Fact, Person, Offence and State

The half students miss

Read the definition again. It has two limbs, and the second is the important one.

The first limb is physical: things, states of things and relations of things that the senses can perceive. A knife on a table. A wall that has been built. A signature on a page.

The second limb is mental: any mental condition of which a person is conscious. That a person had a particular intention, or knew something, or acted in good faith, or held an opinion, is a fact. It is not merely an inference about a fact; the statute says it is one.

This matters everywhere. Almost every offence requires a guilty mind, and almost every contractual dispute turns on what somebody intended. If a state of mind were not a fact, it could not be proved by evidence at all, and none of those cases could be decided.

Fact and law

Two words a first-year student needs, because they decide what an appeal can be about.

A question of fact is a question about what happened: was the signature genuine, was the shop open, did the accused know.

A question of law is a question about what the rules require: does that conduct fall inside section 318, is the suit barred by limitation.

The line matters because a second appeal under section 100 of the Code of Civil Procedure 1908 lies only on a substantial question of law, and because custom, as [Law, Custom and Justice] explains, is a question of fact that must be proved by evidence.

Facts in issue are the facts that the case actually turns on, which the pleadings or the charge put in dispute. Relevant facts are facts connected with them in a way the Adhiniyam recognises, so that evidence about them may be given.

Person

The definition

Section 3(42) of the General Clauses Act 1897: "person" shall include any company or association or body of individuals, whether incorporated or not.

Section 2(26) of the Bharatiya Nyaya Sanhita 2023 is in the same terms: "person" includes any company or association or body of persons, whether incorporated or not.

Natural and legal persons

A natural person is a human being.

A legal person, also called an artificial or juristic person, is anything else the law treats as capable of holding rights and owing duties. A company incorporated under the Companies Act 2013 is the standard example: it can own property in its own name, contract, sue and be sued, and it continues to exist when its members change or die. A registered society, a corporation created by statute such as a municipal corporation, and an idol in a Hindu temple treated as a juristic person for the purpose of holding property, are all legal persons.

What follows from that

A company can commit an offence. Because "person" includes a company, a penal provision that speaks of a person reaches a company, subject to the practical limit that a sentence of imprisonment cannot be executed against it.

A company can hold fundamental rights, but not all of them. Rights available to "any person", such as article 14, are available to a company. Rights available only to "citizens", such as those in article 19, are not, because a company is not a citizen.

A partnership firm is not a separate legal person in general law, though it is treated as a unit for some purposes such as suing in the firm name under Order XXX of the Code of Civil Procedure 1908.

The word to be careful about

"Person" in the criminal law includes the accused, the victim and third parties, and a provision often has to be read to see which is meant. Note also that in the Bharatiya Nyaya Sanhita a separate word, "public", is defined in section 2(27) as including any class of the public or any community, and it is not interchangeable with "person".

Offence

The definitions, and there are three

The general definition, and the one to quote unless the question is about a particular Code, is section 3(38) of the General Clauses Act 1897: "offence" shall mean any act or omission made punishable by any law for the time being in force.

The procedural definition is section 2(1)(q) of the Bharatiya Nagarik Suraksha Sanhita 2023, which is in the same words and adds that it includes any act in respect of which a complaint may be made under section 20 of the Cattle Trespass Act 1871.

The penal definition is section 2(24) of the Bharatiya Nyaya Sanhita 2023, and it is narrower and more complicated. Except in the chapters and sections it lists, "offence" means a thing made punishable by the Sanhita itself. In Chapter III and in a long list of named sections, it means a thing punishable under the Sanhita or under any special or local law. In a further list of sections it carries that wider meaning only where the act punishable under the special or local law is punishable with imprisonment for six months or more.

What the general definition actually tells you

An offence is defined by its consequence, not by its wickedness. If a law makes an act or omission punishable, it is an offence. If no law does, it is not, however bad it is. This is the legal answer to "surely that should be a crime".

An omission counts. Failing to do something the law requires is as much an offence as doing something the law forbids, where the law makes that failure punishable. Section 3(2) of the General Clauses Act reinforces this: "act", used with reference to an offence or a civil wrong, includes a series of acts, and words which refer to acts done extend also to illegal omissions.

"For the time being in force" are words that carry weight. An act is an offence only if a law making it punishable was in force when it was done. That is why article 20(1) forbids conviction for an act that was not an offence at the time of commission, and it is the basis of the rule against retrospective penal law, worked in [Prospective Application and Retrospective Effect].

Two classifications worth carrying

Cognizable and non-cognizable. Section 2(1)(g) of the Sanhita defines a cognizable offence as one for which a police officer may, in accordance with the First Schedule or any other law, arrest without warrant. Everything else is non-cognizable.

Bailable and non-bailable. Section 2(1)(c) defines a bailable offence as one shown as bailable in the First Schedule or made bailable by any other law, and a non-bailable offence as any other offence. This is dealt with further in [Cause of Action, Issue, Charge and Bail].

State

The definition

Article 12 of the Constitution: in Part III, unless the context otherwise requires, "the State" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.

Why this is one of the most litigated definitions in Indian law

Part III contains the fundamental rights, and most of them are enforceable against the State. So whether a body is "the State" decides whether a citizen can bring a writ petition against it at all. A refusal of admission by a State university is testable against article 14; the same refusal by a purely private club is not.

The four categories in the article, and the fifth the courts added

The Government and Parliament of India. The Union executive and legislature.

The Government and the Legislature of each State.

All local authorities. Municipal corporations, municipalities, panchayats, improvement trusts, port trusts. The word "local authority" is itself defined in section 3(31) of the General Clauses Act 1897.

All other authorities within the territory of India or under the control of the Government of India. This is the open-ended limb and it is where the litigation is. The courts have read it to cover statutory corporations and, beyond them, bodies which are instrumentalities or agencies of the State, looking at matters such as whether the entire share capital is held by the Government, whether it enjoys a monopoly conferred or protected by the State, whether it is under deep and pervasive State control, and whether its functions are of public importance and closely related to governmental functions.

The fifth category is the judiciary, and the position is more careful than students usually state it. A court is plainly an authority. The working position is that the judiciary is "the State" when it acts on its administrative side, and that a judicial order made in a dispute between two private parties is not ordinarily attacked as a violation of fundamental rights.

The escape clause

Article 12 opens with "unless the context otherwise requires", and article 12 is a definition for Part III only. Elsewhere in the Constitution, "State" often means the political unit, as in article 1 or in the First Schedule. Reading the article 12 meaning into article 246 would produce nonsense.

A worked example

Sunita is refused a seat in a professional college. She wants to file a writ petition under article 226 alleging that the refusal violates article 14.

Is the college "the State"? If it is a government college, yes, as part of the State Government's own machinery. If it is a university created by a State Act, it is a statutory authority and so an "other authority". If it is a private unaided college with no State funding and no statutory status, it is ordinarily not the State, and Sunita's remedy against it lies elsewhere.

What are the facts in issue? That she applied, that she was eligible, that a seat was available, that the refusal happened, and, if she alleges hostile discrimination, the state of mind of the persons who refused. The last one is a fact, because section 2(1)(f) of the Adhiniyam brings a mental condition inside the word.

Is a "person" involved? Yes, in two senses. Sunita is a natural person. The college, if incorporated or registered, is a legal person, and it is that legal person, not its individual officers, who will be the respondent.

Is any offence involved? On these facts, no. Refusing admission is not made punishable by any law for the time being in force, so it is not an offence within section 3(38), whatever anybody thinks of it. That is exactly the point of defining an offence by punishability.

Distinctions table

What these words do NOT mean

"Fact" is not limited to what you can see. A state of mind is a fact by definition. A student who writes that intention is "not a fact but an inference" has contradicted the statute.

"Person" is not limited to human beings, and forgetting this makes company law incomprehensible.

An offence is not simply something wrong. Unless a law in force makes the act or omission punishable, it is not an offence.

"State" in article 12 is not the same as a State of the Union. Article 12 defines the word for Part III; Maharashtra is a State in the other sense.

Article 12 is not exhaustive. It says "includes", so it widens the ordinary meaning rather than confining it, which is why the courts have been able to bring instrumentalities of the State inside it.

Limits and criticism

The open-ended fourth limb of article 12 has been criticised as uncertain. Whether a body is an instrumentality is decided on a multi-factor test, and multi-factor tests are hard to predict. The competing view is that a rigid rule would let the State escape the fundamental rights by choosing a corporate form for what is really governmental work.

The three definitions of "offence" do not read alike, and section 2(24) of the Bharatiya Nyaya Sanhita in particular is a definition by exception and cross-reference which is very hard to read. For general purposes the General Clauses Act definition is the one to use, and it should be identified as such.

The line between fact and law is not always clean. Whether particular conduct amounts to negligence, for instance, is often described as a mixed question of fact and law, and appellate courts spend a good deal of time on which side of the line a question falls.

Quick revision

Fact: Bharatiya Sakshya Adhiniyam 2023, s.2(1)(f). Two limbs: anything perceptible by the senses, and any mental condition of which a person is conscious. A state of mind IS a fact. Facts in issue and relevant facts. Question of fact against question of law; second appeal under CPC s.100 lies only on a substantial question of law.

Person: General Clauses Act 1897, s.3(42), and Bharatiya Nyaya Sanhita 2023, s.2(26). Includes any company or association or body of individuals, incorporated or not. Natural and legal persons. A company holds rights given to "any person" but not those given to "citizens".

Offence: General Clauses Act 1897, s.3(38), and BNSS 2023, s.2(1)(q): any act or omission made punishable by any law for the time being in force. BNS 2023, s.2(24) is narrower and lists exceptions. Section 3(2) of the General Clauses Act extends "act" to illegal omissions. Cognizable and non-cognizable, s.2(1)(g) BNSS; bailable and non-bailable, s.2(1)(c) BNSS.

State: Constitution, article 12, for Part III only. Government and Parliament of India; Government and Legislature of each State; all local authorities; all other authorities within India or under the control of the Government of India. "Includes", so not exhaustive.

Test yourself

1. Give the statutory definition of "fact" and explain why its second limb matters.

Section 2(1)(f) of the Bharatiya Sakshya Adhiniyam 2023 says "fact" means and includes any thing, state of things or relation of things capable of being perceived by the senses, and any mental condition of which any person is conscious. The second limb matters because almost every offence requires a guilty mind and most civil disputes turn on intention. By making a state of mind a fact, the statute makes it something that can be proved by evidence, without which those cases could not be tried at all.

2. Is a company a "person"? What follows?

Yes. Section 3(42) of the General Clauses Act 1897 and section 2(26) of the Bharatiya Nyaya Sanhita 2023 both include any company or association or body of individuals, whether incorporated or not. It follows that a company can own property, contract, sue and be sued in its own name, and can be prosecuted for an offence, subject to the practical limit that it cannot be imprisoned. It also holds those fundamental rights conferred on "any person", such as article 14, but not those conferred on citizens, such as those in article 19.

3. Define "offence" and explain the significance of the words "for the time being in force".

Section 3(38) of the General Clauses Act 1897 defines an offence as any act or omission made punishable by any law for the time being in force. The quoted words mean that the act must have been punishable when it was done. An act that was lawful when committed does not become an offence because a later statute forbids it, which is what article 20(1) of the Constitution guarantees, and it is the criminal law's application of the presumption against retrospective operation.

4. Why does it matter whether a body is "the State" under article 12?

Because most fundamental rights in Part III are enforceable against the State, so the answer decides whether a writ petition can be brought at all. A body within article 12 must comply with articles 14, 15, 16 and the rest; a purely private body ordinarily need not, and a person aggrieved by it must look to contract, tort or a statutory remedy instead.

5. Article 12 lists four categories. Which is the contested one, and how do courts approach it?

"All other authorities within the territory of India or under the control of the Government of India". Courts have read it to include statutory corporations and bodies that are instrumentalities or agencies of the State, weighing such matters as government shareholding, a State conferred or protected monopoly, deep and pervasive State control, financial assistance meeting most of the expenditure, and functions of public importance closely related to governmental functions. No single factor is decisive.

6. Distinguish a question of fact from a question of law, and give one consequence of the distinction.

A question of fact asks what happened and is decided on evidence; a question of law asks what the legal rule requires and is decided by construing the provision and the precedents. One consequence is that a second appeal under section 100 of the Code of Civil Procedure 1908 lies only where a substantial question of law is involved, so a party dissatisfied with a concurrent finding of fact ordinarily has no further appeal.