DEFINITION AND DISTINCTION -
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Criminal Misappropriation of property and Breach of
Trust.
Definition
of Criminal Misappropriation of property :-
Section 403 of the
Indian Penal Code defines the offence of Criminal Misappropriation of property
.
According
to this section whoever, dishonestly misappropriates or converts to his own use
any movable property commits this offence . The offence of criminal
misappropriation of property is committed where the initial possession is
innocent but the retention thereof becomes wrongful and fraudulent by a
subsequent conversion for his own use.
The essential elements of the offence are as follows
:-
a) The property belongs to
a person other than the offender ;
b) The offender
appropriated the said property or converted it to his own use ;
c) He did so dishonestly or
with the intention to cause wrongful gain to him or to cause wrongful loss to
the other person : and
d) Dishonestly
misappropriated property must be movable.
Definition of Criminal breach of trust :-
Section 405 of the Indian
Penal Code defines the offence of Criminal breach of trust .
According to this section
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 dispossess 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.
The essential
elements of the offence of Criminal breach of trust are as follows
a) There must have Criminal
intention or mens rea to constitute the offence ;
b) There must be an
entrustment with the property or domain over it ;
c) That the offender
dishonestly
i) misappropriated it , or
ii) converted it to his own
use , or
iii) used it , or
iv) disposed it
of ;
d) That the offender or
some other person at his instance did so in violation of i) any direction of
law prescribed the mode in which trust s to be discharged , or
ii) any legal contract ,
express or implied , which he had made touching the discharge of such trust .
Difference between Criminal
Misappropriation of property and
Criminal breach of trust :-
The differences between the
offence of Criminal misappropriation of property and Criminal breach
of trust are as follows ;-
a) In the offence of
Criminal breach of trust , there is a contractual relationship between the
parties . Whereas , in the offence of criminal misappropriation of property no
contractual relationship exists in between the parties .
b) In Criminal breach of
trust conversion takes place with respect to the property held by a person in a
fiduciary capacity . But in criminal misappropriation of property the person
does not hold the property in a fiduciary relationship rather it comes to the
possession of offender in any manner; and
c) In criminal breach of
trust , the property is lawfully entrusted to the offender . And the offender
holds the property subject to some obligations , duties or trust but he
dishonestly misappropriates it or willfully suffers any other person instead of
discharging the duties and obligations attached to the trust. On the other hand
, in criminal misappropriation of property , possession of the property is
acquired by the offender not lawfully but casually or otherwise and the
offender misappropriates the property afterwards.
Wrongful gain and Wrongful loss ;-
Definition of Wrongful gain :-
The offence of wrongful
gain is defined by section 23 of the Indian Penal Code . According to the
section 23 of IPC wrongful gain is gain by unlawful means of property to which
the person gaining is not legally entitled.
A person is said to gain
wrongfully when such person retains wrongfully , as well as when such person
acquires wrongfully .
Definition of Wrongful loss :-
The offence of wrongful
loss also has been defined by the section 23 of IPC. Section 23 says that
wrongful loss is the loss by unlawful means of property to which the person
losing it is legally entitled.
A person is said to lose
wrongfully when such person is wrongfully kept out of any property as well as
when such person is wrongfully deprived of property.
Difference between Wrongful gain and Wrongful loss :-
In the offences of Criminal
breach of trust , Criminal misappropriation of property , theft and etc. the
causing of Wrongful gain and Wrongful loss are important ingredients. In
both the two offences the common element of unlawful means is present. But the
main points of distinctions are as follows :-
i) In the offence of
wrongful gain the offender gains the property wrongfully , on the other hand in
the offence of wrongful loss the offender wrongfully causes to loss the
property by the victim.
ii) In the offence of
wrongful gain , the offender is not legally entitled to gain the property but
in the offence of wrongful loss the victim is legally entitled over the
property losing .
iii) In the offence of
wrongful gain the offender is said to gain wrongfully when he retains any
property wrongfully as well as when he acquires any property wrongfully. But in
the offence of wrongful loss the victim is said to lose wrongfully when
he is wrongfully kept out of any property as well as when he is
wrongfully deprived of any property.
iv) Wrongful gain connotes
gain of the offender whereas wrongful loss connotes loss of the victim.
Dishonestly and Fraudulently;-
Definition of Dishonestly :-
The term dishonestly has
been defined by section 24 of the Indian Penal Code . According to this section
whoever does anything with the intention of causing wrongful gain to one person
and wrongful loss to another person , is said to do that thing dishonestly .
The essential ingredients of section 24 are as follows
:-
i) The offender must have
an intention ;
ii) The intention must
include the causing of wrongful gain to one person and
iii) Wrongful loss to
another person.
Definition of fraudulently :-
The term fraudulently has
been defined by section 25 of the Indian Penal Code . According to this section
a person is said to do a thing fraudulently if he does that thing with intent
to defraud , but not otherwise.
The essential ingredients of section 25 are as follows
:-
i) The offender must have
done a thing ;
ii)The offender must have
done the thing with an intention ;
iii) The intention must be
to defraud another person.
Difference of Dishonestly and fraudulently :-
The following are the main points of
distinctions between the terms Dishonestly and fraudulently :-
i) The word defraud
includes an element of deceit. Thus deceit is an important ingredient of the
definition of the word fraudulently. On the other hand , deceit or defraud is
not an ingredient of the term dishonestly. The term dishonestly involves a
pecuniary gain or loss .
ii) In the definition of
dishonestly , wrongful gain or wrongful loss is the most important element . Of
course , both need not exist , one would be enough. But the
expression fraudulently , should involve the element of injury to the person
deceived . The injury may be something other than the pecuniary loss.
iii) A fraudulent act need
not be dishonest , although it would usually be so . Production of a forged
bond by a person with the intent to make the court believe that he was entitled
to recover the money on the basis of that bond may be fraudulent within the
meaning of section 471 of IPC although it may not be dishonest within the
meaning of section 24 of IPC.
iv) In the case of Surendra
Nath Ghosh , where after executing and registering a document , which was not
required to be attested , the accused added his name to the document as an
attesting witness , the Hon’ble High Court of Calcutta held that this act was
neither fraudulent nor dishonest .
‘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.
Essential ingredients of common intention are as
follows:-
To fall within the purview of common intention the two
ingredients must remain present :-
i) common intention to
commit an offence ;
ii) participation in
commission of the offence .
Definition of Common object :-
Common object means
combination of several persons , united for the purpose of committing a
criminal offence , and that consensus of purpose is itself an offence distinct
from the criminal offence which these persons agree and intend to commit
. Whether the object is in their minds when they come together , or
whether it occurs to them afterwards is not material . But it is necessary that
the object should be common to the persons who compose the assembly ,
that is , that they should all be aware of it . It seems also that there must
be some present and immediate purpose of carrying into effect the common object
. It is also an example of constructive liability . In order to prove common
object , it is necessary to establish connection between those who take an
active part in the crime . Common object is incorporated in section 141 or
unlawful assembly .
Essential ingredients of common object are as
follows:-
The following three are
essential ingredients to attract the mischief of common object:-
i) commission of an
offence by any member of an unlawful assembly ;
ii) such offence must have
been committed in prosecution of the common object of that assembly ; or
iii) must be such as the
members of that assembly knew that likely to be committed .
Difference between Common intention and Common
object :-
The points of differences
in between Common intention and Common object can be better explained in the
following tabular form :-
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Common intention ( Sec. 34 )
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Common object ( Sec. 149 )
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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 .
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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.
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Riot and Affray.
Definition of Riot :-
The offence of riot is
defined by section 146 of the of the Indian Penal Code .
According to this section
whenever force or violence is used by an unlawful assembly , or by any member
thereof , in prosecution of the common object of such assembly , every member
of such assembly is guilty of the offence of rioting.
To constitute the offence
of rioting the following five essential ingredients must remain present .
a) There was an assembly of
five or more persons ;
b) the assembly was
unlawful ;
c) members of the assembly
used force or violence ;
d) offender was a member of
that assembly; and
e) force or violence was
used by the assembly in pursuance of their common object.
Definition of Affray :-
The offence of affray is
defined by section 159 of the of the Indian Penal Code .Section 159 says
that when two or more persons , by fighting in a public place , disturb the
public peace , they are said to commit the offence of affray.
The essential ingredients of the offence of affray are
as follows :-
i) The offender with others were fighting ;
ii) Such fight took in a
public place ;
iii) It disturbed the
public peace .
Difference between Riot and Affray :-
The offence of riot differs
from the offence of affray in the following manners:-
i) In riot there must be
five or more offenders , the minium member being required five . Whereas
, the offence of affray can be committed by two or more offenders , the
minimum number required being two ;
ii) The riot can take place
in a private as well as in a public place . Whereas an affray must
take place in a public place only ;
iii) Riot is more severely
punishable . Whereas affray is a less serious offence.
iv) In affray, only those
who are actually engaged are punishable .But in riot , every person of the
unlawful assembly committing the offence is punishable although some of them may
not have personally used force or violence.
‘obscenity’ and
‘vulgarity’.
Definition of obscene :-
The word obscene has
not been defined by the Indian Penal Code . only section 292 , 293 and 294 have
said that sale , etc., of obscene objects and singing , reciting or
uttering in public obscene song , ballad or words to the annoyance of others
are punishable .
Hon’ble Supreme Court of
India has defined the offence of obscene in the Ranjit D. Udeshi’s case
by observing that what has to be considered as obscene or indecent has changed
from time to time and may not exactly be the same in different countries .Where
obscenity and art are mixed , art must be so prepondering as to throw the
obscenity into a shadow or the obscenity so trivial and insignificant that it
can have no effect and may be overlooked .Mere incorporation of sex and nudity
in art and literature can not , by itself , be regarded as evidence of
obscenity into the shadow , or obscenity should be so insignificant that it can
have no effect and can be overlooked. A balance should be maintained
between freedom of speech and expression and public decency and morality and
when the latter is substantially transgressed the former must give way.
Definition of vulgarity :-
The word vulgar
has also not been defined by the Indian Penal Code . It has been observed by
the Hon’ble Supreme Court of India , in the case of Samaresh Bose v. Amal Mitra
on a question arose over a Bengali novel “ Prajapati “ that a what
arouses a feeling of disgust and revulsion and also boredom but does not have
the effect of depraving , debasing and corrupting the morals of any reader of
the novel is Vulgarity.
Difference between
obscenity and vulgarity.
Hon’able Supreme Court of
India has pointed out the distinctions between obscenity and vulgarity in the
famous case of Samaresh Bose v. Amal Mitra on the question arose over a
Bengali novel “ Prajapati “ as follows :-
i) A vilgar writing
is not necessarily obscene. Vulgarity arouses a feeling of disgust and revulsion
and also boredom but does not have the effect of depraving , debasing and
corrupting the morals of any reader of the novel. Whereas obscenity has the
tendency to deprave and corrupt those whose minds are open to such immoral
influences .
Culpable homicide and
Murder.
Definition of Culpable
Homicide :--
The word ‘ homicide ‘ came
from the Latin terms homa ( man ) and cide ( cut ) , meaning
thereby killing of a human being by a human being is homicide.
Culpable Homicide is
defined by section 299 of the Indian Penal Code . According to the section 299
of IPC whoever causes death by doing an act with the intention of causing death
, or with the intention of causing such bodily injury as is likely to cause
death , or with the knowledge that he is likely by such act to cause death ,
commits the offence of culpable homicide.
The essential elements of
the offence of culpable homicide are as follows :-
i) that death
of a human being was caused ;
ii) by an act with
the intention of causing death ; or
iii) by an act with the
intention of causing such bodily injury as is likely
to
cause death ; or
iv) by an act with the
knowledge that the act was likely to cause death .
Without one or other of
these elements an act , though it may be in it’s nature criminal and may
occasion death , will not amount to the offence of culpable homicide .
Definition of Murder
:--
Section 300 of the Indian
Penal Code defines the offence of Murder .
Section 300 provides
that except in the five cases of exceptions ,i.e., i) grave and sudden
provocation , ii) right of private defence , iii) public servant exceeding his
powers ; iv) sudden fight ; and v) consent , enumerated in this
section , culpable homicide is murder ,
a) if the act by which the
death is caused is done with the intention of causing death ; or
b) If it is done with the
intention of causing such bodily injury as the offender knows to be
likely to cause the death of the person to whom the harm is caused , or –
c) If it is done with the
intention of causing bodily injury to any person and the bodily
injury intended to be inflicted is sufficient in the ordinary course of nature
to cause death , or ---
d) if the person committing
the act knows that it is so imminently dangerous that it must , in all
probability , cause death , or such bodily injury as is likely to cause
death , and commits such act without any excuse for incurring the risk of
causing death or such injury as aforesaid .
The essential ingredients
of the offence of murder are as follows :-
i) Death of a human being
was caused ;
ii) Such death was caused
by or in consequence of the act of the accused ;
iii) Such act was done –
a) with the intention
of causing death ;
b) that the
accused knew it to be likely to cause death ; or
c) that the injury was
sufficient in the ordinary course of nature to cause death .
Difference between
Culpable Homicide and Murder :-
The difference between
culpable homicide and murder is very subtle . Both the offences include the
elements of knowledge and intention . The main distinction depends upon the
degree of risk to human life by the act . If death is a likely result
of the act of offender , it is culpable homicide ; if death is a surely result
of the act of offender , it is murder. The last clause of section 300 provides
that the offender commits the act without any excuse for incurring the risk of
causing death .
In the famous case of Reg
v. Govinda , the accused knocked his wife down , put one knee on her chest ,
and struck her two or three violent blows on her face with the closed fist ,
producing extravasations of blood on the brain and she died in consequence .
The Court held that there being no intention to cause death and the bodily
injury not being sufficient in the ordinary course of nature to cause death ,
the offence committed was not murder but culpable homicide . In that case, the
Hon’ble Justice Melvill set forth the distinction between Culpable Homicide and
Murder , as back as in 1876 which is still now being followed . Hon’ble Justice
said , “ For convenience of comparison , the provisions of section 299 and 300
may be stated thus …..
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Culpable Homicide ( Sec. 299
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Murder ( Sec. 300)
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A person is said to commit culpable homicide , if
the act by which the death is caused is done ---------
a) with the intention of causing death;
b) with the intention of causing such bodily injury
as is likely to cause death ;
c) with the knowledge that the act is likely to
cause death.
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Subject to the five exceptions , culpable homicide
is murder , if the act by which the death is caused is done ---
a) with the intention of causing death;
b) with the intention of causing such bodily injury
as the offender knows to be likely to cause death of that particular
person ;
c) with the intention of causing bodily injury to
any person , such injury being sufficient in the ordinary course of nature to
cause death ;
d) with the knowledge that the act is so imminently
dangerous that it must , in all probability , cause death or such bodily
injury as is likely to cause death.
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In the case of Inder Singh
also the elements of Section 299 and 300 were compared and discussed .
Culpable Homicide is less
serious offence than Murder . Culpable homicide is punishable for life , murder
is punishable with death or imprisonment for life . And in both cases the
accused shall also be liable to fine .
Hurt and Grievous hurt .
Definition of Hurt :-
The offence of hurt has
been defined by section 319 of the Indian Penal Code . According to section 319
of IPC whoever causes bodily pain , disease or infirmity to any person is said
to cause hurt .
The definition of hurt
contemplates causing of pain by a person to another so it is not necessary that
there should be visible injury caused on the person . The causing of pain is
sufficient . Causing disease and infirmity also come within the purview of this
section .
The essential ingredients
of the offence of simple hurt are as follows :-
i) The offender voluntarily
caused bodily pain , disease or infirmity to the victim ;
ii) The offender did so
with the intention of causing hurt or with the knowledge that he would thereby
cause hurt to the victim.
Definition of grievous hurt
:-
The offence of grievous
hurt is defined by section 320 of the Indian Penal Code . Section 320 says that
the following eight kinds of hurt are designated as grievous ------
1) Emasculation .
2) Permanent privation of
the sight of either eye .
3) Permanent privation of
the hearing of either ear.
4) Privation of any member
or joint .
5) Destruction or permanent
impairing of the powers of any member or joint .
6) Permanent disfiguration
of the head or face .
7) fracture or dislocation
of a bone or tooth.
8) Any hurt which endangers
life or which causes the sufferer to be during the space of twenty
days in severe bodily pain , or unable to follow his ordinary pursuits .
A person can not cause
grievous hurt unless the hurt caused falls within one of the clauses
specified in section 320 of IPC.
Difference between hurt and
grievous hurt :-
The differences between
hurt and grievous hurt can be better shown by the tabular form :-
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Hurt ( Section – 319 of IPC )
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Grievous hurt (Section – 320 of IPC)
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Whoever causes
i) bodily pain ,
ii) disease or
iii)infirmity
to any person is said to cause hurt .
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The following eight kinds of hurt are
designated as grievous ------
1) Emasculation .
2) Permanent privation of the sight of either eye .
3) Permanent privation of the hearing of either ear.
4) Privation of any member or joint .
5) Destruction or permanent impairing of the powers
of any member or joint .
6) Permanent disfiguration of the head or face .
7) fracture or dislocation of a bone or tooth.
8) Any hurt which endangers life or which
causes the sufferer to be during the space of twenty days in severe
bodily pain , or unable to follow his ordinary pursuits .
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Wrongful restraint and wrongful confinement.
Definition of wrongful
restraint :-
The offence of wrongful
restraint is defined by section 339 of the Indian Penal Code . According to
this section whoever voluntarily obstructs any person so as to prevent that
person from proceeding in any direction in which that person has a right
to proceed , is said wrongfully to restrain that person .
But there is one exception
to this offence . The obstruction of a private way over land or water which a
person in good faith believes himself to have a lawful right to obstruct , is
not an offence within the meaning of this section .
To constitute the offence
of wrongful restraint there must have the following three ingredients :-
i) The offender obstructed
the victim voluntarily ;
ii) The obstruction
prevented the victim from proceeding in any particular direction ;
iii) The victim had every
right to proceed to that particular direction.
Definition of wrongful
confinement :-
The offence of wrongful
confinement has been defined by section 340 of the Indian Penal Code .
According to this section whoever wrongfully restrains any person in such
manner as to prevent that person from proceeding beyond certain circumscribing
limits , is said wrongfully to confine that person .
The essential ingredients
of the offence of wrongful confinement are as follows :-
i) The offender wrongfully
restrains a person ;
ii) The victim was
prevented from proceeding beyond certain circumscribing limits due to such
restraint ;
iii) Te victim had every
right to proceed beyond that circumscribing limits.
Distinction between
wrongful restraint and wrongful confinement ;
The offence of
wrongful restraint differs from the offence of wrongful confinement in the
following manners:-
i) Offence of wrongful
restraint , is the genus , whereas the offence of wrongful confinement is
a species . Wrongful confinement is severe form of wrongful restraint .
ii) In the offence of
wrongful restraint , the offender obstructs the victim from proceeding to any
particular direction towards which he had right to preceed. But in the
offence of wrongful confinement , the offender obstructs the victim from
proceeding beyond certain circumscribing limits towards which he had
right to proceed .
iii) In the offence of
wrongful restraint , the restraint is partial , the victim could proceed
towards any other direction than towards the direction he was restrained . But
In the offence of wrongful confinement , the restraint is total , the victim
could not proceed towards any direction.
iv) Wrongful confinement is
a more serious offence than wrongful restraint .
Criminal force and Assault.
Definition of Criminal
force :-
Section 350 of the Indian
Penal Code defines the offence of Criminal Force . According to this section ,
whoever intentionally uses force to any person , without that person’s
consent , in order to the committing of any offence, or intending by the use of
such force to cause , or knowing it to be likely that by the use of such force
he will cause injury , fear or annoyance to the person to whom the force is
used , is said to use criminal force to that person .
This section requires the
following three ingredients :-
i) There must be an
intentional use of force to any person ;
ii) Such force must have
been used without that person’s consent ;
iii) It must have been used
–
a) in order to commit any
offence ; or
b) with intent to cause
injury , fear or annoyance to the person against whom it is used.
Definition of assault
:-
The offence of assault is
defined by section 351 of the Indian Penal Code . According to this
section , whoever makes any gesture , or preparation intending or knowing it to
be likely that such gesture or preparation will cause any person present to
apprehend that he who makes that gesture or preparation is about to use
criminal force to that person , is said to commit the offence of assault .
It is to be kept in mind
that mere words do not amount to an assault . But the words which a person uses
may give to his gestures or preparations such a meaning as may make those
gestures or preparations amount to an assault.
Section 351 of IPC requires
two ingredients :-
i) The offender excited a
reasonable apprehension that he intends immediately to offer violence ;
ii) The offender excited an
apprehension that he is about to use criminal force ;
iii) There must be a threat
coupled with present ability of the offender to carry his intention
into effect.
Difference between Criminal
force and assault.
The points of
differences between the offences of criminal force and assault are as
follows :-
i) Assault is the
gesture and preparation to apprehend the victim that the offender will use
criminal force . But criminal force is intentional use of force to the
victim without his consent.
ii) Criminal force includes
assault . But assault may not include criminal force.
iii) An assault is
something less than the use of criminal force, the force being cut short before
the blow actually falls . But criminal force is something more than the assault
, the force is actually used criminally crossing the limit of gesture and
preparation..
iv) Assault consists
of an attempt to offer by a person having present ability with force to do any
hurt or violence to the person of another ; it is committed whenever a well
founded apprehension of immediate peril from force already partially or fully
put in motion is created . But in criminal force the motion , change of motion
or cessation of motion of the victim is actually caused by use of force.
1. Definitions and Distinctions :-
Theft and extortion.
Definition of Theft :-
The offence of Theft
has been defined by Section 378 of IPC . According to this Section , whoever ,
intending to take dishonestly any movable property out of the possession of any
person without that person’s consent , moves that property in order to such
taking , is said to commit theft.
To constitute the offence
of theft the essential ingredients are as follows---
a) Subject matter should be
a movable property,i.e., corporal property except land and things attached to
the earth ;
b) The subject matter
should be moved out of the possession of any person. So the person in
possession need not be owner of the property ;
c) This moving out of the
subject matter should be without the consent of the person in possession of it.
And so the moving out may be permanent or temporary in nature and
d) Such taking out of the
property should be with dishonest intention and not in good faith.
Definition of Extortion :-
The offence of extortion is
defined by Section 383 of IPC . According to Section 383 , whoever
intentionally puts any person in fear of any injury to the person or to any
other , and thereby dishonestly induces the person so put in fear to
deliver to any person any property or valuable security, or anything signed or
sealed which may be converted into a valuable security , commits extortion.
The essential ingredients
of the offence of Extortion are as follows :-
a) The offender must put
any person in fear of injury to that person or any other person . The term
Injury according to Section 44 is any harm whatever illegally caused to any
person in body , reputation , or property. It is not necessary that
the injury should be only in body ;
b) The putting of a person
in such fear must be intentional ;
c) The offender must
thereby induce the person so put in fear to deliver to any person
i) any property ,
ii) valuable security or
iii) anything signed or
sealed which may be converted into valuable security . So fear must precede the
delivery of property; and
d) Such inducement must be
done dishonestly ,i.e., to cause wrongful gain or wrongful loss.
Difference between Theft
and Extortion :-
The differences between the
offence of Theft and Extortion are as follows ;-
a) The element of dishonest
intention to obtain property exists in both the two offences.
b) In Theft the offender
takes out the property without consent of the possessor. On the other hand , in
extortion the offender obtains the consent by putting the person in possession
of the property or to any other in fear of injury.
c) In Theft ,
the subject matter is always movable property . But in extortion the subject
matter may be movable or immovable property,
d) The element of delivery
of property does not exist in Theft . But in Extortion it exists.
e) In Theft the element of
applying force or fear is absent . Whereas , in Extortion , the offence is
committed by overpowering the will of the possessor to induce him to deliver
the property.
Theft and Criminal misappropriation of property.
Definition of Theft :-
( Please see the earlier note )
Definition of Criminal misappropriation of property :-
( Please see the earlier note )
Difference between Theft and Criminal
misappropriation of property:-
The offences of theft and Criminal
misappropriation of property differs from each other on the points of i)
intention , ii) nature of property and iii) character of possession , as
follows :-
i) In the offence of theft , the offender takes out
the property dishonestly . Whereas , in the offence of Criminal misappropriation
of property the offender dishonestly misappropriates or converts the property
to his own use .
ii) In the offence of theft , the property must
be movable . But In the offence of Criminal misappropriation of property ,
the property may be movable or immovable .
iii) In the offence of theft , there is an
invasion of the right of possession because the property is taken out of
another’s possession . In the offence of Criminal misappropriation of property
, there is no invasion of the right of possession because the offender is
already in possession of the property.
Theft and Criminal misappropriation of property.
Definition of Theft :-
( Please see the earlier note )
Definition of Criminal misappropriation of property :-
( Please see the earlier note )
Difference between Theft and Criminal
misappropriation of property:-
The offences of theft and Criminal
misappropriation of property differs from each other on the points of i)
intention , ii) nature of property and iii) character of possession , as
follows :-
i) In the offence of theft , the offender takes out
the property dishonestly . Whereas , in the offence of Criminal
misappropriation of property the offender dishonestly misappropriates or
converts the property to his own use .
ii) In the offence of theft , the property must
be movable . But In the offence of Criminal misappropriation of property ,
the property may be movable or immovable .
iii) In the offence of theft , there is an
invasion of the right of possession because the property is taken out of
another’s possession . In the offence of Criminal misappropriation of property
, there is no invasion of the right of possession because the offender is
already in possession of the property.
Extortion and Robbery.
Definition of extortion :-
The offence of extortion has been defined by section
383 of the Indian Penal Code . According to the section 383 , whoever
intentionally puts any person in fear of any injury to the person , or to any
other , and thereby dishonestly induces the person so put in fear to deliver to
any person any property or valuable security , or anything signed or sealed
which may be converted into a valuable security , commits the offence of
extortion .
The important ingredients of the offence of extortion
are :
i) The offender must put any person in fear of
injury to that person or any other person ;
ii) And such putting of a person in fear should
be intentional ;
iii) The offender must induced thereby the person so
put in fear to
a) deliver to any person any property ,
b) valuable security or
c) anything signed or sealed which may be converted
into a valuable security ; and
iv) the offender induced the victim dishonestly.
Definition of robbery :-
Section 390 of the Indian Penal Code defines robbery .
According to this section robbery is the aggravated form of either theft or
extortion because in all robbery there is either theft or extortion.
The offence of theft becomes robbery if , in
order to the committing of the theft , or while committing the theft , or in
carrying away or attempting to carry away property obtained by the theft
, the offender , for that end , voluntarily causes or attempts to cause to any
person death or hurt or wrongful restraint , or fear of instant death or of
instant hurt , or of instant wrongful restraint .
The offence of extortion becomes robbery if ,
the offender , at the time of committing the extortion , is in the presence of
the person put in fear , and commits the extortion by putting that person in
fear of instant death or of instant hurt , or of instant wrongful restraint to
that person or to some other person , and , by so putting in fear, induces the
person so put in fear then and there to deliver up the thing so extorted .
Explanation to the section clarifies that the offender
is said to be present if he is sufficiently near to put the other person in
fear of instant death or of instant hurt , or of instant wrongful restraint .
Difference between Extortion and Robbery:-
Both the two offences of extortion and robbery
can be committed by one offender with the element of fear , force and
delivery of movable or immovable property .
But the main point of difference between Extortion and
Robbery is consent :-
i) In robbery , the offender takes the property from
the owner without his consent . But in extortion , the offender commits the
offence obtaining consent wrongfully .
Kidnapping and abduction .
Definition of Kidnapping :-
The offence of kidnapping , according to the section
359 of the Indian Penal Code , is of two kinds --- 1) kidnapping from India ,
and 2) kidnapping from lawful guardianship .
1) Kidnapping from India is defined by section 360 of
the Indian Penal Code .
According to this section , whoever , conveys any
person beyond the limits of India , without the consent of that person or of
some person legally authorized to consent on behalf of that person , is said to
commit the offence of kidnapping from India .
2) Kidnapping from lawful guardianship is defined by
section 361 of the Indian Penal Code .
According to this section , whoever takes or entices a
minor male under 16 years of age if a male , or under 18 years of
age if a female , or any person of unsound mind , out of the keeping of the
lawful guardianship of such minor or person of unsound mind , without the
consent of such guardian , is said to commit the offence of kidnapping from
lawful guardianship .
The words lawful guardianship in this section includes
any person lawfully entrusted with the care or custody of such minor or other
person .
But this section does not extend to the act of any
person who in good faith believes himself to be the father of an illegitimate
child , or who in good faith believes himself to be entitled to the lawful
custody of such child , unless such act is committed for an immoral or unlawful
purpose .
The essential elements of the offence of
kidnapping from lawful guardianship are as follows :-
a) The offender took or enticed away a minor or a
person of unsound mind ;
b) Such minor , if male , must be under 16 years of
age , and if female must be under 18 years of age ;
c) The act must be one of taking or
enticing out of the keeping of the lawful guardianship of such minor or person
of unsound mind ;
d) The act of taking or enticing
out must be done without the consent of the lawful guardian.
Definition of Abduction :-
The offence of abduction is defined by section 362 of
the of the Indian Penal Code . According to this section , whoever ,
by force compels , or by any deceitful means induces , any person to go from
any place , is said to commit the offence of abduction.
To constitute the offence of abduction the following
ingredients must remain present :-
i) The offender enticed a person by deceitful means or
by forcible compulsion to go away from any place ;
ii) The offence of abduction was committed for any of
the purposes enumerated in section 366 of the IPC.
Difference between Kidnapping from lawful guardianship
and
Abduction :-
The differences between the offences of
Kidnapping and abduction are as follows ;-
1) The offence of abduction can be committed with
respect to a person of any age . Likewise , the offence of kidnapping from
India can also be committed with respect to a person of any age.
On the other hand kidnapping from lawful guardianship
can only be committed with respect to a minor under 16 years of age , if male ,
and under 18 years of age , if a female . But the offence of kidnapping from
lawful guardianship can be committed with respect to a person of
unsound mind of any age.
2) In case of abduction , the offender must use
compulsion , force , or deceitful means . But in kidnapping , the minor is
simply taken away or enticed away .
3) In case of abduction or kidnapping from India , if
the victim is capable by law of giving consent , the offence is not committed .
But in case of kidnapping from lawful guardianship giving consent by the victim
is immaterial or inoperative.
4) In case of kidnapping from lawful guardianship ,
the person kidnapped must be removed out of the custody of a lawful guardian .
A person without a guardian can not be kidnapped . But abduction has reference
exclusively to the person abducted.
5) Abduction is an auxiliary act , not punishable by
itself , but made criminal only when it is committed with one or other intents
mentioned in section 364 onwards of IPC . But kidnapping is a substantive
offence , either from India or from lawful guardianship.
6) Kidnapping from lawful guardianship can not be
abetted , but if there is a conspiracy , conviction for abetment can be
sustained. But abduction or kidnapping from India can be abetted.
7) In case of kidnapping , intention of the offender
is wholly irrelevant . But in case of abduction intention of the
offender is an important factor.
Criminal Misappropriation of property and Breach of
Trust.
Definition of Criminal Misappropriation of property :-
Section 403 of the Indian Penal Code defines the
offence of Criminal Misappropriation of property .
According to this section whoever, dishonestly
misappropriates or converts to his own use any movable property commits this
offence . The offence of criminal misappropriation of property is committed
where the initial possession is innocent but the retention thereof becomes
wrongful and fraudulent by a subsequent conversion for his own use.
The essential elements of the offence are as
follows :-
a) The property belongs to a person other than the
offender ;
b) The offender appropriated the said property or
converted it to his own use ;
c) He did so dishonestly or with the intention to
cause wrongful gain to him or to cause wrongful loss to the
other person : and
d) Dishonestly misappropriated property must be
movable.
Definition of Criminal breach of trust :-
Section 405 of the Indian Penal Code defines the
offence of Criminal breach of trust .
According to this section 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 dispossess 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.
The essential elements of the offence of
Criminal breach of trust are as follows :-
a) There must have Criminal intention or mens rea to
constitute the offence ;
b) There must be an entrustment with the property or
domain over it ;
c) That the offender dishonestly
i) misappropriated it , or
ii) converted it to his own use , or
iii) used it , or
iv) disposed it of ;
d) That the offender or some other person at his
instance did so in violation of i) any direction of law prescribed the mode in
which trust s to be discharged , or
ii) any legal contract , express or implied ,
which he had made touching the discharge of such trust .
Difference between Criminal Misappropriation of
property and
Criminal breach of trust :-
The differences between the offence of Criminal
misappropriation of property and Criminal breach of
trust are as follows ;-
a) In the offence of Criminal breach of trust , there
is a contractual relationship between the parties . Whereas , in the offence of
criminal misappropriation of property no contractual relationship exists in
between the parties .
b) In Criminal breach of trust conversion takes place
with respect to the property held by a person in a fiduciary capacity . But in
criminal misappropriation of property the person does not hold the property in
a fiduciary relationship rather it comes to the possession of offender in any
manner; and
c) In criminal breach of trust , the property is
lawfully entrusted to the offender . And the offender holds the property
subject to some obligations , duties or trust but he dishonestly
misappropriates it or willfully suffers any other person instead of discharging
the duties and obligations attached to the trust. On the other hand , in
criminal misappropriation of property , possession of the property is acquired
by the offender not lawfully but casually or otherwise and the offender
misappropriates the property afterwards.
Definition of forgery :-
The offence of forgery is defined by section 463 of
the Indian Penal Code .
According to the section 463 , whoever , makes any
false document or false electronic record or part of a document or electronic
record with intent to cause damage or injury , to the 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.
The essential ingredients of the offence of forgery
are as follows :-
i) The making of a false document or part of it ,
ii) Such making must be with intent to cause damage or
injury to the public or any person ; or to cause any person to part with
property ; or to enter into any express or implied contract ; or to support any
claim or title ; and
iii) It is made with intent to commit fraud or that
fraud may be committed.
Definition of cheating :-
The offence of cheating is defined by section 415 of
the Indian Penal Code . According to the section 415 , 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 which he would not do or 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 .
A dishonest concealment of facts is a deception within
the meaning of this section .
The essential ingredients of the offence of cheating
are as follows :-
i) Deception of a person either by making or
misleading representation or by other action or omission ;
ii) Fraudulent or dishonestly inducing the
person ---
a. to deliver any property to any person ; or
b. to consent that any person shall retain any
property ; or
iii) Intentionally inducing the person to do or omit
to do anything which he would not do or omit if he were not so deceived , and
which act or omission causes or is likely to cause or harm to the person in
body, mind , reputation or property .
Distinctions between forgery
and cheating ;-
The points of differences in between the two offences
of forgery and cheating may be best shown by the tabular form :-
In both the two offences the element of fraud is
common . Cheating is committed only with respect to any person but forgery may
be committed against the any person as well as public . Both the two
offences may be committed with respect to movable or immovable property.
|
Forgery (
Section- 463 of IPC. )
|
Cheating (
Section- 415 of IPC. )
|
|
i) The offence
of forgery is limited within the making of a false document or part of it
including electronic records,
ii)
Forgery is committed with intent to
a.
cause damage or injury to the public or
any person ; or
b. to
cause any person to part with property ; or
c.
to enter into any express or implied contract ; or
d.
to support any claim or title ; and
iii)
Element of fraud is present in forgery because It is made with intent a.
to commit fraud or
b. that
fraud may be committed.
|
i) The
offence of cheating relates to the deception of a person either by making or
misleading representation or by other action or omission ;
iii)
Cheating is committed not against the public but against any person to induce
, Intentionally , to do or omit to do anything which he would not do or omit
if he were not so deceived , and which act or omission causes or is likely to
cause or harm to the person in body, mind , reputation or property .
ii)
Cheating includes both the elements of fraud or dishonesty to induce the
person ---
a.
to deliver any property to any person ; or
b.
to consent that any person shall retain any property ; or
|
BRIEF QUESTION
AND ANSWERS –
Answer :-
The jurisdiction of the Indian Criminal Courts are two
types –1) Intra-territorial and 2) Extra- Territorial . The Indian Criminal
Courts exercise these two kinds of territorial jurisdictions . According to the
Section 1 of the Indian Penal Code it is extended to the whole of India
except to the state of Jammu and Kashmir . So the IPC has no applicability to
the state of Jammu and Kashmir .
1. Intra-territorial jurisdiction :-
Section 2 of the Indian Penal Code provides the
intra-territorial jurisdiction of the Indian criminal courts . According to the
section 2 of the Indian Penal Code every person shall be liable to punishment
by the IPC and not otherwise for every act or omission contrary to the
provisions thereof , of which , he shall be guilty within India .
The terms “ Every Person “ include all persons without
limitations and irrespective of nationality , allegiance , rank , status ,
caste , colour and creed .Thus for instance , if a German or a Frenchman
commits adultery in India , he will be liable under the Indian Penal Code and
he can not plead that adultery is not an offence in his country .
A company , according to the legal interpretation , a
person , and so a company would be included within the terms . But
a company can not be prosecuted for the offence which can be committed only by
individual ,e.g. murder , perjury , etc. or for the offences which are
compulsorily punishable with imprisonment .
According to the maritime territory , a state includes
land plus the portion of the sea washing it’s coast upto twelve nautical miles
into the sea . The Government of India , vide notification dated 30-9-1967 ,
declared that it’s maritime territory extends upto twelve nautical miles into
the sea measured from the base line . So an offence committed within the
limits of such territory should be an offence triable by the Indian Criminal
courts according to the provisions of IPC.
But criminal courts have no jurisdiction to try a few
privileged classes of persons who are not liable to be punished for any crime
under the IPC . They are ------
i)The President and the Governor of a State .
2) Foreign Soverigns .
3) Ambassadors .
4) Allien Enemies .
5) Foreign Army and
6) Warships .
2. Extra-territorial jurisdiction :-
Section 3 and 4 of the Indian Penal Code provides
extra – territorial jurisdiction of the criminal courts of India .
Section 3 says that any person liable by any Indian
law to be tried for an offence committed beyond India shall be dealt with
according to the provisions of this code for any act committed beyond India in
the same manner as if such act had been committed within India .
Section 4 provides that the provisions of IPC apply
also to any offence committed by ----
i) any citizen of India in any place without and
beyond India ;
ii) any person on any ship or aircraft registered in
India wherever it may be ;
iii) any person in any place without and beyond India
committing offence targeting a computer resource located in India.
While explaining , it has been laid down in section 4
that the word offence includes every act committed outside India which if
committed in India would be punishable under this code .The expression computer
resource shall have the meaning assigned to it by the Information Technology
Act .
Thus , if A , who is a citizen of India , commits a
murder in Uganda he can be tried and convicted of murder in any place in India
in which he may be found.
Answer:-
1 . Doctrine of presumption of innocence came
out from the abstract political philosophy of individual liberty .
This philosophy says that it is better that nine
guilty men get escape , rather than one innocent person be hanged . The rule is
that everyone should be presumed to be innocent until he is proved guilty . It
is the duty of prosecution to prove that the accused is guilty beyond all
shadow of reasonable doubt on it’s own strength of evidence. What the rule
actually means is that an accused of a crime can not be made bound to be
witness against himself to make any inculpatory statement against him unless he
offers himself to be a witness . The accused is supposed to stand in the court
as an innocent man till he is proved to be guilty by prosecution .
But once the prosecution proves that the accused is
guilty , the onus of proof shifts on the accused to prove that he is not guilty
. It is to be kept in mind that the burden of proof always lies on the
prosecution , it never shifts . But the onus of proof shifts from one side to
the other , as and when, one side discharges it’s liability.
This fundamental doctrine of presumption of innocence
is subject to some limitations .
For example section 114 of the Indian
Evidence Act lays down that the court may presume that the existence of any
fact which it thinks likely to have happened , regard being had to the course
of natural events , human conduct and public and private business in their
relation to the facts of the particular case . Illustration (a) to the same
section provides further that the court may presume that a person who is in
possession of stolen goods soon after the theft , is either the thief or a
receiver of the stolen property , unless he can account for the possession .
In such circumstances when the prosecution proves it
primafacie, the presumption of innocence goes away and the onus of proof shifts
on the accused to rebut the presumption .
Again , presumption of innocence is not extended to
make the court believe that certain circumstances existed which exempted the
accused from criminal liability . As for example , A committed murder of B . If
it is A’s contention that at the time of commission of the offence he was
suffering from legal insanity and his case comes within the exception of
section 84 of the IPC , it is for A to prove it . So also in the case of
exercise of private defence or other exceptions, provided in the IPC . The
doctrine of presumption of innocence does not compel the court to believe , in
these circumstances , that the accused is innocent .
In modern time , there are various statutes negativing
the abstract principle of the individual liberty or presumption of innocence ,
with the emphasis of social welfare . As for example , the Foreigners’ Act ,
the Prevention of Adulteration of Food Act , the Weights and Measures Act ,
etc., in these cases , once the prosecution makes out a primafacie case ,
innocence of presumption goes and the accused is to prove that he is not guilty
.
2 . Discuss the circumstances when presumption
of innocence is negatived under the Indian Penal Code.
Under the Indian Penal Code there are certain offences
where presumption of innocence is negatived . And those offences are as
follows ----
i) Section 486 of the IPC provides that in the offence
of selling goods marked with a counterfeit property mark , the accused is to
prove that having taken all reasonable precautions and there was no reason to
suspect the genuineness of the mark and that he was innocent .
ii) Section 487 of the IPC provides that in the
offence of making false mark upon any receptacle containing goods the accused
is to prove that he acted without intent to defraud .
iii) Section 488 of the IPC provides that in the
offence of making use of any such false mark the accused is to prove that
he acted without intent to defraud .
iv) Section 489E of the IPC provides that in the
offence of making or using documents resembling currency notes or bank notes ,
it is to be presumed that the accused made the document until the
contrary is proved .
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