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Offences against public tranquillity
Chapter 16
OFFENCES AGAINST HUMAN BODY
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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
Commit or attempt to cause death, grievous hurt, wrongful restraint
Extortion
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
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 allowed. marriage ceremony knowing that he is not
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.
