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INDIAN PENAL CODE (Unit -5)
1. Essentials of mischief with illustration.
The definition of mischief is mentioned under Section 425 of IPC & the punishment is prescribed under Section 426 of IPC. Further Section 427 to 440 lays down the specific punishment prescribed for aggravated forms of mischief depending upon the nature & the value of the property damage. As per the Section 425 of the Indian Penal Code,1860 (hereinafter referred to as IPC) that whenever anyone performs an act either having an intention to cause or is aware that his act is likely to bring, some destruction or damage to any property, destroying or diminishing its value and utility, hence, resulting in an undue loss or damage to the public or any person is said to commit mischief. In simpler terms, it can be understood as when an individual intends to perform an act or has the knowledge that his/her act will create hindrance in allowing another person to enjoy the benefit of their property by one means or other, it is called a mischief. However, this act can be even against the public or against a specific person as well.
ILLUSTRATIONS
- ‘A’ voluntarily burns a valuable thing belonging to ‘Z’ intending to cause wrongful loss to ‘Z’. ‘A’ has committed a mischief.
- ‘A’ causes a ship to be cast away, intending thereby to cause damage to ‘Z’, who has lent money on bottomry of the ship. ‘A’ has committed a mischief. In the case of Nagendra Nath Roy vs. Bijoy Kumar Das Verma, it was held that mere negligence is not mischief. Negligence coupled with intention to cause wrongful
loss or damage may amount to mischief. Mischief involves mental act with destructive animus.
ESSENTIALS OF MISCHIEF
The section requires following essentials to constitute an offence under this section :-
- Intention or knowledge of likelihood to cause wrongful loss or damage to the public or to any person (mens rea) – It is not necessary that there must be damage of destructive nature to constitute an offence under this section but it requires merely that there should be an invasion of right and diminution of the value of one’s property. For ex:- some persons belonging to one village pulled and removed fishing stakes lawfully fixed in the sea within three miles of the shore by the villagers of another village, and the removal of the stakes, though without any intention to appropriate them, occasioned “damage”, it was held that the offence amounted to mischief.
- Causes the destruction of any property or any such change in any property etc. (actus rea)- The main ingredient of this section is the destruction of property or such change in it as destroys or diminishes its value or utility. For example, the accused on receiving delivery of a registered article from a postmaster was requested to sign an acknowledgement for the article received by him, but instead of returning the same duly signed he tore it up and threw it on the ground. It was held that he was guilty of mischief. In the case Byomkesh Battacharya vs. L.N. Datta, the accused stopped the supply of water to the complainants flat through operation of wrench valve key and, thereby, turning the main pipe outside the storage reservoir. It was held by the high court that the expression “change in the property so as to destroy or diminish its value or utility” in Section 425 does not necessarily mean a change in character, composition or form. The
record, with intent to cause injury or damage, to public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery. Therefore a person, when he makes any false document or electronic record with criminal intention to : (i) Cause injury or damage to the other person or public; (ii) Cause any person part with property; (iii) Enter into an express or implied contract; (iv) Commit or may commit any fraud then that person will be liable for the offence of forgery under Section 463 of IPC. The word “document” denotes any matter expressed or described upon any substance by means of letters, figures or marks, or by one of those means, intended to be used, or which may be used, as evidence of that matter. For example, ‘A’ has a letter of credit upon ‘B’ for rupees 10,000, written by ‘Z’. ‘A’, in order to defraud ‘B,’ adds cipher to the 10,000, and makes the sum 1,00,000 intending that it may be believed by ‘B’ that ‘Z’ so wrote the letter. ‘A’ has committed forgery.
Section 464
This Section of the Indian Penal Code, 1860, deals with cases in which the persons is said to make a false document or false electronic record. These cases are as follows;
- Person who dishonestly or fraudulently makes signs, seals or execute a document and transmit any electronic record with the intention of causing it to be believed that such a document was made, signed, sealed or executed by the authority of person by whose authority he knows that it had not been made signed, sealed or executed.
- When a person who without a lawful authority acting in dishonest or fraudulent manner alters a document or an electronic record, either by himself or by any other person, in material part.
- When a person in dishonest or fraudulent behaviour causes any person to sign, seal, execute or alter a document knowing that such a person because of his incapabilities like unsoundness, intoxication or deception does not understand the contents, of the document or nature of alternation. In such circumstances, a person is said to made an false document or an electronic record and therefore, he commits the offence of forgery under Section 463 of the IPC. The Supreme Court in the case of Sheila Sebastian vs. R.J. Jawahraj and Another, talked about Section 463 and 464 of the IPC. It says that Section 463 defines the offence of forgery while on the other hand Section 464 substantiates the same by providing answer as to when a false document or an electronic record could be said to have been made for the purpose of committing the offence of forgery under Section 463. However, Section 464 defines only one of the essential ingredient of forgery i.e., making the false document. It was further said by this court in this case that charge of forgery cannot be levelled against a person who is not maker of false document in question. For ex:- ‘A’ without ‘B’s authority writes a letter and signs it in ‘B’s name certifying to ‘A’s character, intending thereby to obtain employment under ‘Z’. ‘A’ has committed forgery inasmuch as he intended to deceive ‘Z’ by the forged certificate, and thereby to induce ‘Z’ to enter into a implied or express contract for service.
3. Offences relating to marriage.
INTRODUCTION
A generally accepted definition of marriage is that of matrimony or wedlock, which is a culturally recognised
Section 494- Marrying again during
lifetime of husband or wife (Bigamy)
Whoever having husband or life living marries in any case in which such marriage is void by reason of its taking during the life of such husband or wife. Shall be punished with imprisonment of either description for term which may extend to seven years and shall be liable for fine. Exception: This section does not extend to any person whose marriage with such husband or wife has been declared void by court of competent jurisdiction. Any person who contracts marriage during the life of former husband or wife, if such husband or while at the time of subsequent marriage shall been continually absent from such person for seven years and shall not been heard by such person as being alive within that time provided the person contracting such subsequent marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.
Section 495 - Concealing the previous marriage
before subsequently getting wed
Section 495 talks about a ten year incarceration period, with fine, for a person who hides their former marriage with someone they are getting married to. It is a non-cognizable, bailable offence, with the trial being carried out by first class Magistrate.
ESSENTIALS OF SCETION 495
- Existence of previous marriage;
- Second marriage to be valid;
- Second marriage to be void by reason of first husband or wife living;
- Non- disclosure of first marriage. Whoever commits the offence defined in last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage shall be punished with imprisonment of either description of a term which may extend to 10 years or fine. In the case of Pashaura Singh vs. State of Punjab , it was held that the first marriage should be substituting at the time of second marriage and should be validly contracted one. If the first marriage is not a valid marriage, then the second marriage does not amount to bigamy.
SECTION 496 - Fraudulent conduction of wedding
ceremony without a lawful, genuine marriage
Section 496 provides for a jail term extending up to as long as seven years, along with a fine, for anyone who dishonestly, clubbed with a fraudulent intention, goes through the wedding ceremony, despite knowing that he is not thereby lawfully married.
SECTION 497 - Adultery
Adultery is sexual intercourse between a married person and someone other than the lawful spouse. Under law adultery is defined as a consensual physical correlation between two individuals who are not married to each other. Adultery is also known as infidelity or extra-marital affair which is certainly a moral crime and is been considered as a sin by almost all religions. According to section 497 whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be wife of another man, without the consent connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished
is living with the husband, man knowingly goes away with her in such a way as to deprive the husband of his control over her, with the intent to have illicit intercourse, then it constitutes an offence within the section.
SECTION 498 – Cruelty by husband or relatives of
husband
Whoever being husband or relative of husband of a woman, subject such woman to cruelty shall be punished with imprisonment for term which may extend to three years and shall also be liable to fine. In the case of Inder Raj Malik v. Sunita Malik , 1896 It was held that word “cruelty” is defined in explanation which inter alia says that harassment of a women with a view to coerce her or any related persons to meet any lawful demand for any property or any valuable security is cruelty.
CRIMINAL INTIMIDATION AND ITS INGREDIENTS
Introduction The offence of criminal intimidation that is provided under Section 503 of the IPC. According to this Section, criminal intimidation occurs when an accused threatens the victim with damage to his reputation, body, or property, or another individual in whom he has a vested interest. The punishment for the offence is outlined in Section 506 of the IPC. WHAT IS CRIMINAL INTIMIDATION? According to the Oxford dictionary, the literal definition of intimidation is “to intimidate someone in order that the other person acts as we desire.” Criminal intimidation is defined in Section 503 of the IPC as an offence committed in which an individual endangers or threatens another with harm to his person, reputation, or property in order to compel the other individual to do an act that he is not bound by law to perform. The intimidator is the person who endangers the other. The accused may use words or gestures to intimidate and harm the
victim’s body, property, reputation, or other members of the family. Illustration : A threatens to burn down B’s house in order to persuade him not to file a civil suit. A has committed the offence of criminal intimidation. In this situation, A has threatened B that he will cause damage to the property of B and subsequently asked him to omit to do the certain act (to file a civil suit) which he is legally bound to do therefore A will be guilty of the offence of criminal intimidation.
ESSENTIALS OF CRIMINAL INTIMIDATION
The landmark case of Narendra Kumar & ors. Vs. State established the following elements as necessary to constitute an offence of criminal intimidation:-
The threat of injury to the victim
Section 44 of the IPC defines injury as any damage whatsoever unlawfully induced to any individual, in body, mind, reputation, or property. Threatening can be done in the following ways: to cause injury to a person; to cause injury to his reputation; to cause injury to his property; to cause injury to another person or the reputation of anybody in whom the victim is interested. Intimidation to cause bodily harm to another Criminal intimidation refers to any threat or danger that would cause bodily harm to an individual. Physical damage alone must be taken into account for this Section, and mental or emotional trauma must be avoided. Moreover, the danger has
causing an individual to perform an act that he is not legally required to perform in order to prevent the implementation of such a threat; or causing an individual to omit to perform any act which that individual is legally assigned to do in order to prevent the implementation of such a threat. Supreme Court of India defined the nature of criminal intimidation in the leading case of Romesh Chandra Arora vs. State****. The Court concluded that criminal intimidation is said to be committed not only when a threat has been imposed but also when that threat causes a mere warning to an individual. Threatening to cause alarm to an individual This provision requires that there be an intent to cause alarm to an individual who is threatened. The word ‘alarm’ was established in the case of Amulya Kumar Behera vs. Nabaghana Behera Alias Nabina , in which the Orissa High Court determined that it is similar to words such as ‘fear’ or ‘distress’. Threatening someone to do something he is not legally obligated to do According to this clause, if a person endangers someone with force to do something that he does not want to do lawfully, he will be charged with criminal intimidation. In the case of Nand Kishore vs. Emperor , a butcher was threatened by some people that if he engaged in the trading of beef, he would be sent to prison, and it would be difficult for him to live in society. During that time, the trading of beef was legal. Therefore, the Allahabad High Court ruled that this threat would be construed as criminal intimidation.
Threatening an individual to omit to perform any act that he is lawfully required to do If anyone knowingly and willingly threatens or attempts to threaten anyone to refrain from performing any act that he is legally permitted to perform, he will be charged with criminal intimidation.
Conclusion
The primary goal of the IPC is to establish a legal framework for cases to be tried and punishments to be imposed. It guarantees that justice is served. It is frequently used to describe various offences known to humanity. One of the pillars of the IPC is the crime of criminal intimidation. It is a type of preventive punishment in which the accused is penalised for intimidating rather than committing the crime. It makes no difference whether or not the actual crime happened. A mere threat, on the other hand, does not constitute criminal intimidation; it must be made with the intent of alarming the individual threatened. It is irrelevant whether it has frightened the recipient of the threat; what is needed is the accused’s purpose to do so.
ESSENTIALS FOR THE OFFENCE OF FORGERY
The offences related to documents (known as forgery) are explained under Chapter 18 of the Indian Penal Code, 1860. Section 463 to 477A deals with cases of forgery of documents or electronic records. As per the Section 462 of the Indian Penal Code, 1860, whoever makes any false document or false electronic record or part of a document or electronic record, with intent to cause injury or damage, to public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
1932 Bom. 545, the court held that a police officer who makes any changes in his diary so as to show that he had not kept certain persons under surveillance will not be liable for the offence of forgery because there is no risk of damage or injury to any other individual. Therefore, if there is no damage or loss to any individual then the person will not be made liable under Section 463 of IPC. To Support any claim or title A person who has legal claim or title over a property can be made liable under section 463 if he counterfeits the documents in order to support it. For Example: ‘ D’ said that my property will be transferred to ‘ A’ ,’ ‘ B’ and ‘ C’ in equal share after his life time. ‘ A’ acting in dishonest manner scratched the name of ‘ B’ intending that whole property will be shared between himself and C. Here A has committed forgery and will be liable under section 463 of IPC. To cause any person to part with property When a person makes a false document with an intention to cause, any other person to part with his property, damage or injury, then it is immaterial that the property must be in existence at the time when the false document was made. For example: If ‘ A’ gives an order to ‘ B’ to make Sofa cum Bed for him, but ‘ C’ before the Sofa cum Bed is made writes a false letter purporting, but falsely, to be signed by ‘ A’ , authorizing ‘ B’ to deliver the same to ‘ D’ when made. Here ‘ C’ will be guilty of an offence under this section by eating that false letter with intent to cause ‘ B’ to part with the tea-set, when made. Intent to commit fraud There are cases in which a person can be made liable if he makes a false document with an intention to commit fraud with the other individual. In order to constitute fraud, an intention to deceive is required. For Example: ‘ B’ makes a painting and signs the name of a well known artist on that picture. He exposes the same picture for the sale in the market which was purchased by ‘ C’. Here ‘ B’ will be liable under the offence of forgery because he
defrauds ‘ C’ by giving out the impression that the picture was painted by renowned artist whereas the painting was made by him. Here, B could be made liable for the offence of forgery even if the picture was not purchased by anyone because the intent to deceive the public by exposing the picture in market itself amounts to forgery. ILLUSTRATIONS:-
- X has a letter of credit upon B for rupees 10,000 written by Z. X, in order to defraud B, adds a cipher to the 10,000 and makes the sum 100000 intending that it may be delivered by B that Z so wrote the letter. A has committed forgery.
- A picks up a cheque on a banker signed by Himanshu, payable to bearer but without any sum having been inserted in the cheque. A fraudulently fills up the cheque by inserting the sum of ten thousand rupees. A commits forgery.
6 MARKS
1. CRIMINAL TRESPASS
Introduction
Every individual has a right to the full enjoyment of their property without any disturbance, this is the reason trespass was made an offence. Even though trespass is ordinarily a civil wrong for which the defendant can sue for damages, but when such trespass occurs with a criminal intention it amounts to criminal trespass. If your enjoyment of your property, whether movable or immovable is disturbed due to criminal activities of any kind, be it theft or assault, you can seek remedy under the Indian Penal Code (IPC). For instance, X unlawfully and without Y’s permission enters into Y’s house to steal his grandfather’s antique watch, X would be liable for theft as well as criminal trespass.
Meaning of criminal trespass
movable property would have similar liability as wrongful entry into one’s house. For example, the case of Dhannonjay vs. Prowat Chandra Biswas. Possession of another The possession of the property should be in the possession of the victim and not the trespasser. Having the ownership of the property is not necessary, mere possession is sufficient to claim criminal trespass against the trespasser. However, it is not necessary for the person having possession or the owner of the property to be present at the time when the trespassing occurred, no presence of owner or possessor would also amount to trespassing as long as the premises are entered into by the trespasser to annoy. Intention If it is proved that the intention of the accused parties was not to insult, harm or annoy the owners or possessors of the property, then it would not amount to criminal trespass. The Intention is the essence of this crime, and if there is no dominant motive to commit the crime, no criminal trespass. The test for determining whether the entry was done with an intent to cause annoyance or any kind of harm is to determine the aim of a trespasser at the time of such entry. For example, the case of Punjab National Bank Ltd. Vs. All India Punjab National Bank Employees’ Federation.
Forms of Criminal Trespass
The offence of criminal trespass may be committed at different occasions having different magnitudes and penalties. Depending upon the time of the trespass, its purpose and nature of the property trespassed, the offence may be aggravated and specific punishments are prescribed for those specific cases. Further, a crime may be aggravated by the way it is committed and the end for which it is committed. House-trespass
Section 442 of IPC, defines house-trespass as committing criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling, place of worship or as a place for the custody of the property. As house – trespass is against the possession of property, it cannot take place if the defendant is not in actual possession of property. Section 448 talks about the punishment for house trespass which not exceeding the term of 1 year, with fine of 1,000 or loss or both. Lurking house-trespass Section 443 of IPC, deals with a further aggravation of house- trespass, known as lurking house-trespass. The section defines this offence as committing house trespass and taking precautions to conceal the offence of house-trespassing from any person who has a right to exclude or eject the trespasser from the building which is the subject of the trespass. For example the case of, Prem Bahadur Rai vs. State. Lurking house-trespass by night Section 444 of IPC, talks about an aggravated form of lurking house-trespass, i.e trespass committed at night. This offence is punishable with imprisonment not exceeding three years and fine, according to Section 456 of IPC. House-breaking Housebreaking is also an aggravated form of house-trespass and implies forceful entry into one’s house. Section 445 of IPC lays down 6 ways in which housebreaking can occur. For example the case of Pullabhotla Chinniah. Housebreaking by night When housebreaking is committed after sunset and before sunrise, it is considered an aggravated form of house-breaking and is governed by Section 446 of IPC. This offence is
