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PAPER-III LAW OF CRIMES-I (PENAL CODE)
UNIT-I General
- Concept of crime
LAW OF CRIMES
(INDIAN PENAL CODE)
UNIT-I General
- Concept of crime
- Distinction between crime and other wrongs
- McCauley’s draft based essentially on British notions
- Salient features of the I.P.C.
- IPC: a reflection of different social and moral values
- Applicability of I.P.C.- territorial and personal
UNIT-II Element of Criminal Liability
- Person definition - natural and legal person
- Mens rea- evil intention
- Recent trends to fix liability without mens rea in certain socio- economic offences
- Act in furtherance of guilty intent- common object
- Factors negativing guilty intention
- Definition of specific terms
UNIT-III Group liability
- Common Intention
- Abetment
- Instigation, aiding and conspiracy
- Mere act of abetment punishable
- Unlawful assembly
- Basis of liability
- Criminal conspiracy
- Rioting as a specific offence General Exceptions :
- Mental incapacity
- Minority
- Insanity
- Medical and legal insanity
- Intoxication
- Private defence-justification and limits
- When private defence extends to causing of death to protect body and property
- Necessity
- Mistake of fact
- Offence relating to state
- Against Tranquility
- Contempt of Lawful Authority UNIT-IV Offences against human body
- Culpable homicide
- Murder
- Culpable homicide amounting to murder
- Grave and sudden provocation
- Exceeding right to private defence
- Hurt - grievous and simple
- Assault and criminal force
- Wrongful restraint and wrongful confinement- kidnapping- from lawful guardianship, outside India
- Abduction Offences Relating to Marriage
- Theft 2. Robbery, Dacoity 3. Cheating 4. Extortion 5. Mischief 6. Criminal misrepresentation and criminal breach of trust 7. Offences relating to Documents and properties.
Unit-V Types of Punishment
- Death
- Social relevance of capital punishment
- Imprisonment- for life, with hard labour, simple imprisonment
- Forfeiture of property
- Fine
- Discretion of court in awarding punishment
- Minimum punishment in respect of certain offences
LAW OF CRIMES (INDIAN PENAL CODE)
1. CONCEPT OF CRIME
CRIME denotes an unlawful act punishable by a state. The term "crime" does not, in modern criminal law, have any simple and universally accepted definition, though statutory definitions have been provided for certain purposes. The most popular view is that crime is a category created by law; in other words, something is a crime if declared as such by the relevant and applicable law. One proposed definition is that a crime or offence (or criminal offence ) is an act harmful not only to some individual or individuals but also to a community, society or the state ("a public wrong"). Such acts are forbidden and punishable by law. The notion that acts such as murder, rape and theft are to be prohibited exists worldwide. What precisely is a criminal offence is defined by criminal law of each country. While many have a catalogue of crimes called the criminal code, in some common law countries no such comprehensive statute exists. The state (government) has the power to severely restrict one's liberty for committing a crime. In modern societies, there are procedures to which investigations and trials must adhere. If found guilty, an offender may be sentenced to a form of reparation such as a community sentence, or, depending on the nature of their offence, to undergo imprisonment, life imprisonment or, in some jurisdictions, execution. Usually, to be classified as a crime, the "act of doing something criminal" (actus reus) must – with certain exceptions – be accompanied by the "intention to do something criminal" (mens rea). While every crime violates the law, not every violation of the law counts as a crime. Breaches of private law (torts and breaches of contract) are not automatically punished by the state, but can be enforced through civil procedure.
2. DISTINCTION BETWEEN CRIME AND OTHER WRONGS
Differences between Tort and a Crime
TORT CRIME
Tort is tried in Civil Courts Crimes are tried in Criminal Courts
A person who commits Tort is a 'tortfeasor' A^ person^ who^ commits^ Crime^ is^ a^ 'Criminal'^ or 'Offender'
The remedy of tort is unliquidated damages or other equitable relief to the injured
The remedy is to punish the offender
Tort litigation is compoundable
Criminal cases are not compoundable except in case of exceptions as per Section 320 Cr.PC of IPC
UNIT-I GENERAL
particular category of crimes committed by civilians of Indian origin. There are sections related to Dowry Laws and jurisdictions in India, as well as there are several sections that concern various types of criminal laws. The Indian Penal Code is thus the most fundamental document of all the law enforcer as well as the entire judiciary in India. The Indian judicial system is one that has evolved into a stable and fair system of detention and penalizing, after being tested well for several years. The judiciary of the country is a body of people who are given the task of execution of the laws made by the government, that is, the judiciaries of a country are its law enforcers. However, the judicial representatives cannot assess the case s of crimes or misconduct on their own perceptions or rules. There has to be a single system or a document that acts as a standard to all the decision making process and the penalizing norms. Such a document exists in all countries and in case of India, it is referred to as The Indian Penal Code. The Indian Penal Code is applicable to all the citizens of India who commit crimes or actions suggesting misconduct in the Indian territory. The document is applicable to ships as well as aircrafts within the Indian seas or the airspace as well.
Indian penal code is the skeleton of the Indian criminal justice system. There are certain questions that are frequently asked by a layperson for basic understanding of rights for example,
- What exactly Indian Penal code is?
- How and when did it originate?
- What is its applicability?
- How does it work?
- To what extend it helps the law enforcement agencies?
- What is modus operandi of judges while applying the relevant sections?
These questions are answered as follows- Indian Penal Code is a document that has been formulated to counter crimes of various natures and breach of law. IPC traces its roots to the British colonial rule in India.IPC covers any Indian citizen or a person of Indian origin with the exceptions to any kind of military or the armed forces crimes, which are handled by a dedicated list of armed force acts. The most important feature of the Indian Penal Code is the impartial nature of judgments promoted by the document. The Indian Penal Code does not include any special favors for any special person at some position. Thus, the Indian Penal Code stands alike for government employees, as for a common man, and even for a judicial officer. This builds up the faith of the common citizens in the law making and enforcing bodies in the country and prevents any sort of corruption or misuse of power on the part of the people in power. All in all, the Indian Penal Code of the present day has done away with almost all its flaws and has evolved into a modern law enforcing document that takes into consideration the humane side of the personalities of culprits as well. This has escalated and improved the Indian system of Law to greater heights and has led to a firm respect for it in every citizen of the country.
Importance of The Penal Code Indian Penal Code is a very important set of regulation which is very important for the system to be operated in a proper way. It is the main criminal code of India. They are various offences that are made under this law. The Indian Penal Code includes all the relevant criminal offences dealing with offences against the state, offenses for public, offences for armed forces, kidnapping, murder, and rape. It deals with offense related to religion, offences against property and it has an important section for offences for marriage, cruelty from husband or relatives, defamation and so on so forth. This was a general over view of the structure of Indian Penal Code. It is not only important for India
but every country should have an Penal Code in order for its system to be operated in a systematic way. This document majorly covers all the basic offences which are highlighted in the society.
5. IPC: A REFLECTION OF DIFFERENT SOCIAL AND MORAL VALUES Values Values are the rules by which we make decisions about right and wrong, should and shouldn't, good and bad. They also tell us which are more or less important, which is useful when we have to trade off meeting one value over another. It is beliefs of a person or social group in which they have an emotional investment (either for or against something). Morals Morals have a greater social element to values and tend to have a very broad acceptance. Morals are far more about good and bad than other values. We thus judge others more strongly on morals than values. A person can be described as immoral, yet there is no word for them not following values. IPC reflects different social and moral values while defining the crime and its punishments. 6. APPLICABILITY OF I.P.C.- TERRITORIAL AND PERSONAL Personal Jurisdiction Section 2 of the Indian Penal Code says that every person irrespective of his/her rank, nationality, caste or creed shall be liable for an offence committed in India and of which he is found guilty. It expends to foreign nationals also. Eg: Adultery is not an offence in America, but is an offence under Section. 497 of the Indian Penal Code. Exceptions The following persons are always exempted from the jurisdiction of Criminal Courts as certain rights and privileges are conferred on them. 1. Foreign Soverigns 2. Ambassadors 3. Alien enemies 4. Foreign Army 5. Warships 6. President and Governors. President and Governors of the Country are exempted from Jurisdiction of Criminal Courts under Article 361 of the Indian Constitution. Territorial Jurisdiction A person shall be liable for an offence committed over/throughout the territory of the State. Territory includes land and sea comprising of territorial waters.
CONCLUSION The Indian Penal Code was passed in the year 1860. However, it came into effect from January 1, 1862. The Indian Penal Code applies to the whole of India except for the state of Jammu & Kashmir. It contains 23 Chapters and 511 Sections. Before the Indian Penal Code came into effect, the Mohammedan Criminal Law was applied to both Mohammedans and Hindus in India.
statute is to promote welfare activities or to eradicate a grave social evil is by itself not decisive of the question whether the element of guilty mind is excluded from the ingredients of an offence. Mens rea by necessary implication may be excluded from a statute only where it is absolutely clear that the implementation of the objection of the statute would otherwise be defeated^2 ." Mens rea : Latin term for "guilty mind"; guilty knowledge or intention to commit a prohibited act. Also: "a particular state of mind such as the intent to cause, or some foresight of, the results of the act or the state of affairs." (R v Daviault [1994] SCR 63 at para. 74) Many serious crimes require the proof of mens rea before a person can be convicted. In other words, the prosecution must prove not only that the accused committed the offence (actus reus) but that he (or she) did it knowing that it was prohibited; that their act (or omission) was done with an intent to commit the crime. A maxim rich in tradition and well known to law students is actus non facit reum, nisi mens sit rea or "a person cannot be convicted and punished in a proceeding of a criminal nature unless it can be shown that he had a guilty mind". Not all offences require proof of mens rea such as many statutory or regulatory offences^3. As long back as 1895. Wright J. observed in Sherras v.De Rutzen."There is a presumption that mans rea, an evil intention of knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subjectmatter with which it deals, and both must be consi- dered."
Mens Rea : Is it required in all cases? Considering the question of requirement of mens rea, the Hon'ble Supreme Court in Gujarat Travancore Agency v. Commissioner of Income-tax, Kerala observed: ...In the case of a proceeding under Section 271(1)(a), however, it seems that the intention of the Legislature is to emphasise the fact of loss of revenue and to provide a remedy for such loss, although no doubt an element of coercion is present in the penalty. In this connection, the terms in which the penalty falls to be measured are significant. Unless there is something in the language of the statute indicating the need to establish the element of mens rea, it is generally sufficient to prove that a default in complying with the statute has occurred. In para 13, In Commissioner Central Excise vs Kc Alloys And Steel Castings which was decided on 3 August, 2006, it was held that '' It may also be noticed that though, normally, element of mens rea is mandatory requirement before penalty can be imposed but it is not always so required.'' In Deepa And Ors. vs S.I. Of Police, And Anr. it was held that ''Normally a charge must fail for want of mens rea but there may be offences where mens rea may not be required. But actus reus must always exist. Without it there cannot be any offence. Mens rea can exist without actus reus, but if there is no actus reus there can be no crime. Even if mens rea is there, no conviction could be had without actus reus without which there cannot be a crime. For example a man may intend to marry during the lifetime of his wife and enter into a marriage believing that he is committing the offence of bigamy. Mens rea is there. But if unknown to him his wife died before he married again, in spite of the mens rea there cannot be an offence of bigamy.
In ' Lal Behari v. State (E)', it was held by the Hon'ble Bench of Allahabad High court that no mens rea is required for an offence of contempt of court; what was meant is that no criminal intention or motive behind the deliberate doing of an act is required. CONCLUSION: Mens rea was an essential ingredient of an Offence. An application of the rule of construction to this principle meant that there was no presumption that mens rea was excluded form statutory
offences. Under common law "It is a sound rule to construe a statute in conformity with the common law rather than against it, except where and so far the statute is plainly intended to alter the course of the common law. Let me conclude this article with observation of the Hon'ble Full Bench of Andhra Pradesh High Court, in Additional, Commissioner, Income Tax v. Durga Pandari Nath Tulijayya & Co., where it was observed as under:- "The doctrine of mens rea is of common law origin developed by Judge-made law. It has no place in the Legislator's law. It has no place in the Legislator's law where offences are defined with sufficient accuracy.... Mens rea is an essential ingredient of an offence. However, it is a rule of construction. If there is a conflict between the common law and the statutory law, it has always been held that it is a sound rule to construe a statute in conformity with the common law. But it cannot be postulated that statute cannot alter the course of the common law. The parliament, in exercise of its constitutional powers makes statutes and in exercise of those powers it can affirm, alter or take away the common law altogether. Therefore, if it is plain from the statute that it intends to alter the course of the common law, then the plaint meaning should be accepted. The existence of mens rea as an essential ingredient of an offence has to be made out by the construction of the statute."
3. RECENT TRENDS TO FIX LIABILITY WITHOUT MENS REA IN CERTAIN SOCIO- ECONOMIC OFFENCES There are two stages of mind which constitutes mensrea and they are intention and recklessness. Recklessness- The conduct where by the actor does not desire harmful consequence but nonetheless foresees the possibility and consciously takes the risk. Commissioner of IT Patiyala vs M/S Patra Dass Raja Ram Beri Rohtak 1982 – Mensrea means guilty mind.It may also include recklessness relating to circumstances and consequences of an act which comprises the actus reus.
- Director of Enforcement Vs.Metm Corporation Pvt Ltd AIR 1996 Mensrea is a state of mind. Mensrea considers as the guilty mind until the proved the guilty intention of accused, he cannot be guilty of committing the crime.
PRINCIPLES OF LEGALITY –
- NULLUM CRIMEN SINE LEGE
- NULLUM POENA SINE LEGE
- ACTUS REUS INVITO FACTUM NON EST MENS ACT US
The Supreme court in many cases has held mensrea to be an essential element of every crime unless it has been specifically excluded by the statue creating the offence. For example-Position of mensrea in India has been explained and highlighted by the Supreme Court in the following cases- STATE OF MAHARASTRA Vs.M.N.GEORGE 1965. Nathu Lal Vs State of M.P. 1966. Kartar Singh v.state of Punjab. Assistant commissioner Vs M/S.vellippa Textiles 2004 Guljog industries Vs CTO Commercial Tax Officer 2007 State of Rajsthan Vs Shera Ram 2012. S.C. has held that mensrea is a essential ingredient of every offence. But however statute creating the offence may exclude it. But it is a sound rule of interpretation adopted in England and also accepted in India to interpret a statutory provision 47th report of law common of India- desirable the mensrea may be excluded –
MENSRA IN I.P.C-1860- The General term mensrea as such does not figure in the IPC Inspite of the fact that it remains as integral and important part of every crime embodied in I.PC. Indian law being codified uses specific terms indicating a specific type of mensrea required for the particular offence. Every definition in I.P.C starts with the word such as-intentionally (37) or knowingly (Section 35) ,Voluntarily(Section 39) ,dishonestly (Section 24) or fraudulently(u/s.25), Malignantly (153 and 270),Wantonly(153) Maliciously (219 and 220),Wrongful gain or wrongful loss.(sec23),Reason to believe(16) All these words reflecting blame worthy mental condition of a particular kind of mensrea For example-Chapter 16 – affecting human body in chapter 16. It is intention, knowledge, rashness, negligent voluntarily which denotes mensrea. Where as offences relating to property in chapter 17 it is dishonestly fraudulently which signifies mensrea.
(1)Prima facie - as a
general rule with mind
guilty
(2)Prima facie statute
was satisfied
(3)At common law an
honest and reasonable
belief
(4)It is a general
rule alleged offender acted in
good faith upon reasonable &
probable cause to belief.
PRINCIPLES
FOLLOWS –
RECENT TRENDS TO FIX CRIMINAL LIABLITY IN SOCIO-ECONOMICS OTHER WITHOUT MENSREA
47TH Report of law on trial and punishment of socio economic offences of tax evasion , profiteering ,adulteration of food, corruption etc. for effective handling of socio economic offences .The commission suggested changes in criminal liability. Mensrea presumed 113A – evidence – shifts on 498.A of I.P.C which deals with cruelty etc. Presumption of mensrea in specific offences Sec 10-of Essential Commodities Act, Sec 138-A Customs Act, Sec 20-Prevention of corruption Act1988 Provide presumption of mensrea fixing criminal Liability.on Proof Actus reus.
4. ACT IN FURTHERANCE OF GUILTY INTENT- COMMON OBJECT SECTION 34: ACTS DONE BY SEVERAL PERSONS IN FURTHERANCE OF COMMON INTENTION- According to Section 34, when a criminal act is done by several persons in furtherance of 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.
II. OBJECT OF SECTION 34:- Section 34 lays down only a rule of evidence and does not create a substantive offence. This section is intended to meet cases in which it may be difficult to distinguish between the acts of the individual members of a party or to prove exactly what part was taken by each of them in furtherance of the common intention of all. This section really means that if two or more persons intentionally do a thing jointly, it is just the same as if each of them has done it individually. The reason why all are deemed guilty in such cases is that the presence of accomplices gives encouragement, support and protection to the person actually committing an act.
III. ELEMENTS OF SECTION 34: To attract the application of Section 34, the following conditions must be satisfied:-
- Some Criminal Act: - ‘Criminal act’ used in section 34 does not refer to individual acts where a crime is committed by a group of persons. Where a crime is committed by several persons in furtherance of common intention of all of them, each of them doing some act, similar or diverse, big or small shall be liable for that act. ‘That act’ refers to the ‘criminal act’ used in section 34 which means the unity of criminal behaviour which results in something for which an individual would be punishable if it were all done by himself alone in an offence.
- Criminal Act Done By Several Persons: - The criminal act in question must have been done by several persons i.e. by more than one person. The number of wrong doers should be at least two. Most importantly, if the criminal act was fresh and independent act springing wholly from the mind of the doer, the others are not liable merely because when it was done they were intending to be partakers with the doer in a different criminal act.
- Common Intention:- The words “in furtherance of the common intention of all” were added to section 34 after words ‘persons’ in 1870 the idea for which, possibly, was derived from the following passage of the Privy Council’s judgment:
“Where parties go with a common purpose to execute a common intention, each and everyone becomes responsible for the acts of each and every other in execution and furtherance of their common purpose, as the purpose is common so must be the responsibility.” [Ref. Ganesh Singh v. Ram Raja, (1869) 3 Beng LR (PC) 44, 45]
unlawful assembly for criminal act done by any member in prosecution of the common object of the said assembly. So the essential ingredients of Section 149 are:
- There must be an unlawful assembly, as defined in Section 141;
- Criminal act must be done by any member of such assembly;
- Act done is for prosecution of the common object of the assembly or such which was likely to be committed in prosecution of the common object;
- Members have voluntarily joined the unlawful assembly and knew the common object of the assembly.
- Mere presence and sharing of common object of the assembly makes a person liable for the offence committed even if he had no intention to commit that offence.
VI. SCOPE OF SECTION 149:- The Section is divided into two parts-
- In Prosecution Of The Common Object:- The words “in prosecution of the common object” show that the offence committed was immediately connected with the common object of the unlawful assembly of which accused were members. The act must have been done with a view to accomplish the common object of the unlawful assembly.
- Members Knew To Be Likely:- The second part relates to a situation where the members of the assembly knew that the offence is likely to be committed in prosecution of the common object. A thing is likely to happen only when the situation is like “it will probably happen” or “may very well happen”. The word ‘knew’ indicates a state of mind at the time of commission of an offence, knowledge in this regard must be proved. The word ‘likely’ means some clear evidence that the unlawful assembly had such a knowledge.
VII. DIFFERENCE BETWEEN COMMON INTENTION AND COMMON OBJECT:- The difference between common intention and common object may be stated as under:
- Under Section 34 number of persons must be more than one. Under Section 149 number of persons must be five or more.
- Section 34 does not create any specific offence but only states a rule of evidence. Section 149 creates a specific offence.
- Common intention required under Section 34 may be of any type. Common object under Section 149 must be one of the objects mentioned in Section 141.
- Common intention under Section 34 requires prior meeting of minds or pre-arranged plan, i.e. all the accused persons must meet together before the actual attack participated by all takes place. Under Section 149, prior meeting of minds is not necessary. Mere membership of an unlawful assembly at the time of commission of the offence is sufficient.
- Under Section 34 some active participation is necessary, especially in a crime involving physical violence. Section 149 does not require active participation and the liability arises by reason of mere membership of the unlawful assembly with a common object.
VIII. COMMON INTENTION MAY ALSO DEVELOP ON THE SPOT: EXCEPTION TO THE GENERAL RULE- Generally, it is said that, “a common object may develop on the spot but a common intention cannot”. But, in certain circumstances common intention also may develop suddenly on the spot and such common intention may be inferred from the facts and circumstances of the case and conduct of the accused persons. Following cases are illustrative on this point-In Kripal Singh v. State of U.P. , AIR 1954 SC 706; the Supreme Court held that a common intention may develop on the spot after the offenders have gathered there. A previous plan is not necessary. Common intention may be inferred from the conduct of the accused and the circumstances of the case.
6. DEFINITION OF SPECIFIC TERMS Section- 6 to 52A of IPC
1. COMMON INTENTION
‘Common intention’ and ‘Common object ‘. Definition of Common intention :- Common intention means common sense principle that if two or more persons intentionally do a thing jointly it is just the same as if each of them had done it individually. If two or more persons combine in injuring another in such a manner that each person engaged in causing must know that the result of one of them. Everyone must be taken to have intended the probable and natural results of the combination of acts in which he joined. All become guilty of the principal offence. The leading feature of common intention is participation in action. Common intention implies acting in concert and existence of a pre-arranged plan. It is enough to have the same intention independently of each other for fastening constructive liability for the act of another.
The doctrine of constructive liability lays down the principle of joint liability in the doing of a criminal act. The essence of that liability can be found in the existence of common intention animating the offender leading to the doing of a criminal act in furtherance of common intention. This Constructive Liability or joint liability is embodied in section 34 of the Indian Penal Code as common intention.
more than one person
- i) common intention to commit an offence
more than
one person
- ii) participation in commission of the
offence
UNIT-III
GROUP LIABILITY
ESSENTIAL INGREDIENTS OF
COMMON INTENTION
Difference between Common intention and Common object :-
Common intention ( Sec. 34 ) Common object ( Sec. 149 )
i) Common intention requires prior concert and common meeting of minds before the commission of crime as well as an element of participation in action.
ii) In common intention , the act must be the result of a pre-arranged plan.
iii) In common intention , the number of persons is immaterial.
iv) Common intention enumerates the principles of constructive liability , without creating any substantive offence.
v) The common intention need not be one of specified type only.
vi) In a charge U/S 34 of IPC active participation of the offender is required.
i) Common object may develope at the spot after the assembly gathers and does not require prior concert and common meeting of minds before the commission of crime.
ii) In common object , no such pre- arranged plan is required. If the offence is committed in prosecution of the common object , every member of such assembly is liable for the offence though the offender did not intend to commit it or did not participate in it’s commission.
iii) In common object , five or more persons are required to form the unlawful assembly.
iv) common object creates a specific substantive offence.
v) Common object must be one of the seven types mentioned in section 141.
vi) But in a charge of common object the liability arises by reason of the membership of the unlawful assembly and there may be no active participation at all in the commission of the offence.
2. ABETMENT
4. MERE ACT OF ABETMENT PUNISHABLE
A person abets the doing of a thing who: — (1) instigates any person to do that thing, or (2) engages with one or more other person or persons, in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing, or (3) Intentionally aids by any act or illegal omission, the doing of that thing.
Explanation I: A person who by wilful misrepresentation or by wilful concealment of a material fact is bound to disclose, voluntarily causes or procures or attempts to cause or procure a thing to be done, is said to instigate the doing of that thing.
Illustration: A, a public officer, is authorised to arrest Z. B, knowing that fact, and also that C is not Z, wilfully represents to A that C is Z, and thereby wilfully causes A to arrest C. Here B causes by instigation the arrest of C. Explanation II: Whoever does anything either before or at the time of commission of that act, in order to facilitate the commission of that act (Section 107).
3. INSTIGATION, AIDING AND CONSPIRACY ‘Abetment of Instigation’ A person abets the doing of a thing who instigates any person to do that thing. When is a person said to instigate the doing of a thing? A person instigates the doing of a thing who, by— (i) Willful misrepresentation, or (ii) Willful concealment of a material fact (which he is bound to disclose), voluntarily (i) causes or procures, or (ii) attempts to cause or procure the doing of a thing. The illustration to Explanation (I) elucidates the meaning. The Explanation (I) does not define instigation. It only explains that wilful misrepresentation or wilful concealment may in certain circumstances amount to instigation but it neither defines nor limits the forms which instigation may take. The word “instigate” means to goad or urge forward or to provoke, incite, urge or encourage to do an act, person is said to instigate another, to an act when he actively suggests or estimates him to the act by any means or language, direct or indirect, whether it takes the form of express solicitation or of hints, insinuation or encouragements. Thus, where a person gives to an unlawful assembly a general order to beat, it is a case of a direct instigation. The instigation would be indirect when instead of such an order a person raises a slogan “Allah O Akbar” or “Jai Bajrang Bali” or says, “Cowards die many times before their death, the valiant die but once” will intend to provoke. A instigates B to commit a crime not by saying so but by harping upon the wrongs he has suffered; it is indirect instigation. Instigation implies knowledge of the criminality of an act. Illustration to Explanation is an example of instigation by wilful misrepresentation. Instigation by wilful concealment takes place where there is some duty cast obliging a person to disclose fact. The mere omission to bring to the notice of the higher authorities, offences committed by other persons does not amount to abetment of those offences. It may form the foundation for disciplinary action against him in a departmental way. Mere failure to prevent the commission of an offence is not by itself an abetment. The law does not require that instigation should be in a particular form or that it should be only in words and may be by conduct; for instance a mere gesture indicating ‘beat’ or a mere offering of money by an arrested person to the constable who arrests him may be regarded as instigation, in one case to beat and in the other to take a bribe. An advice can become an instigation only if it is found that it was an advice which was meant actively to suggest or stimulate commission of an offence. To ask a person as a mere threat to really fire a gun without intending that he should really fire it, is not to instigate him to fire the gun. The threat would become instigation only if it is found that in the event of the threat having no effect the gun should in fact be fired. Mere presence is not instigation. Silent approval, if it has the effect of inciting or encouraging the offence would amount to abetment of the offence. For example, where a woman prepared herself for suttee. X and Y followed her to the funeral pyre and stood by her repeating Ram, Ram and thereby actually connived and countenanced the act. They were held guilty of abetment. Instigation by letter is
fine. Every member of an unlawful assembly can be held responsible for a crime committed by the group. Obstructing an officer trying to disperse an unlawful assembly may attract further punishment. The section was used for the first time in 1861 by the British Raj, and thereafter became an important tool to stop all nationalist protests during the Indian independence movement, and its use in independent India remains controversial as little has changed. It is often used to prevent protests or demonstrations, even the law doesn't use the terms, though it does mention "riot". The issue was further highlighted following the protests in the aftermath of the 2012 Delhi gang rape. When in December, 2012, a special executive magistrate imposed prohibitory orders around India Gate, a popular location for public protests, under the section for up to six months. In January 2013, the Delhi High Court issued a notice to Delhi Police in this regard as it found the orders contrary to the fundamental rights of citizens.
6. BASIS OF LIABILITY On basis of Individual and group/joint liability 7. CRIMINAL CONSPIRACY- Section 120A of Indian Penal Code gives definition as to what constitutes criminal conspiracy- “when two or more persons agree to do, or cause to be done,- · An illegal act, or · An act which is not illegal by means, such an agreement is designated as criminal conspiracy provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation- It is immaterial whether the illegal act is the ultimate object of such agreement or is merely incidental to that object”
The definition simply means that when two or more persons agree to do some illegal act or agree to do a legal act by illegal means then that amounts to criminal conspiracy. The act is only which has been agreed by the parties earlier and not any other act. The term illegal has been defined in the Indian Penal Code in section 43- “ the word illegal is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action; and a person is said to be legally bound to do whatever is illegal in him to omit.”
When the IPC was enacted, it had only two provisions through which conspiracy was made punishable. One provision was the abetment by conspiracy and other was special offences which require more than 2 persons for committing them. When the IPC was amended in the year 1870, the law of conspiracy was widened by the insertion of section 121A which is waging war or attempting to wage war against government of India. In the year 1913 when Indian Criminal Law Amendment Act came, then chapter V-A was added in the Indian Penal Code and thus adding two sections i.e. section 120A and section 120B.
The common law definition of ‘CRIMINAL CONSPIRACY’ was stated first by Lord Denman in Jones’ case (1832 B & AD 345) that an indictment for conspiracy must “charge a conspiracy to do an unlawful act by unlawful means” and was elaborated by Willies, J. on behalf of the Judges while referring the question to the House of Lords in Mulcahy v. Reg (1868) L.R. 3 H.L. 306 and the House of Lords in unanimous decision reiterated in Quinn v. Leathem 1901 AC 495 at 528 as under: “A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable of for a criminal object or for the use of criminal means.”
The main essence of conspiracy that is embodied in section 120A of Indian Penal Code is the unlawful agreement and ordinarily the offence is complete when the unlawful agreement is framed. It is not necessary that there should be some overt act in furtherance of the agreement made and it is not at all necessary that the object for which the conspiracy was made should be achieved.
Section 120-B :- Punishment of criminal conspiracy :- Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment of life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. Whoever is a party to criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine, or with both.
Scope :- The punishment for a criminal conspiracy is more severe if the agreement is one to commit a serious offence, it is less severe if the agreement is to commit an act, which although illegal, is not an offence punishable with death, imprisonment for life or rigorous imprisonment for more than two years. This section applies to those who are the members of the conspiracy during the continuance. Conspiracy has to be treated as a continuing offence and whoever is a party to the conspiracy during the period for which he is charged is liable under this section.
Hon'ble Supreme Court in case of Noor Mohammad -versus- State of Maharashtra, reported in AIR 1971 SC 885, has discussed about the distinction between section 34, 109 and 120-B of IPC in the following words,
“Section 34 embodies the principle of joint liability in the doing of a criminal act, the essence of that liability being the existence of a common intention. Participation in the commission in the offence in furtherance of common intention invites its application. Section 109 on the other hand may be
FACTS TO BE ESTABLISHED FOR CONSPIRACY:-
a) that there was an existence of a design to commit an offence
b) that such offence was punishable with imprisonment.
c) that accused concealed existence of such design.
i) by his act or illegal omission or
ii) by his knowingly making false representation.
d) that he did voluntarily
e) that he thereby intended to facilitate, or know that he would thereby
facilitate commission of such offence.
