INDIAN PENAL CODEE 1860 (45 OF 1860)
Salient features • • • • • • • • • •
Enactment date 6th October 1860 Commencement date 1st January 1862 23 chapters and 511 sections First law commissions was setup in 1835 First law commission chairman Lord Maculae IPC is a substantive law It follows Lex Loci principle Criminal act includes illegal omissions also Five kinds of punishments are in IPC Latest amendments : The criminal law (amendment)Act 2013 and The criminal law (amendment)Act 2018
Constituting elements of crime Actus rea and mensrea
( ie criminal act + intention)
Actus rea means : Criminal acts, illegal omissions etc. Mens rea means : criminal intent, Guilty mind, criminal knowledge, negligence etc. Actus non facit reaum nisi mens sit rea (Criminal act itself is not a crime. Without intention ( mensrea) there is no crime) Ignorantia juris non excusat means ignorance of law is not an excuse
Mensrea in IPC Dishonestly (sec. 24) Fraudulently (sec. 25) Reason to belief (sec.26) Criminal knowledge and intent (sec.35) Voluntarily (sec. 39)
Mensrea is not applicable in Revenue acts, Rape, Public nuisance
Cases related to mensrea 1) R v. Tolson 2) R v. Prince 3) Sherras v. De Dutzen
Important legal maxims • • • • • •
Actus non facit reaum nisi mens sit rea Ignorantia juris non excusat Ignorantia facti doth execusat Doli incapax Volunti non fit injuria De minimus non curat laxae
Jurisdiction Intra territorial jurisdiction (sec 2) Extra territorial jurisdiction (sec 3, 4) Admiralty jurisdiction (sec.4) Territorial waters are extended to 12 nautical miles from seashore as per Gazette of India Extra ordinary part III sec 2 dated 30-09-1967
Person having immunity in IPC President Governor Foreign sovereign Ambassadors Foreign Army Alien enemy, warships (are tried by army law)
Important chapters 2- General explanation 3- Punishments 4-General exceptions 5- Abetment 5A- criminal conspiracy 8-Offences against public tranquillity
16- Offence against Human boy 17-Offence against property 20- Offences related to marriage 20 A- Cruelty by Husbands and relatives 21- Defamation
Solitary confinement Maximum period given -3 months Maximum period given at a time – 14 days
CHAPTER II– GENERAL EXPLANATIONS (Section 6-52A) 6. Definitions in the Code to be understood subject to exceptions. 7. Sense of expression once explained. 8. Gender. 9. Number. 10. “Man”, “Woman”. 11. “Person”. 12. “Public”. 13. “Queen”. 14. “Servant of Government”. 15. “British India”. 16. “Government of India”. 17. “Government”. 18. “India”. 19. “Judge”. 20. “Court of Justice”. 21. “Public Servant”. 22. “Movable property”. 23. “Wrongful gain”. “Wrongful loss”. Gaining wrongfully, losing wrongfully.
24. “Dishonestly”. 25. “Fraudulently”. 26. “Reason to believe”. 27. Property in possession of wife, clerk or servant. 28. “Counterfeit”. 29. “Document”. 29A. “Electronic record”. 30. “Valuable security”. 31. “A will”. 32. Words referring to acts include illegal omissions. 33. “Act”, “Omission”. 34. Acts done by several persons in furtherance of common intention. 35. When such an act is criminal by reason of its being done with a criminal knowledge or intention. 36. Effect caused partly by act and partly by omission. 37. Co-operation by doing one of several acts constituting an offence. 38. Persons concerned in criminal act may be guilty of different offences. 39. “Voluntarily”. 40. “Offence”. 41. “Special law”. 42. “Local law”. 43. “Illegal”, “Legally bound to do”. 44. “Injury”. 45. “Life”. 46. “Death”. 47. “Animal”. 48. “Vessel”. 49. “Year”, “Month”. 50. “Section”. 51. “Oath”. 52. “Good faith”. 52A. “Harbour”.
Stages of crime: distinguishing attempt from preparation & mere thoughts. • Intention – Might change • Planning – Preparation stage • Attempt – Penultimate stage of crime • Commission – Act committed / accomplished
Kinds of punishments: 1. Death punishment 2. Imprisonment for life 3. Imprisonment 4. Forfeiture 5. Fine • • • •
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Fractions of term of punishment is concerned, imprisonment for life shall be equivalent to 20 years Sentence may be wholly or partly rigorous or simple When fine is not expressed in the Act, it is unlimited but shall not be excessive. On default of payment of fine, the offender shall be liable for imprisonment for a period not exceed ¼ th of the maximum term of imprisonment fixed for that offence On default of payment of fine, if the offence be punishable with fine only, the offender shall be liable for imprisonment as follows:(Below 50 rupees- 2 months, 50-100 rupees -4 months, above 100 rupees- 6 months)
• Fine leviable within 6 years or during imprisonment • • • •
The maximum limit of solitary confinement during imprisonment is 3 months The maximum limit of solitary confinement at a time is 14 days. Interval must be given between solitary confinement, which is not less than the duration of solitary confinement. The offender shall be liable for punishment from 10 years to life imprisonment, if he commit subsequent offence mentioned in chapter 12 or 17
1. Death punishment It is the gravest penalty imposed by IPC. Many sections still prescribe the punishment of death. Some of them are as follows: ▪
(a) Offence under Section 194 IPC where a person gives false evidence with intention to cause any person to be convicted of capital punishment and if an innocent person is convicted and executed in consequence of such false evidence, the person who
gives such false evidence shall be punished with death or life imprisonment or rigorous imprisonment and fine. ▪
(b) Offence of murder for which punishment of death or imprisonment of life is prescribed under Section 302.
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(c) Offence of murder committed by life convict as described in Section 303. This section has been held unconstitutional by the Supreme Court in Mithu v. State of Punjab [AIR 1983 SC 473]. The peculiarity of this Section is that punishment of death only is provided. No other alternative punishment is seen provided.
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(d) Offence of abetting suicide of child or insane person as mentioned in Section 305 IPC where death is a punishment with other alternative punishments.
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(e) In Section 307 when a life convict attempts to murder and hurt is caused Death Sentence may be imposed.
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(f) Kidnapping for ransom as described under Section 364A may be met with punishment of Death along with other alternative punishments.
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(g) If any one of five or more person s who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death along with other alternative punishments.
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In Bachan Singh v. State of Punjab[AIR 1980 SC 898] hon’ble Supreme Court of India held that death sentence is to be given only in rarest of rare cases.
2. Imprisonment for life Living behind the bars are sometimes far more painful than death sentence. It is the most popular type of sentence after death penalty. In most serious offences this type of punishment is prescribed. Wherever death penalty is prescribed, life imprisonment also finds a place as an alternative punishment. As there is hue and cry regarding imposing of death penalty, in appropriate cases Courts impose life imprisonment as a safe method. Some sections which impose Life Imprisonment as a penalty are : Sections 194, 255, 304, 304(B), 305, 307, 311, 313, 314, 326, 329, 364, 364(A), 376, 377, 394, 395, 396, 400, 409, 412, 413, 436, 449, 459, 460, 467, 472, 477, 489A, 489B, 489D and 511. 3. Imprisonment Rigorous imprisonment is of such type where the convict will have to do hard labour. In many offences the period of imprisonment varies. In simple imprisonment also the term of imprisonment varies according to offences. 3.1 Simple imprisonment 3.2 Rigorous imprisonment 3.3 solitary confinement
4. Forfeiture Forfeiture of property is not very common in IPC. Section 61 which specified sentence of forfeiture of property has been repealed by Indian Penal Code (Amendment) Act, 1921. In the present IPC three sections viz 126, 127 and 129 describes forfeiture of property. 5. Fine IPC prescribes fine as a penalty both independent and along with other penalties. The amount of fine varies with offences. Section 63 says that 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. Sentence for non-payment of fine is also dealt with in IPC [Sec.64].
Chapter IV General Exceptions 1. Mistake of facts (sec. 76,79) 2. Judicial acts (sec. 77,78) 3. Accident (sec. 80) 4. Necessity (sec.81) 5. Infancy (sec. 82,83) 6. Insanity (sec. 84) 7. Intoxication (sec.85,86) 8. Consent (sec.87 to 90) 9. Good faith (sec.92,93) 10. Compulsions (sec. 94) 11. Trifles ( minor crimes)( sec.95) 12. Private defence (sec. 96 to 106)
1. Mistake of facts (sec. 76,79) •
Act done by a person bound or believing himself bound by law (76) Essentials are- Act must be done in good faith, Act done by mistake of fact not by mistake of law
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Act done by a person justified or believing himself justified by law (79) Essentials are- Act must be done in good faith, Act done by mistake of fact not by mistake of law, act done by a person who is justified by law or believes to be justified by law
2. Judicial acts (sec. 77,78) •
Act of judge when acting judicially (77) Essentials are- Act must be done in good faith, Act done by a judge,
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Act done in pursuant to the judgement or order of the court
3. Accident (sec. 80) Essentials are- Act must be done by accident, without criminal knowledge or intention, act must be a lawful act in lawful manner and lawful means, Act must be done with due care and attention
4. Necessity (sec.81) •
Act must be done to preventing a bigger harm Essentials are- Act must be done by accident, without criminal knowledge or Intention, act done by good faith, minor harm for preventing a major harm
5. Infancy (sec. 82,83) • •
Act of a child under 7 years of age is not an offence ( Doli in capax) (sec.82) It is a conclusive proof and irrebuttable presumption Act of a child having 7-12 years of immature understanding (sec.83) He must not have legal maturity
Common Intention and Common Object. (Sec 34, 149) Sec. 34: 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. Sec. 149: 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 or 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
5.Without Consent (Sec. 92) Sec. 92 – Act done – good faith, for benefit of person – even without consent – when it is impossible to obtain one or person is incapable of giving – not possible to obtain consent from guardian in that time – if it causes any harm – person doing it is not liable – provided: • Not intentional causing/attempting of death. • Not to any other act which would lead to death/grievous hurt other than preventing them or curing any disease/infirmity. • Not to voluntary causing/attempting to cause grievous hurt unless preventing/curing. • Not to the committing of any offence abetted.
6. Trifles ( de minimis non curat lex ) (Sec. 95) Sec. 95 – Act causing slight harm, whether done by mistake, with knowledge or with clear
intention, which no person of ordinary sense and temper would complain is not an offence. Intended to prevent penalization of offences trivial in nature – this harm has not been defined in the code. SC held that it would depend upon nature of injuries, position of parties, knowledge & intention while the offense is done and other circumstances.
7.Insanity (Sec. 84) Sec. 84 – Immunity to person of unsound mind. Cannot have the necessary mens rea to commit the crime Mc’Naughten’s Case:Questions – What are proper questions to be submitted to jury when an insane person, ischarged with commission of crime and insanity is set up as defense; Terms of jury w.r.t. theprisoner’s state of mind at the time when the act was committed.Answer – Insanity: At the time of doing the act; incapable of knowing the nature of act.Sec. 84 uses a more comprehensive term ‘unsoundness of mind’ instead of insanity
8.Intoxication (Sec. 85, 86) Sec. 85 – Intoxication caused against will – and act done by such intoxicated person incapable of knowing the nature of act.Sec. 86 – Intended act by intoxicated person – intoxication by will – intending to do act (a) and does (b) – would be liable for (b) as if it was the intent – if there was intoxication by will& accused must have some knowledge as if in sober state of mind.
9. Private Defense (Sec. 96 - 106) When act exceeds the degree of defence required, act is no more immune by private defence. No right of Private Defense when you have time to call the authorities – Subjective to case. S.96: Nothing is an offense done in Private Defense. S.97: To defend – own body/property, others body/property, any offense against human body, any act u/d theft, robbery, mischief, criminal trespass or attempt to commit any. S.98: Immunity to person with unsound mind. E.g. A; unsound; attempts to kill B; A not liable; B has all rights of self-defense. S.99: Act done by/Under direction of Public Officer – Right to private defense arises – if the act causes apprehension of death/grievous hurt to the rights of people. If no such
apprehension/harm, no right; even if officers act not justifiable by law; he may be charged for this separately. S.100: When Private Defense extends to Death – Assault with: apprehension to death/grievous hurt; intention to rape/kidnapping/abduction/wrongfully confining etc. … S.101: If act not under sec. 100 – one can cause any harm other than death; voluntary causing of death extends to restricts under S.99. S.102: Right to Private Defense, till there is reasonable apprehension of danger to human body, not after that. S.103: Right of Private defense to property extends to causing death: robbery, breaking in at night, mischief by fire on any building or human dwelling, theft, mischief or house trespass. S.104: If act not under sec. 103 – one can cause any harm other than death; voluntary causing of death extends to restricts under S.99. S.105: Right to Private Defense, till there is reasonable apprehension of danger to the property, not after that. S.106: Right of Private Defense, against assault with apprehension of death, could run the risk of harm to innocent people. A is attacked by a mob with an attempt to murder him – he cannot exercise private defense unless he fires – many innocent in the mob could die – A commits no offense by doing so
Distinguishing common intention and common object Common Intention – Section 34 Ingredients: • Act (criminal) done by two or more persons • In furtherance of a common intention • Each liable as if done by him alone. 1. Meeting of Mind 2. PARTICIPATION is required for common intention.
Similar Intention not same as Common Intention, hence not under S. 34. Common Object – Section 149 Ingredients: • Any member of an unlawful assembly • In prosecution of a common object • Mere MEMBERSHIP of an unlawful assembly is required
Unlawful assembly (Sec. 141) Assembly of 5 or more people can be unlawful assembly, if the common object is – • To show criminal force • To resist execution of any law • To commit mischief, criminal trespass • By means any force (criminal) to any person, to take possession of land, or deprive person from his right to enjoyment • By criminal force compel someone to do something which he is not legally bound 3. Comparative analysis of section 34 and 149 of IPC and Same Intention COMMON INTENTION
COMMON OBJECT
Joint liability 2 or more persons PARTICIPATION Sec 34 prearranged plan & meeting of minds
Constructive liability 5 persons – unlawful assembly MEMBERSHIP Sec 149 Does not require proof of prior meeting.
Attempt: 1. Attempt and commission dealt with the same section – Offences – against state, assaulting governors, President with an intent to restrain the exercise of lawful power – sedition, waging war etc. 2. Attempt and commission dealt separately – Murder, Culpable homicide not amounting to murder, robbery etc. u/s 307, 308, 393. 3. Attempt to commit suicide u/s 309 4. Attempt to commit offences in general u/s 511
Criminal conspiracy (120 A – 120 B)
2 or more persons agree to do or cause: • an illegal act • legal act but illegal means It needs to be substantive offense – Agreement is a difference between 120A & 107. Here attempt or commission of a crime that was conspired is immaterial. Till it can be proved that there was conspiracy – all are liable. Even if one is caught – but if it can be proved that there were other coconspirators; there was conspiracy – whether they are caught or convicted – immaterial – the one caught will serve his/her part of punishment. Section 120B deals with punishment.
Abetment There must be an abettor • He must abet • Act abetted must be an offense or leading to an offense, by a person capable (in front of law), with the same intention and knowledge.
Section 107 – Abetment of a thing i. By instigation • Provoke/ Incite/ Encourage/ Solicits – act prohibited by law. • Act done in furtherance not necessary. • Mere compliance does not amount to it. ii. By conspiracy • Agreement to do an act prohibited by law. • Some act is done in pursuance thereof. • If the abettor does not act, not liable. iii. By intentional aiding • Giving Aid – Act / Omission • Active conduct on the part of Abettor – Act must be accomplished. • Commission of Crime necessary
Chapter 16 OFFENCES AGAINST HUMAN BODY Negligence’ as criminal category and its juristic interpretation Sec. 304-A: Death of a person by rash or negligent act not amounting to culpable homicide punishable for a term upto 2 years/fine/both. Criminal Rashness is a hazardous act with the knowledge that it may cause injury, but without any intention to cause. Negligence is the omission to do something which a reasonable man would do or something which a reasonable man would not do.
Kidnapping and abduction (S. 359 - 363) Offence of kidnapping is an aggravated form of wrongful confinement, although it doesnot include the ‘offense’ of wrongful confinement per se. Sec. 359: Kidnapping 2 types: From India or From Lawful Guardian.
Sec. 360: From India – Conveying a person beyond the limits of India – Without the consent of that person or someone legally authorized to consent on behalf of that person. The offence would not be complete until the person actually reaches not only a foreign territory but to his destination as well.
Sec. 361: From Lawful Guardian – Enticing/Taking away of Minor/unsound mind person – Male under 16 years and female under 18 years – taking/enticing must be out of keeping of lawful guardian & without the consent of such guardian. Keeping: Includes times during which the minor is not actually physically with the guardian. Lawful guardian: Different from ‘legal guardian’: includes teachers, relatives etc. who have been entrusted with the care of the minor. Intention of the Kidnapper is Immaterial. Consent of the person kidnapped is immaterial. It is a substantive offense. Not a continuing offense. It is complete as soon as minor/unsound person is removed from lawful guardian. ‘Taking’ doesnot necessarily means by force, merely means to cause to go, to escort or to get
into possession. ‘Entice’ means an inducement or allurement by giving rise to hope or desire
Sec. 362: Abduction – Whoever by force compels, or by deceitful means induces a person to go from one place to another. Abduction is an Auxiliary act and not a substantive offence, hence not punishable in itself. Intention of the abductor is an important factor in determining the guilt. It is a continuing offence. Free and voluntary consent condones abduction
OBSCENITY & SEXUAL OFFENCES 1. Outraging and insulting the modesty under IPC (S. 354, 354 A) Rupan Deol bajaj v. KPS Gill S.C. held in favour of Mrs. Bajaj that the act of slapping on her posterior in front of guests, amounted to outraging her modesty. 2. Common law notion of ‘sexual intercourse’ and its transformation post 2013 amendments Sec. 375: A man is said to commit "rape" if he-— 1. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or 2. inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or 3. manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any of body of such woman or makes her to do so with him or any other person; or 4. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:
a) Against her will. b) Without her consent. c) With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. d) With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. e) With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent. f) With or without her consent, when she is under eighteen years of age. g) When she is unable to communicate consent. • Explanation 1.—For the purposes of this section, "vagina" shall also include labia majora. • Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception 1.—A medical procedure or intervention shall not constitute rape. • Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.'
Wrongful Restraint and Wrongful Confinement (Sec 339, 340) Section 339- Wrongful restraint: Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has right to proceed, is said wrongfully to restrain that person. Section 340- Wrongful confinement
Whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said “wrongfully to confine” that person. Illustrations ▪
(a) A causes Z to go within a walled space, and locks Z in. A is thus prevented from proceeding in any direction beyond the circumscribing line of wall. A wrongfully confines Z.
Chapter 17 Offences against Property • • • • • • • • • • •
Theft Extortion Robbery Dacoity Criminal misappropriation of property Criminal breach of trust Receiving stolen property Cheating Fraudulent deeds and dispositions of property Mischief Criminal trespass
Theft
Extortion
Commit or attempt to cause death, grievous hurt, wrongful restraint
Robbery
When 5 or more person involved
Dacoity
Criminal trespass
criminal tresspass to a house or human dwelling place
House trespass
House trespass through the way , which is not a normal way
House breaking
House trespass at night
Lurking
1. Theft- sections 378/ 379 of IPC Sec. 378: Theft - Dishonest – removal of moveable property out of the possession – without that person’s consent. • To commit theft the property must be moveable and should be in the possession of that person. Thus, it is not an offence against ownership. Taking it out of possession must result in wrongful gain of one and wrongful loss of other. The taking / loss or gain may not be permanent – temporary removal can also amount to theft. • Every property is moveable except land and things attached to land or permanently fixed to some ting which is attached to land. E.g. – Tree is attached to land, but as soon as you cut it with a dishonest intention to remove it from someone’s possession, it is no longer attached to land and the act can qualify as theft. Electricity is not moveable property u/s 379. But theft of cooking gas / water through pipeline is theft. Human Body living or dead is not subject to theft. • The consent here may be expressed or implied from the person with whom the possession of property lies or who has the authority to give such consent. • There can be no theft, where there is no dishonesty. Larceny under English Law – Property must be owned by the person – not the case here. Possession is not same as custody. In possession, you deal with the property as owner while
in custody you cannot deal with the property and just hold it for the owner [Servant holding property for master].If one pawns goods to another and remove it without paying the charges to result in removal from pawnee’s possession, it amounts to theft. Theft v. Mischief – In mischief only loss to other no gain to himself
Extortion- section 383/ 384 of IPC Sec. 383: Extortion - Intentionally putting a person in fear of injury to himself or another – Dishonestly inducing a person to put in fear to deliver any person, property or valuable security. • Fear of Injury must be real to unsettle the mind of the person. • Fear not necessarily be physical injury. Injury to character may also be an injury. • There runs a principal of vicarious liability. If some uses force and others receive the property, all would be guilty of extortion. • Threat of criminal charge whether true/false amounts to extortion. Threat to expose a Bishop of his illegal relation was considered extortion. Threat of law for black mailing is criminal and when property or a document is obtained by such means, it is extortion. • For extortion, there must be fear and delivery of property. Forcibly taking signatures doesnot amount to extortion as in extortion, there is essence of consent, although not free and given under threat/fear. This distinguishes it from theft too. There is no consent of the owner in theft; property is only moveable; no element of force by the accused; no delivery of property by the owner. • While in cheating there is consent, but obtained through fraud. In extortion, it is obtained through fear. • Property here is both moveable and immoveable
Cheating, Criminal Misappropriation, Criminal Breach of Trust Section 415- Cheating: Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do omit if he were not so deceived, and which
act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. Explanation. A dishonest concealment of facts is deception within the meaning of this section.
Illustrations (a) A, by falsely pretending to be in the Civil Service, intentionally deceives Z, and thus dishonestly induces Z to let him have on credit goods for which he does not mean to pay. A cheats. Section 403- Dishonest misappropriation of property: Whoever dishonestly misappropriates or converts to his own use any movable property, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Illustrations ▪
(a) A takes property belonging to Z out of Z’s possession, in good faith, believing, at any time when he takes it, that the property belongs to himself. A is not guilty of theft; but if A, after discovering his mistake, dishonestly appropriates the property to his own use, he is guilty of an offence under this section.
Section 405- Criminal breach of trust: Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits “criminal breach of trust”
OFFENCES AGAINST MARRIAGE 1. Mock Marriages Sec. 493: Man, deceits woman to think that both are lawfully married and cohabits or has sexual relations with.This section has been generally covered u/s 375 (fourthly) which deals with rape. Sec. 496: Whoever goes through a marriage ceremony knowing that he is not allowed. Although the section does not talk about man and woman categorically like 493, but the
intention of the makers of legislation was to punish a man for such crimes. Woman cannot be punished under it. Section 493 Section 496 1 Cohabitation/sexual intercourse by Marriage ceremony is fraudulently deceit performed with no intent of lawful marriage. 2 Effects only Man Either Sex ?? 3 Deception is necessary followed by No deception for sexual intercourse cohabitation to hold person liable required, as a necessary condition. 2. Offence of Adultery/ Enticement Sec. 497: Adultery – Man – knows or believes a woman to be married to some other man – has sexual intercourse with her [without the consent or connivance of that man] – amounts to adultery. Wife will not be punishable as an abettor. Here the act is done under consent, hence doesnot amount to rape. Petitioner was charged for adultery u/S 497. Argues the Constitutional validity of s. 497 by saying that it excludes woman from any liability (even that of abettor). So violating Art. 14 (Equality) as it says no discrimination on basis of “sex”. It was held that Sec. 497 is not in contravention of Art. 14 & 15 of the Constitution. Art. 15 (3) of the Constitution allows the state to make special provisions for women – implies S. 497 is constitutionally valid. There was an ongoing divorce case – wife starts living with another man – Husband filed for Adultery u/s 497. Wife asks the court to quash the appeal as Sec. 497 is not constitutionally valid. Court held that its constitutionally valid as no discrimination – woman are also given enough freeway here.
