Tag: IPC

Theories of Punishment in Indian Penal Code,1860

Introduction

Punishment is the sanction imposed on an accused for the infringement of the established rules and norms of the society.

Objective

The object of punishment is to protect society from mischievous and undesirable elements by deterring potential offenders, by preventing the actual offenders from committing further offences and by reforming and turning them into law abiding citizens.

Types of Theories

  1. Deterrent Theory
  2. Preventive Theory
  3. Retributive Theory
  4. Reformative Theory
  5. Multi Approach Theory

a) Deterrent Theory: According to this theory, the object of punishment is not only to prevent the wrong-doer from doing a wrong second time, but also to make him an example to others who have criminal tendencies. Salmond considers deterrent aspects of criminal justice to be most important for control of crime. Deterrent punishment is likely to harden the criminal instead of creating in his mind a fear of law. Hardened criminals are not afraid of imprisonment.

b) Preventive Theory: According to Paton:’The theory concentrates on the prisoner and seeks to prevent him from offending again in the future. The death penalty and exile serve the same purpose of disabling the offender’. Critics point out that preventive punishment has the undesirable effect of hardening first offenders, or juvenile offenders, when imprisonment is the punishment, by putting them in association of hardened criminals.

c) Retributive Theory: In primitive society punishment was mainly retributive. The person wronged was allowed to have revenge against the wrong-doer. The principle of ‘an eye for an eye’, ‘a tooth for tooth’, was the basis of criminal administration. According to Justice Holmes: ‘It is commonly known that the early forms of legal procedure were grounded in vengeance’. The advocates of this theory plead that the criminal deserves to suffer.

d) Reformative Theory: According to this theory, the object of punishment is reformation of criminals. The object of the punishment should be to reform the offender. The criminal must be educated and taught some art and craft or industry during his term of imprisonment, so that he may be able to lead a good life and become a responsible and respectable citizen after release from jail.

e) Multi Approach Theory: In fact, a perfect system of criminal justice could never be based on any single theory of justice. Every theory has its own merits and every effort should be made to extract the good points of each and integrate it so that best of all could be achieved. Punishment should be proportionate to the nature and gravity of the crime. The object of any concession given to an offender should be to convince him that normal and free life is better than life in jail.

Why use colonial law even after 75 years of independence?

Chief Justice of India N.V. Ramana’s remarks in open court on Thursday sends a strong message to the government that the Supreme Court is prima facie convinced that sedition is being misused by the authorities to trample upon citizens’ fundamental rights of free speech and liberty. The Chief Justice has sent a clear signal that Section 124A (sedition) of the Indian Penal Code may have passed its time. The CJI said “if you look at the history of use of this section 124A of IPC, you will find that the conviction rate is very low.There is misuse of power by executive agencies.

The CJI observed and conveyed his observations to Attorney General, K.K. Venugopal and Solicitor General, Tushar Mehta. The CJI said; “Sedition is a colonial law. It suppresses freedoms. It was used against Mahatma Gandhi and Bal Gangadhar Tilak..Is this law necessary after 75 years of Independence.”

A number of petitions have been filed highlighting the “chilling effect” of sedition on the fundamental right of freedom of speech and expression. The court also observed the need to re-examine its own judgement which withheld section 124A of the IPC; i.e the Kedar Nath judgement.

Origin of the law; section 124A of IPC

Many legal experts argue that the sedition clause is a vestige of British colonial rule, originally introduced to suppress critical voices emanating from the Indian freedom movement. Section 124A of the Indian Penal Code, 1860 (IPC), as we have today, was absent from the original draft of Macaulay’s IPC in 1860, and was only introduced in the year 1870, piloted by James Stephen. This version went through further modification through the IPC (Amendment Act), 1898, since when it has largely retained its form.

Landmark case

The landmark case on this matter was that of Queen-Empress v. Bal Gangadhar Tilak & Keshav Mahadev Bal, (1897) ILR 22 Bom 112. In this case, Bal Gangadhar Tilak was tried for sedition for alleged incitement through speech that led to the killing of two British Officials. In this case, a single judge bench of  the Bombay High Court agreed with the definition of ‘disaffection’ as propounded in Jogendra Chunder Bose and opined that any ‘bad feelings’ towards the government is criminal, irrespective of the level of bad feeling. This way, the High Court virtually disallowed all legitimate criticism. It added that there need not be any material consequence at all to qualify the offence of sedition. The court held that in sedition matters, it is the intention of the offender which is of primacy, and could be presumed based on content, audience and circumstances of their seditious speech.

Events that led to considering the need of sedition law

A case under Sections 124 A (sedition) and 153 B (Imputations, assertions prejudicial to national-integration) has been registered against Ms. Sultana, a native of Chetlat island, based on a petition filed by BJP’s Lakshadweep unit president Abdul Khader. The prosecution case is that that on June 7, during a TV channel discussion, she had allegedly stated that the Centre had used ‘bio-weapon’ against the natives of the islands.

Observing that prima facie the offences, including the sedition charge, alleged against Lakshadweep filmmaker Aisha Sultana are not attracted, the Kerala High Court on Friday made absolute the interim anticipatory bail granted to her in a case registered against her by the Kavaratti police for making a remark against the Central government. Justice Ashok Menon, while allowing her anticipatory bail petition, observed that prima facie the petitioner “did not have a malicious motive to subvert the government established by law by merely using the strong word ‘bio-weapon’, to express her vehemence in disapproval of the subject under discussion

The defense of Insanity

Criminal law is a wide field of study that is riddled with issues. Despite a vast literature on various parts of the issues, the subject of criminal responsibility and mental disorder has posed a challenge to jurists, attorneys, and psychiatrists for centuries, and it has remained an unsolved conundrum. For hundreds of years, the insanity defense has served as a defense against criminal charges for defendants who were unable to understand what they were doing or distinguish between right and wrong. Because most defendants in our criminal justice system must have had some knowledge or intent when committing a crime, the insanity defense offers protection to people who are deemed incapable of establishing such mental states.

Originally, most states required the prosecutor to prove beyond a reasonable doubt that a person was not insane if he or she claimed insanity as a defense. However over the course of time and with help of few modifications the burden of proof is now shifted from the prosecutor to the defense, requiring defense lawyers to prove the defendant’s insanity through clear and compelling evidence.

Even though it was put in place to improve judgment, most people exploit the insanity defense to avoid legal penalties, making it a loophole that encourages more offenders to commit crimes. Such a condition creates a serious problem, as people will become increasingly involved in such crimes since they are not afraid of the law. The Indian government has put in place a number of rules for performing an insanity test on the accused. They must meet two important criteria: the necessity for mental illness and the condition for loss of reasoning. Section 84 of the Indian Penal Code (IPC) deals with this issue.

Essentials: A person of unsound mind must carry out the act.

Such a person was mentally unstable at the time of the incident.

The accused incapacity should be due to mental illness.

Such person had no idea what he was doing was wrong.

Despite the fact that these strict regulations exist, many people try to exploit this defense by falsifying certifications or influencing the judiciary. To avoid the various controversies and confusions it is suggested that a well-defined definition of the term ‘insanity’ should be established. Many countries, notably Germany, Argentina, and Thailand, have prohibited this defense due to its widespread misuse. India can investigate this and decide whether or not the insanity defense should be recognized in the legal system.

JOINT LIABILITY

INTRODUCTION

The law concerning to ‘Joint Liability’ is contained in Sections 34-38 of IPC, 1860. Other sections relating to joint liability are Section 120A and B which lays down criminal conspiracy and punishment for it, section 149 relating to “unlawful assembly”, Section 396 dealing with “dacoity with murder or grievous hurt” and section 460- “Persons jointly concerned in lurking house trespass by night causing death or grievous hurt by one of such persons.”

Joint Liability is also known as ‘constructive liability’. Constructive Liability in criminal law means the liability of a person for an offence which he has not actually committed.

WHAT IS JOINT LIABILITY?

Section 34 of Indian Penal Code states the provisions regarding joint liability. “When a criminal act is done by several persons in furthers of the common intention of all, each of such persons is liable for that act in the same manner as if it were done but for him alone.”

In other words, an act which is criminal in nature and multiple persons involves in performing that act which is pre-determined with an intention common in nature, then liability for commission of such act lies upon all those persons involved in the equivalent manner.

ILLUSTRATION: X, Y, and Z agree to kidnap and kill ‘C’. All three will be held liable equally even if X makes an attack resulting in death of C.

Following essential conditions of Joint Liability are denoted in this section-


1. An act criminal in nature has been done.

  • An act which is offensive in nature and is sanctioned or punishable by the law.

2. Several persons were involved in commission of act.

  • Further criminal act, act must be performed by more than one person. Thus, there must be two or more persons in commission of an act resulting in joint liability.

Kishore Chand v/s State of Himachal Pradesh[1] – when two persons have caused two different offences with different purpose, then section 34 cannot be applied.

3. Common intention and criminal knowledge of several persons was involved in commission of such act.

  • There must be common purpose and intent of the persons involved in an act. Also, mere common intention is not a crime, there must be commission of such act(s) in continuance of common intention.

Darbara Singh V. State of Haryana[2]– Deceased was scything grass in a field where four persons attacked him with arms causing death. The trial court convicted the accused under sections 302 and 34. It was held by S.C. that the accused and the deceased were the rivals making criminal intention clear. There were 13 injuries infused by several weapons on the body of the deceased which indicates 2 or more person were involved.

4. Every person involved in commission of act is liable for it in the same manner as done by him/her alone.

  • Commission an offence by several persons in a pre-arranged or premediated plan, each of such persons shall be held liable and no one can take the plea that one is less responsible in comparison to others in such an act.

Wasim Khan v/s State of U.P.[3]– it was held, where other offenders have been acquitted, one offender can also be held responsible for the same for his/her conduct and consciousness of guilt.

Meaning of ‘common Intention’

Common Intention is multiple people having the same or equal intent or purpose in result of an act. Therefore, in a predetermined and a premediated plan to commit an act in persistence to same motto, then the act after commission is said to be ‘common intention’ in performance of an act.

Gurdatta Mal V. State of U.P.[4]– It is leading case of ‘common intention. It was held that if two conditions for joint liability are fulfilled, then all accused persons would be liable for common intention and participation in an act for murder.

Meaning of ‘Pre-arranged plan’

Any act which is pre-planned or framed by the offenders to cause mishap is a pre-arranged plan. It may be done just before instigating an offensive act or a time ago.

M.A. Abdulla Kunhi and others V. State of Kerala[5]– Accused persons were attacking the deceased, where a friend of accused was also standing who also tried to attack deceased by the sword but was barred by some people from attacking the deceased. It was held that, he also intended to cause the death of deceased along with other accused therefore stands liable for an act. This comes under Joint Liability.

Meaning of ‘Meeting of mind’

It implies when offenders are aware about the criminal knowledge and of an offence and they give consent for perform it. This makes a clear impression about their intention to cause an act with knowledge about its effects.

State of U.P. V. Ashok Kumar Srivastava[6] – Death of a lady was caused by burning which was a dowry death. Decided there was common intention to cause the death of lady by burning. This comes under Joint Liability.

CONCLUSION

In the system of collective liability, at least two individuals are involved, the greater number of persons may be up to infinite amounts. Numerous individuals are liable to collective criminal liability on the grounds of an unlawful act carried out jointly by them or are more or less connected to an act. In cases of joint liability, it is not mandatory for a quantum penalty to be given equal to all accused persons. Equal punishment can also be given on the grounds of the unfair role played by the specific victim, but one thing is clear that both individuals have engaged in the criminal act. It is a contribution to an act that makes all the accused collectively responsible.

[1] [1991] 1 S.C.J. 68, 76

[2] 1992 SCR (2) 586

[3] 1956 SCR 191

[4] AIR 1965 SC 257

[5] AIR 1991 SC 452

[6] 1992 SCR (1) 37

Understanding of Kidnapping and Abduction

Generally we get confused between ‘kidnapping’ and ‘abduction’. We assume that if kidnapping means stealing of kids than abduction would be stealing of adult. But it’s not true. Though kidnapping literal meaning is child stealing but abduction is not an age specific offence. For detail understanding of these two offence, I have turned the pages of Indian Penal Code (IPC), 1860. And in this article, I have tried to compile it in easy and simple words. Please have a look.

Kidnapping: In Indian Penal Code, 1860 two types of Kidnapping is mentioned, (a) Kidnapping from India and (b) Kidnapping from lawful guardianship.

  • Kidnapping from India, (section 360 of IPC): whoever takes a person beyond the limits of India without the consent of such person or any person legally authorized to give consent on his behalf then he shall be liable for the offence of kidnapping from India.

The point should be noticed here that, the victim’s age does not matter. Which means that not only a minor but a major person can also be kidnapped. But if the major and sane person gives his consent for such taking than the offence of Kidnapping will not be committed.

  • Kidnapping from lawful guardianship, (Section 361 of IPC): Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship’. The unsoundness of mind must be permanent and not temporary insanity produced due to intoxication.

As mentioned in this section consent of the child is completely immaterial. The consent of the guardian alone should be taken into consideration. That too, the consent of guardian have to be free and must not have been obtained by fraud or misrepresentation.

Simplified terms:

  • Taking: the word ‘takes’ means to cause to go, to escort or to get into possession with or without the use of force.
  • Enticing: the word ‘entice’ means alluring or attracting. It means a person attempts to do a thing after some persuasion which he or she would not have done otherwise.
  • Keeping of Lawful guardian: here guardianship not only includes parents but also persons to whom the custody of the child has been lawfully entrusted. That could be teachers, relatives, servants or anyone. And the term ‘keeping of lawful guardian’ denotes the protection or care of the guardian. (A direct physical custody of the guardian is not needed but the whereabouts or movement should be known to the guardian.)

Abduction (section 362 of IPC): Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.

Abduction is an auxiliary act which becomes offence only when coupled with intention. The offence shall be complete if the accused takes away the person by tricking him or by deceitful means, or by using force and an actual use of force and not a mere threat to use force. As it is not an age-specific offence, which means any person of any age, can be abducted. In this offence the intention and consent is very important.

  1. If intention is that abducted person may be murdered, Section 364, applies;
  2. If intention is wrongfully confine person, Section 365 applies;
  3. If abducted person is a woman and intention is that she may be forced to marry against her will or have illicit sexual intercourse then Section 366 applies;
  4. If intention is to cause grievous hurt then Section 367 applies;If the abducted person is a child under age of ten years and intention is take dishonestly any movable’ property from its person then Section 369 applies.

Punishment for kidnapping (section 363 IPC): Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Abducting or Kidnapping to Murder: As per Section 364 of Indian Penal Code, if a person is kidnapped or abducted by a person with the intention or knowledge that the person is going to be murdered or is going to be put in danger of being murder, such person is punishable with imprisonment for life or rigorous imprisonment for a term up to 10 years and a fine.

Kidnapping for Ransom: Section 364A of IPC provides for punishment to the whoever threatens to hurt or cause death to that person who he has kidnapped or abducted or detained after kidnapping or abducting. The punishment is death or imprisonment for life, and fine.

Inputs: law journals, IPC, 1860