doer to be likely to cause to any such person who has
consented to take the risk of that harm.

Illustration
A and Z agree to fence with each other for amusement. This agreement implies the consent of
each to suffer any harm which in the course of such fencing, may be caused without foul play;
and if A, while playing fairly, hurts Z, A commits no offence.

S. 88 : (Act not intended to cause death, done by consent in good faith for person’s benefit)
Nothing, which is not intended to cause death, is an offence by reason of any harm which it may
cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any
person for whose benefit it is done in good faith, and who has given a consent, whether express or
implied, to suffer that harm, or to take the risk of that harm.

Illustration
A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers
under the painful complaint, but not intending to cause Z's death, and intending, in good faith Z's
benefit, performs that operation on Z, with Z's consent. A has committed no offence.

S. 89 : (Act done in good faith for benefit of child or insane person, by or by consent of
guardian) Nothing which is done in good faith for the benefit of a person under twelve years of
age, or of unsound mind, by or by consent, either express or implied, of the guardian or other
person having lawful charge of that person, is an offence by reason of any harm which it may
cause, or be intended by the doer to cause or be known by the doer to be likely to cause to that
person:
Provided-

6
Firstly.-That this exception shall not extend to the intentional causing of death, or to the
attempting to cause death;

Secondly.-That this exception shall not extend to the doing of anything which the person doing it
knows to be likely to cause death, for any purpose other than the preventing of death or grievous
hurt; or the curing of any grievous disease or infirmity;
Thirdly.-That this exception shall not extent to the voluntary causing of grievous hurt, or to the
attempting to cause grievous hurt, unless it be for the purpose of preventing death or grievous
hurt, or the curing of any grievous disease or infirmity;
Fourthly.-That this exception shall not extend to the abetment of any offence, to the committing
of which offence it would not extend.

Illustration
A, in good faith, for his child's benefit without his child's consent, has his child cut for the stone
by a surgeon, knowing it to be likely that the operation will cause the child's death, but not
intending to cause the child's death. A is within the exception, inasmuch as his object was the
cure of the child.

S. 90 : (Consent known to be given under fear or misconception) A consent is not such a


consent as is intended by any section of this Code, if the consent is given by a person under fear
of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to
believe, that the consent was given in consequence of such fear or misconception; or

(Consent of insane person) If the consent is given by a person who, from unsoundness of mind,
or intoxication, is unable to understand the nature and consequence of that to which he gives his
consent; or

(Consent of child) Unless the contrary appears from the context, if the consent is given by a
person who is under twelve years of age.

S. 91 : (Exclusion of acts which are offences independently of harm caused) The exceptions
in sections 87, 88 and 89 do not extend to acts which are offences independently of any harm
which they may cause, or be intended to cause, or be known to be likely to cause, to the person
giving the consent, or on whose behalf the consent is given.

6
Illustration
Causing miscarriage (unless caused in good faith for the purpose of saving the life of woman) is
an offence independently of any harm which it may cause or be intended to cause to the woman.
Therefore, it is not an offence “by reason of such harm”; and the consent of the woman or of her
guardian to the causing of such miscarriage does not justify the act.

S. 92 : (Act done in good faith for benefit of a person without consent) Nothing is an offence
by reason of any harm which it may cause to a person for whose benefit it is done in good faith,
even without that person's consent, if the circumstances are such that it is impossible for that
person to signify consent, or if that person is incapable of giving consent, and has no guardian or
other person in lawful charge of him from whom it is possible to obtain consent in time for the
thing to be done with benefit:

Provided-
Firstly.-That this exception shall not extend to the intentional causing of death, or the attempting
to cause death;
Secondly.-That this exception shall not extend to the doing of anything which the person doing it
knows to be likely to cause death, for any purpose other than the preventing of death or grievous
hurt, or the curing of any grievous disease or infirmity;
Thirdly.-That this exception shall not extend to the voluntary causing of hurt, or to the
attempting to cause hurt, for any purpose other than the preventing of death or hurt;
Fourthly.-That this exception shall not extend to the abetment of any offence, to the committing
of which offence it would not extend.

Illustrations
(a) Z is thrown from his horse, and is insensible. A, a surgeon, finds that Z requires to be
trepanned. A not intending Z's death but in good faith for Z's benefit, performs the trepan before
Z recovers his power of judging for himself. A has committed no offence.

6
(b) Z is carried off by a tiger. A fires at the tiger knowing it to be likely that the shot may kill Z,
but not intending to kill Z, and in good faith intending Z's benefit. A's ball gives Z a mortal
wound. A has committed no offence.

(c) A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation
be immediately performed. There is no time to apply to the child's guardian. A performs the
operation inspite of the entreaties of the child, intending, in good faith, the child's benefit. A has
committed no offence.
(d) A is in a house which is on fire, with Z, a child. People below hold out a blanket. A drops the
child from the housetop, knowing it to be likely that the fall may kill the child, but not intending
to kill the child, and intending, in good faith, the child's benefit. Here even if the child is killed by
the fall, A has committed no offence.

Explanation.-Mere pecuniary benefit is not benefit within the meaning of sections 88, 89 and 92.

S. 93 : (Communication made in good faith) No communication made in good faith is an


offence by reason of any harm to the person to whom it is made, if it is made for the benefit of
that person.

Illustration
A, a surgeon, in good faith, communicates to a patient his opinion that he cannot live. The patient
dies in consequence of the shock. A has committed no offence, though he knew it to be likely that
the communication might cause the patient's death.

S. 94 : (Act to which a person is compelled by threats) Except murder, and offences against the
State punishable with death, nothing is an offence which is done by a person who is compelled to
do it by threats, which, at the time of doing it, reasonably cause the apprehension that instant
death to that person will otherwise be the consequence: Provided the person doing the act did not
of his own accord, or from a reasonable apprehension of harm to himself short of instant death,
place himself in the situation by which he became subject to such constraint.

6
Explanation 1.-A person who, of his own accord, or by reason of a threat of being beaten, joins a
gang of dacoits, knowing their character, is not entitled to the benefit of this exception on the
ground of his having been compelled by his associates to do anything that is an offence by law.

Explanation 2.-A person seized by a gang of dacoits, and forced by threat of instant death, to do
a thing which is an offence by law; for example, a smith compelled to take his tools and to force
door of a house for the dacoits to enter and plunder it, is entitled to the benefit of this exception

S. 95 : (Act causing slight harm) Nothing is an offence by reason that it causes, or that it is
intended to cause, or that it is known to be likely to cause, any harm, if that harm, is so slight that
no person of ordinary sense and temper would complain of such harm.

S. 96 : (Things done in private defence) Nothing is an offence which is done in the exercise of
the right of private defence.

S. 97 : (Right of private defence of the body and of property) Every person has a right, subject
to the restrictions contained in section 99, to defend
Firstly.-His own body, and the body of any other person against any offence affecting the human
body;
Secondly.-The property, whether moveable or immovable, of himself or of any other person,
against any act which is an offence falling under the definition of theft, robbery, mischief or
criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.

S. 98 : (Right of private defence against the act of a person of unsound mind, etc) When an
act, which would otherwise be a certain offence is not that offence, by reason of the youth, the
want of maturity of understanding, the unsoundness of mind or the intoxication of the person
doing that act, or by reason of any misconception on the part of that person, every person has the
same right of private defence against that act which he would have if the act were that offence.

Illustrations
(a) Z, under the influence of madness, attempts to kill A; Z is guilty of no offence. But A has the
same right of private defence which he would have if Z were sane.
(b) A enters by night a house which he is legally entitled to enter. Z, in good faith, taking A for a
house-breaker, attacks A. Here Z, by attacking A under this misconception, commits no offence.

6
But A has the same right of private defence against Z, which he would have if Z were not acting
under that misconception.

S. 99 : (Acts against which there is no right private defence) There is no right of private
defence against an act which does not reasonably cause the apprehension of death or of grievous
hurt, if done, or attempted to be done by a public servant acting in good faith under colour of his
office, though that act may not be strictly justifiable by law.
There is no right of private defence against an act which does not reasonably cause the
apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a
public servant acting in good faith under colour of his office, though that act may not be strictly
justifiable by law.
There is no right of private defence in cases in which there is time to have recourse to the
protection of the public authorities.

Extent to which the right may be exercised


The right of private defence in no case extends to the inflicting of more harm than it is necessary
to inflict for the purpose of defence.

Explanation 1.-A person is not deprived of the right of private defence against an act done, or
attempted to be done, by a public servant, as such unless he knows, or has reason to believe, that
the person doing the act is such public servant.
Explanation 2.-A person is not deprived of the right of private defence against an act done, or
attempted to be done, by the direction of a public servant, unless he knows, or has reason to
believe, that the person doing the act is acting by such direction, or unless such person states the
authority under which he acts, or if he has authority in writing, unless he produces such authority,
if demanded.

S. 100 : (When the right of private defence of the body extends to causing death) The right
of private defence of the body extends, under the restrictions mentioned in the last preceding
section, 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 hereinafter enumerated,
namely:-

6
Firstly.-Such an assault as may reasonably cause the apprehension that death will otherwise be
the consequence of such assault;

Secondly.-Such an assault as may reasonably cause the apprehension that grievous hurt will
otherwise be the consequence of such assault;
Thirdly.-An assault with the intention of committing rape;
Fourthly.-An assault with the intention of gratifying unnatural lust;
Fifthly.-An assault with the intention of kidnapping or abducting;
Sixthly.-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.

S. 101 : (When such right extends 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.

S. 102 : (Commencement and continuance of 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; and it continues as long as such, apprehension of danger to the body
continues.

S. 103 : (When the right of private defence of property extends to causing death) The right
of private defence of property extends, under the restrictions mentioned in section 99, to the
voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing
of which, or the attempting to commit which, occasions the exercise of the right, be an offence of
any of the descriptions hereinafter enumerated, namely:-

Firstly.-Robbery;
Secondly.-House-breaking by night;

6
Thirdly.-Mischief by fire committed on any building, tent or vessel, which building, tent or
vessel is used as a human dwelling or as a place for the custody of property;
Fourthly.-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;
S. 104 : (When such right extends to causing any 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.

S. 105 : (Commencement and continuance of the right of private defence of property)The


right of private defence of property commences when a reasonable apprehension of danger to the
property commences.
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.

S. 106 : (Right of private defence against deadly assault when there is risk of harm to
innocent person) If in the exercise of the right of private defence against an assault which
reasonably causes 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.

Illustration

6
A is attacked by a mob who attempt to murder him. He cannot effectually exercise his right of
private defence without firing on the mob, and he cannot fire without risk of harming young
children who are mingled with the mob. A commits no offence if by so firing he harms any of the
children.

TO BE CONTINUED…………………………………….