Penal Laws Notes | LL.M. Semester 1 | Mumbai University | munotes

It is not procedure. How a case is investigated, who may arrest, how a trial runs and what a court may do on appeal belong to the Bharatiya Nagarik Suraksha Sanhita, 2023. This book takes up procedure only where a special Act changes it, which the two special Acts in Module II do heavily and deliberately.

It is not evidence. What may be proved and how belongs to the Bharatiya Sakshya Adhiniyam, 2023. Again, the exception is the special Act: the Maharashtra Control of Organised Crime Act has its own rules of evidence, and the Information Technology Act rewrote how an electronic record is proved.

Mens rea, in one line, because the offence chapters use it. Mens rea is Latin for a guilty mind. It is the mental element an offence requires, and it changes from offence to offence: intention for one, knowledge for another, dishonesty for a third, and for a small class of offences nothing at all.

What holds the five statutes together

Each of the four special Acts exists because the ordinary penal law could not reach something. That is the thread, and it is the best single answer to a question asking what this paper is about.

Organised crime defeated the ordinary law because the man who profits never touches the weapon. Conspiracy could reach an agreement, but the syndicate is not one agreement; it is a standing arrangement that outlives any particular crime. Maharashtra answered with a statute that punishes membership of the arrangement itself.

Terrorism defeated the ordinary law because the offence is aimed at the State and the community rather than at the victim who happens to die. Murder is murder whatever the motive, and a code that ignores motive could not mark the difference. Parliament answered with a statute that made the purpose an element of the offence.

Cyber crime defeated the ordinary law because a penal code written in 1860 spoke of property you can carry and documents you can hold. Data is neither. Parliament answered with a statute that defined the computer and everything in it, and then attached offences to those definitions.

A child in conflict with the law defeated the ordinary law in the opposite direction. The problem was not that the code could not reach the child but that it should not, at least not in the same way. Parliament answered with a statute that removed children from the ordinary criminal process altogether and gave them a Board instead of a court.

A worked example

A question asks: "Discuss the offence of terrorism under the Penal Laws paper."

Which statute? Two, and a good answer says so. Module I has section 113 of the Bharatiya Nyaya Sanhita, 2023, the terrorist act in the general penal law. Module II has section 3 of the Prevention of Terrorism Act, 2002, which the University names by title.

Is the second one in force? No, and the answer must say so. The 2002 Act was repealed by the Prevention of Terrorism (Repeal) Act, 2004. The University still names it, so the paper still teaches it, and the book prints what the University printed.

Another question asks about "hacking under the Information Technology Act". The word does not appear in the Act as it stands; it was the marginal note of section 66 before 2009. The answer names section 43 and section 66.

A third asks about "the juvenile who commits a heinous offence". Module IV, the Juvenile Justice (Care and Protection of Children) Act, 2015, and the answer must know that the 2000 Act the University's syllabus grew from was repealed by section 111 of that Act.

What the three have in common. The University names five statutes and three of them are repealed. The book teaches the law in force and prints what the University printed, and every chapter says which is which.

What beginners get wrong

That Module I is a second course on the Penal Code. It is not. Paper I has already taught the general part. Module I here is the special part, the offences themselves, and the examiner has concentrated on a small number of chapters within it: elections, religion, obscenity, public health, offences against the State and offences against property.

That the repealed statutes can be skipped. Two of the five have been repealed and one has been replaced. They are still on the syllabus, they are still asked, and a question naming the Prevention of Terrorism Act is asking about that Act. The next chapter takes up what to do about it.

That "penal laws" means "punishments". Theories and kinds of punishment are topic 9 of Paper I. This paper is about what conduct is made criminal, by which provision, with what elements.

Quick revision

The paper. LL.M. Group V Criminal Law and Criminal Administration, Paper II, Semester 1, four credits, subject code 76023.

The syllabus. Circular UG/165 of 2016-17, four modules of one credit, five numbered topics, no section ranges, no reading list.

The five statutes. Penal Code offences; Maharashtra Control of Organised Crime Act 1999; Prevention of Terrorism Act 2002; cyber crimes under the Information Technology Act 2000; Juvenile Justice (Care and Protection of Children) Act 2000.

The boundary rule. No printed range means the Act is the boundary, so every section of every named Act is covered somewhere in this book.

The thread. Each special Act exists because the ordinary penal law could not reach, or should not have reached, something.

Test yourself

1. How many topics does MU print for this paper, and over how many modules? Five numbered topics over four modules of one credit each. Module II carries two topics; the other three carry one apiece.

2. Why does this book cover whole Acts rather than only the topics named? Because the syllabus prints no section ranges. With nothing to mark where a topic stops, the Act itself is the only honest boundary, so every section is accounted for and the depth is set by how central the section is.

3. Name one thing on this paper that belongs to Paper I instead. Any of: mens rea, the stages in the commission of a crime, general exceptions, right of private defence, group liability, theories of punishment, strict liability.

4. What single idea connects the four special statutes on this paper? Each was enacted because the ordinary penal law could not reach the mischief, or in the case of juvenile justice should not have reached the person in the ordinary way.

5. Is procedure examinable on this paper? Only where a special Act changes it. The general law of procedure is in the Bharatiya Nagarik Suraksha Sanhita, but the Maharashtra Control of Organised Crime Act and the Prevention of Terrorism Act both modify it heavily, and those modifications are part of this paper.

Section 358(3). "Notwithstanding such repeal, anything done or any action taken under the said Code shall be deemed to have been done or taken under the corresponding provisions of this Sanhita."

Section 358(4) provides that the mention of particular matters in sub-section (2) does not prejudice the general application of section 6 of the General Clauses Act, 1897 to the effect of the repeal.

Broken down: what the savings clause actually decides

A saving clause is a provision that preserves something a repeal would otherwise destroy. Without one, a repeal wipes the statute out as though it had never existed, and every prosecution under it would collapse. Section 358(2) prevents that.

One: an offence committed before 1 July 2024 is still an offence under the Penal Code. The Sanhita does not apply to it. This follows from sub-section (2)(c) and (e) together, and it is also what Article 20(1) of the Constitution requires, since nobody may be convicted except under the law in force when the act was done.

Two: a prosecution already begun continues under the old Code. Sub-section (2)(e) says a proceeding may be instituted, continued or enforced as if the Code had not been repealed. So courts will be trying Penal Code offences for years, and appeals against Penal Code convictions for longer.

Three: a prosecution not yet begun for an old offence is still brought under the old Code. The word in sub-section (2)(e) is "instituted", not merely "continued". An offence committed in June 2024 and reported in 2026 is charged under the Penal Code.

Four: things done under the old Code carry over. Sub-section (3) deems an action taken under the Code to have been taken under the corresponding Sanhita provision, so a sanction, a notification or a declaration made before the changeover does not have to be made again.

Five: the General Clauses Act still applies. Sub-section (4) makes clear that the list in sub-section (2) is not exhaustive and that section 6 of the General Clauses Act, 1897, the general saving on repeals, operates as well.

A worked example

Anjali Deshmukh is prosecuted for cheating. She is alleged to have induced a shopkeeper in Dadar to part with goods worth two lakh rupees on a promise she never meant to keep.

If the inducement happened on 20 June 2024, the offence is under section 420 of the Indian Penal Code. The First Information Report may be lodged in 2026, the charge framed in 2027 and the appeal decided in 2031, and the offence will still be section 420, because section 358(2)(e) preserves the institution and continuation of the proceeding.

If it happened on 20 July 2024, the offence is under section 318(4) of the Bharatiya Nyaya Sanhita, which is where cheating and thereby dishonestly inducing delivery of property now sits.

If the inducement was a continuing course of conduct running from May to September 2024, the prosecution will have to particularise which acts fall on which side of 1 July, because Article 20(1) forbids convicting her under the Sanhita for what she did in May. Charges under both statutes in one trial are the ordinary result.

The trial is under the new procedure either way. Procedure is not a vested right, so the Bharatiya Nagarik Suraksha Sanhita governs the conduct of the case even where the offence is a Penal Code offence.

What the University did about it

The University knows the law changed, and said so. Circular AAMS_UGS/ICC/2024-25/69 of 17 August 2024 records that the Academic Council on 12 July 2024 accepted the replacement of "the paper and syllabi of the following law programs due to introduction of the three new criminal laws", and lists eleven rows.

Rows 1 to 6 rename LL.B. and B.A. LL.B. papers. "Law of Crimes" becomes "Bharatiya Nyay Sanhita 2023"; "Criminal Procedure Code, 1973" becomes "Bharatiya Nagarik Suraksha Sanhita, 2023"; "Law of Evidence" becomes "Bharatiya Sakshya Adhiniyam".

Row 11 is this paper, and it is the only row that does something different. It reads Group V Criminal Law and Criminal Administration, Paper II, "Penal Laws (04 credits)", and in the column headed Revised Title it reads "Penal Laws (04 credits)" again.

So the title did not change and the law did. That is not an oversight to be argued about; it is the position, and it is why this book teaches the Sanhita while printing what MU printed. A student writing on this paper should state the Penal Code provision the question names, say what replaced it, and answer on the current law.

What it does NOT mean

It does not mean the Penal Code is irrelevant. It governs every offence committed before 1 July 2024, which is most of the litigation now in the courts and all of the reported case law.

It does not mean every section was renumbered arbitrarily. The Sanhita reorganised the chapters, putting offences against women and children early and pulling several scattered offences together, and the renumbering follows that reorganisation.

It does not mean the Sanhita is only a renumbering. New offences were created, including organised crime, petty organised crime, terrorist act and mob lynching, and some old ones were dropped, sedition among them. Those changes are the substance of the chapters that follow.

It does not mean a case decided under the Penal Code is no longer authority. Where the Sanhita reproduces the old wording, the old decisions continue to bind, because a re-enactment in the same words carries the settled construction with it.

Limits and criticism

The transition will run for a generation. Two penal codes now operate side by side, distinguished only by the date of the act, and every police station, court and lawyer must hold both. Critics of the exercise ask what was gained that amendment of the existing Code could not have delivered.

The savings clause does not resolve every case. Continuing offences, conspiracies that straddle the date and offences whose ingredients differ between the two statutes will each need working out, and there is little authority yet.

The renumbering has a real cost in accessibility. A body of precedent built over 164 years is keyed to numbers no longer in the statute. That cost is exactly what the concordance in the next chapter exists to reduce.

Quick revision

Section 358(1). The Indian Penal Code (45 of 1860) is repealed.

The date. Assent 25 December 2023, in force 1 July 2024. The Sanhita is Act 45 of 2023.

The three statutes. Bharatiya Nyaya Sanhita for the Penal Code; Bharatiya Nagarik Suraksha Sanhita for the Criminal Procedure Code; Bharatiya Sakshya Adhiniyam for the Evidence Act.

Section 358(2). Savings: previous operation, accrued rights and liabilities, penalties incurred, investigations and remedies, and proceedings, which may be instituted, continued or enforced as if the Code had not been repealed.

Section 358(3). Anything done under the Code is deemed done under the corresponding Sanhita provision.

The rule of thumb. The date of the act decides the statute. The Penal Code for acts before 1 July 2024, the Sanhita after.

What MU did. Circular AAMS_UGS/ICC/2024-25/69 of 17 August 2024, row 11: Penal Laws, revised title Penal Laws. The name is unchanged; the law is not.

Test yourself

1. Which provision repeals the Indian Penal Code, and what does it say? Section 358(1) of the Bharatiya Nyaya Sanhita, 2023: "The Indian Penal Code (45 of 1860) is hereby repealed."

2. A theft is committed on 15 June 2024 but reported in 2026. Under which statute is the accused charged, and why? Under section 378 of the Indian Penal Code. Section 358(2)(e) of the Sanhita preserves the institution as well as the continuation of proceedings for offences against the repealed Code, and Article 20(1) forbids conviction under a law not in force when the act was done.

3. What does section 358(3) do that sub-section (2) does not? It deems anything done or any action taken under the repealed Code to have been done or taken under the corresponding provision of the Sanhita, so administrative acts such as sanctions and notifications carry over instead of having to be repeated.

4. Does the change of statute affect the authority of Penal Code case law? Not where the Sanhita reproduces the old wording. A re-enactment in the same words carries its settled construction with it. Where the wording or the elements changed, the older decisions must be used with care.

5. What did MU's 2024 circular do to the title of this paper? Nothing. Row 11 lists Penal Laws in both the current and the revised title columns, although the same circular renamed six LL.B. and B.A. LL.B. papers.

Sections 120A and 120B, the definition and punishment of criminal conspiracy, are now one section, section 61, with the definition in sub-section (1) and the punishment in sub-section (2).

What the Sanhita added, and what it dropped

Five provisions have no Penal Code ancestor at all. Their headings match nothing in the old Code because the offences did not exist.

Sections 111 and 113 are the two that matter most on this paper, because they put organised crime and terrorism into the general penal statute, which is exactly the ground Module II covers by special Act. Those two chapters take up the overlap.

Section 124A, sedition, has no counterpart. It matches nothing in the Sanhita by heading and nothing by content in the same terms. What stands in roughly its place is section 152, "Act endangering sovereignty, unity and integrity of India", and the two are not the same offence. The differences are worked out in the chapter on section 152, and they are among the most examinable points in Module I.

A worked example

Priya Raut is asked in an examination to discuss the test of obscenity in Indian law. She has read Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881, Chandrakant Kalyandas Kakodkar v. State of Maharashtra, (1969) 2 SCC 687, Samaresh Bose v. Amal Mitra, (1985) 4 SCC 289, and Aveek Sarkar v. State of West Bengal, (2014) 4 SCC 257. Every one of them says "section 292".

The wrong answer writes only section 292. It describes law that was repealed on 1 July 2024 and never mentions the provision now in force.

The wrong answer in the other direction writes only section 294. It states the current provision and then has no authority at all for the test, because no reported decision yet construes the new number.

The answer that works does both. It states that the offence is now section 294 of the Bharatiya Nyaya Sanhita, 2023, notes that it re-enacts section 292 of the Indian Penal Code in substantially the same words, and then uses the four decisions to develop the test, citing them as decisions on the predecessor provision. Nothing is lost and nothing is misstated.

What beginners get wrong

Treating the concordance as the law. It is a finding aid. Where a chapter of this book asserts that one section replaced another, it does so after reading both, and where the content changed it says so instead.

Assuming a matching heading means a matching section. The Sanhita kept several headings while changing what sits under them. Criminal trespass is a clear instance: section 441 of the Code was one offence, and section 329 of the Sanhita carries both criminal trespass and house-trespass in one section with the punishments in later sub-sections.

Assuming the numbers moved by a fixed offset. They did not. The Sanhita reordered whole chapters, moving offences against women and children from the middle of the Code to the front, so the gap between an old and a new number is different in every chapter.

Citing a Sanhita section for a pre-July 2024 offence. The charge follows the date of the act, as the previous chapter explains. The concordance tells you which provision to discuss, not which one to charge.

Quick revision

What a concordance is. A table mapping old section numbers to new ones, used so that decisions on the repealed provision can be applied to the one in force.

The rule on precedent. A re-enactment in the same words carries its settled construction, so old decisions bind. Where the words changed, they do not, and the difference must be worked out.

The technique in an answer. State the Sanhita section, note the Penal Code section it replaced, then use the case law on the old number.

Two absorbed provisions. Section 34 is now section 3(5); sections 120A and 120B are now section 61.

Five with no ancestor. Sections 111, 112, 113 and 69, and section 103(2).

One with no successor. Section 124A, sedition. Section 152 stands in its place and is a different offence.

Test yourself

1. Which Sanhita section replaced section 302 of the Penal Code, and does the case law survive? Section 103(1). The definition of murder in section 101 re-enacts section 300 in substantially the same words, so the decisions on murder continue to apply.

2. Where did section 34 of the Penal Code go? It is now section 3(5) of the Sanhita, inside the general explanations, rather than a separate section.

3. Name three offences the Sanhita created that the Penal Code did not have. Any three of: organised crime (section 111), petty organised crime (section 112), terrorist act (section 113), sexual intercourse by employing deceitful means (section 69), and murder by a group of five or more on a specified ground (section 103(2)).

4. What happened to sedition? Section 124A has no counterpart in the Sanhita. Section 152, an act endangering the sovereignty, unity and integrity of India, occupies roughly the same ground but is a different offence with different ingredients.

5. Why is it wrong to say the numbers shifted by a fixed amount? Because the Sanhita reordered its chapters, most obviously by moving offences against women and children to the front, so the difference between an old and a new number varies from chapter to chapter.

The general part and the special part

A general part is the set of rules that apply to every offence in the statute. Nothing in Chapters I to IV creates an offence on its own. They supply the machinery: what words mean, what punishments a court may pass, when conduct that would otherwise be an offence is excused, and how liability reaches a person who did not himself complete the act.

Chapter III is the one students underestimate. It runs thirty one sections, from section 14 to section 44, and it holds mistake of fact, judicial acts, accident, necessity, infancy, unsoundness of mind, intoxication, consent, communication, compulsion, trifling acts and the whole of private defence. An accused who succeeds under any of them is not guilty of anything.

Chapter IV extends liability outward in three directions. Abetment reaches the person who instigated, conspired or aided. Criminal conspiracy reaches the agreement itself. Attempt reaches conduct that fell short of the completed offence.

Chapters V to XIX are the offences, and they are grouped by the interest the offence damages: the person, the State, the armed forces, elections, the currency, public order, public administration, the administration of justice, public health and decency, religion, property, documents, and reputation and peace of mind.

Where this paper's weight actually falls

Module I is one credit of four, and the examiner has not spread it evenly across 358 sections. Counted over the ten printed papers this subject holds, the recurring Module I subjects are offences relating to elections, offences relating to religion, obscenity, offences affecting public health, offences against the State, and offences against property.

That does not narrow what this book covers. Every section is accounted for, as the first chapter explains. It does decide how deep each chapter goes: an offence the University has set repeatedly gets its cases worked and its distinctions tabled, and a section of machinery gets stated accurately and briefly.

A worked example

A question gives you a set of facts and asks which chapter of the Sanhita to look in.

A man is beaten in a market and dies. Chapter VI, of offences affecting the human body, which runs from section 98 to section 146 and contains the whole law of homicide, hurt and criminal force.

The beating was by a group of eight who came together for the purpose. Still Chapter VI for the homicide, and Chapter XI, of offences against the public tranquillity, for the unlawful assembly and the rioting.

One of them had taken money to do it. Chapter V, of offences against woman and child, does not arise; the abetment and conspiracy are in Chapter IV, of abetment, criminal conspiracy and attempt, which is part of the general part and applies to every offence in the Sanhita.

A shopkeeper falsely told the police that a rival had done it. Chapter XIV, of false evidence and offences against public justice.

And the accused says he acted to save his own life. Chapter III, of general exceptions, which is again in the general part and is read into every offence.

Notice what the example shows. One incident engaged five chapters, three of them special and two general. That is why the plan comes before the offences: an answer that names the chapter shows the examiner that the candidate knows where the provision sits.

What beginners get wrong

Thinking the general part is Paper I's problem alone. Paper I owns the theory of mens rea and the philosophy of the exceptions. This paper still needs the sections, because an offence question that ignores a general exception is only half answered.

Reading Chapter V as a chapter about women only. It is headed "Of offences against woman and child" and it holds the child offences too, including the buying and selling of children and the offences connected with miscarriage and birth.

Assuming an offence is where the Penal Code put it. Cheating and criminal breach of trust sit in Chapter XVII with theft, as they did before. But the offences against women moved from the middle of the old Code to the front of the new one, and a student searching by memory of the old order will not find them.

Quick revision

Size. 358 sections, twenty chapters.

The general part. Chapters I to IV, sections 1 to 62: preliminary, punishments, general exceptions and private defence, and abetment, conspiracy and attempt.

The special part. Chapters V to XIX, sections 63 to 357, the offences, grouped by the interest harmed.

Chapter XX. Section 358 alone, repeal and savings.

The reordering. Offences against woman and child are Chapter V, at the front. In the Penal Code they were scattered and came much later.

The largest chapters. Chapter VI, offences affecting the human body, at 47 sections, and Chapter XIV, false evidence and offences against public justice, at 43.

Test yourself

1. Which chapters make up the general part, and what does each do? Chapters I to IV. Chapter I is preliminary and definitional; Chapter II sets out punishments; Chapter III holds the general exceptions including private defence; Chapter IV holds abetment, criminal conspiracy and attempt.

2. In which chapter would you look for an offence against property, and what is its range? Chapter XVII, sections 303 to 334.

3. What is the first chapter of the special part, and why is that significant? Chapter V, offences against woman and child, sections 63 to 99. The Penal Code did not group these together or place them first, so the ordering marks a deliberate change of emphasis.

4. How many sections does the Sanhita contain, and what does the last one do? 358. Section 358 repeals the Indian Penal Code and saves what was done under it.

5. Where does the right of private defence sit? In Chapter III, the general exceptions, at sections 34 to 44.

Broken down

"Without and beyond India" means outside India. The word "without" is used in its old sense of outside, not in the modern sense of lacking. The phrase is inherited from the Penal Code and is not a drafting error.

Territorial jurisdiction, sub-section (3). Everyone within India, citizen or foreigner, is liable for what they do here. Nationality is irrelevant; presence is everything.

Nationality jurisdiction, sub-section (5)(a). An Indian citizen carries the Sanhita abroad. A citizen who commits, in another country, an act that would be an offence in India may be tried here, whether or not it was an offence where it was done.

Flag jurisdiction, sub-section (5)(b). A ship or aircraft registered in India is treated as Indian territory for this purpose, wherever it is. The nationality of the offender does not matter.

Cyber jurisdiction, sub-section (5)(c). This is new. A person of any nationality, anywhere in the world, is within the Sanhita if the offence targets a computer resource located in India. The Penal Code had nothing of the kind.

"Computer resource" is not defined in the Sanhita. The expression is taken from section 2(1)(k) of the Information Technology Act, 2000, which Module III works through, and which defines it as a computer, computer system, computer network, data, computer database or software.

What is new, and what is inherited

Sub-section (5)(c) is the only genuinely new limb, and it is the one most likely to be asked, because it is the point at which the general penal law meets Module III of this paper.

A worked example

Faisal Khan is an Indian citizen working in Dubai. He forges a share transfer form there and uses it to have shares in an Indian company transferred to himself.

He is within section 1(5)(a). He is a citizen of India, and forgery would be an offence under section 336 of the Sanhita if committed here. By the Explanation, the word "offence" covers an act done outside India that would be punishable if done here, so he may be tried in India.

Now suppose the forger is Thomas Ahern, an Irish citizen who has never been to India. Section 1(5)(a) does not reach him: he is not a citizen. Section 1(5)(b) does not reach him: he was not on an Indian ship or aircraft.

Change the facts once more. Thomas, from Dublin, breaks into the share registry's server, which is physically located in Pune, and alters the register there. Now section 1(5)(c) reaches him, because he has committed an offence targeting a computer resource located in India, and his nationality and location are irrelevant.

One practical qualification. Jurisdiction to try is not the same as ability to try. The accused must be brought before the court, which in a case like Thomas's means extradition, and the offence must ordinarily be an offence in the requested country too. Section 1(5) settles the court's competence, not the diplomacy.

What it does NOT mean

It does not mean an Indian abroad is governed by Indian law for everything. Section 1(5)(a) is about offences under the Sanhita, not about the whole of Indian law.

It does not create double punishment. A person tried and punished abroad for the same offence has the protection of Article 20(2) of the Constitution and of section 300 of the old Code of Criminal Procedure, now carried into the Bharatiya Nagarik Suraksha Sanhita.

It does not displace special laws. Sub-section (6) expressly saves them, which matters greatly on this paper, because Module II is two special Acts and Module III and Module IV are two more.

"Different dates for different provisions" is not theoretical, and section 106(2) is the provision to watch. The commencement notification for the Bharatiya Nagarik Suraksha Sanhita, S.O. 848(E) of 23 February 2024, brought that Sanhita into force on 1 July 2024 "except the provisions of the entry relation to Section 106(2) in the first Schedule". So the classification entry that tells a police officer whether the offence in section 106(2) is cognizable and bailable, and which court tries it, was held back. The chapter on section 106 takes that up.

Quick revision

Section 1(1) and (2). Short title; commencement by notification, which was 1 July 2024; different dates permitted for different provisions.

Section 1(3). Every person is liable to punishment under this Sanhita "and not otherwise" for acts within India. Territorial jurisdiction, and the closing of the statute.

Section 1(4). A person liable under any Indian law to be tried for an offence committed abroad is dealt with under the Sanhita as if the act had been done here.

Section 1(5). Three extensions: citizens abroad; anyone on an Indian ship or aircraft; and anyone anywhere targeting a computer resource located in India.

The Explanation. "Offence" here includes an act done outside India that would be punishable if done in India.

Section 1(6). Saves the mutiny and desertion Acts and every special or local law.

The new limb. Section 1(5)(c). The Penal Code had no equivalent.

Test yourself

1. State the territorial rule in the words of the Sanhita. Section 1(3): every person shall be liable to punishment under this Sanhita and not otherwise for every act or omission contrary to its provisions of which he shall be guilty within India.

2. A Nepali citizen commits theft in Kathmandu from an Indian company's office there. Is he within the Sanhita? No. He is not a citizen of India, so section 1(5)(a) does not apply, and he was not on an Indian ship or aircraft. Unless the offence targeted a computer resource located in India, no limb of section 1(5) reaches him.

3. Which limb of section 1 is new, and why does it matter on this paper? Section 1(5)(c), offences targeting a computer resource located in India. It matters because it is where the general penal statute reaches the ground Module III covers by the Information Technology Act.

4. What do the words "and not otherwise" in section 1(3) achieve? They close the statute. Punishment under the Sanhita may be imposed only for what the Sanhita makes punishable, so a court cannot create an offence or punish outside the text.

5. Does section 1 abolish special criminal statutes? No. Section 1(6) expressly saves any special or local law, as well as the Acts punishing mutiny and desertion in the armed forces.

Section 2(14). "'injury' means any harm whatever illegally caused to any person, in body, mind, reputation or property."

Section 2(21). "'movable property' includes property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth."

Section 2(26). "'person' includes any company or association or body of persons, whether incorporated or not."

Section 2(28), public servant, runs to eleven sub-clauses covering commissioned officers, Judges, officers of a Court, assessors and panchayat members, arbitrators, persons empowered to keep another in confinement, officers whose duty is to prevent offences or protect public health, officers dealing with Government property or revenue, officers dealing with village or town assessments, persons who prepare an electoral roll or conduct an election, and persons in the service or pay of the Government, a local authority, a statutory corporation or a Government company.

Section 2(29), reason to believe. "A person is said to have 'reason to believe' a thing, if he has sufficient cause to believe that thing but not otherwise."

Section 2(31), valuable security, is a document by which a legal right is created, extended, transferred, restricted, extinguished or released, or by which a person acknowledges a legal liability or the absence of a legal right.

The provision itself: section 3, the seven rules

Section 3(1). Every definition of an offence, every penal provision and every Illustration is to be understood subject to the General Exceptions in Chapter III, even though those exceptions are not repeated. Its two illustrations make the point with the child under seven and the police officer arresting a murderer without warrant.

Section 3(2). An expression explained in any Part of the Sanhita bears that explained sense throughout.

Section 3(3). Property in the possession of a person's spouse, clerk or servant on that person's account is in that person's possession. This is what makes a servant who takes his employer's goods a thief rather than merely a defaulting bailee.

Section 3(4). Words referring to acts done extend also to illegal omissions.

Section 3(5). "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."

Section 3(6). Where an act is criminal only because it was done with a criminal knowledge or intention, each person who joins in it with that knowledge or intention is liable as if he had done it alone with it.

Section 3(7). Where causing an effect is an offence, causing it partly by act and partly by omission is the same offence, illustrated by A who kills Z partly by withholding food and partly by beating him.

Broken down: what section 3(5) requires

A criminal act done by several persons. More than one person must take part in the act. The provision does not create an offence; it distributes liability for one.

A common intention. The persons must share a prior meeting of minds as to the act to be done. Common intention is not the same as similar intention formed independently by each.

In furtherance of that common intention. The act done must advance the shared plan. An act by one participant outside the plan is his alone.

The consequence. Each is liable for the whole act, whoever physically did it. A man who held the victim while another stabbed him is liable for the stabbing.

Distinctions that carry marks

A worked example

Sunil and Manoj agree to rob a jeweller in Kalyan. The plan is that Sunil will hold the shutter down while Manoj takes the trays. Nothing is said about weapons.

Manoj carries a knife without telling Sunil, and stabs the jeweller. The robbery is a criminal act done by both in furtherance of their common intention, so both are liable for it under section 3(5) read with section 309.

The stabbing is a different question. If the shared plan did not extend to violence with a weapon, the stabbing is not in furtherance of the common intention, and Sunil is not liable for it merely because he was there. If, however, the two knew violence might be needed and accepted it, the stabbing is within the plan and section 3(5) fixes Sunil with it.

Change one fact. Suppose Sunil is the jeweller's own shop assistant, and the trays were in his keeping. By section 3(3) the trays were in the jeweller's possession all along, because a servant holds on his master's account, so the taking is theft from the jeweller and not merely a breach of the assistant's duty.

What beginners get wrong

Treating section 2 as optional reading. The definitions decide cases. Whether a computer file is a "document", whether a co-operative society officer is a "public servant", whether a taking was "dishonest" are all questions of definition, and each is answered here.

Thinking good faith means honesty. Section 2(11) makes it a question of due care and attention. A person may act honestly and still fail the test because he did not take the care the situation demanded.

Confusing common intention with common object. They are different provisions with different requirements, and the table above is the answer an examiner is looking for.

Assuming "person" means a human being. Section 2(26) includes companies and unincorporated associations, which is what allows a company to be prosecuted at all.

Limits and criticism

"Unless the context otherwise requires" leaves room for argument in every case, and the courts have used it to depart from a definition where the offence plainly needed a different sense.

Section 2(28) defines public servant at length and still leaves gaps. Whether an office-holder falls inside it has generated litigation for a century and a half, and the Prevention of Corruption Act, 1988 had to enact its own wider definition for its own purposes.

The gender clause is an advance but a partial one. Section 2(10) makes "he" cover any person, yet many offences in Chapter V are drafted so that only a woman can be the victim, and the Sanhita did not revisit that.

Quick revision

Section 2. Interpretation, thirty one clauses, opening "unless the context otherwise requires".

The definitions to know cold. Child, below eighteen, s.2(3); dishonestly, s.2(7); document including electronic and digital record, s.2(8); fraudulently, s.2(9); gender including transgender, s.2(10); good faith as due care and attention, s.2(11); injury, s.2(14); movable property, s.2(21); person including a company, s.2(26); public servant, s.2(28); reason to believe, s.2(29); valuable security, s.2(31).

Section 3. Seven general explanations: offences read subject to the general exceptions; explained expressions carry through; possession through spouse, clerk or servant; acts include illegal omissions; common intention; shared knowledge or intention; and effect caused partly by act and partly by omission.

Section 3(5). Common intention. Formerly section 34 of the Penal Code, now a sub-section of the general explanations.

Test yourself

1. Define "dishonestly" and "fraudulently", and say how they differ. Dishonestly, section 2(7), is doing anything with the intention of causing wrongful gain to one person or wrongful loss to another; fraudulently, section 2(9), is doing anything with the intention to defraud but not otherwise. The first is tied to gain or loss in property; the second is not.

2. State section 3(5) and its three ingredients. When a criminal act is done by several persons in furtherance of the common intention of all, each is liable as if he had done it alone. The ingredients are a criminal act by several persons, a common intention shared before the act, and an act done in furtherance of that intention.

3. Is a company a "person" under the Sanhita? Yes. Section 2(26) includes any company or association or body of persons, whether incorporated or not.

4. A shopkeeper's assistant sells goods entrusted to him and keeps the money. Whose possession were the goods in? The shopkeeper's. Section 3(3) provides that property in the possession of a person's clerk or servant on that person's account is in that person's possession.

5. What is the test of good faith, and why is it unusual? Section 2(11): nothing is done or believed in good faith which is done or believed without due care and attention. It is unusual because it is framed negatively and because it makes care, rather than honesty alone, the test.

Section 9 limits punishment where an offence is made up of parts each of which is itself an offence, or where an act falls within two or more definitions. The offender is not to be punished for more than one of those offences, nor more severely than the court could award for any one of them.

Section 10. Where the judgment is that the accused is guilty of one of several specified offences but it is doubtful which, he is punished for the offence carrying the lowest punishment.

Section 11 permits solitary confinement where the court may sentence to rigorous imprisonment, for not more than three months in all, on a scale: not more than one month if the term does not exceed six months; not more than two months if it exceeds six months but not one year; not more than three months if it exceeds one year.

Section 12 limits how solitary confinement is executed: never more than fourteen days at a time, with intervals at least as long as the periods, and where the imprisonment exceeds three months, not more than seven days in any one month, again with equal intervals.

Section 13 provides enhanced punishment after a previous conviction. A person convicted in India of an offence under Chapter X or Chapter XVII punishable with imprisonment of either description for three years or more, who is then guilty of any offence under either Chapter punishable with like imprisonment for the like term, is liable for the subsequent offence to imprisonment for life or to imprisonment of either description for up to ten years.

Community service, the new punishment

It is the sixth punishment, and the Sanhita does not define it. Section 4(f) names it and stops. The definition is in the Explanation to section 23 of the Bharatiya Nagarik Suraksha Sanhita, 2023: "'Community service' shall mean the work which the Court may order a convict to perform as a form of punishment that benefits the community, for which he shall not be entitled to any remuneration."

Two features follow from that definition. The work must benefit the community, and the convict is paid nothing for it. It is therefore a punishment and not employment.

Magistrates may pass it. Section 23(2) of the Bharatiya Nagarik Suraksha Sanhita empowers a Magistrate of the first class to pass a sentence of community service, and section 23(3) empowers a Magistrate of the second class to do so.

Default is provided for. Section 8(4) of the Sanhita allows imprisonment in default of community service as well as in default of a fine, and section 8(5) caps that default imprisonment in the same way as for a fine.

It is available only where an offence provides for it. Community service is not a general alternative a court may substitute at large. Counted through the Sanhita, it appears in the punishment clause of exactly six offences:

The proviso to section 303(2) is the only place community service is compulsory. For a first conviction for theft where the value is under five thousand rupees, the offender "shall upon return of the value of property or restoration of the stolen property, shall be punished with community service". Everywhere else it is one option among several.

Distinctions that carry marks

A worked example

Ravi Salunkhe is convicted of an offence punishable with imprisonment up to two years and fine. The Magistrate sentences him to six months rigorous imprisonment and a fine of eight thousand rupees, with three months simple imprisonment in default.

Is the default term lawful? The offence is punishable with imprisonment as well as fine, so section 8(3) applies: the default term may not exceed one fourth of the maximum term fixed for the offence. The maximum is two years, one fourth of which is six months, and three months is within it. The direction is good.

Change the offence to one punishable with fine only, the fine again eight thousand rupees. Now section 8(5) governs. The default imprisonment must be simple, and because the fine does not exceed ten thousand rupees the term may not exceed four months.

Ravi pays six thousand rupees after one month of a four month default term. By section 8(6)(b), the imprisonment terminates when the proportion suffered is at least proportional to the part of the fine still unpaid. He has paid three quarters, so a quarter of the term, one month, discharges him, and he is released at once.

Could the Magistrate have ordered solitary confinement? Only if the court had power to sentence him to rigorous imprisonment, which here it did. Even then it could not exceed one month, because the term of imprisonment did not exceed six months.

What it does NOT mean

Imprisonment for life does not mean twenty years. Section 6 makes life imprisonment equal to twenty years only "in calculating fractions of terms of punishment". A life sentence is imprisonment for the remainder of the convict's natural life unless remitted.

"Not excessive" in section 8(1) is not a licence. An unlimited fine is still controlled, and a fine grossly disproportionate to the offence and to the offender's means is bad.

Section 9 is not a bar on framing several charges. It limits punishment, not prosecution. A person may be charged in the alternative and convicted on one.

Community service is not probation. Probation under the Probation of Offenders Act, 1958 releases an offender instead of sentencing him. Community service is a sentence.

Limits and criticism

Solitary confinement has survived, and it is criticised. It has been retained in sections 11 and 12 despite long-standing objection that isolation is a distinct and severe harm, and despite the safeguards being about duration rather than about whether it should exist.

Community service is under-specified. The Sanhita names it without defining it, the definition is in a different statute, and neither says who supervises the work, what happens on partial performance, or how the hours are fixed. Those questions have been left to rules and to practice.

Hard labour is still on the face of the statute. Section 4(c)(1) defines rigorous imprisonment as imprisonment with hard labour, wording carried straight from 1860.

Quick revision

Section 4, the six punishments. Death; imprisonment for life; imprisonment, rigorous or simple; forfeiture of property; fine; community service.

What is new. Community service, section 4(f). The Penal Code's section 53 had five.

Its definition. Explanation to section 23 of the Bharatiya Nagarik Suraksha Sanhita: work ordered by the court as punishment, benefiting the community, unremunerated.

Section 6. Life imprisonment equals twenty years only for calculating fractions.

Section 8. Fine unlimited where no maximum is stated but not excessive; default imprisonment capped at one fourth of the maximum term, or at two, four or twelve months where the offence carries fine or community service only; recoverable for six years.

Sections 11 and 12. Solitary confinement, maximum three months in all, never more than fourteen days at a time, with equal intervals.

Section 13. Enhanced punishment for a repeat offence under Chapter X or Chapter XVII.

Test yourself

1. List the punishments under section 4 and say which one is new. Death, imprisonment for life, imprisonment which is rigorous or simple, forfeiture of property, fine, and community service. Community service is the addition; the Penal Code's section 53 had the other five.

2. Where is community service defined, and what are its two features? In the Explanation to section 23 of the Bharatiya Nagarik Suraksha Sanhita, 2023. It is work the court orders as punishment that benefits the community, and it is unremunerated.

3. An offence is punishable with imprisonment up to three years and fine. What is the longest default term the court may order? Nine months. Section 8(3) caps default imprisonment at one fourth of the maximum term fixed for the offence.

4. Does section 6 mean a life sentence lasts twenty years? No. The equivalence applies only to the calculation of fractions of terms of punishment. Life imprisonment otherwise means imprisonment for the remainder of natural life unless remitted.

5. What are the limits on solitary confinement? Three months in all, on the scale in section 11; and by section 12 never more than fourteen days at a time with intervals at least as long, and where the imprisonment exceeds three months, not more than seven days in any one month.

Sections 20 and 21, infancy. Nothing is an offence done by a child under seven years of age. Nothing is an offence done by a child above seven and under twelve who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.

Section 22, unsoundness of mind. Nothing is an offence done by a person who, at the time of doing it, by reason of unsoundness of mind is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.

Sections 23 and 24, intoxication. Section 23 excuses a person incapable of judgment by reason of intoxication caused against his will or without his knowledge. Section 24 provides that where an offence requires a particular intent or knowledge, a person who is intoxicated is dealt with as if he had the same knowledge as he would have had if not intoxicated, unless the thing which intoxicated him was administered without his knowledge or against his will.

Sections 25 to 30, consent. Section 25 covers an act not intended and not known to be likely to cause death or grievous hurt, done with consent by a person above eighteen. Section 26 covers an act not intended to cause death, done in good faith for a person's benefit with consent. Section 27 covers an act done in good faith for the benefit of a child under twelve or a person of unsound mind, by or with the consent of the guardian. Section 28 excludes consent given under fear of injury or under a misconception of fact, consent by a person of unsound mind or intoxicated, and consent by a child under twelve. Section 29 makes clear the exceptions do not extend to acts which are offences independently of the harm caused. Section 30 covers an act done in good faith for a person's benefit without consent, where consent is impossible to obtain in time.

Section 31, communication. A communication made in good faith is no offence by reason of any harm to the person to whom it is made, if it is made for that person's benefit.

Section 32, compulsion. An act done by a person compelled by threats which at the time reasonably cause the apprehension of instant death is no offence, provided the person did not of his own accord place himself in that situation. Murder and offences against the State punishable with death are excluded.

Section 33, trifles. Nothing is an offence by reason that it causes, or is intended to cause, or is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of it.

Distinctions that carry marks

A worked example

Sadanand Pawar, a farmer near Karjat, sits up at night to guard his crop. He sees movement in the maize, believes it to be a wild boar, and fires. The movement is his neighbour's son, who dies.

Section 18 is the first question. Was the act lawful, done in a lawful manner by lawful means, with proper care and caution? Firing a licensed gun at a crop raider may be lawful, but "proper care and caution" is where such cases are decided. If Sadanand fired into undergrowth without ascertaining what was there, the exception fails, and section 106 on causing death by negligence is in play.

Section 14 does not help him. He was not bound by law to shoot, and his mistake, if it excuses at all, must be one of fact, which brings him back to sections 17 and 18.

Change the facts. Suppose the movement really was a boar, Sadanand fired with proper care, and the bullet ricocheted off a rock and killed a man he could not have seen. Now section 18 is squarely satisfied: the act was lawful, the means lawful, the care proper, and the death an accident.

Change them again. Suppose Sadanand is eleven years old. Section 21 is then the question, and the prosecution must confront not only what he did but whether he had attained sufficient maturity of understanding to judge of the nature and consequences of firing a gun on that occasion.

What beginners get wrong

Thinking an exception reduces the offence. It does not. A successful exception means no offence at all. What reduces murder to culpable homicide is a different device, the five exceptions to section 101, worked in the chapter on murder.

Reading section 22 as covering every mental illness. It does not. The section asks whether unsoundness of mind made the accused incapable of knowing the nature of the act, or that it was wrong or contrary to law. A person who knew both is outside it however ill he was.

Assuming drunkenness excuses. Section 24 does the opposite for self-induced intoxication: the accused is fixed with the knowledge he would have had sober.

Forgetting section 28. Consent is worthless if it was given under fear of injury or a misconception of fact and the doer knew or had reason to believe so, or if it came from a person of unsound mind, from an intoxicated person, or from a child under twelve.

Limits and criticism

The insanity test is the 1843 rule in statutory form. Section 22 restates the English test of that era, and it has been criticised for a century as a test of knowledge alone that ignores the accused's capacity to control what he does.

Section 32 excludes murder without qualification. A person who kills under an immediate threat of death to himself has no exception, and the provision has been criticised for treating that person as if he had a real choice.

The age in section 21 was not raised. The Sanhita kept seven and twelve, although the Juvenile Justice Act which Module IV takes up treats everyone under eighteen as a child, so a fourteen-year-old is fully liable in principle under this statute while being dealt with entirely outside the ordinary courts under that one.

Quick revision

The rule that makes them general. Section 3(1): every definition of an offence and every penal provision is read subject to Chapter III, though the exceptions are not repeated.

Acting under law. Sections 14 to 17: bound by law, Judge acting judicially, act under a court's order, justified by law. Mistake of fact only, never mistake of law.

No fault. Section 18 accident, section 19 necessity, section 33 trifles.

Capacity. Section 20 child under seven; section 21 child seven to twelve of immature understanding; section 22 unsoundness of mind; sections 23 and 24 intoxication.

Consent. Sections 25 to 30, and section 28 which says when consent is no consent.

Others. Section 31 communication in good faith for the recipient's benefit; section 32 compulsion by threat of instant death, excluding murder and offences against the State punishable with death.

The effect. Acquittal, not mitigation. The accused must bring himself within the exception on the balance of probabilities.

Test yourself

1. What does section 3(1) do for Chapter III? It provides that every definition of an offence, every penal provision and every Illustration in the Sanhita is understood subject to the general exceptions, even though the exceptions are not repeated in them.

2. Distinguish sections 20 and 21. Section 20 is absolute: nothing done by a child under seven is an offence. Section 21 applies to a child above seven and under twelve and is conditional on the child not having attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.

3. A man drinks heavily of his own accord and kills. Can he rely on intoxication? Not under section 23, which requires intoxication caused against his will or without his knowledge. Section 24 applies instead and fixes him with the knowledge he would have had if sober.

4. When is consent no consent? Under section 28, where it is given under fear of injury or a misconception of fact and the doer knows or has reason to believe so; where it is given by a person of unsound mind or intoxicated who cannot understand the nature and consequence; and where it is given by a child under twelve.

5. Does a general exception reduce an offence or remove it? It removes it. Section 34 puts the principle at its plainest for private defence: nothing is an offence which is done in the exercise of that right.

The two Explanations to section 37 preserve the right against a public servant whom the defender does not know or have reason to believe to be one, and against a person acting on a public servant's direction unless the defender knows or has reason to believe it, or the person states his authority or produces it in writing on demand.

Section 38 lists the seven assaults against which the right of private defence of the body extends to causing death: an assault reasonably causing apprehension of death; one reasonably causing apprehension of grievous hurt; assault with intent to commit rape; assault with intent to gratify unnatural lust; assault with intent to kidnap or abduct; assault with intent to confine wrongfully in circumstances reasonably causing apprehension that the person will be unable to have recourse to the public authorities for release; and an act of throwing or administering acid, or an attempt to do so, which may reasonably cause apprehension that grievous hurt will otherwise follow.

Section 39. Where the offence is not within section 38, the right of private defence of the body does not extend to causing death but does extend, subject to section 37, to causing any harm other than death.

Section 40 governs when the right of private defence of the body begins and ends: it commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, though the offence may not have been committed, and it continues as long as that apprehension continues.

Section 41 lists the four offences against which the right of private defence of property extends to causing death: robbery; house-breaking after sunset and before sunrise; mischief by fire or any explosive substance on a building, tent or vessel used as a human dwelling or for the custody of property; and theft, mischief or house-trespass in circumstances reasonably causing apprehension that death or grievous hurt will follow if the right is not exercised.

Section 42. Where the offence is theft, mischief or criminal trespass not within section 41, the right does not extend to causing death but does extend to causing any harm other than death.

Section 43 governs when the right of private defence of property begins and ends, and it does so offence by offence: against theft it continues until the offender has effected his retreat with the property, or the assistance of the public authorities is obtained, or the property is recovered.

Section 44 provides that if the defender, resisting an assault reasonably causing apprehension of death, cannot effectually exercise the right without risk of harm to an innocent person, his right extends to running that risk. Its illustration is a man attacked by a mob who cannot fire without risking children mingled with it.

Broken down: the four questions

One: was there an offence of the right kind? For the body, any offence affecting the human body. For property, theft, robbery, mischief or criminal trespass, or an attempt. An insult is not an offence affecting the human body, and there is no private defence against words.

Two: had the right begun, and had it ended? Sections 40 and 43. A reasonable apprehension is enough to begin it, so the defender need not wait to be struck. It ends when the apprehension ends, and force used after that is retaliation.

Three: was any restriction in section 37 engaged? Above all, was there time to go to the public authorities? If there was, the right does not exist at all.

Four: how much harm was permitted? Section 37(2) is the ceiling in every case: never more harm than is necessary for defence. Sections 38 and 41 then say when the harm permitted may extend to death, and sections 39 and 42 say that in every other case it may not.

Distinctions that carry marks

A worked example

Late one evening two men break into Meera Joshi's ground floor flat in Thane after dark. One holds a knife and demands her jewellery; the other pulls at her cupboard.

Has the right begun? Yes. Section 40 puts its commencement at a reasonable apprehension of danger to the body arising from a threat, and a knife held to her is more than enough. Section 43 gives her a right in respect of the property too.

How far does it go? The offence is robbery, which is named in section 41(a), and it is also an assault reasonably causing apprehension of death or grievous hurt under section 38(a) and (b). So her right extends to causing death.

Is there time to call the police? No, and that is the point of section 37(1)(c). The restriction bites where a person could safely have gone to the authorities instead, not where the danger is present and immediate.

She strikes the knifeman with a heavy brass lamp and he dies. Section 34 makes that no offence. Section 37(2) is satisfied because one blow to stop an armed robber in her home is not more harm than necessary.

Now change one fact. The two men drop the jewellery and run into the street. Meera follows them for two hundred metres and strikes the second man from behind, killing him. The right has ended: under section 43 her right in respect of the theft ceased when the offenders retreated without the property, and under section 40 her apprehension of danger to her body ceased when they fled. That killing is not private defence.

Change another. Suppose she fires a licensed pistol at the two men in a crowded corridor and a neighbour's child is hit. If she was resisting an assault reasonably causing apprehension of death, and could not effectually defend herself without that risk, section 44 covers the harm to the child.

What it does NOT mean

It is not a right to a fair fight. The defender need not match weapon for weapon, and the law does not require him to weigh his response in golden scales while under attack. What section 37(2) forbids is harm beyond what was necessary, judged on the facts as they reasonably appeared.

It is not lost because the aggressor is not punishable. Section 36 preserves it against a child, a person of unsound mind, an intoxicated person and a person acting under a misconception.

It is not available against a public servant acting in good faith, unless the act reasonably causes apprehension of death or grievous hurt, or the defender does not know and has no reason to believe the person is a public servant.

It does not have to be pleaded to be considered. A court may find the right made out on the prosecution's own evidence, and the accused need not have set it up in his statement.

Limits and criticism

Section 37(1)(c) is criticised as unrealistic. Whether there was time to reach the public authorities is judged afterwards, in calm, by people who were not there.

The property clauses draw a line by the clock. Section 41(b) permits killing to prevent house-breaking only "after sunset and before sunrise", a distinction inherited from 1860 that has little to do with the danger actually presented.

The acid clause was a late addition. Section 38(g) carries over the clause added to Penal Code section 100 as "Seventhly" by the criminal law amendment of 2013, after a run of acid attacks exposed that the six original descriptions did not clearly cover them.

Quick revision

Section 34. Nothing is an offence which is done in the exercise of the right of private defence.

Section 35. The right, against any offence affecting the human body, and against theft, robbery, mischief and criminal trespass and attempts at them.

Section 36. Preserved against a person not himself punishable by reason of youth, unsoundness of mind, intoxication or misconception.

Section 37. No right against a public servant acting in good faith unless death or grievous hurt is apprehended; none where there is time to go to the public authorities; and never more harm than necessary.

Section 38, seven descriptions. Apprehension of death; apprehension of grievous hurt; rape; gratifying unnatural lust; kidnapping or abduction; wrongful confinement with no recourse to the authorities; throwing or administering acid.

Section 41, four descriptions. Robbery; house-breaking after sunset and before sunrise; mischief by fire or explosive on a dwelling or a place of custody; theft, mischief or house-trespass in circumstances apprehending death or grievous hurt.

Sections 40 and 43. Commencement and continuance, for the body and for property.

Section 44. The risk to an innocent person may be run when resisting a deadly assault.

Test yourself

1. State section 34 and say what kind of provision it is. "Nothing is an offence which is done in the exercise of the right of private defence." It is a general exception in Chapter III, so a successful plea produces an acquittal, not a reduced offence.

2. Give three of the seven descriptions in section 38. Any three of: assault reasonably causing apprehension of death; assault reasonably causing apprehension of grievous hurt; assault with intent to commit rape; assault with intent to gratify unnatural lust; assault with intent to kidnap or abduct; assault with intent to confine wrongfully where the person cannot have recourse to the public authorities; and throwing or administering acid, or an attempt, apprehending grievous hurt.

3. When does the right of private defence of property against theft end? Under section 43, when the offender has effected his retreat with the property, or the assistance of the public authorities is obtained, or the property is recovered.

4. A crowd shouts abuse at a man in the street. May he strike them in private defence? No. The right under section 35(a) arises against an offence affecting the human body, and abuse is not such an offence. Nor is there any right of private defence of reputation.

5. What is the single ceiling that applies to every exercise of the right? Section 37(2): the right in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.

Section 46 defines the abettor and carries five Explanations. The offence abetted need not be committed, Explanation 2. The person abetted need not be capable in law of committing an offence, nor have any guilty intention, Explanation 3. Abetment of an abetment is an offence, Explanation 4. For abetment by conspiracy the abettor need not concert with the person who commits the offence; it is enough that he engages in the conspiracy in pursuance of which it is committed, Explanation 5.

Sections 47 and 48 reach across the border. Section 47 covers abetment in India of an act outside India which would be an offence if committed in India. Section 48 covers abetment outside India of an act in India which would be an offence if committed in India.

Section 49 is the ordinary punishment. Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment and no express provision is made for the punishment of the abetment, be punished with the punishment provided for the offence.

Sections 50 to 54 deal with mismatch and presence. Section 50 covers the person abetted acting with a different intention. Section 51 covers a different act being done. Section 52 makes the abettor liable cumulatively where the act done is a distinct offence. Section 53 covers a different effect. Section 54 provides that an abettor present when the offence is committed is deemed to have committed it.

Sections 55 and 56 punish abetment where the offence is not committed. Under section 55, abetment of an offence punishable with death or imprisonment for life, where the offence is not committed, carries up to seven years and fine, rising to fourteen years if any act for which the abettor is liable causes hurt. Under section 56, abetment of an offence punishable with imprisonment, where it is not committed, carries up to one fourth of the longest term for that offence, or up to one half where the abettor or the person abetted is a public servant whose duty it is to prevent the offence.

Section 57 punishes abetting the commission of an offence by the public generally, or by more than ten persons, with up to seven years and fine.

Sections 58 to 60 punish concealment. Section 58 covers concealing a design to commit an offence punishable with death or imprisonment for life. Section 59 covers a public servant concealing a design to commit an offence which it is his duty to prevent. Section 60 covers concealing a design to commit an offence punishable with imprisonment.

Broken down: the three modes

Instigation. To instigate is to goad, urge, provoke or incite. Mere advice is not instigation unless it was intended to be acted on. By Explanation 1 to section 45, a wilful misrepresentation or a wilful concealment of a fact one is bound to disclose counts, which is how the man who tells a police officer that C is the wanted Z abets C's apprehension.

Conspiracy. Here abetment needs two things: an agreement, and an act or illegal omission in pursuance of it and in order to the doing of the thing. Bare agreement is not abetment by conspiracy, although it may be criminal conspiracy under section 61.

Aid. Aid must be intentional. A shopkeeper who sells a knife to a man who later kills with it has not aided the murder; a man who lends his car knowing it is to carry the killers has. By Explanation 2 to section 45, doing something to facilitate the act, before or at the time, is aid if it does facilitate it.

The abettor's liability when the person abetted is innocent

This is the part students find strange and examiners like. Explanation 3 to section 46 says the person abetted need not be capable in law of committing an offence, nor have any guilty intention.

Its illustrations make the position concrete. A man who instigates a child under seven to do an act that causes death is punished as if the child had been capable and had committed murder. A man who instigates a person of unsound mind to set fire to a house is guilty of abetting arson although the person who set the fire committed no offence. A man who tricks another into taking property by making him believe it is his own is guilty of abetting theft, although the taker was not dishonest and so did not steal.

The principle behind all three. Abetment attaches to the guilty mind of the abettor, not to the guilt of the person he used. A person who commits a crime through an innocent instrument commits it.

Distinctions that carry marks

A worked example

Deepak Rane wants his business partner Vikram removed from a contract negotiation. He tells Salim, a driver, that Vikram is a thief who has stolen from Deepak, and asks Salim to frighten him. He also gives Salim the address and lends him a motorcycle.

Which mode of abetment? Two of them. He instigated, because he urged Salim to act, and Explanation 1 to section 45 catches the wilful misrepresentation that Vikram was a thief. He also intentionally aided, by giving the address and the motorcycle, which facilitated the act.

Salim assaults Vikram, causing hurt. The offence abetted was committed in consequence of the abetment, so by section 49 Deepak is punished with the punishment provided for that offence, because no express provision is made for its abetment.

Salim instead kills Vikram. Now section 51 and section 53 come into play. If the killing was a probable consequence of the abetment, Deepak is liable for it; if Salim went off on a frolic of his own and did an act wholly different from the one abetted, he is not.

Salim refuses and does nothing. Deepak is still guilty. Explanation 2 to section 46 makes abetment complete without commission, and the punishment comes from section 56 because the offence abetted, causing hurt, is punishable with imprisonment: up to one fourth of the longest term for that offence.

Change one fact. Suppose Salim is a police constable whose duty it is to prevent assaults. Section 56 then doubles the exposure, to one half of the longest term, because the person abetted is a public servant whose duty it was to prevent the offence.

What beginners get wrong

Thinking abetment needs the crime to happen. It does not. Sections 55 and 56 exist precisely for the case where it did not.

Thinking the abettor must be present. He need not be. Presence turns him into a principal under section 54, which is a different and heavier result.

Confusing aid with knowledge. Aid must be intentional. Knowing that somebody may commit an offence is not aiding it; doing something in order to facilitate it is.

Assuming the abettor is safe if the doer is acquitted. Explanation 3 to section 46 says otherwise. The doer's innocence, whether from infancy, unsoundness of mind or absence of a guilty mind, does not save the abettor.

Limits and criticism

The line between advice and instigation is not drawn in the statute. It has been left to the courts, and it turns on whether the words were intended to be acted upon, which is a question of inference in every case.

Section 54 is severe. An abettor who happens to be present is deemed to have committed the offence, whatever his actual part in it, and the section makes no allowance for the degree of participation.

The concealment offences in sections 58 to 60 punish silence. They impose a duty to speak on a person who has no part in the crime, and they have been criticised as an exception to the general principle that the criminal law does not punish an omission unless a duty to act existed.

Quick revision

Section 45, three modes. Instigation; conspiracy plus an act or illegal omission in pursuance; intentional aid.

Explanations to section 45. Wilful misrepresentation or wilful concealment is instigation; facilitating an act before or at the time is aid.

Section 46, five Explanations. Abetment of an illegal omission counts; the act abetted need not be committed; the person abetted need not be capable or guilty; abetment of abetment is an offence; the conspirator need not concert with the doer.

Sections 47 and 48. Abetment across the border, both directions.

Section 49. Where the offence is committed, the abettor gets the punishment for the offence.

Section 55. Offence not committed, offence punishable with death or life: up to seven years, fourteen if hurt is caused.

Section 56. Offence not committed, offence punishable with imprisonment: up to one fourth of the longest term, one half where a public servant bound to prevent it is the abettor or the person abetted.

Section 54. An abettor present when the offence is committed is deemed to have committed it.

Test yourself

1. State the three modes of abetment with the section. Section 45: instigating any person to do the thing; engaging in a conspiracy for the doing of it where an act or illegal omission takes place in pursuance of it and in order to the doing of it; and intentionally aiding the doing of it by any act or illegal omission.

2. A instigates B, a child of six, to push C off a terrace, and C dies. Is A guilty of anything? Yes. By Explanation 3 to section 46 the person abetted need not be capable in law of committing an offence, and A is liable to be punished as if B had been capable and had committed murder.

3. What punishment does an abettor face where the offence abetted is never committed? Section 55 for an offence punishable with death or imprisonment for life, up to seven years and fine, or fourteen years if hurt results. Section 56 for an offence punishable with imprisonment, up to one fourth of the longest term, or one half where a public servant bound to prevent it is involved.

4. What is the difference between abetment by conspiracy and criminal conspiracy? Abetment by conspiracy under section 45(b) needs an act or illegal omission in pursuance of the agreement and is a mode of abetting some other offence. Criminal conspiracy under section 61 is a substantive offence and, for an agreement to commit an offence, needs nothing beyond the agreement.

5. What does section 54 do to an abettor who is present? It deems him to have committed the offence itself, rather than merely to have abetted it.

Broken down: the four questions

One: were there two or more persons? A person cannot conspire alone. Where all the alleged conspirators but one are acquitted, the conviction of the last cannot stand on conspiracy.

Two: was there an agreement? Not merely a common intention or a shared desire, but a meeting of minds on a plan. It need not be proved by direct evidence, and rarely can be; it is inferred from the acts and conduct of the parties.

Three: what was agreed? Either an illegal act, or a legal act by illegal means. The second limb is the one students forget. Two persons who agree to recover a genuine debt by kidnapping the debtor's son have agreed to a lawful object by unlawful means, and that is a conspiracy.

Four: is an overt act needed? Only where the agreement is not an agreement to commit an offence. Read the proviso carefully: for an agreement to commit an offence, the agreement alone is the conspiracy. For any other agreement, something must be done in pursuance of it.

Distinctions that carry marks

A worked example

Nitin, Farida and Kiran agree over three meetings to import a consignment of goods without paying customs duty. They settle who will pay the bribe, who will clear the container and who will store the goods. Nothing else happens for two months.

Is that a criminal conspiracy? Yes. Evading customs duty by bribing an officer is an agreement to commit an offence, so by the proviso no further act is needed. The agreement is complete and section 61 is satisfied on the day they agreed.

Nitin then rents a warehouse. That act is evidence from which the agreement can be inferred, which matters greatly in practice, because a conspiracy is almost never proved by anyone's testimony that an agreement was made.

Change the object. Suppose instead the three agree to force a rival out of a market by circulating a false story about his goods, conduct which grounds a civil action for defamation but which they intend to keep below the criminal line. That is an agreement to do an "illegal act" within section 2(15), because it furnishes ground for a civil action, but it is not an agreement to commit an offence. So the proviso applies, and there is no conspiracy until one of them does something in pursuance of it. When Kiran prints the first pamphlet, the conspiracy is complete.

Kiran withdraws before anything is printed. She was a party to the agreement, and in the first version of the facts that is enough to convict her. Withdrawal is relevant to sentence, and to whether she was ever party at all, but it does not undo an agreement already made.

What beginners get wrong

Thinking a conspiracy needs a completed crime. It does not. That is the whole point of the offence.

Thinking every conspiracy needs an overt act. Only conspiracies that are not agreements to commit an offence do. The proviso is drafted as an exception and reads backwards to most students on first reading.

Confusing it with common intention. Section 3(5) is not an offence, needs a criminal act actually done, and needs participation. Section 61 is an offence, and needs neither.

Assuming the object must be the main purpose. The Explanation says it is immaterial whether the illegal act is the ultimate object of the agreement or merely incidental to it.

Limits and criticism

Conspiracy is easy to charge and hard to disprove. Because the agreement is inferred from conduct, a wide range of associations can be presented as a plan, and the accused must displace an inference rather than answer a fact.

It expands the reach of evidence. A statement by one conspirator made in furtherance of the common design is receivable against all of them, which is a substantial departure from the ordinary rule that a person is not bound by what somebody else said.

It does not reach the syndicate. Conspiracy is tied to a particular illegal object. A criminal group that exists to commit whatever crimes are profitable is not one agreement, and proving a fresh conspiracy for each offence leaves the organisation untouched. That limitation is the reason Module II exists, and the chapter on organised crime returns to it.

Quick revision

Section 61(1). Two or more persons agreeing with the common object to do an illegal act, or a legal act by illegal means.

The proviso. For an agreement to commit an offence, the agreement alone suffices. For any other agreement, an act besides the agreement must be done in pursuance of it.

The Explanation. It is immaterial whether the illegal act is the ultimate object or merely incidental.

"Illegal", section 2(15). An offence, or prohibited by law, or furnishing ground for a civil action.

Section 61(2). Conspiracy to commit an offence punishable with death, life or rigorous imprisonment of two years or more is punished as an abetment of that offence. Any other conspiracy carries up to six months, or fine, or both.

Where it came from. Sections 120A and 120B of the Penal Code, now merged into one section.

Test yourself

1. Define criminal conspiracy with its section. Section 61(1): when two or more persons agree with the common object to do or cause to be done an illegal act, or an act which is not illegal by illegal means, that agreement is a criminal conspiracy.

2. When is an overt act required? Only where the agreement is not an agreement to commit an offence. The proviso to section 61(1) requires, in that case alone, that some act besides the agreement be done by one or more parties in pursuance of it.

3. Two persons agree to recover a lawful debt by abducting the debtor's child. Is that a conspiracy? Yes. The object is lawful but the means are illegal, which is limb (b) of section 61(1), and abduction is an offence, so no overt act is needed.

4. How is a conspiracy usually proved? By inference from the acts and conduct of the parties. Direct evidence of an agreement is almost never available, and the law does not require it.

5. Why did Parliament need a special Act for organised crime when conspiracy already existed? Because conspiracy attaches to an agreement about a particular illegal object. A syndicate that exists to commit whatever crimes are profitable is not a single agreement, and prosecuting a fresh conspiracy for each offence leaves the organisation itself untouched.

Three: the offence must be one punishable with imprisonment for life or imprisonment, and no express attempt provision must apply. An offence punishable with fine only is outside section 62, and an offence with its own attempt clause is governed by that clause.

Where preparation ends and attempt begins

Preparation is not punishable in general. A man who buys poison intending to use it has committed no offence unless a specific provision says so, and a few do, such as preparation to wage war.

The courts have used several tests, and they overlap rather than compete.

The proximity test asks how close the act came to the completed offence. Buying poison is remote; putting it in the victim's food is proximate.

The test of the last act asks whether the offender did everything he set out to do. This is a narrow test, because a person interrupted before the last act would escape.

The equivocality test asks whether the act, seen on its own, speaks unambiguously of a criminal purpose. A man carrying a can of petrol towards a haystack is equivocal; the same man pouring it over the haystack is not.

The illustrations to section 62 settle one point beyond argument. Impossibility is no answer. The empty box and the empty pocket both produced convictions in the statute's own examples, because the act done was an act towards the commission of the offence and the offender's failure came from a fact he did not know.

Distinctions that carry marks

A worked example

Ashok Gaikwad decides to burgle a jeweller's shop in Pune. He buys a cutting tool on Monday, studies the shutter on Tuesday, and on Wednesday night begins cutting through it. A patrol arrives and he runs.

Was buying the tool an attempt? No. It is preparation. Nothing about buying a cutting tool speaks unambiguously of a criminal purpose, and it is not proximate to the taking of any property.

Was studying the shutter an attempt? Still no, for the same reasons.

Was cutting the shutter an attempt? Yes. It is an act towards the commission of theft, it is proximate, and it is unequivocal. Section 62 applies unless the offence charged has its own attempt provision.

What punishment? Theft under section 303(2) is punishable with imprisonment which may extend to three years. Section 62 permits up to one half of the longest term, so up to eighteen months, or the fine provided for theft, or both.

Change one fact. Suppose the shop had been emptied that morning and there was nothing inside. Ashok is still guilty, on the authority of illustration (a) to section 62: the man who breaks open a box and finds no jewel has done an act towards the commission of theft.

What it does NOT mean

It does not punish intention. A person who decides to commit a crime and does nothing has committed no offence at all.

It does not require the offence to be possible. The two illustrations dispose of that.

It does not apply to every offence. Only to offences punishable with imprisonment for life or imprisonment, and only where the Sanhita makes no express provision for the attempt.

A withdrawal after the attempt begins does not undo it. Once an act towards the commission has been done, the offence under section 62 is complete, and abandoning the plan goes to sentence.

Limits and criticism

"Any act towards the commission" is very wide on its face. Taken literally it would swallow preparation, and the whole of the doctrine that limits it is judge-made rather than statutory.

The tests do not always agree. An act may be proximate but equivocal, or unequivocal but remote, and there is no rule in the statute for choosing between them.

The punishment is fixed as a fraction rather than by seriousness. One half of the term for the completed offence is a mechanical measure, and it produces the same discount for an attempt that failed by an inch and one that never had a chance.

Quick revision

Section 62. Attempting an offence punishable with imprisonment for life or imprisonment, and doing any act towards its commission, where no express provision is made.

Punishment. Up to one half of imprisonment for life, or one half of the longest term for the offence, or the fine provided, or both.

Three ingredients. Intention to commit the offence; an act towards its commission; an offence within the section with no express attempt provision.

The four stages. Intention, preparation, attempt, commission. The criminal law ordinarily enters at the third.

The tests. Proximity, last act, equivocality. They overlap and none is exclusive.

Impossibility. No defence, on the statute's own illustrations of the empty box and the empty pocket.

Test yourself

1. State section 62 and say what makes it residuary. It punishes an attempt to commit an offence punishable with imprisonment for life or imprisonment where an act towards the commission is done. It is residuary because it applies only where no express provision is made by the Sanhita for the punishment of that attempt.

2. A man buys a knife intending to kill his neighbour and is arrested at the shop. What offence, if any? None under section 62. Buying the knife is preparation, not an act towards the commission of the offence, and preparation to murder is not itself punishable.

3. What is the maximum punishment for an attempt under section 62 where the offence carries seven years? Three and a half years, being one half of the longest term, or the fine provided for the offence, or both.

4. Does it matter that the offence could not possibly have been completed? No. Illustrations (a) and (b) to section 62 convict the man who opens an empty box and the man who picks an empty pocket.

5. Name the three tests the courts use to separate preparation from attempt. Proximity to the completed offence; whether the offender did the last act he set out to do; and whether the act, taken by itself, is unequivocally referable to a criminal purpose.

Explanation 1 provides that "vagina" also includes labia majora.

Explanation 2, consent. "Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act", with a proviso that a woman who does not physically resist the act of penetration shall not by reason only of that fact be regarded as consenting.

Exception 1. A medical procedure or intervention shall not constitute rape.

Exception 2. "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape."

Section 64(1), the ordinary punishment. Rigorous imprisonment for not less than ten years, which may extend to imprisonment for life, and fine.

Section 64(2), the aggravated punishment, which is rigorous imprisonment for not less than ten years extending to imprisonment for the remainder of natural life, applies where the offender falls within a listed class. The classes include a police officer offending within his police station's limits, in a station house, or on a woman in his or a subordinate's custody; a public servant offending on a woman in his or a subordinate's custody; a member of the armed forces deployed in an area, offending in that area; a person on the management or staff of a jail, remand home, place of custody or a women's or children's institution, offending on an inmate; a person on the management or staff of a hospital, offending on a woman in it; and a relative, guardian or teacher, or a person in a position of trust or authority towards the woman.

Broken down: "against her will" and "without her consent"

These are two descriptions, not one, and the difference is examinable. Every act against a woman's will is also without her consent, but not every act without her consent is against her will.

"Against her will" imports active opposition. The woman knew what was proposed and resisted it, by word or by act.

"Without her consent" is wider. It covers the woman who was asleep, unconscious, or so placed that she gave no agreement at all. There is nothing for her to oppose, so the first description would not fit, and the second does.

Explanation 2 changes how consent is proved. It requires an unequivocal voluntary agreement communicated by words, gestures or any form of communication, to the specific sexual act. Silence is not consent, and the proviso puts beyond argument that absence of physical resistance is not consent either.

The age line, and Independent Thought

Description (vi) makes consent irrelevant below eighteen. A girl under eighteen cannot consent to sexual intercourse for the purposes of this section, and the man's belief about her age is not a defence on the face of the provision.

Exception 2 used to contradict that. Under the Penal Code, the exception to section 375 excluded from rape sexual intercourse by a man with his own wife where the wife was not under fifteen years of age. So a girl of sixteen could not consent, but if she was married her husband was outside the offence.

Facts. Independent Thought v. Union of India, (2017) 10 SCC 800. A registered society working on child rights brought a petition challenging that exception so far as it applied to a married girl between fifteen and eighteen years of age.

Held. The exception, in so far as it exempted sexual intercourse with a wife between fifteen and eighteen, could not stand, and it was read down so that the wife must be at least eighteen.

Why it matters here. The Sanhita has written that result into the statute. Exception 2 to section 63 now says "the wife not being under eighteen years of age", so the age in the exception and the age in description (vi) finally agree. What the decision could not do, and what the Sanhita did not do either, is remove the marital exception itself. The Verma Committee recommended its removal in 2013 and it was not removed.

Distinctions that carry marks

A worked example

Rekha, aged nineteen, attends a party where a man she has just met adds a sedative to her drink without her knowledge. She becomes semi-conscious and he has intercourse with her.

Which description applies? Description (v). At the time of any apparent consent she was unable to understand the nature and consequences of what she was consenting to, by reason of a stupefying substance administered by him. Description (ii) applies as well, because there was no agreement at all.

Would her failure to resist matter? No. The proviso to Explanation 2 says a woman who does not physically resist penetration is not, by reason only of that fact, to be regarded as consenting.

Change her age to seventeen. Description (vi) then applies whether or not there was any drug and whether or not she agreed, because a woman under eighteen cannot consent for the purposes of section 63.

Change the offender. Suppose the man is the warden of the hostel where she lives. Section 64(2)(f) applies, because he is a person in a position of trust or authority towards her, and the minimum sentence becomes rigorous imprisonment for ten years extending to imprisonment for the remainder of his natural life.

What beginners get wrong

Thinking rape requires proof of physical injury. It does not. Injury is evidence, sometimes powerful, but no description in section 63 requires it, and Explanation 2 makes absence of resistance irrelevant.

Thinking a promise of marriage makes intercourse rape. Section 69 was created precisely because it does not fall neatly within section 63. Where consent was given, though obtained by a false promise of marriage, section 69 provides a separate offence with a lower maximum.

Thinking the offence is gender-neutral. It is not. Section 63 opens "A man is said to commit rape", and the victim throughout is "a woman". A man cannot be the victim of this offence in Indian law.

Reading Exception 1 as a general medical defence. It exempts a medical procedure or intervention, not any act by a doctor.

Limits and criticism

The marital exception survives. Exception 2 removes from the definition sexual acts by a man with his wife aged eighteen or above, whatever the circumstances. India is among the shrinking number of jurisdictions retaining such an exception, and the Sanhita, having raised the age, left the principle untouched.

The offence remains one-directional. The Verma Committee proposed a gender-neutral offence of sexual assault; the amendment of 2013 did not adopt it and neither did the Sanhita, so a male or transgender victim of the same acts is left to other provisions.

Section 67 sits awkwardly beside the exception. A husband who has intercourse with a wife living separately without her consent commits an offence carrying two to seven years, whereas the same act against a wife not living separately is not an offence at all. The separation, rather than the absence of consent, is doing the work.

Quick revision

Section 63. Four acts, clauses (a) to (d), in any of seven circumstances, sub-clauses (i) to (vii).

The seven descriptions. Against her will; without her consent; consent by fear of death or hurt; consent obtained by impersonating her husband; consent while incapable through unsoundness of mind, intoxication or a substance he administered; under eighteen, with or without consent; unable to communicate consent.

Explanation 2. Consent is an unequivocal voluntary agreement communicated to the specific act, and non-resistance is not consent.

Exception 1. Medical procedures. Exception 2. A man and his wife aged eighteen or above.

Independent Thought, (2017) 10 SCC 800. Read down the old exception so far as it covered a wife between fifteen and eighteen. The Sanhita has enacted that result.

Section 64(1). Not less than ten years, extending to imprisonment for life, and fine.

Section 64(2). The aggravated classes, including police officers, public servants, armed forces in a deployed area, custodial and hospital staff, and relatives, guardians, teachers and persons in a position of trust or authority.

Test yourself

1. How many acts and how many circumstances does section 63 describe? Four acts, in clauses (a) to (d), and seven circumstances, in sub-clauses (i) to (vii).

2. Distinguish "against her will" from "without her consent". The first requires active opposition by the woman; the second requires only the absence of an agreement, and so covers a woman who was asleep, unconscious or otherwise incapable of giving one. Every case within the first is also within the second.

3. What did Independent Thought v. Union of India decide, and what does the Sanhita now say? It held that the exception to section 375 of the Penal Code could not stand so far as it exempted sexual intercourse with a wife between fifteen and eighteen, and read it down accordingly. Exception 2 to section 63 now says the wife must not be under eighteen years of age.

4. Does a woman's failure to resist amount to consent? No. The proviso to Explanation 2 to section 63 says that a woman who does not physically resist the act of penetration shall not, by reason only of that fact, be regarded as consenting.

5. Name three classes of offender to whom the aggravated punishment in section 64(2) applies. Any three of: a police officer offending within his police station's limits, in a station house or on a woman in custody; a public servant offending on a woman in custody; a member of the armed forces deployed in an area, offending there; staff of a jail, remand home or women's or children's institution offending on an inmate; hospital staff offending on a woman in the hospital; and a relative, guardian, teacher or person in a position of trust or authority.

Section 69, deceitful means. Whoever, by deceitful means or by making a promise to marry a woman without any intention of fulfilling it, has sexual intercourse with her, such intercourse not amounting to rape, is punished with imprisonment which may extend to ten years and fine. The Explanation provides that "deceitful means" includes inducement for, or false promise of, employment or promotion, or marrying by suppressing identity.

Section 70(1), gang rape. Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each is deemed to have committed rape and is punished with rigorous imprisonment for not less than twenty years, extending to imprisonment for the remainder of natural life, and with fine, subject to the same two provisos about the fine.

Section 70(2), gang rape of a woman under eighteen. Each offender is punished with imprisonment for life meaning the remainder of natural life, and with fine, or with death.

Broken down: what makes gang rape different

It is a deeming provision. Section 70 does not require proof that each accused personally committed one of the acts in section 63. Once the group or the common intention is established and the woman is raped, each of them is deemed to have committed rape.

"A group or acting in furtherance of a common intention" is an alternative. Persons constituting a group qualify. So do persons who did not form a group but acted in furtherance of a common intention, which imports the language of section 3(5).

The minimum is twenty years in every case. That is double the minimum for rape under section 64(1), and where the woman is under eighteen the minimum becomes imprisonment for the remainder of natural life.

Section 69 is new, and it will be asked

The Penal Code had no such offence. A false promise of marriage was litigated for years under section 375 itself, on the argument that a consent obtained by such a promise was no consent because it rested on a misconception of fact.

Section 69 removes that argument by giving the conduct its own offence. The words "such sexual intercourse not amounting to the offence of rape" mark it off from section 63: if the case falls within one of the seven descriptions, it is rape and section 69 does not arise.

Its Explanation is wider than the marriage promise. "Deceitful means" includes inducement for or a false promise of employment or promotion, and marrying by suppressing identity, so the section reaches the employer and the man who conceals who he is.

Distinctions that carry marks

A worked example

Four men waylay a woman on a road outside Nashik. Two hold her, one keeps watch, and one commits an act within section 63.

What is each liable for? All four, under section 70(1). The section deems each person constituting the group, or acting in furtherance of a common intention, to have committed the offence of rape. The man who kept watch is not merely an abettor; he is deemed a rapist, and the minimum for each is twenty years rigorous imprisonment.

The woman is sixteen. Section 70(2) then applies rather than section 70(1), because she is under eighteen, and the punishment for each becomes imprisonment for the remainder of natural life and fine, or death.

The fine. In either case the two provisos govern it: it must be just and reasonable to meet her medical expenses and rehabilitation, and it must be paid to her, not to the State.

She dies of the injuries inflicted. Section 66 becomes available against the man who inflicted the injury causing death, carrying not less than twenty years extending to imprisonment for the remainder of natural life, or death.

Change the facts entirely. Suppose instead a college principal tells a student that her admission depends on it and she submits. There is no force and none of the seven descriptions in section 63 applies. Section 68 does: he is in a position of authority, he abused it to induce a woman under his charge to have intercourse, and the intercourse does not amount to rape. The minimum is five years.

What beginners get wrong

Thinking section 66 is a homicide provision. It is not. It punishes a rape in the course of which an injury causing death or a persistent vegetative state was inflicted, and it sits in Chapter V, not among the offences affecting the human body.

Thinking gang rape needs five persons. It does not. Section 70 speaks of "one or more persons constituting a group", and there is no numerical threshold like the five required for an unlawful assembly under section 189.

Reading section 69 as covering every broken engagement. It requires a promise made without any intention of fulfilling it. A promise honestly made and later broken is not within it.

Thinking section 67 makes marital rape an offence. It does not. It reaches only a wife who is living separately, and Exception 2 to section 63 continues to place the wife who is not living separately outside the definition of rape altogether.

Limits and criticism

Section 65 draws two age lines and gives them the same minimum. Under sixteen and under twelve both carry twenty years; the only difference is that the lower band admits the death penalty. Whether a graded minimum would have been more coherent is a fair question.

Death for an offence not causing death. Sections 65(2) and 70(2) permit capital punishment where the victim survives. That is a significant extension of the class of capital offences, and it is defended on deterrence and criticised on the ground that it may increase the risk to the victim's life.

Section 69 is criticised from both directions. Some say it criminalises the ordinary failure of a relationship; others say it is too narrow, because it requires proof of an intention never to marry, which is a state of mind at a past moment.

Quick revision

Section 65(1) and (2). Rape on a woman under sixteen, and under twelve. Both carry a minimum of twenty years rigorous imprisonment; the second admits death. Fine to be paid to the victim in both.

Section 66. Rape causing death or a persistent vegetative state: twenty years to imprisonment for the remainder of natural life, or death.

Section 67. Husband, wife living separately, without consent: two to seven years and fine.

Section 68. Person in authority or a fiduciary relationship, public servant, custodial or hospital staff, abusing position, intercourse not amounting to rape: five to ten years and fine.

Section 69. Deceitful means or a false promise of marriage, intercourse not amounting to rape: up to ten years and fine. Deceitful means includes false promises of employment or promotion and marrying by suppressing identity.

Section 70(1) and (2). Gang rape: minimum twenty years; where the woman is under eighteen, imprisonment for the remainder of natural life or death. Each member is deemed to have committed rape.

Test yourself

1. What is the minimum sentence for gang rape, and what must be proved against each accused? Rigorous imprisonment for twenty years under section 70(1). It need not be proved that each accused personally committed an act within section 63; it is enough that he was one of the persons constituting the group or acted in furtherance of a common intention, and each is then deemed to have committed rape.

2. Which sections of the Sanhita permit death for a sexual offence where the victim survives? Sections 65(2), rape on a woman under twelve, and 70(2), gang rape of a woman under eighteen.

3. What does section 69 punish, and what does the Explanation add? Sexual intercourse obtained by deceitful means or by a promise to marry made without any intention of fulfilling it, where the intercourse does not amount to rape. The Explanation includes within deceitful means an inducement for or false promise of employment or promotion, and marrying by suppressing identity.

4. A hospital administrator induces a patient in the hospital to have intercourse by abusing his position. Which section applies? Section 68, which covers a person on the management or staff of a hospital who abuses that position to induce or seduce a woman present in the premises, where the intercourse does not amount to rape. The minimum is five years rigorous imprisonment.

5. To whom is the fine under sections 65 and 70 payable? To the victim. Both sections carry provisos requiring the fine to be just and reasonable to meet her medical expenses and rehabilitation, and requiring it to be paid to her.

Section 73. Whoever prints or publishes any matter in relation to any proceeding before a Court with respect to an offence referred to in section 72, without the previous permission of that Court, is punished with imprisonment of either description which may extend to two years, and fine.

The Explanation to section 73 provides that printing or publishing the judgment of any High Court or the Supreme Court is not an offence within the section.

Broken down: what section 71 requires

A previous conviction under one of four sections. Section 64, punishment for rape; section 65, rape on a woman under sixteen or under twelve; section 66, rape causing death or a persistent vegetative state; section 70, gang rape. A conviction under any other provision, however serious, does not engage it.

A subsequent conviction under any of the same four. The two need not be under the same section. A first conviction under section 64 followed by a second under section 70 is enough.

The consequence is fixed, not discretionary as to its floor. The court must impose imprisonment for the remainder of natural life, or death. There is no lesser option, and the section leaves no room for a term of years.

Broken down: what "identity" means in section 72

The prohibition is wider than the name. It covers "any matter which may make known the identity" of the victim, so the offence is committed by publishing an address, a photograph of a house, the name of a school or a village combined with a family description, even if the name never appears.

It bites from the allegation, not the conviction. The words are "is alleged or found to have been committed", so the protection attaches as soon as the complaint is made.

The exemptions are narrow and formal. A police officer's authorisation must be in writing and in good faith for the investigation. The victim's own authorisation must be in writing. Where the victim is dead or a child or of unsound mind, the next of kin's written authorisation permits publication only to the chairman or secretary of a recognised welfare institution or organisation, and not to the public at large.

Distinctions that carry marks

A worked example

A regional news website reports the registration of a case of gang rape in a village near Latur. It names the village, prints the complainant's father's name, and carries a photograph of the family's house with a caption naming the school she attends.

Has it committed an offence under section 72? Yes, even though it never printed her name. The village, the father's name, the house and the school together are matter which may make known her identity, and section 72(1) covers exactly that.

Does it help that the case is only at the stage of a First Information Report? No. The section applies where an offence "is alleged or found to have been committed", so it applies from the complaint.

The same website then publishes the accused's bail application and the Sessions Court's order. That is a separate offence under section 73, because it is matter relating to a proceeding before a Court with respect to an offence referred to in section 72, published without that Court's previous permission.

It later publishes the High Court's judgment in the appeal in full. That is not an offence. The Explanation to section 73 exempts the printing or publication of a judgment of any High Court or the Supreme Court. Note the narrowness of that exemption: it covers the judgment, and it does not license republishing the identifying material from the earlier reports.

Change one fact. Suppose the complainant, now an adult, writes to the editor authorising publication of her name because she wishes to speak publicly. Written authorisation by the victim is an exemption under section 72(2), and publication of her name is then no offence. The court proceeding restriction in section 73 is unaffected, because only the Court can lift that.

What beginners get wrong

Thinking section 71 needs the two convictions to be under the same section. It does not. Any of the four qualifying sections for the first, any of the four for the second.

Thinking a court may impose a term of years under section 71. It may not. The section gives imprisonment for the remainder of natural life, or death, and nothing else.

Thinking anonymising the name is enough. Section 72 forbids any matter which may make known the identity, and identification by accumulation of detail is the commonest way the section is broken.

Thinking section 73 protects the accused. It protects the proceeding and, through it, the victim. The accused's identity is not the subject of either section.

Limits and criticism

Section 71 removes sentencing discretion in a class of case where facts vary widely. A second conviction may follow a first by twenty years or by two, and the section makes no distinction.

Section 72 is under-enforced. Prosecutions are rare, and identifying detail circulates on platforms that were not contemplated when the provision was drafted, which is a problem of enforcement rather than of the text.

Section 73 is a prior restraint on reporting. Publication about a pending proceeding is forbidden unless the Court permits it in advance, which is a significant departure from the ordinary position that reporting is free and contempt is dealt with afterwards. The Explanation saves only the judgments of the higher courts.

Quick revision

Section 71. Previous conviction under sections 64, 65, 66 or 70, and a subsequent conviction under any of them: imprisonment for the remainder of natural life, or death.

Section 72(1). Printing or publishing the name or any identifying matter of a victim of an offence under sections 64 to 71: up to two years and fine.

Section 72(2), the exemptions. Written order of the police for the investigation in good faith, clause (a); the victim's written authorisation, clause (b); the next of kin's written authorisation where the victim is dead or a child or of unsound mind, clause (c), and then only to the chairman or secretary of a recognised welfare institution or organisation recognised by the Central or a State Government.

Section 73. Publishing matter relating to a court proceeding in such a case without the Court's previous permission: up to two years and fine.

The Explanation to section 73. Publishing a judgment of a High Court or the Supreme Court is not an offence.

Test yourself

1. What are the qualifying offences under section 71, and what is the punishment? A previous conviction under section 64, 65, 66 or 70, and a subsequent conviction under any of those sections. The punishment is imprisonment for life meaning the remainder of natural life, or death.

2. A newspaper prints a victim's village, her father's name and her school but not her name. Any offence? Yes, under section 72(1). The section forbids publishing any matter which may make known the identity of the victim, and identification by accumulated detail is within it.

3. From what point does the protection in section 72 apply? From the allegation. The section speaks of an offence "alleged or found to have been committed", so it applies from the time the complaint is made and does not wait for a conviction.

4. May a newspaper publish the Supreme Court's judgment in such a case? Yes. The Explanation to section 73 provides that printing or publishing the judgment of any High Court or the Supreme Court is not an offence under that section.

5. Whose written authorisation can make publication of the victim's name lawful? The victim's own; or, where she is dead or a child or of unsound mind, that of the next of kin, and then only for publication to the chairman or secretary of a recognised welfare institution or organisation. A police officer's written order also exempts publication made in good faith for the purposes of the investigation.

Explanation 1 to section 77 defines "private act" as including an act of watching carried out in a place which in the circumstances would reasonably be expected to provide privacy, and where the victim's genitals, posterior or breasts are exposed or covered only in underwear; or the victim is using a lavatory; or the victim is doing a sexual act that is not of a kind ordinarily done in public.

Explanation 2 to section 77 provides that where the victim consents to the capture of the images or the act, but not to their dissemination to third persons, and they are disseminated, that dissemination is an offence under the section.

Section 78, stalking. A man commits stalking if he (i) follows a woman and contacts, or attempts to contact, her to foster personal interaction repeatedly despite a clear indication of disinterest, or (ii) monitors her use of the internet, e-mail or any other form of electronic communication. The proviso excepts conduct pursued for preventing or detecting crime by a man entrusted with that responsibility by the State; pursued under any law or to comply with a condition or requirement imposed under any law; or which in the particular circumstances was reasonable and justified. The punishment is up to three years and fine on a first conviction, and up to five years and fine on a second or subsequent conviction.

Section 79, insulting modesty. Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object in any form, intending that it shall be heard or seen by her, or intrudes upon her privacy, is punished with simple imprisonment which may extend to three years, and also with fine.

Broken down: what "modesty" means, and why it matters

Modesty is not defined in the Sanhita. Sections 74 and 79 both use it and neither says what it is.

The courts have treated it as the sense of feminine decency and dignity that attaches to a woman as a woman. The test is objective: whether the act was capable of shocking that sense, not whether the particular woman felt shocked.

The age of the woman is irrelevant. A woman of any age, including an infant, has modesty capable of being outraged, because the quality attaches to her sex rather than to her awareness of it.

Section 74 needs an assault or criminal force; section 79 does not. That is the practical difference between them. A word or a gesture at a distance is section 79; a touch is section 74.

Distinctions that carry marks

A worked example

Anjali works in an office in Andheri. Her manager repeatedly asks her to have dinner with him, and when she refuses he begins commenting on her clothes in front of colleagues.

Which offence? The requests, if they are a demand or request for sexual favours, are section 75(1)(ii), punishable under sub-section (2) with rigorous imprisonment up to three years. The comments, if sexually coloured remarks, are section 75(1)(iv), punishable under sub-section (3) with up to one year. The two are separately graded, and the difference in punishment is a common examination point.

He then follows her to the railway station on four consecutive evenings and messages her after she has told him to stop. That is section 78(1)(i): following and repeatedly attempting to contact her to foster personal interaction despite a clear indication of disinterest. The first conviction carries up to three years.

He installs software to read her office e-mail. That is section 78(1)(ii), monitoring her use of e-mail, and it is stalking whether or not he ever follows her.

Can he say the monitoring was reasonable? The proviso allows it where the conduct was pursued under any law or to comply with a requirement imposed under any law, or where in the particular circumstances it was reasonable and justified. A manager's curiosity is neither. An employer's lawful audit of a company system by a person authorised to conduct it might be.

He photographs her through the gap in a changing room door and later sends the picture to a colleague. That is section 77. The changing room is a place which in the circumstances would reasonably be expected to provide privacy, and Explanation 1 covers it. Sending the picture is a separate limb of the same section, dissemination.

Change one fact. Suppose she had allowed him to take a photograph of her but not to share it, and he shared it. Explanation 2 to section 77 makes that dissemination an offence, even though the capture was consensual.

What beginners get wrong

Thinking section 75 requires a workplace. It does not. The statutory offence has no employment element at all. The obligations on employers to prevent and redress sexual harassment come from a separate statute, and a prosecution under section 75 is independent of it.

Thinking voyeurism requires a camera. Section 77 punishes watching as well as capturing an image.

Thinking stalking must be physical. Limb (ii) is entirely electronic and needs no following at all.

Thinking these offences are gender-neutral. They are not. Sections 75 and 78 open with "A man" and "Any man", and every section in this group has a woman as the victim.

Limits and criticism

"Modesty" is doing a great deal of work without a definition. Both sections 74 and 79 turn on it, and its content has been supplied by decisions rather than by Parliament, which leaves the outer edge of two frequently used offences uncertain.

Section 78's third exception is very wide. Conduct that "in the particular circumstances was reasonable and justified" is an exception the accused must prove, but its breadth invites argument in every case.

The gendering is criticised from both sides. These offences protect only women, which leaves a male or transgender victim of identical conduct without a remedy under these sections; and defenders of the position argue that the offences answer a pattern of harm that is overwhelmingly directed at women.

Quick revision

Section 74. Assault or criminal force with intent to outrage modesty, or knowledge that it is likely: one to five years and fine.

Section 75. Sexual harassment, four acts. Physical contact and advances, demand for sexual favours, showing pornography against her will: up to three years rigorous imprisonment, or fine, or both. Sexually coloured remarks: up to one year, or fine, or both.

Section 76. Assault or criminal force, or abetment, with intent to disrobe or compel nakedness: three to seven years and fine.

Section 77. Voyeurism: watching, capturing or disseminating an image of a private act. First conviction one to three years; second, three to seven. Explanation 2 makes non-consensual dissemination of a consensually captured image an offence.

Section 78. Stalking: following and repeated contact despite disinterest, or monitoring electronic communication. Three exceptions in the proviso. Up to three years first, up to five thereafter.

Section 79. Word, sound, gesture or object intended to insult modesty, or intruding on her privacy: simple imprisonment up to three years and fine.

Test yourself

1. What separates section 74 from section 79? Section 74 requires an assault or the use of criminal force; section 79 requires only a word, sound, gesture or exhibition of an object intended to be heard or seen by the woman, or an intrusion on her privacy. Section 74 also carries a minimum of one year, which section 79 does not.

2. Which limb of section 75 carries the lower punishment, and what is it? Clause (iv), making sexually coloured remarks, punishable under sub-section (3) with imprisonment up to one year, or fine, or both, against up to three years rigorous imprisonment for the other three limbs.

3. A woman consents to a photograph being taken but not to its being shared, and it is shared. Any offence? Yes. Explanation 2 to section 77 provides that where the victim consents to the capture but not to dissemination to third persons, the dissemination is an offence under that section.

4. Give the three exceptions to stalking. That the conduct was pursued for preventing or detecting crime by a man entrusted with that responsibility by the State; that it was pursued under any law or to comply with a condition or requirement imposed under any law; or that in the particular circumstances it was reasonable and justified.

5. Is a woman's age relevant to whether her modesty can be outraged? No. Modesty attaches to a woman as a woman, so a woman of any age, including a child, has modesty capable of being outraged, and the test of the act is objective.

Section 83, a sham ceremony. Whoever, dishonestly or with a fraudulent intention, goes through the ceremony of being married, knowing that he is not thereby lawfully married, is punished with imprisonment up to seven years and fine.

Section 84, enticing a married woman. Whoever takes or entices away a woman he knows or has reason to believe to be another man's wife, with intent that she may have illicit intercourse with any person, or conceals or detains her with that intent, is punished with imprisonment up to two years, or fine, or both.

Section 85, cruelty. Whoever, being the husband or the relative of the husband of a woman, subjects her to cruelty is punished with imprisonment which may extend to three years, and fine.

Section 86, cruelty defined. For the purposes of section 85, cruelty means (a) any wilful conduct of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical; or (b) harassment of the woman where it is with a view to coercing her or any person related to her to meet an unlawful demand for property or valuable security, or is on account of a failure by her or any person related to her to meet such a demand.

Broken down: the four ingredients of dowry death

One: the death is of the described kind. Burns, bodily injury, or a death occurring otherwise than under normal circumstances. The third limb is wide and is what brings in poisoning, hanging and unexplained deaths.

Two: it happened within seven years of the marriage. The period runs from the marriage, not from the cruelty.

Three: cruelty or harassment soon before the death. "Soon before" is not defined. It requires a proximate and live link between the cruelty and the death, not a fixed number of days.

Four: the cruelty was for or in connection with a demand for dowry. This is the ingredient that separates section 80 from section 85. Cruelty unconnected with a dowry demand may found a prosecution under section 85 but not a dowry death.

Then the deeming. Once all four are shown, the husband or relative "shall be deemed to have caused her death". The prosecution does not have to prove an act of killing.

Section 86 has two limbs, and they are different in kind

Limb (a) is about the gravity of the conduct. Wilful conduct likely to drive the woman to suicide, or to cause grave injury or danger to life, limb or health, mental or physical. There need be no demand for anything. Sustained mental cruelty is within it.

Limb (b) is about a demand. Harassment to coerce her or a relative into meeting an unlawful demand for property or valuable security, or because such a demand was not met.

Note what limb (b) does not say. It does not say dowry. It says "any unlawful demand for any property or valuable security", which is wider, so a demand made years after the marriage and unconnected with it can still be cruelty under section 85.

Distinctions that carry marks

A worked example

Sunita married Prakash in June 2020. From 2021 his mother demanded a car from Sunita's parents, and when it did not come Sunita was refused food and told repeatedly that she was a burden. In March 2024 she was found dead at home from burns.

Is this a dowry death? Work through the four ingredients. The death was by burns, so limb one is satisfied. It occurred in March 2024, less than seven years after a June 2020 marriage, so limb two is satisfied. Whether the cruelty was "soon before" the death depends on how recent the last incidents were, and evidence that the demands and the ill-treatment continued into 2024 supplies it. The demand was for a car, made in connection with the marriage, which falls within the definition of dowry in section 2 of the Dowry Prohibition Act, 1961, so limb four is satisfied.

Who is liable? Both the husband and his mother, because section 80 names the husband or any relative of the husband, and the mother is a relative.

What must the prosecution prove about the burning? Nothing about who lit the fire. Once the four ingredients are established, both are deemed to have caused her death, and the punishment is not less than seven years extending to imprisonment for life.

Change one fact. Suppose there was no demand for a car, but Sunita had been subjected for three years to sustained humiliation and denial of medical treatment, and she took her own life. Section 80 does not apply, because there is no demand for dowry. Section 85 does, on limb (a) of section 86, because the conduct was wilful and of a nature likely to drive her to suicide.

Change another. Suppose she survived the burns. There is no dowry death, because the section needs a death. The prosecution proceeds under section 85 for the cruelty, and under whichever offence affecting the human body the burning discloses.

What beginners get wrong

Thinking section 80 needs proof of murder. It does not, and that is its purpose. It deems causation from the four ingredients.

Reading the seven years as running from the cruelty. It runs from the marriage.

Thinking section 85 needs a dowry demand. It does not. Limb (a) of section 86 is about the gravity of the conduct and mentions no demand.

Thinking "relative of the husband" means only a blood relative. It covers relatives by marriage as well, which is why the husband's mother and sister are the commonest co-accused.

Limits and criticism

"Soon before her death" has no definition. The absence of a period leaves the ingredient to be argued in every case, and the outcome can turn on how a court reads a gap of weeks or months.

The deeming provision is a substantial departure. It relieves the prosecution of proving causation in a capital-adjacent offence, and it has been defended as necessary and criticised as a rule of evidence dressed as a definition.

Section 85 is criticised for its breadth of accused. Because "relative of the husband" is undefined, extended family members are frequently arrayed, and the courts have repeatedly warned against a mechanical roping in of relatives with no real part in the cruelty.

Section 84 is an anomaly the Sanhita retained. It punishes taking away another man's wife for illicit intercourse, an offence conceived when a wife was treated as within her husband's control, and it survived the abolition of adultery as an offence.

Quick revision

Section 80(1), four ingredients. Death by burns, bodily injury or otherwise than under normal circumstances; within seven years of marriage; cruelty or harassment soon before the death; by the husband or a relative, for or in connection with a demand for dowry. The accused is then deemed to have caused the death.

Dowry. Defined by reference to section 2 of the Dowry Prohibition Act, 1961.

Section 80(2). Not less than seven years, up to imprisonment for life.

Section 85. Cruelty by the husband or his relative: up to three years and fine.

Section 86, two limbs. Wilful conduct likely to drive her to suicide or cause grave injury or danger to life, limb or health; or harassment to coerce an unlawful demand for property or valuable security, or on account of failure to meet one.

Section 81. Deceit inducing belief of lawful marriage, with cohabitation: up to ten years and fine.

Section 82. Bigamy, up to seven years; up to ten where the earlier marriage was concealed.

Section 83. Fraudulent marriage ceremony: up to seven years and fine.

Section 84. Enticing or detaining another man's wife for illicit intercourse: up to two years, or fine, or both.

Test yourself

1. State the four ingredients of dowry death. A death by burns, bodily injury or otherwise than under normal circumstances; occurring within seven years of the marriage; preceded soon before by cruelty or harassment by the husband or a relative of the husband; that cruelty being for or in connection with a demand for dowry.

2. What does section 80 do once those ingredients are proved? It deems the husband or relative to have caused her death, so the prosecution need not prove an act of killing.

3. Must a prosecution under section 85 involve a dowry demand? No. Limb (a) of section 86 defines cruelty as wilful conduct likely to drive the woman to suicide or to cause grave injury or danger to life, limb or health, and it requires no demand of any kind.

4. How does section 82(2) differ from section 82(1)? Sub-section (2) applies where the person concealed the former marriage from the person with whom the second marriage was contracted, and it raises the maximum from seven years to ten.

5. Where does the Sanhita take the meaning of "dowry" from? From section 2 of the Dowry Prohibition Act, 1961, by the Explanation to section 80(1).

Two purposes. A compelled marriage, or forced or seduced illicit intercourse. Note that the marriage limb appears only in the first half. A man who induces a woman to go from a place by intimidation intending that she be forced into a marriage is not within the second half on its words, although the taking will usually be an abduction and so within the first.

Two mental states, alternatives throughout. Intent that the consequence follow, or knowledge that it is likely.

"Against her will" qualifies the marriage limb only. The intercourse limb speaks of being "forced or seduced", and seduction is not the same as force.

A worked example

Kavita, aged twenty-two, refuses a marriage proposed by her family. Two cousins take her from a bus stop in a car and drive her to a village two hundred kilometres away, intending that a marriage be performed there.

Is section 87 made out? Yes. She was abducted, because she was compelled by force to go from a place. The intent was that she be compelled to marry a person against her will. The maximum is ten years and fine.

Does it matter that no marriage took place? No. The offence is complete on the taking with that intent, and the section punishes the intent, not its fulfilment.

Change the method. Suppose no force was used. Instead an uncle who controls the family's finances tells her that unless she comes to the village he will destroy her brother's business. She goes. That is inducing a woman to go from a place by criminal intimidation, and the taking is within the second half if the intent was that she be forced or seduced to illicit intercourse.

Change the purpose. If the intent was only that a marriage take place and not that she be forced or seduced to intercourse, the second half does not cover it in terms, because the marriage limb appears only in the first half. In practice the compulsion will usually amount to abduction as defined in section 138, which brings the first half into play.

Change her age to sixteen. The offence under section 87 remains available. In addition, taking her out of the keeping of her lawful guardian without consent is kidnapping from lawful guardianship under section 137, because she is under eighteen, and the guardian's consent, not hers, is what matters there.

What it does NOT mean

It does not require the marriage or the intercourse to happen. The intent or the knowledge is the offence.

It does not require force in the second half. Abuse of authority is enough, and so is any other method of compulsion.

It does not displace the more serious offences. If intercourse follows, sections 63 to 70 apply on their own terms, and section 87 does not absorb them.

Limits and criticism

"Illicit intercourse" is not defined. The expression is inherited from the Penal Code and its content has shifted as the law on consensual conduct between adults has changed.

The marriage limb sits oddly with the second half. A drafting that names compelled marriage in one half and omits it from the other leaves a gap that has to be closed by treating almost every such compulsion as abduction.

Ten years is the same maximum as for a great many lesser offences. The section makes no distinction between a taking that leads to a forced marriage lasting years and one interrupted within the hour.

Quick revision

Section 87, first half. Kidnapping or abducting a woman with intent, or knowledge of likelihood, that she be compelled to marry against her will, or be forced or seduced to illicit intercourse: up to ten years and fine.

Second half. Inducing a woman to go from any place by criminal intimidation, abuse of authority or any other method of compulsion, with intent or knowledge that she will be forced or seduced to illicit intercourse: the same punishment.

Criminal intimidation. Defined in section 351.

Kidnapping and abduction. Defined in sections 137 and 138, in Chapter VI.

The offence is complete on the taking, with the intent or knowledge. Neither the marriage nor the intercourse need follow.

Test yourself

1. What are the two ways of committing the offence in section 87? Kidnapping or abducting the woman; or inducing her to go from any place by criminal intimidation, abuse of authority or any other method of compulsion.

2. Must the marriage or the intercourse actually occur? No. The offence is complete on the kidnapping, abduction or inducement accompanied by the intent, or the knowledge that the consequence is likely.

3. What is the maximum punishment? Imprisonment of either description which may extend to ten years, and fine.

4. Which purpose appears only in the first half of the section? Compelling the woman to marry a person against her will. The second half speaks only of her being forced or seduced to illicit intercourse.

5. Where is criminal intimidation defined? In section 351 of the Sanhita, as threatening another with injury to person, reputation or property, or to the person or reputation of anyone in whom that person is interested, with intent to cause alarm or to make the person do or omit something.

Section 92, death of a quick unborn child. Whoever does an act in such circumstances that if he thereby caused death he would be guilty of culpable homicide, and by that act causes the death of a quick unborn child, is punished with imprisonment up to ten years and fine. Its illustration is a man who knowingly risks the death of a pregnant woman, injures her without killing her, and thereby kills the quick child she is carrying.

Broken down: the four variables

One: consent. Section 88 assumes the woman's consent; section 89 is the same act without it. Section 90(2) applies the same distinction where she dies.

Two: quickening. Within section 88 it raises the maximum from three years to seven. Within section 89 it is expressly irrelevant, because the section says "whether the woman is quick with child or not".

Three: the outcome. A miscarriage alone is section 88 or 89. The woman's death is section 90. Prevention of a live birth is section 91. The death of a quick unborn child, where the act would have been culpable homicide had it killed a person, is section 92.

Four: good faith to save life. Sections 88 and 91 both carry the exception; sections 89, 90 and 92 do not carry it in terms, because an act without consent or one amounting to culpable homicide is outside its rationale.

The woman herself is within section 88

The Explanation is express, and it is the point students most often miss: a woman who causes herself to miscarry is within the meaning of section 88.

That is not the practical position today. The Medical Termination of Pregnancy Act, 1971 provides when a pregnancy may lawfully be terminated by a registered medical practitioner, and a termination within that Act is not an offence under these sections. What the Explanation preserves is the position outside that Act.

Distinctions that carry marks

A worked example

Meena, eleven weeks pregnant, asks a village practitioner to end the pregnancy. He is not a registered medical practitioner and the procedure is not within the Medical Termination of Pregnancy Act, 1971.

What offence? Section 88. The miscarriage was voluntarily caused, it was not caused in good faith to save her life, and she is not quick with child, so the maximum is three years, or fine, or both. Meena herself is within the section by the Explanation.

Change the stage of pregnancy. If she were quick with child, the same section applies but the maximum becomes seven years and fine.

Change the consent. Suppose her husband arranges the procedure and it is carried out while she is sedated and unaware. That is section 89, and the maximum rises to imprisonment for life, whether or not she was quick with child.

Meena dies of an infection following the procedure. Section 90(1) applies to the practitioner, because he did an act with intent to cause miscarriage which caused her death, and the maximum is ten years and fine. By the Explanation it does not matter that he did not know the act was likely to kill her. If the act had been done without her consent, section 90(2) would permit imprisonment for life.

A different case entirely. Suppose a man, knowing that his act is likely to cause the death of a pregnant woman, beats her. She survives; the quick child she is carrying dies. That is section 92, on its own illustration, and the maximum is ten years and fine.

What beginners get wrong

Thinking these sections state the law on abortion. They do not. The lawful route is the Medical Termination of Pregnancy Act, 1971, and a termination within it is not an offence.

Thinking quickening matters everywhere. It matters within section 88 only. Section 89 says in terms that it does not matter there.

Thinking section 90 requires knowledge of the risk of death. The Explanation says the opposite: it is not essential that the offender should know the act is likely to cause death.

Confusing sections 91 and 92. Section 91 is about an act intended to prevent a live birth or to kill the child after birth. Section 92 is about an act done in circumstances amounting to culpable homicide which kills a quick unborn child, and it requires no intention directed at the child at all.

Limits and criticism

"Quick with child" is an unscientific line. Quickening is the moment the mother perceives movement, which varies with the pregnancy and with the woman, and using it to double a maximum sentence has been criticised for a century.

The Sanhita did not integrate the Medical Termination of Pregnancy Act. A reader of the penal statute alone would conclude that almost every termination is an offence, which is not the law, and the two texts have to be read together.

The good faith exception is narrow. It is confined to saving the life of the woman, which is narrower than the grounds in the 1971 Act, and the gap is bridged only by that Act's overriding operation.

Quick revision

Section 88. Voluntarily causing a woman with child to miscarry, not in good faith to save her life: up to three years, or fine, or both; up to seven years and fine if she is quick with child. The woman who causes her own miscarriage is within it.

Section 89. The same without her consent, quick or not: imprisonment for life, or up to ten years, and fine.

Section 90. An act done with intent to cause miscarriage which causes the woman's death: up to ten years and fine; imprisonment for life where there was no consent. Knowledge that death was likely is not essential.

Section 91. An act before birth intended to prevent the child being born alive or to cause it to die after birth, which does so, not in good faith to save the mother: up to ten years, or fine, or both.

Section 92. An act in circumstances amounting to culpable homicide which causes the death of a quick unborn child: up to ten years and fine.

Outside the Sanhita. The Medical Termination of Pregnancy Act, 1971 provides the lawful route, and these sections do not describe it.

Test yourself

1. What effect does the woman's consent have on the punishment for causing a miscarriage? With consent, section 88 applies, with a maximum of three years or seven where she is quick with child. Without consent, section 89 applies, and the maximum becomes imprisonment for life or ten years, and fine, whether or not she is quick with child.

2. Is a woman who causes her own miscarriage within section 88? Yes. The Explanation to the section says so expressly, subject to the operation of the Medical Termination of Pregnancy Act, 1971.

3. Must the offender under section 90 know that his act is likely to cause death? No. The Explanation to section 90 states that it is not essential to the offence that the offender should know the act is likely to cause death.

4. Distinguish section 91 from section 92. Section 91 punishes an act done before birth with the intention of preventing the child from being born alive or of causing it to die after birth, where that result follows. Section 92 punishes an act done in circumstances that would have amounted to culpable homicide had it caused a death, where it causes the death of a quick unborn child, and it requires no intention aimed at the child.

5. What is the good faith exception, and which sections carry it? That the act was done in good faith for the purpose of saving the life of the woman, in section 88, or of the mother, in section 91. Sections 89, 90 and 92 do not carry it in terms.

Broken down: section 93

Who can commit it. The father, the mother, or a person having the care of the child. A stranger who moves a child is not within the section, though other offences may reach him.

The age. Under twelve. Note that this is not the general definition of a child in section 2(3), which is under eighteen. Section 93 sets its own lower age.

The act. Exposing or leaving the child in any place. The place need not be dangerous.

The intention. Wholly abandoning the child. A parent who leaves a child with a neighbour intending to return has not abandoned it, however careless the arrangement.

What the Explanation preserves. If the child dies, the offender may still be tried for murder or culpable homicide. Section 93 is not a ceiling on liability.

Broken down: section 95

Three verbs, and they are wide. Hires, employs or engages. Payment is not required; engaging a child is enough.

A child is anyone under eighteen by section 2(3), so this section uses the general definition where section 93 does not.

The punishment is in two parts. A minimum of three years and a maximum of ten for the hiring itself, whether or not the offence is committed. And, if the offence is committed, the punishment for that offence in addition, "as if the offence has been committed by such person himself".

The Explanation extends it beyond ordinary crime. Hiring, employing, engaging or using a child for sexual exploitation or pornography is within the section, so the provision reaches conduct that is not obviously the "commission of an offence" by the child at all.

Distinctions that carry marks

A worked example

Sujata, unmarried and eighteen, gives birth alone and leaves the infant at the door of a temple in the early morning, intending never to return.

Section 93 applies. She is the mother, the child is under twelve, she left it in a place, and her intention was to abandon it wholly. The maximum is seven years, or fine, or both.

Does the temple being a safe and busy place help her? It goes to sentence and to the assessment of her intention in a marginal case, but the section does not require the place to be dangerous.

The child dies of exposure before it is found. The Explanation to section 93 preserves a trial for murder or culpable homicide, and which of those it is depends on her knowledge and intention when she left the child, worked out in the chapter on culpable homicide.

A different case. Suppose the child was stillborn and she buried it in a field at night so that the birth would not be discovered. That is section 94: secretly disposing of the dead body of a child, whether it died before, during or after birth, intending to conceal the birth. The maximum is two years, or fine, or both.

A third case. Suppose a shopkeeper pays a boy of thirteen two hundred rupees a week to carry stolen mobile phones between two towns.

Section 95 applies. He has hired a child to commit an offence, and the minimum is three years, extending to ten, with fine, whether or not the boy is ever caught with anything. Because the offence is committed, the shopkeeper is also punished with the punishment provided for receiving and retaining stolen property as if he had committed it himself.

The boy. He is a child in conflict with law and is dealt with entirely outside the ordinary courts, under the Juvenile Justice (Care and Protection of Children) Act, 2015, which Module IV of this paper works through.

What beginners get wrong

Using the general definition of a child in section 93. That section sets its own age of twelve. Section 2(3)'s under eighteen governs section 95 but not section 93.

Thinking section 94 requires the child to have been killed. It does not, and it does not require any offence in relation to the death. The wrong is concealing the birth.

Thinking section 95 needs the offence to be committed. It does not. The hiring is the offence, and the commission adds a second punishment.

Thinking payment is essential to section 95. "Engages" covers arrangements with no payment at all.

Limits and criticism

Section 93's age of twelve is out of step with the rest of the Sanhita. Section 2(3) defines a child as a person under eighteen, and the child protection statutes use that age, so a child of thirteen abandoned by a parent falls outside a section written to protect abandoned children.

Section 94 is very lightly punished. Two years for concealing a birth by secretly disposing of a body reflects an era when the provision was aimed at protecting the record of births rather than at investigating a possible killing.

Section 95 is new and untested. There is no body of decision on what "engages" means at its margins, on whether a child's own consent is relevant, or on how the double punishment interacts with abetment under section 45, and those are the questions it will generate.

Quick revision

Section 93. Father, mother or person having care of a child under twelve, exposing or leaving it with intent wholly to abandon it: up to seven years, or fine, or both. The Explanation preserves a trial for murder or culpable homicide if the child dies.

Section 94. Secretly burying or otherwise disposing of the dead body of a child, before, during or after birth, intending to conceal the birth: up to two years, or fine, or both.

Section 95. Hiring, employing or engaging a child to commit an offence: three to ten years and fine, and if the offence is committed, the punishment for that offence as well. The Explanation covers hiring, employing, engaging or using a child for sexual exploitation or pornography.

The two ages. Twelve in section 93; eighteen in section 95, through section 2(3).

What is new. Section 95 has no Penal Code ancestor.

Test yourself

1. Who can commit the offence in section 93, and against a child of what age? The father, the mother, or a person having the care of the child, and the child must be under twelve years of age.

2. If the abandoned child dies, is the parent's liability limited to section 93? No. The Explanation to section 93 provides that the section is not intended to prevent a trial for murder or culpable homicide if the child dies in consequence of the exposure.

3. What are the two punishments under section 95? Imprisonment of not less than three years extending to ten years, and fine, for the hiring, employing or engaging; and, if the offence is committed, the punishment provided for that offence as well, as if the person had committed it himself.

4. Does section 94 require proof that the child was killed? No. It requires the secret disposal of the dead body of a child, whether it died before, during or after birth, with intent to conceal the birth.

5. Which of these three sections is new to the Sanhita? Section 95. The Penal Code had no offence of hiring, employing or engaging a child to commit an offence.

Explanation 2 to section 98 defines "illicit intercourse" as sexual intercourse between persons not united by marriage or by any union or tie which, though not amounting to a marriage, is recognised by the personal law or custom of the community to which they belong, or of both communities where they belong to different ones, as constituting a quasi-marital relation.

Section 99, buying a child. Whoever buys, hires or otherwise obtains possession of any child with the same intent, or knowing it to be likely, is punished with imprisonment of not less than seven years extending to fourteen years, and fine.

Explanation 1 to section 99 presumes, until the contrary is proved, that a prostitute or a person keeping or managing a brothel who obtains possession of a female under eighteen did so with intent that she be used for prostitution. Explanation 2 gives "illicit intercourse" the same meaning as in section 98.

Broken down: the common ingredients of sections 98 and 99

One: a child. By section 2(3), any person below eighteen. Both sections apply to a child of either sex.

Two: the transaction. Selling, letting to hire or otherwise disposing of, in section 98. Buying, hiring or otherwise obtaining possession of, in section 99. "Otherwise" in both is what defeats an argument that no money changed hands.

Three: the purpose. That the child shall "at any age" be employed or used for prostitution, illicit intercourse, or any unlawful and immoral purpose. The words "at any age" matter: an intention that the child be used when older is enough.

Four: intent or knowledge. Intent that the purpose be achieved, or knowledge that it is likely.

The two presumptions

They shift the burden on one ingredient only. Once it is proved that a female under eighteen was disposed of to, or obtained by, a prostitute or a brothel keeper, the intent is presumed. Everything else must still be proved.

They apply only to a female under eighteen. A male child sold to the same person attracts no presumption, and the intent must be proved in the ordinary way.

They are rebuttable. The words are "until the contrary is proved", so the accused may displace the presumption on the balance of probabilities.

Distinctions that carry marks

A worked example

Ramabai, in severe debt, hands over her fifteen-year-old daughter to Shakuntala, who manages a brothel in a nearby town, in exchange for the cancellation of a loan.

Is Ramabai within section 98? Yes. She has otherwise disposed of a child, and the cancellation of a debt is consideration though no money passed. By Explanation 1 the intent is presumed, because a female under eighteen was disposed of to a person who manages a brothel, and Ramabai must prove the contrary. The maximum is ten years and fine.

Is Shakuntala within section 99? Yes. She obtained possession of a child, Explanation 1 to section 99 presumes her intent because she manages a brothel and the girl is under eighteen, and the punishment is not less than seven years extending to fourteen, with fine.

Does it matter that the girl was not in fact used for prostitution? No. Both sections punish the transaction accompanied by the intent or the knowledge, and the words "at any age" show that the purpose need not be immediate.

Change one fact. Suppose the child is a boy of fifteen sold to a man who runs a workshop, with the intention that he be used for sexual exploitation. Section 98 still applies, because it protects a child of either sex, but neither Explanation does, because both presumptions are confined to a female under eighteen, so the prosecution must prove the intent.

Change it again. Suppose nobody was sold, and a man simply persuaded a fourteen-year-old to travel to another town intending that she be seduced there by a third person. That is section 96, procuration of a child, with a maximum of ten years and fine.

What beginners get wrong

Thinking money must pass. "Otherwise disposes of" and "otherwise obtains possession of" cover any transaction, including one for a debt or a favour.

Thinking the purpose must be immediate. The words "at any age" defeat that. An intention that the child be used years later is within both sections.

Thinking the presumptions apply to any child. They apply only to a female under eighteen, and only where the counterparty is a prostitute or a person who keeps or manages a brothel.

Thinking these sections are the whole law. They are the penal statute. The Immoral Traffic (Prevention) Act, 1956, the Protection of Children from Sexual Offences Act, 2012 and the Juvenile Justice Act all operate on the same facts, and a prosecution will usually be under several.

Limits and criticism

Section 97 is narrow to the point of oddity. It is confined to a child under ten and to an intention of taking movable property from the child's person, which reflects a specific nineteenth century mischief and leaves the general case to the kidnapping provisions in Chapter VI.

The presumptions are gendered. They protect a female child and not a male one, although both sections protect children of either sex, and there is no evident reason in the mischief for the difference.

"Unlawful and immoral purpose" is undefined. It is a phrase of Victorian origin carried into a modern statute, and its content depends entirely on what a court is prepared to call immoral.

Quick revision

Section 96. Inducing a child by any means to go from a place or do an act, with intent or knowledge that the child will be forced or seduced to illicit intercourse: up to ten years and fine.

Section 97. Kidnapping or abducting a child under ten with intent to take movable property dishonestly from its person: up to seven years and fine.

Section 98. Selling, letting to hire or otherwise disposing of a child for prostitution, illicit intercourse or any unlawful and immoral purpose, at any age: up to ten years and fine.

Section 99. Buying, hiring or otherwise obtaining possession of a child for the same purposes: seven to fourteen years and fine.

The presumptions. Explanation 1 to each section, against a person disposing of, or a prostitute or brothel keeper obtaining, a female under eighteen. Rebuttable, until the contrary is proved.

Illicit intercourse. Defined in Explanation 2 to section 98 and carried into section 99.

Test yourself

1. Why is the buyer punished more heavily than the seller? Section 99 carries a minimum of seven years and a maximum of fourteen, against no minimum and ten years under section 98. The buyer is ordinarily the person in the business of exploitation, and the demand is what sustains the trade.

2. What do the two Explanation 1 presumptions do, and to whom do they apply? They presume, until the contrary is proved, the intent that the child be used for prostitution. They apply only where a female under eighteen is disposed of to, or obtained by, a prostitute or a person who keeps or manages a brothel.

3. What is the significance of the words "at any age" in sections 98 and 99? They make it immaterial that the intended use is not immediate. An intention that the child be employed or used when older is within both sections.

4. Does section 98 protect boys? Yes. It applies to any child, and by section 2(3) a child is any person below eighteen of either sex. Only the presumption in Explanation 1 is confined to females.

5. How is "illicit intercourse" defined? By Explanation 2 to section 98, as sexual intercourse between persons not united by marriage or by any union or tie which, though not amounting to marriage, is recognised by their personal law or custom as constituting a quasi-marital relation.

The five Exceptions to section 101

Exception 1, grave and sudden provocation. Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave it, or of any other person by mistake or accident. The proviso excludes provocation sought or voluntarily provoked by the offender as an excuse for killing; provocation given by anything done in obedience to the law or by a public servant in the lawful exercise of his powers; and provocation given by anything done in the lawful exercise of the right of private defence. The Explanation makes whether the provocation was grave and sudden enough a question of fact.

Exception 2, exceeding private defence. Culpable homicide is not murder if the offender, in the good faith exercise of the right of private defence of person or property, exceeds the power given to him by law and causes death without premeditation and without any intention of doing more harm than is necessary for that defence.

Exception 3, a public servant exceeding his powers. Culpable homicide is not murder if the offender, being a public servant or aiding one acting for the advancement of public justice, exceeds the powers given to him by law and causes death by doing an act which he in good faith believes to be lawful and necessary for the due discharge of his duty, and without ill-will towards the person killed.

Exception 4, sudden fight. Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel, and without the offender having taken undue advantage or acted in a cruel or unusual manner. Its Explanation provides that it is immaterial which party offered the provocation or committed the first assault.

Exception 5, consent. Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.

Broken down: the difference in one page

Compare section 100 with section 101 clause by clause and the pattern appears.

The first limbs are identical. An intention to cause death is murder unless an Exception applies. There is no first limb case which is culpable homicide not amounting to murder except through an Exception.

The second limbs differ by knowledge and by sufficiency. Section 100 asks only whether the injury intended was likely to cause death. Clause (b) adds that the offender knew it to be likely to kill this person, and clause (c) asks whether the injury intended was sufficient in the ordinary course of nature to cause death, which is an objective question about the injury and not about what the offender thought.

The third limbs differ by degree of risk. Section 100 asks whether the offender knew death was likely. Clause (d) requires knowledge that the act was so imminently dangerous that it must in all probability cause death, and that he had no excuse for taking the risk.

Clause (c) is where cases are decided

It has four steps, and each is a separate question. First, was there a bodily injury present? Second, what was its nature? Third, was that particular injury intended, as opposed to accidental or unintended? Fourth, was the injury, of the kind actually inflicted, sufficient in the ordinary course of nature to cause death?

The fourth step is objective and usually medical. It asks about the injury, not about the offender's opinion of it. That is why a single stab wound to a vital organ can be murder although the accused says he did not mean to kill.

The third step is where an accused resists. If the injury that killed was not the injury he intended, for example because the victim moved, clause (c) is not satisfied and the case may fall to section 100 alone.

A worked example

Ganesh and Vilas quarrel outside a shop in Solapur about a parking space. Vilas pushes Ganesh, Ganesh picks up an iron rod lying nearby and strikes Vilas once on the head. Vilas dies.

Is this culpable homicide? Yes. Ganesh caused death by an act done at least with the knowledge that he was likely to cause death, so section 100 is satisfied.

Is it murder? Test the clauses. Clause (a) needs an intention to cause death, and a single blow in a quarrel usually does not show one. Clause (c) is the live question: was a bodily injury intended, and was that injury sufficient in the ordinary course of nature to cause death? A deliberate blow with an iron rod to the head is likely to satisfy both, and on that basis it is murder.

Now apply the Exceptions. Exception 4 asks whether the killing was without premeditation, in a sudden fight, in the heat of passion on a sudden quarrel, and whether Ganesh took undue advantage or acted in a cruel or unusual manner. The quarrel was sudden and there was no premeditation. Whether picking up a rod to answer a push is taking undue advantage is the question a court would decide, and it is exactly the kind of question a paper sets.

Change one fact. Suppose Ganesh went home, returned twenty minutes later with the rod and struck. The fight is no longer sudden and the killing is premeditated. Exception 4 fails and the offence is murder.

Change another. Suppose Vilas was elderly and had a thin skull, and a blow that would not have killed a healthy man killed him. Explanation 1 to section 100 deems Ganesh to have caused the death, because he caused bodily injury to a person labouring under an infirmity and thereby accelerated death.

And another. Suppose Vilas would have survived had the hospital not been negligent. Explanation 2 deems Ganesh to have caused the death, because proper remedies and skilful treatment might have prevented it but did not.

What beginners get wrong

Saying murder and culpable homicide are two separate offences. They are not. Murder is a species of culpable homicide, and section 101 says so in its opening words.

Treating "likely" and "sufficient in the ordinary course of nature" as the same. They are not. The first is a probability judged loosely; the second is a question about the nature of the injury inflicted, and it is what separates section 100 from clause (c) of section 101.

Forgetting that an Exception reduces rather than acquits. If an Exception applies the offence is still culpable homicide, punishable under section 105. It is not an acquittal, which is what a general exception in Chapter III would produce.

Thinking Exception 4 requires the accused to be blameless in starting the fight. Its Explanation says it is immaterial which party offered the provocation or committed the first assault.

Limits and criticism

The distinction has been called one of the most difficult in criminal law, and the difficulty is real because the same facts often support arguments both ways under clause (c) and Exception 4 at once.

Exception 5 sits awkwardly with the law on suicide. Consent by a person above eighteen reduces murder to culpable homicide, but the illustration shows the limit: instigating a child to kill himself is abetment of murder, because a child cannot consent to his own death.

Explanation 3 draws the line at partial birth. Causing the death of a child in the womb is not homicide, but causing the death of a living child any part of which has been brought forth may be, even if it has not breathed. The line is workable but it produces very fine distinctions in practice.

Quick revision

Section 100. Causing death with (i) intention to cause death, (ii) intention to cause bodily injury likely to cause death, or (iii) knowledge that the act is likely to cause death.

Three Explanations. Acceleration of the death of a person already ill; death that skilful treatment might have prevented; and the child in the womb, which is not homicide unless part has been brought forth.

Section 101, four clauses. (a) intention to cause death; (b) intention to cause injury the offender knows is likely to kill that person; (c) intention to cause an injury sufficient in the ordinary course of nature to cause death; (d) knowledge of an act so imminently dangerous that it must in all probability cause death, without excuse.

Five Exceptions. Grave and sudden provocation, with three provisos; exceeding private defence in good faith; a public servant exceeding his powers in good faith; sudden fight without premeditation, undue advantage or cruelty; consent of a person above eighteen.

The relationship. Every murder is culpable homicide; culpable homicide is murder only if a clause of section 101 is satisfied and no Exception applies.

Test yourself

1. State the three limbs of section 100. Causing death by an act done with the intention of causing death; with the intention of causing such bodily injury as is likely to cause death; or with the knowledge that the act is likely to cause death.

2. What distinguishes clause (c) of section 101 from the second limb of section 100? Section 100 asks only whether the injury intended was likely to cause death. Clause (c) asks whether the injury the offender intended to inflict was sufficient in the ordinary course of nature to cause death, which is an objective question about the injury itself.

3. Name the five Exceptions to section 101. Grave and sudden provocation; exceeding the right of private defence in good faith; a public servant or a person aiding one exceeding his powers in good faith for the advancement of public justice; a sudden fight in the heat of passion without premeditation, undue advantage or cruelty; and the consent of a person above eighteen.

4. A strikes B, who has a diseased heart, and B dies of a shock a healthy person would have survived. Has A caused the death? Yes. Explanation 1 to section 100 deems a person who causes bodily injury to another labouring under a disorder, disease or infirmity, and thereby accelerates death, to have caused that death.

5. Does a successful Exception under section 101 lead to an acquittal? No. It reduces the offence from murder to culpable homicide not amounting to murder, which is punishable under section 105. Only a general exception in Chapter III produces an acquittal.

"Or any other similar ground" is the clause that will be argued. It is an open-ended addition to a closed list, and its content will be settled by decisions on whether a ground is genuinely similar to those named.

Each member is punished, not only the one who struck. The section fixes each member of the group with death or imprisonment for life, which is what section 190 achieves for an unlawful assembly by a different route.

Broken down: section 105 has two grades

Grade one, the intention limb. Where the death was caused by an act done with the intention of causing death, or of causing bodily injury likely to cause death, the sentence is imprisonment for life, or five to ten years, and fine. Note the minimum of five years.

Grade two, the knowledge limb. Where the act was done only with knowledge that it was likely to cause death, and without either intention, the maximum is ten years and fine, and there is no minimum.

Which grade applies is decided by the same analysis that decided section 100. The three limbs of section 100 map onto the two grades of section 105: the first two limbs into grade one, the third into grade two.

The death sentence, and how it is confined

Section 103(1) offers death or imprisonment for life, and says nothing about how to choose. The Sanhita, like the Penal Code before it, prescribes maxima and almost no principles of sentencing.

Facts. Bachan Singh v. State of Punjab, (1980) 2 SCC 684. The constitutionality of the death penalty for murder, and of the sentencing procedure that accompanied it, was challenged before a Constitution Bench.

Held. The death penalty was upheld but confined: it is to be imposed only in the rarest of rare cases, when the alternative of imprisonment for life is unquestionably foreclosed. The sentencing judge must weigh aggravating and mitigating circumstances relating both to the crime and to the criminal, and must give reasons.

Why it matters here. It is the most consequential sentencing rule in Indian criminal law and it is judge-made. Nothing in section 103 says it, and a student who states the punishment without stating the rule has described the section and not the law.

Facts. Machhi Singh v. State of Punjab, (1983) 3 SCC 470, came three years later and asked how the rarest of rare standard was to be applied in practice.

Held. The Court set out categories in which that standard might be met, organised around the manner of commission, the motive, the anti-social or abhorrent nature of the crime, its magnitude and the personality of the victim, and required two questions to be asked: whether there is something uncommon about the crime that makes life imprisonment inadequate, and whether the circumstances leave no alternative even after full weight is given to the mitigating circumstances.

Two committees proposed a statutory framework and neither was implemented. The Malimath Committee reported in 2003 and the Madhava Menon Committee in 2007, both recommending a statutory sentencing policy. The Sanhita did not enact one.

Distinctions that carry marks

A worked example

A crowd of about a dozen men stops a truck outside a town in Maharashtra, drags out the driver on the belief that he belongs to a particular community, and beats him to death.

Which provision? Section 103(2). There are five or more persons, they acted in concert, and the killing was on the ground of community. Each member of the group is liable to death or imprisonment for life and fine, without the prosecution having to show which blow killed.

Would section 103(1) with section 190 also work? Yes, and before the Sanhita that was the only route: murder read with the constructive liability of a member of an unlawful assembly. Section 103(2) gives a direct provision instead, and names the wrong.

Change the number to four. Section 103(2) does not apply, because it requires five or more. The prosecution falls back on section 103(1) with section 3(5), common intention.

Change the ground. Suppose the crowd killed him in a dispute about money owed. Section 103(2) does not apply, because the killing was not on any ground of the kind listed, and "any other similar ground" means a ground similar to race, caste, community, sex, place of birth, language or personal belief, not any ground at all.

A different case. Suppose one man, intending to kill his enemy, fires and kills a bystander he did not see. Section 102 applies: the culpable homicide is of the same description as it would have been had he killed the man he aimed at, so it is murder, and section 103(1) governs the sentence.

Sentencing in the first case. Even where section 103(2) is made out, the choice between death and imprisonment for life is governed by Bachan Singh, so the court must record reasons and be satisfied that the alternative of life imprisonment is unquestionably foreclosed.

What beginners get wrong

Thinking section 103(2) creates a new offence. It does not. It is a punishment provision for murder committed in a particular way by a particular group, and the offence remains murder under section 101.

Thinking imprisonment for life means twenty years. Section 6 makes life equal to twenty years only for calculating fractions of terms. Under section 104 the Sanhita spells out that life means the remainder of natural life.

Missing the minimum in section 105. The intention limb carries a minimum of five years, which the knowledge limb does not.

Treating the rarest of rare rule as statutory. It is not. It comes from Bachan Singh, and a student who attributes it to the section is wrong.

Limits and criticism

The Sanhita still has no sentencing chapter. Two committees recommended one and neither recommendation was taken up, so the most important sentencing rule in the country remains a judicial gloss on a section that offers a bare choice.

"Any other similar ground" is uncertain by design. It will admit grounds the drafters did not list, and it will exclude grounds a court thinks dissimilar, and neither outcome is predictable from the text.

Section 103(2) duplicates what sections 103(1) and 190 already achieved. Its value is expressive rather than operative: it names the wrong on the face of the statute, which the old route did not.

Quick revision

Section 102. Transferred malice: the culpable homicide is of the description it would have had if the intended victim had died.

Section 103(1). Murder: death or imprisonment for life, and fine.

Section 103(2). Group of five or more acting in concert, killing on a ground of race, caste or community, sex, place of birth, language, personal belief or any similar ground: each member liable to death or imprisonment for life, and fine. New to the Sanhita.

Section 104. Murder by a person under sentence of imprisonment for life: death, or imprisonment for the remainder of natural life.

Section 105. Culpable homicide not amounting to murder. Intention limb: life, or five to ten years, and fine. Knowledge limb: up to ten years and fine.

Bachan Singh, (1980) 2 SCC 684. The death sentence is confined to the rarest of rare cases, where the alternative of life imprisonment is unquestionably foreclosed, with aggravating and mitigating circumstances weighed and reasons recorded.

Machhi Singh, (1983) 3 SCC 470. Systematised that test into categories and two questions.

Test yourself

1. What is new in section 103, and what does it require? Sub-section (2), which punishes murder by a group of five or more persons acting in concert on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground. Each member of the group is liable to death or imprisonment for life and fine.

2. State the two grades of punishment in section 105. Where the act was done with the intention of causing death, or of causing bodily injury likely to cause death: imprisonment for life, or five to ten years, and fine. Where it was done with knowledge only that death was likely: up to ten years and fine.

3. What did Bachan Singh v. State of Punjab decide? That the death penalty for murder is constitutional but is to be imposed only in the rarest of rare cases, when the alternative of imprisonment for life is unquestionably foreclosed, after weighing aggravating and mitigating circumstances relating to both the crime and the criminal.

4. A man aims at X, misses, and kills Y. What does section 102 do? It provides that the culpable homicide is of the same description as it would have been had he caused the death of the person he intended or knew himself likely to kill, so if killing X would have been murder, killing Y is murder.

5. Does the Sanhita contain a statutory sentencing policy? No. It prescribes punishments and almost no principles. The Malimath Committee in 2003 and the Madhava Menon Committee in 2007 both recommended one and neither recommendation was enacted.

Causation must be direct. The death must be the direct result of the rash or negligent act, not a remote consequence of it.

"Not amounting to culpable homicide" is a limit on the section, not an element to be proved. If the prosecution shows the knowledge required by the third limb of section 100, the case moves up to culpable homicide.

The two changes from the Penal Code

The doctor's lower maximum is new. Section 304A of the Penal Code carried a single maximum of two years for everyone. Section 106(1) raises the general maximum to five years and then carves out a registered medical practitioner performing a medical procedure at two years, which is the old figure. Doctors have not been made more liable; everyone else has.

Section 106(2) is new in substance. A driver who causes death by rash and negligent driving and escapes without reporting it soon after to a police officer or a Magistrate faces up to ten years, against five under sub-section (1).

The escape is the aggravating element. The section punishes the flight, not the driving alone. A driver who causes the same death and stops and reports is within sub-section (1).

The commencement position must be stated carefully. The commencement notification for the Bharatiya Nagarik Suraksha Sanhita, S.O. 848(E) of 23 February 2024, brought that Sanhita into force on 1 July 2024 "except the provisions of the entry relation to Section 106(2) in the first Schedule". The First Schedule to that Sanhita is the table that classifies each offence as cognizable or not, bailable or not, and by which court triable. So the classification entry for this offence was held back, which is the fact that can be proved from the statutes themselves.

Distinctions that carry marks

A worked example

Imran drives a tempo down a narrow road in Bhiwandi at speed, overtaking on a blind curve. He hits a cyclist, who dies. Imran stops, calls the police and waits.

Which provision? Section 106(1). The driving was rash, in that he adverted to the risk of overtaking blind and ran it, and it caused death. It does not amount to culpable homicide because he had no knowledge that death was likely from that particular manoeuvre. The maximum is five years and fine.

Change one fact: he drives on and does not report. Now section 106(2) applies, because he caused death by rash and negligent driving and escaped without reporting it to a police officer or a Magistrate soon after the incident. The maximum doubles to ten years.

Change it again: he drives deliberately at a group of people, knowing that death is likely. That is no longer section 106 at all. Knowledge that the act is likely to cause death takes it into section 100, and the fourth clause of section 101 may make it murder.

A different case. Suppose a surgeon, registered under the National Medical Commission Act, 2019 and entered on the National Medical Register, operates without checking a known allergy and the patient dies. If the failure amounts to criminal negligence rather than an error of judgment, section 106(1) applies with the two year maximum, because the act was done by a registered medical practitioner while performing a medical procedure.

Change the practitioner. If the person operating is not on either register, the Explanation does not cover him, and the maximum is five years.

What beginners get wrong

Treating civil negligence as enough. It is not. The negligence must be of a degree the criminal law recognises, which is a gross departure from the reasonable standard.

Thinking section 106(2) punishes bad driving. It punishes causing death by rash and negligent driving and then escaping without reporting. The escape is what distinguishes it.

Thinking the doctor's clause protects any medical person. It protects a registered medical practitioner as defined in the Explanation, performing a medical procedure, and nobody else.

Confusing rashness with intention. A rash actor hopes the harm will not occur. An intending actor wants it to.

Limits and criticism

The doctors' clause was contested from both sides. Practitioners argued that criminal liability for a medical outcome deters treatment; the answer given was to hold the maximum at the old two years while raising it for everyone else, which pleases neither position fully.

Ten years for the driving offence is a large jump. It exceeds the maximum for culpable homicide on the knowledge limb under section 105, so a driver who flees can face a longer sentence than a person who caused death knowing it was likely.

"Soon after the incident" is undefined. How soon is soon enough will be litigated, and a driver who reports after taking the injured to hospital should not be worse placed than one who telephones from the scene.

Quick revision

Section 106(1). Causing death by a rash or negligent act not amounting to culpable homicide: up to five years and fine. A registered medical practitioner performing a medical procedure: up to two years and fine.

The Explanation. Registered medical practitioner means one with a qualification recognised under the National Medical Commission Act, 2019, entered on the National Medical Register or a State Medical Register.

Section 106(2). Causing death by rash and negligent driving of a vehicle and escaping without reporting to a police officer or a Magistrate soon after: up to ten years and fine.

Commencement. S.O. 848(E) of 23 February 2024 brought the Bharatiya Nagarik Suraksha Sanhita into force on 1 July 2024 except the First Schedule entry relating to section 106(2).

Rash against negligent. Rash means adverting to the risk and running it; negligent means failing to advert to it at all.

The boundary. "Not amounting to culpable homicide". Knowledge that death is likely takes the case out of section 106 and into section 100.

Test yourself

1. State the two maxima in section 106(1) and say what separates them. Five years and fine generally; two years and fine where the act is done by a registered medical practitioner while performing a medical procedure, as defined in the Explanation.

2. What must be proved in addition under section 106(2)? That the death was caused by rash and negligent driving of a vehicle, and that the offender escaped without reporting the incident to a police officer or a Magistrate soon after it.

3. Distinguish a rash act from a negligent one. In a rash act the person adverts to the risk of harm and runs it in the belief that it will not materialise. In a negligent act the person fails to advert to the risk at all, falling short of the care a reasonable person would take.

4. Is ordinary civil negligence enough for section 106? No. The negligence must be criminal in degree, a gross departure from the standard of a reasonable person, and not merely a want of care sufficient to ground a claim in damages.

5. What was held back when the new criminal laws were brought into force, so far as it can be proved from the statutes? The entry in the First Schedule to the Bharatiya Nagarik Suraksha Sanhita relating to section 106(2), by S.O. 848(E) of 23 February 2024. That is the entry classifying the offence as cognizable or bailable and naming the court that tries it.

Held. P. Rathinam held the section unconstitutional. Gian Kaur restored it, holding that the right to life under Article 21 does not include a right to die. The section was then neutralised not by amendment of the Code but by section 115 of the Mental Healthcare Act, 2017, which presumes that a person who attempts suicide is under severe stress and shall not be tried and punished.

Why Gian Kaur still matters although the section is gone. It is the authority for the proposition that Article 21 does not carry a right to die, which is the premise on which sections 107 and 108 continue to stand. If there were a right to die, abetting its exercise could not be a crime.

Broken down: sections 107 and 108

Abetment carries its ordinary meaning. Section 45 supplies it: instigation, conspiracy with an act in pursuance, or intentional aid. Nothing special is added here.

Suicide must actually follow. Both sections open "If any person commits suicide", so the abettor is liable only where the suicide is completed. Where it is attempted and fails, the abettor faces section 56, abetment of an offence not committed, and even that presupposes an offence, which after the removal of section 309 the attempt is not.

Section 107 is far graver, and the reason is capacity. Its victims are a child, a person of unsound mind, a delirious person, and an intoxicated person. None of them can weigh the decision, so the person who pushes them to it is treated as very close to a killer, and the punishment reaches death.

Broken down: sections 109 and 110

Both are drafted by reference to the completed offence. The question is not what the accused did but what he would have been guilty of if his act had caused death.

So the analysis runs backwards. Take the act, assume it killed, and ask whether that would have been murder under section 101 or culpable homicide not amounting to murder under section 100 with an Exception. The answer selects the section.

Hurt raises the punishment in both. Under section 109 it lifts the ceiling from ten years to imprisonment for life. Under section 110 it lifts it from three years to seven.

Section 109(2) is the only place in these four sections where death is available, and it needs the offender to be already under a sentence of imprisonment for life and hurt to have been caused.

Distinctions that carry marks

A worked example

Ravindra, angry with his neighbour Suresh, fires a country-made pistol at him from ten metres. The bullet misses.

Section 109 or section 62? Section 109. Section 62 is residuary and applies only where the Sanhita makes no express provision for the attempt, and here it does. The maximum is ten years and fine.

How is section 109 tested? Assume the shot had killed Suresh. Firing a pistol at a person from ten metres is an act done with the intention of causing death, so it would have been murder under clause (a) of section 101. That is enough.

The bullet grazes Suresh's arm. Hurt has been caused, so Ravindra is liable either to imprisonment for life or to imprisonment up to ten years and fine.

Ravindra is already serving a life sentence. Section 109(2) then permits death or imprisonment for the remainder of his natural life, because hurt was caused.

Change the facts. Suppose Suresh had grossly and suddenly provoked Ravindra moments earlier and Ravindra fired in the loss of self-control. Had the shot killed, Exception 1 to section 101 would have reduced it to culpable homicide not amounting to murder. So the attempt falls under section 110, and the maximum is three years without hurt, seven with it.

A different case. Suppose a moneylender tells a debtor's fourteen-year-old son, day after day, that his family is ruined because of him and that he should end it, and the boy takes his own life. That is section 107, not section 108, because the person who committed suicide was a child, and the punishment reaches death.

What beginners get wrong

Thinking attempting suicide is still an offence. It is not, as a general matter. Only section 226 survives, and it needs the intent to compel or restrain a public servant.

Thinking sections 107 and 108 need the suicide only to be attempted. They need it to be committed. Both open with the words "If any person commits suicide".

Applying section 62 to an attempted murder. Section 109 is the express provision, and section 62 yields to it.

Forgetting that hurt changes the sentence. In both sections 109 and 110 the causing of hurt raises the maximum sharply.

Limits and criticism

Section 108 has been criticised as too easily invoked. Because abetment includes instigation, and instigation is inferred from words and conduct, a prosecution can follow from harsh treatment that fell far short of urging anybody to die. The courts have insisted on a proximate act of instigation, but the section itself gives no guidance.

The removal of the general suicide offence was left incomplete. Section 226 preserves a narrow version of it, so a person who attempts suicide in a way a court reads as aimed at a public servant is still exposed, which sits awkwardly with the policy of the Mental Healthcare Act, 2017.

Section 107's capital exposure is very wide. It reaches abetment of the suicide of an intoxicated person, and intoxication is a state that comes and goes, so the same words of instigation may attract death or ten years depending on the deceased's condition at the moment.

Quick revision

Section 107. Abetment of suicide of a child, a person of unsound mind, a delirious person or an intoxicated person: death, or imprisonment for life, or up to ten years, and fine.

Section 108. Abetment of suicide of any person: up to ten years and fine. The suicide must be committed.

Section 109. Attempt to murder: up to ten years and fine; imprisonment for life if hurt is caused; death or imprisonment for the remainder of natural life under sub-section (2) where the offender is already under a life sentence and hurt is caused.

Section 110. Attempt to commit culpable homicide: up to three years, or fine, or both; up to seven years if hurt is caused.

Section 309 of the Penal Code is gone. Only section 226 survives, attempting suicide to compel or restrain the exercise of lawful power.

The history. Law Commission 42nd Report 1971 and 210th Report 2008; P. Rathinam, (1994) 3 SCC 394, struck it down; Gian Kaur, (1996) 2 SCC 648, restored it and held Article 21 carries no right to die; section 115 of the Mental Healthcare Act, 2017 neutralised it.

Test yourself

1. Is attempting suicide an offence under the Sanhita? Not as a general matter. Section 309 of the Penal Code has no counterpart. The only surviving provision is section 226, attempting suicide with intent to compel or restrain a public servant from discharging his duty.

2. What did Gian Kaur v. State of Punjab decide, and why does it still matter? It restored section 309 after P. Rathinam had struck it down, holding that the right to life under Article 21 does not include a right to die. It still matters because that holding is the premise on which abetment of suicide remains an offence.

3. How is liability under section 109 tested? By assuming that the act caused death and asking whether the accused would then have been guilty of murder. If so, section 109 applies.

4. What difference does the causing of hurt make? Under section 109 it raises the ceiling from ten years to imprisonment for life. Under section 110 it raises it from three years to seven.

5. Why is section 107 punished so much more heavily than section 108? Because its victims are a child, a person of unsound mind, a delirious person or an intoxicated person, none of whom can weigh the decision, so the abettor is treated as very close to having caused the death himself.

Section 111(2), the punishment. Where the offence has resulted in the death of any person, death or imprisonment for life, and a fine of not less than ten lakh rupees. In any other case, not less than five years extending to imprisonment for life, and a fine of not less than five lakh rupees.

Section 111(3) to (7) punish the surrounding conduct. Abetting, attempting, conspiring, knowingly facilitating or doing any preparatory act: not less than five years to imprisonment for life, and not less than five lakh rupees. Membership of a syndicate: the same. Intentionally harbouring or concealing an offender: not less than three years to imprisonment for life, and not less than five lakh rupees, with a proviso that it does not apply where the harbour or concealment is by the offender's spouse. Possessing property derived from organised crime: not less than three years to imprisonment for life, and not less than two lakh rupees. Being in possession, on behalf of a syndicate member, of property that cannot be satisfactorily accounted for: not less than three years extending to ten years, and not less than one lakh rupees.

Section 112, petty organised crime. A member of a group or gang who, singly or jointly, commits any act of theft, snatching, cheating, unauthorised selling of tickets, unauthorised betting or gambling, selling of public examination question papers or any other similar criminal act, commits petty organised crime, punishable with not less than one year extending to seven years, and fine. Its Explanation provides that "theft" includes trick theft, theft from a vehicle, dwelling house or business premises, cargo theft, pick pocketing, theft through card skimming, shoplifting and theft of an automated teller machine.

Broken down: the four things the prosecution must establish

One: a continuing unlawful activity, as defined. This is the gate, and Explanation (ii) makes it a documentary test. The activity must be a cognizable offence punishable with three years or more, and more than one charge-sheet must have been filed before a competent court in the preceding ten years, with cognizance taken. A single offence, however grave, does not satisfy it.

Two: an organised crime syndicate, or action on its behalf. Explanation (i) sets the floor at two or more persons. That is a low threshold, lower than the five required for an unlawful assembly.

Three: the means. Violence, threat of violence, intimidation, coercion, or any other unlawful means.

Four: the object. A direct or indirect material benefit, including a financial benefit. Violence for its own sake is not organised crime under this section.

The charge-sheet requirement is the heart of it

It is what makes the offence about the organisation rather than the incident. The prosecution proves a pattern that already exists on the court's own records, and then attaches the accused to it.

It is also the strongest safeguard in the section. A charge-sheet filed and cognizance taken are objective facts recorded by a court, not matters of police opinion, and the ten year window bounds how far back the pattern may be drawn.

Note what it does not require. It does not require convictions. More than one charge-sheet, with cognizance taken, is enough.

Distinctions that carry marks

A worked example

A group of six men in a suburb of Mumbai has run an extortion operation for years, collecting money from shopkeepers under threat of damage. Four charge-sheets for extortion and mischief have been filed against various members before the Sessions Court over the last six years, and the court has taken cognizance of each.

Is section 111 engaged? Work through the four requirements. Extortion is a cognizable offence punishable with three years or more, so the activity qualifies. More than one charge-sheet has been filed within ten years and cognizance taken, so it is a continuing unlawful activity. The six men acting jointly are an organised crime syndicate under Explanation (i). The means are threat of violence and the object is financial benefit.

What is each man liable for? The one who collects is liable under section 111(2)(b), not less than five years extending to imprisonment for life, with a fine of not less than five lakh rupees. A man who is merely a member of the syndicate is liable under section 111(4) on the same scale. A brother who hides one of them after a raid is liable under section 111(5), unless he is a spouse, in which case the proviso exempts him.

A shopkeeper dies of a heart attack during a threat. If the offence has resulted in the death of any person, section 111(2)(a) applies and the punishment becomes death or imprisonment for life with a fine of not less than ten lakh rupees.

Change the facts. Suppose the same six men have only ever been charge-sheeted once. The charge-sheet test in Explanation (ii) fails, so there is no continuing unlawful activity and section 111 is not available, however organised they plainly are. The prosecution falls back on extortion under section 308 and criminal conspiracy under section 61.

Change them again. Suppose four young men in a group regularly pick pockets at a railway station. That is section 112: they are members of a group, the act is theft, and the Explanation expressly includes pick pocketing. The punishment is one to seven years and fine, and no charge-sheet history is needed.

What beginners get wrong

Thinking a syndicate needs many members. Two is enough under Explanation (i).

Thinking convictions are required. They are not. The test is more than one charge-sheet filed and cognizance taken within ten years.

Thinking section 112 is a lesser form of section 111. It is a separate offence with different ingredients. It has no charge-sheet requirement, no syndicate definition and no requirement of material benefit.

Assuming the section repeals the State Acts. It does not. The Maharashtra Control of Organised Crime Act remains in force, and how the two stand together is worked out in Module II.

Limits and criticism

Section 111 is criticised for reproducing a State special Act inside a general code. The heavy minimum sentences and minimum fines, and the offences of membership and unaccounted possession, are the machinery of a special statute, and placing them in the ordinary penal law removes the political scrutiny that a special Act attracts.

"Any other unlawful means" is very wide. It is the residuary limb of the means requirement, and it will do most of the work in cases where no violence was used.

Section 112 has almost no definition. "A group or gang" is undefined, and "any other similar criminal act" is an open list attached to an already broad one, so the section reaches a great deal of ordinary street crime with a minimum of one year.

Section 111(7) reverses the ordinary position on proof. A person in possession, on behalf of a syndicate member, of property he cannot satisfactorily account for is punished with not less than three years. That is possession plus an unsatisfactory explanation, and it is a substantial departure.

Quick revision

Section 111(1). Continuing unlawful activity by a person or group acting in concert as or for an organised crime syndicate, by violence, threat, intimidation, coercion or other unlawful means, for direct or indirect material benefit.

Explanation (i). Syndicate: two or more persons indulging in continuing unlawful activity.

Explanation (ii). Continuing unlawful activity: a cognizable offence punishable with three years or more, with more than one charge-sheet filed in the preceding ten years and cognizance taken.

Explanation (iii). Economic offence includes criminal breach of trust, forgery, counterfeiting, hawala, mass-marketing fraud and defrauding a bank or institution.

Section 111(2). Death results: death or imprisonment for life, fine not less than ten lakh. Otherwise: five years to life, fine not less than five lakh.

Section 111(3) to (7). Abetment and preparation; membership; harbouring, with a spouse proviso; possession of proceeds; unaccounted property held for a member.

Section 112. Petty organised crime by a member of a group or gang: one to seven years and fine. Theft is widely defined in the Explanation.

Test yourself

1. What is the charge-sheet test, and where is it found? In Explanation (ii) to section 111(1). A continuing unlawful activity requires a cognizable offence punishable with three years or more in respect of which more than one charge-sheet has been filed before a competent court within the preceding ten years, and that court has taken cognizance.

2. How many persons make an organised crime syndicate? Two or more, under Explanation (i) to section 111(1).

3. What is the punishment where organised crime results in a death? Death or imprisonment for life, and a fine of not less than ten lakh rupees, under section 111(2)(a).

4. Who is exempt from the harbouring offence? The spouse of the offender, by the proviso to section 111(5).

5. Name three acts that fall within petty organised crime. Any three of: theft, snatching, cheating, unauthorised selling of tickets, unauthorised betting or gambling, selling of public examination question papers, or any other similar criminal act. Theft is defined in the Explanation to include trick theft, theft from a vehicle, dwelling house or business premises, cargo theft, pick pocketing, theft through card skimming, shoplifting and theft of an automated teller machine.

Clause (c). Detaining, kidnapping or abducting any person and threatening to kill or injure that person, or doing any other act, in order to compel the Government of India, a State Government, the Government of a foreign country, an international or inter-governmental organisation or any other person to do or abstain from doing any act.

The Explanation to sub-section (1) defines "public functionary" as the constitutional authorities or any other functionary notified as such in the Official Gazette by the Central Government, and defines "counterfeit Indian currency".

Section 113(2), the punishment. Where the offence has resulted in the death of any person, death or imprisonment for life and fine. In any other case, not less than five years extending to imprisonment for life, and fine.

Section 113(3) to (7). Conspiring, attempting, advocating, abetting, advising, inciting or knowingly facilitating a terrorist act or any preparatory act: five years to imprisonment for life, and fine. Organising a training camp or recruiting: the same. Membership of an organisation involved in a terrorist act: up to imprisonment for life and fine. Voluntarily harbouring or concealing a person known to have committed a terrorist act: three years to imprisonment for life and fine, with a proviso exempting the offender's spouse. Knowingly possessing property derived from a terrorist act: up to imprisonment for life and fine.

The concluding Explanation. "For the removal of doubts, it is hereby declared that the officer not below the rank of Superintendent of Police shall decide whether to register the case under this section or under the Unlawful Activities (Prevention) Act, 1967 (37 of 1967)."

Broken down: the structure of the offence

An intent, then a means, then a result. The opening words set the intent, clauses (a) to (c) set the means, and within clause (a) the sub-clauses set the results. All three layers are needed.

"Or likely to" runs alongside every intent. The section is satisfied by an act likely to threaten the listed interests or likely to strike terror, without proof that the accused intended it, which is a significant widening.

"Economic security" is new to this formula. Adding it to unity, integrity, sovereignty and security brings within terrorism acts aimed at the economy rather than at persons or the State's authority.

The reach is not confined to India. Striking terror in the people of "any foreign country" is within the opening words, and clause (a) covers damage to property in a foreign country used for the defence of India.

The Explanation about registration is the most examinable line

It is unusual for a penal section to say who chooses the statute. Ordinarily the choice of provision is a matter of prosecutorial judgment, reviewable by a court, and no section says who makes it.

Here the Sanhita names an officer and a rank. An officer not below the rank of Superintendent of Police decides whether to register under section 113 or under the Unlawful Activities (Prevention) Act, 1967.

Why the choice matters enormously. The special Act carries its own procedure: a longer period for investigation, a stricter bail provision, and the machinery for declaring an organisation unlawful or terrorist. A case registered under section 113 alone is investigated and tried under the ordinary procedure of the Bharatiya Nagarik Suraksha Sanhita.

So a decision taken by a police officer settles which procedural regime the accused faces. That is the criticism the provision attracts, and it should be stated in any answer about it.

Distinctions that carry marks

A worked example

A group plants an explosive device in a crowded market in a State capital. It kills four people and damages shops.

Is section 113 made out? The act was done by using an explosive substance, and it caused death and damage to property, so clause (a) is satisfied. Whether it was done with the intent to strike terror in a section of the people, or was likely to do so, is the question, and a bomb in a crowded market is likely to strike terror on the face of it. The offence has resulted in death, so section 113(2)(a) permits death or imprisonment for life and fine.

Who else is liable? A person who advised or incited the planting, or knowingly facilitated it, or did a preparatory act, is liable under section 113(3) to five years to imprisonment for life. A person who ran the camp where the group was trained is liable under section 113(4) on the same scale. A member of the organisation is liable under section 113(5) to up to imprisonment for life.

A cousin hides one of them for a week. Section 113(6) applies, three years to imprisonment for life, unless the person who hid him is his spouse, in which case the proviso exempts them.

Which statute will the case be registered under? By the concluding Explanation, an officer not below the rank of Superintendent of Police decides whether it goes under section 113 or under the Unlawful Activities (Prevention) Act, 1967. If it goes under the special Act, the accused faces that Act's bail provision and its extended investigation periods.

Change the facts. Suppose the same group instead circulates false information that causes a run on a co-operative bank, intending to destabilise the district's economy. Whether that is a terrorist act turns on whether the act falls within clause (a), (b) or (c), because the intent limb alone is not enough. Circulating information is not a use of the means listed in clause (a) unless "any other means of whatever nature" is read to cover it, and that is exactly where such a case would be argued.

What beginners get wrong

Thinking section 113 replaced the special Act. It did not. The Unlawful Activities (Prevention) Act, 1967 remains in force and the two operate side by side.

Thinking intent must always be proved. The words "or likely to" appear alongside both intents in the opening of sub-section (1).

Reading the offence as needing a death. It does not. Death raises the punishment to the capital band under sub-section (2)(a); without it the range is five years to imprisonment for life.

Overlooking that membership alone is punished. Section 113(5) punishes membership of an organisation involved in a terrorist act with up to imprisonment for life.

Limits and criticism

A police officer chooses the procedural regime. The concluding Explanation is the most criticised line in the section, because the consequences of the choice, above all for bail and for the length of investigation, are severe and the decision is taken before any court is involved.

"Economic security" is undefined. It is a new limb of a serious offence, and the section gives no content to it.

"Any other means of whatever nature" makes the means limb open-ended. A list of explosives, weapons, gases, chemicals and hazardous substances followed by that phrase invites the argument that any act at all with the required intent is within clause (a).

The overlap duplicates rather than resolves. Two statutes now define terrorism differently, with different procedures and different sentencing, over the same conduct.

Quick revision

Section 113(1). Intent, or likelihood, of threatening the unity, integrity, sovereignty, security or economic security of India, or of striking terror in the people or a section of them in India or a foreign country, by the means in clauses (a) to (c).

Clause (a). Explosives, inflammables, firearms, lethal weapons, poisonous or noxious gases, chemicals, biological, radioactive, nuclear or other hazardous substances, or any other means, causing or likely to cause death, injury, or loss of or damage to property, including defence property in India or abroad.

Clause (b). Overawing by criminal force or its show, or causing or attempting the death of a public functionary.

Clause (c). Detaining, kidnapping or abducting and threatening, to compel a Government, an international organisation or any other person to act or abstain.

Section 113(2). Death results: death or imprisonment for life and fine. Otherwise: five years to imprisonment for life and fine.

Sub-sections (3) to (7). Conspiracy and facilitation; training camps and recruitment; membership; harbouring, with a spouse proviso; possession of proceeds.

The concluding Explanation. An officer not below the rank of Superintendent of Police decides whether to register under this section or under the Unlawful Activities (Prevention) Act, 1967.

Test yourself

1. What are the two intents in the opening of section 113(1)? The intent to threaten, or likelihood of threatening, the unity, integrity, sovereignty, security or economic security of India; and the intent to strike terror, or likelihood of striking terror, in the people or any section of the people in India or in any foreign country.

2. Who decides whether a case is registered under section 113 or under the special Act, and why does it matter? An officer not below the rank of Superintendent of Police, by the concluding Explanation. It matters because the Unlawful Activities (Prevention) Act carries its own procedure, including a stricter bail provision and longer investigation periods, while a case under section 113 alone follows the ordinary procedure.

3. Is membership of a terrorist organisation an offence under section 113? Yes. Sub-section (5) punishes any person who is a member of an organisation involved in a terrorist act with imprisonment which may extend to imprisonment for life, and fine.

4. Does section 113 require a death? No. A death raises the punishment under sub-section (2)(a) to death or imprisonment for life. Without one, the range under sub-section (2)(b) is not less than five years extending to imprisonment for life.

5. What is new about the interests protected by section 113 compared with earlier formulations? The inclusion of "economic security" alongside unity, integrity, sovereignty and security, which brings acts aimed at the economy within the definition of a terrorist act.

Section 117(4) is also new. Where a group of five or more persons acting in concert causes grievous hurt on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground, each member is guilty of causing grievous hurt and is punished with up to seven years and fine.

Section 118, dangerous weapons or means. Causing hurt by an instrument for shooting, stabbing or cutting, or any instrument which used as a weapon of offence is likely to cause death, or by fire or a heated substance, poison, a corrosive or explosive substance, a deleterious substance, or by means of any animal: up to three years, or fine up to twenty thousand rupees, or both. Grievous hurt by those means: imprisonment for life, or not less than one year extending to ten years, and fine.

Section 119, to extort property or constrain to an illegal act. Hurt: up to ten years and fine. Grievous hurt: imprisonment for life, or up to ten years, and fine.

Section 120, to extort a confession or compel restoration of property. Hurt: up to seven years and fine. Grievous hurt: up to ten years and fine. Its illustrations name a police officer torturing a person to induce a confession, a police officer torturing a person to make him point out stolen property, and a revenue officer torturing a person to compel payment of arrears.

Section 121, to deter a public servant. Hurt to a public servant in the discharge of his duty, or with intent to prevent or deter him or any other public servant, or in consequence of anything done in the lawful discharge of duty: up to five years, or fine, or both.

Section 122, on provocation. Hurt on grave and sudden provocation, where the offender neither intends nor knows himself likely to hurt anyone other than the provoker: up to one month, or fine up to five thousand rupees, or both. Grievous hurt in the same circumstances: up to five years, or fine up to ten thousand rupees, or both. Its Explanation makes the section subject to the same proviso as Exception 1 of section 101.

Section 123, poison and stupefying substances. Administering, or causing to be taken, any poison or any stupefying, intoxicating or unwholesome drug or other thing, with intent to cause hurt or to commit or facilitate an offence, or knowing hurt is likely: up to ten years and fine.

Section 124, acid. Sub-section (1) punishes causing permanent or partial damage or deformity, burns, maiming, disfigurement or disability to any part of the body, or grievous hurt, by throwing or administering acid or by any other means with the intention or knowledge described, or causing a permanent vegetative state: not less than ten years extending to imprisonment for life, and fine, with provisos requiring the fine to be just and reasonable to meet the victim's medical expenses and to be paid to the victim. Sub-section (2) punishes throwing or attempting to throw acid, or attempting to administer it, with the described intention: not less than five years extending to seven years, and fine. Explanation 1 defines "acid" as including any substance of an acidic or corrosive character or burning nature capable of causing bodily injury leading to scars, disfigurement or temporary or permanent disability.

Section 125, endangering life or personal safety. Doing any act so rashly or negligently as to endanger human life or the personal safety of others: up to three months, or fine up to two thousand five hundred rupees, or both; up to six months, or five thousand rupees, or both, where hurt is caused, clause (a); and up to three years, or ten thousand rupees, or both, where grievous hurt is caused, clause (b).

Broken down: how the group is organised

Two definitions, then two offences, then eight aggravations. Sections 114 and 116 define; sections 115 and 117 create the two basic offences; sections 118 to 124 raise the punishment by reference to something else.

What raises it. The means used, in sections 118, 123 and 124. The purpose, in sections 119, 120 and 121. And what lowers it: provocation, in section 122.

Clause (h) of section 116 is where most cases are decided. Endangering life, or fifteen days of severe bodily pain or inability to follow ordinary pursuits, catches injuries that fit none of the first seven clauses, and the fifteen day period is the commonest question in a medical certificate.

Distinctions that carry marks

A worked example

During an argument outside a college in Pune, Sameer strikes Rohit once on the jaw. Rohit's tooth is dislocated.

Hurt or grievous hurt? Grievous. Clause (g) of section 116 names dislocation of a bone or tooth, so the injury is within the closed list whatever its practical seriousness. Sameer intended a blow to the face and so intended or knew himself likely to cause grievous hurt of some kind, and by the Explanation to section 117(1) it does not matter that he expected a different kind. The punishment is up to seven years and fine.

Change the injury to a bruise that heals in three days. Now it is hurt only, under section 114, and section 115(2) applies: up to one year, or ten thousand rupees, or both.

Change the instrument. Suppose Sameer used a knuckleduster. Section 118(1) applies if the injury is hurt, because an instrument used as a weapon of offence likely to cause death is named, raising the maximum to three years and a fine of twenty thousand rupees. If the injury is grievous hurt, section 118(2) applies, and the range becomes one to ten years, or imprisonment for life.

Change the circumstances. Suppose Rohit had just insulted Sameer's family gravely and suddenly, and Sameer struck without intending to hurt anyone else. Section 122(1) applies to hurt, reducing the maximum to one month; section 122(2) applies to grievous hurt, reducing it to five years.

A different case. Suppose a police officer beats a suspect to make him confess. Section 120(1) applies, up to seven years and fine, and its first illustration is that very case. If the beating causes grievous hurt, sub-section (2) raises it to ten years.

Another. Suppose a man throws a corrosive liquid at a woman, scarring her face. Section 124(1) applies, with a minimum of ten years extending to imprisonment for life, and the fine must be just and reasonable to meet her medical expenses and must be paid to her. If the liquid missed her entirely, section 124(2) applies to the attempt, five to seven years and fine.

What beginners get wrong

Treating grievous hurt as a question of seriousness. It is a question of the list. A dislocated tooth is grievous; a deep and painful wound that heals in ten days and endangers nothing is not.

Forgetting the "fifteen days" limb. Clause (h) is the one that admits injuries outside the first seven clauses, and it has two branches: endangering life, and fifteen days of severe pain or inability to follow ordinary pursuits.

Thinking the offender must intend the exact injury caused. The Explanation to section 117(1) says otherwise: intending grievous hurt of one kind and causing grievous hurt of another is enough.

Thinking section 124 needs acid in the chemical sense. Explanation 1 includes any substance of an acidic or corrosive character or burning nature capable of causing scars, disfigurement or disability.

Limits and criticism

The eight clauses are Victorian and show it. Emasculation heads a list that omits injuries a modern legislature would place high, and the fifteen day rule in clause (h) turns a question of gravity into a question of the calendar.

Section 120 punishes custodial torture at seven years. The illustrations show that the section was drafted with police torture in view, and the punishment has been criticised as low for what it describes, particularly against the ten years available under section 119 for extortion by a private person.

Section 117(4) duplicates section 190. Group liability for grievous hurt on an identity ground could already be reached through the unlawful assembly provisions, and the new sub-section adds expression rather than reach.

Section 125 is very lightly punished for what it describes. Three months, rising to three years only where grievous hurt is actually caused, for an act that endangers human life. Its breadth makes it a catch-all whose use depends heavily on prosecutorial restraint, and its fines, two thousand five hundred to ten thousand rupees, were carried over unchanged in substance from a much older statute.

Quick revision

Section 114. Hurt: bodily pain, disease or infirmity.

Section 116, the eight clauses. Emasculation; permanent privation of sight of either eye; permanent privation of hearing of either ear; privation of any member or joint; destruction or permanent impairing of the powers of any member or joint; permanent disfiguration of the head or face; fracture or dislocation of a bone or tooth; and any hurt endangering life or causing fifteen days of severe bodily pain or inability to follow ordinary pursuits.

Section 115(2). Voluntarily causing hurt: one year, or ten thousand rupees, or both.

Section 117(2). Voluntarily causing grievous hurt: seven years and fine. Sub-section (3): permanent disability or persistent vegetative state, ten years to life. Sub-section (4): a group of five or more on an identity ground, seven years and fine.

Section 118. By dangerous weapons or means: three years for hurt; one to ten years or life for grievous hurt.

Sections 119, 120, 121. To extort property; to extort a confession or compel restoration; to deter a public servant.

Section 122. On grave and sudden provocation: one month for hurt, five years for grievous hurt.

Section 123. Poison or stupefying substances with intent: ten years and fine.

Section 124. Acid: ten years to life, fine payable to the victim; attempt, five to seven years.

Test yourself

1. Define hurt and say how grievous hurt differs. Hurt, section 114, is causing bodily pain, disease or infirmity. Grievous hurt is confined to the eight kinds listed in section 116, which opens with the words that those kinds "only" are designated grievous.

2. Which clause of section 116 catches an injury outside the first seven, and what does it require? Clause (h): a hurt which endangers life, or which causes the sufferer to be for fifteen days in severe bodily pain or unable to follow his ordinary pursuits.

3. A man intends to disfigure another's face but instead breaks his arm. Has he voluntarily caused grievous hurt? Yes. By the Explanation to section 117(1), a person who intends or knows himself likely to cause grievous hurt of one kind and actually causes grievous hurt of another is said voluntarily to cause grievous hurt.

4. What does the fine under section 124(1) have to satisfy? Two provisos: it must be just and reasonable to meet the medical expenses of the victim's treatment, and it must be paid to the victim.

5. What is the punishment for causing hurt on grave and sudden provocation? Under section 122(1), imprisonment up to one month, or fine up to five thousand rupees, or both, provided the offender neither intended nor knew himself likely to hurt anyone other than the person who gave the provocation.

Broken down: the difference in one sentence

In restraint the person can go somewhere else; in confinement he cannot go anywhere. That is the whole of it, and every examination question on this pair is testing it.

"A right to proceed" is essential to both. A person obstructed from entering a place he has no right to enter is not wrongfully restrained.

Restraint must be total in the direction obstructed. A partial obstruction that merely makes passage inconvenient is not restraint; the person must be prevented.

Confinement needs circumscribing limits, but they need not be walls. A ring of people, a locked compound, or a guarded field will serve, so long as the person cannot pass beyond the boundary in any direction.

Confinement is a species of restraint. Section 127 opens "Whoever wrongfully restrains any person in such a manner", so every wrongful confinement is also a wrongful restraint. The converse is not true.

The Exception in section 126 is narrow and precise

It applies only to a private way over land or water. Obstructing a public road is outside it altogether.

It requires good faith, which by section 2(11) means with due care and attention. A person who never troubled to find out whether the way was private cannot rely on it.

It requires a belief in a lawful right to obstruct, not merely a belief that obstruction is convenient or customary.

Distinctions that carry marks

A worked example

Prakash parks his truck across the only gate of Nanda's compound, so that she cannot drive out. She can still walk out through a side door.

Restraint or confinement? Wrongful restraint under section 126. She is prevented from proceeding in a direction she has a right to take, but she is not prevented from going beyond circumscribing limits altogether, because the side door remains. The maximum is simple imprisonment for one month, or five thousand rupees, or both.

Change one fact: he also bolts the side door from outside. Now she cannot leave at all, so it is wrongful confinement under section 127, and the ordinary punishment under sub-section (2) is up to one year.

She is kept there for four days. Sub-section (3) applies, raising the maximum to three years, or a fine up to ten thousand rupees, or both.

Twelve days. Sub-section (4) applies: up to five years, and a fine which shall not be less than ten thousand rupees.

Prakash tells nobody where she is and moves her at night so that her family cannot find her. Sub-section (6) adds up to three years, in addition to the punishment for the confinement itself, because he confined her in a manner indicating an intention that the confinement or its place should not be known.

Her family obtains an order for her release and Prakash keeps her anyway. Sub-section (5) adds up to two years, in addition to any other term under this Chapter, for keeping a person in wrongful confinement knowing that a writ for her liberation has been duly issued.

A different case. Suppose Prakash blocks a footpath running across his own field, honestly believing after making enquiries that the path is private and that he may close it. The Exception to section 126(1) protects him, because the obstruction is of a private way over land and he believes in good faith that he has a lawful right to obstruct it.

What beginners get wrong

Thinking confinement needs a building. It does not. Any circumscribing limits will do, including a group of people standing round.

Thinking restraint requires physical contact. It does not. An obstruction is enough, and a threat that in fact prevents movement can obstruct.

Thinking the periods in section 127 are minimum sentences. They are not. Three days and ten days describe the duration of the confinement, and they raise the maximum punishment.

Applying the Exception to a public road. It is confined to a private way over land or water.

Limits and criticism

The punishment for restraint is very light. One month or five thousand rupees for a total obstruction of a person's movement in a direction he has a right to take, and the figure reflects a much older sense of the gravity of the interference.

"Certain circumscribing limits" is not defined, and whether a person could have escaped by an unreasonable or dangerous route has to be worked out case by case.

The aggravations in section 127 do not include the case of a confinement by a public servant as such, which is left to the offences in Chapter XII and to the specific hurt provisions in sections 120 and 121.

Quick revision

Section 126(1). Voluntarily obstructing a person so as to prevent him proceeding in any direction he has a right to proceed. Exception: obstruction of a private way over land or water believed in good faith to be lawfully obstructable.

Section 126(2). Simple imprisonment up to one month, or fine up to five thousand rupees, or both.

Section 127(1). Wrongful restraint preventing the person from proceeding beyond certain circumscribing limits.

Section 127(2) to (8). One year ordinarily; three years for three days or more; five years and a minimum fine of ten thousand rupees for ten days or more; two years extra for keeping a person confined despite a writ; three years extra for concealed confinement; three years for confinement to extort property or constrain to an illegal act; three years for confinement to extort a confession or compel restoration.

The relationship. Every wrongful confinement is a wrongful restraint; not every restraint is a confinement.

Test yourself

1. State the difference between wrongful restraint and wrongful confinement in one sentence. Restraint prevents a person from proceeding in a direction he has a right to take while leaving him free to go elsewhere; confinement prevents him from proceeding beyond certain circumscribing limits in any direction.

2. What does the Exception to section 126(1) protect, and what must the person show? The obstruction of a private way over land or water. The person must show a belief in good faith, which by section 2(11) means with due care and attention, that he had a lawful right to obstruct it.

3. A person is confined for eleven days. Which sub-section applies and what is the punishment? Section 127(4): imprisonment up to five years, and a fine which shall not be less than ten thousand rupees.

4. What is added where the confinement is kept secret? Section 127(6) adds imprisonment up to three years, in addition to any other punishment for the confinement, where the person is confined in a manner indicating an intention that the confinement or its place should not be known to an interested person or a public servant.

5. Must there be walls for a wrongful confinement? No. Any circumscribing limits suffice, so long as the person cannot proceed beyond them in any direction.

Section 130, assault. Whoever makes any gesture or any preparation intending, or knowing it likely, that the gesture or preparation will cause a person present to apprehend that he is about to use criminal force to that person, commits an assault. The Explanation provides that mere words do not amount to an assault, but that the words a person uses may give his gestures or preparation such a meaning as makes them amount to one.

Section 131. Assault or criminal force otherwise than on grave and sudden provocation given by the person assaulted: up to three months, or fine up to one thousand rupees, or both.

Section 132. Assault or criminal force to a public servant in the execution of his duty, or with intent to prevent or deter him, or in consequence of anything done in the lawful discharge of his duty: up to two years, or fine, or both.

Section 133. Assault or criminal force intending to dishonour the person, otherwise than on grave and sudden provocation: up to two years, or fine, or both.

Section 134. Assault or criminal force in attempting to commit theft of property the person is wearing or carrying: up to two years, or fine, or both.

Section 135. Assault or criminal force in attempting wrongfully to confine a person: up to one year, or fine up to five thousand rupees, or both.

Section 136. Assault or criminal force on grave and sudden provocation given by the person assaulted: simple imprisonment up to one month, or fine up to one thousand rupees, or both.

Broken down: the four ingredients of criminal force

One: intentional use of force. Force is defined by section 128, and it must be used intentionally, not accidentally.

Two: without the person's consent. A tackle in a football match is force with consent; the same act in the street is not.

Three and four, in the alternative. Either the force was used in order to commit an offence, or the person intended or knew it likely that it would cause injury, fear or annoyance.

"Annoyance" is the lowest of the three. It is what brings within criminal force conduct that causes no injury and no fear at all, and it is why the offence reaches a very wide range of unwanted touching.

Broken down: what makes an assault

A gesture or a preparation. Not a touching. If contact occurs, the offence is criminal force, and an assault will usually have preceded it.

Apprehension in a person present. The person must be there, and must apprehend that criminal force is about to be used on them.

Mere words are not enough. The Explanation is express. But words may give a gesture its meaning: raising a stick is equivocal, and raising it while saying what will be done with it is not.

Distinctions that carry marks

A worked example

At a bus stop in Nagpur, Vikas raises his hand as if to slap Shalini, who is standing in front of him. She flinches. He does not touch her.

Assault or criminal force? Assault under section 130. He made a gesture intending, or knowing it likely, that it would cause a person present to apprehend that he was about to use criminal force. There was no contact, so section 129 is not engaged. The punishment is under section 131: up to three months, or one thousand rupees, or both.

He then slaps her. Now criminal force is used: force under section 128 by his own bodily power, intentionally, without consent, intending injury or annoyance. The offence is again punished under section 131, and because the victim is a woman and the intent was to outrage her modesty, section 74 will be the real charge, with its minimum of one year.

Change the target. Suppose he pushes a ticket inspector who is checking passes. Section 132 applies: criminal force to a public servant in the execution of his duty, up to two years, or fine, or both.

Change the purpose. Suppose he grabs at a chain round her neck to snatch it and fails. That is section 134, assault or criminal force in attempting to commit theft of property the person is wearing, up to two years, or fine, or both.

Change the sequence. Suppose Shalini had just spat at him and he struck back at once. Section 136 applies rather than section 131, and the maximum falls to simple imprisonment for one month, or one thousand rupees, or both.

A different case, testing section 128. Suppose a man unties a boat in which a person is sitting so that it drifts downstream. He has never touched the person. He has still used force, because he disposed a substance so that motion was caused to the other without any further act on his part, which is the second of the three modes in the proviso, and the section's own first illustration says so.

What beginners get wrong

Using "assault" in its everyday sense. In ordinary speech an assault is a beating. In the Sanhita it is the gesture or preparation that creates apprehension, and the beating is criminal force.

Thinking words can be an assault. The Explanation to section 130 says they cannot be, alone. They can give a gesture its meaning.

Thinking force requires touching the person. Section 128 covers bringing a substance into contact with anything the person is wearing or carrying, or with anything so situated that the contact affects their sense of feeling.

Forgetting consent. Section 129 needs the force to be used without consent, which is what keeps sport, surgery and a crowded train outside the offence.

Limits and criticism

The punishments are very low. Three months for criminal force generally, and one thousand rupees, are figures inherited from a statute of 1860 and never revisited in real terms.

"Annoyance" is a very low threshold for a criminal offence, and the breadth of section 129 is controlled in practice by prosecutorial discretion rather than by the text.

The Explanation to section 130 is hard to apply to modern communication. Words alone are not an assault, but a message that creates an immediate apprehension of violence in a person who is not present is outside the section entirely, since it requires a person "present".

Quick revision

Section 128, force. Causing motion, change of motion or cessation of motion to a person, or to a substance so as to bring it into contact with them or their clothing or possessions, by one's own bodily power, by disposing a substance, or by inducing an animal.

Section 129, criminal force. Intentional use of force, without consent, in order to commit an offence, or intending or knowing it likely to cause injury, fear or annoyance.

Section 130, assault. A gesture or preparation intending, or knowing it likely, that a person present will apprehend that criminal force is about to be used. Mere words are not an assault, but words may give a gesture its meaning.

Section 131. The ordinary punishment: three months, or one thousand rupees, or both.

Sections 132 to 135. Public servant, two years; intent to dishonour, two years; attempt to commit theft of property carried, two years; attempt wrongfully to confine, one year.

Section 136. On grave and sudden provocation: simple imprisonment up to one month, or one thousand rupees, or both.

Test yourself

1. Distinguish assault from criminal force. Assault is a gesture or preparation causing a person present to apprehend that criminal force is about to be used, with no contact. Criminal force is the actual intentional use of force without consent, to commit an offence or intending or knowing it likely to cause injury, fear or annoyance.

2. Can words alone amount to an assault? No. The Explanation to section 130 provides that mere words do not amount to an assault, although the words a person uses may give his gestures or preparation such a meaning as makes them amount to one.

3. Name the three ways in which force may be caused under section 128. By the person's own bodily power; by disposing a substance so that the motion, change of motion or cessation of motion takes place without any further act by him or anyone else; or by inducing an animal to move, change its motion or cease to move.

4. Which section applies where criminal force is used to a public servant in the execution of his duty, and what is the maximum? Section 132, with imprisonment up to two years, or fine, or both.

5. What effect does grave and sudden provocation have? Section 136 applies instead of section 131, reducing the maximum to simple imprisonment for one month, or a fine up to one thousand rupees, or both.

Section 140, kidnapping or abducting for murder or ransom. Sub-section (1), to murder or to put in danger of being murdered: imprisonment for life or rigorous imprisonment up to ten years, and fine. Sub-section (2), kidnapping or abducting and threatening death or hurt, or by conduct giving rise to a reasonable apprehension of death or hurt, or causing hurt or death, in order to compel a Government, a foreign State, an international inter-governmental organisation or any other person to act or abstain or to pay a ransom: death, or imprisonment for life, and fine. Sub-section (3), with intent to cause the person to be secretly and wrongfully confined: up to seven years and fine. Sub-section (4), so that the person may be subjected to grievous hurt, slavery or the unnatural lust of any person, or knowing it likely: up to ten years and fine.

Section 141, importation of a girl or boy from a foreign country. Importing into India a girl under twenty-one or a boy under eighteen with intent, or knowledge of likelihood, that they will be forced or seduced to illicit intercourse: up to ten years and fine.

Section 142, concealing a kidnapped person. Whoever, knowing a person has been kidnapped or abducted, wrongfully conceals or confines them is punished in the same manner as if he had kidnapped or abducted them with the same intention, knowledge or purpose.

Section 143, trafficking. Recruiting, transporting, harbouring, transferring or receiving a person for the purpose of exploitation, by threats, force or other coercion, abduction, fraud or deception, abuse of power, or inducement including payments or benefits to obtain the consent of a person having control over the victim. Explanation 1 defines exploitation as including physical or sexual exploitation, slavery or practices similar to slavery, servitude, beggary or forced removal of organs. Explanation 2 provides that the consent of the victim is immaterial. The punishments run from seven to ten years for one person; ten years to life for more than one; ten years to life for a child; fourteen years to life for more than one child; imprisonment for the remainder of natural life for a repeat conviction involving a child; and imprisonment for the remainder of natural life where a public servant or police officer is involved.

Section 144, exploitation of a trafficked person. Engaging a trafficked child for sexual exploitation, knowing or having reason to believe the child was trafficked: five to ten years and fine. Engaging a trafficked adult: three to seven years and fine.

Section 145, habitual dealing in slaves. Habitually importing, exporting, removing, buying, selling, trafficking or dealing in slaves: imprisonment for life, or up to ten years, and fine.

Section 146, unlawful compulsory labour. Unlawfully compelling any person to labour against their will: up to one year, or fine, or both.

Kidnapping against abduction, the comparison

The last row is the one students miss. Section 138 defines abduction and stops. There is no punishment for abduction as such. It becomes an offence only when coupled with a purpose named in another section, most often section 140.

Broken down: the Exception in section 137

It protects a man who believes in good faith that he is the father of an illegitimate child, or that he is entitled to lawful custody of such a child.

Good faith means due care and attention, by section 2(11), so a belief formed carelessly does not attract it.

It falls away entirely if the act was for an immoral or unlawful purpose. A father who takes his child in order to sell it gets nothing from the Exception.

The trafficking section, and why consent is irrelevant

Explanation 2 to section 143(1) is express. "The consent of the victim is immaterial in determination of the offence of trafficking."

That answers the commonest defence in these cases. A trafficked person very often appears to have agreed to travel, to the work and to the arrangement, and the section removes that from the case altogether.

The means listed include inducement of a third party. Clause (f) covers giving or receiving payments or benefits to achieve the consent of a person having control over the victim, which reaches the parent or guardian who was paid.

A worked example

Sameena, aged fifteen, is persuaded by a neighbour to leave her mother's house and travel to another city on the promise of work in a shop. The work does not exist; she is handed to a third person and made to work without pay.

Kidnapping or abduction? Both, and on different footings. She is a child taken out of the keeping of her lawful guardian without the guardian's consent, so section 137(1)(b) is satisfied and her own willingness is irrelevant. She was also induced to go from a place by deceitful means, so section 138 is satisfied.

What is the neighbour punished for? Section 137(2) gives up to seven years for the kidnapping. The abduction is not punishable on its own.

Is it trafficking? Yes. She was recruited and transported for the purpose of exploitation by practising fraud or deception, which is clause (d) of section 143(1). Because she is a child, sub-section (4) applies: not less than ten years rigorous imprisonment extending to imprisonment for life, and fine.

Does it help that she agreed to go? No. Explanation 2 to section 143(1) makes the victim's consent immaterial.

The third person who takes her in and puts her to work. If he knew or had reason to believe she was trafficked and engaged her for sexual exploitation, section 144(1) applies, five to ten years. If the work is not sexual but she is compelled to labour against her will, section 146 applies, up to one year, or fine, or both.

Change the facts. Suppose instead a group seizes a businessman, holds him and telephones his family demanding money, threatening to kill him. That is section 140(2), and the punishment is death, or imprisonment for life, and fine. It is one of the few offences outside homicide and the sexual offences where death is available.

Another change. Suppose a man takes a five-year-old from a railway platform and sets him to beg outside a temple. Section 139(1) applies, with a minimum of ten years rigorous imprisonment. He need not be shown to have kidnapped the child, because section 139(3) presumes it: a person who is not the lawful guardian and who employs or uses a child for begging is presumed, unless the contrary is proved, to have kidnapped or obtained custody for that purpose.

What beginners get wrong

Thinking a child's consent matters to kidnapping. It does not. Section 137(1)(b) requires the absence of the guardian's consent, not the child's.

Thinking abduction is punishable by itself. It is not. Section 138 defines it, and punishment comes from the section that supplies the purpose.

Thinking kidnapping continues. It is complete the moment the child is taken out of the guardian's keeping. Abduction continues as long as the person is moved.

Thinking section 141 uses the same age for both sexes. It does not: a girl under twenty-one and a boy under eighteen.

Limits and criticism

Section 141's different ages are hard to justify today. Twenty-one for a girl and eighteen for a boy is a distinction inherited from an older statute and unexplained by anything in the mischief.

Section 146 punishes forced labour with one year. Against seven to fourteen years for trafficking and life for habitual dealing in slaves, the figure is strikingly low for conduct that constitutional law treats as a violation of Article 23.

The presumption in section 139(3) is wide. It converts the fact of employing a child in begging into proof of kidnapping, which is a substantial shift, and it is defended by the difficulty of proving how any particular child came into the accused's hands.

Section 137 uses "child" without stating an age in the clause itself, relying on section 2(3), which sets it at eighteen for both sexes. The Penal Code by contrast used sixteen for a boy and eighteen for a girl, so this is a real change worth noting in an answer.

Quick revision

Section 137. Kidnapping from India; kidnapping from lawful guardianship, of a child or person of unsound mind, without the guardian's consent. Exception for a person believing in good faith he is the father of an illegitimate child or entitled to custody, unless for an immoral or unlawful purpose. Seven years and fine.

Section 138. Abduction: compelling by force or inducing by deceitful means to go from any place. Not punishable alone.

Section 139. Kidnapping a child for begging: ten years to life. Maiming a child for begging: twenty years to imprisonment for the remainder of natural life. Presumption in sub-section (3); begging defined in sub-section (4).

Section 140. For murder: life or ten years. For ransom, sub-section (2): death, or imprisonment for life, and fine. For secret confinement: seven years. For grievous hurt, slavery or unnatural lust: ten years.

Section 141. Importing a girl under twenty-one or a boy under eighteen for illicit intercourse: ten years and fine.

Section 142. Concealing or confining a kidnapped or abducted person: punished as if he had kidnapped with the same intention or purpose.

Section 143. Trafficking: five means, exploitation defined widely, consent immaterial. Seven to ten years; more severe for more than one person, for a child, for more than one child, for a repeat conviction, and where a public servant or police officer is involved.

Sections 144 to 146. Exploitation of a trafficked child, five to ten years; of an adult, three to seven. Habitual dealing in slaves, life or ten years. Unlawful compulsory labour, one year.

Test yourself

1. Give four points of difference between kidnapping from lawful guardianship and abduction. Any four of: the victim must be a child or a person of unsound mind for kidnapping, anyone for abduction; kidnapping is a taking or enticing from a guardian's keeping, abduction is compelling by force or inducing by deceit; the guardian's consent is what matters for kidnapping, the person's own for abduction; force or deceit is essential to abduction and not to kidnapping; kidnapping is complete on the taking while abduction continues; and kidnapping is punishable by itself while abduction is not.

2. Is the consent of a trafficked person a defence? No. Explanation 2 to section 143(1) provides that the consent of the victim is immaterial in determining the offence of trafficking.

3. Which sub-section of section 140 permits the death penalty, and when? Sub-section (2), where a person is kidnapped or abducted or kept in detention and death or hurt is threatened, or conduct gives rise to a reasonable apprehension of it, or hurt or death is caused, in order to compel a Government, a foreign State, an international inter-governmental organisation or any other person to act or abstain, or to pay a ransom.

4. What does section 139(3) presume, and against whom? That a person who is not the lawful guardian of a child and who employs or uses that child for begging kidnapped or otherwise obtained custody of the child for that purpose, unless the contrary is proved.

5. What is the punishment for unlawfully compelling a person to labour against their will? Under section 146, imprisonment of either description which may extend to one year, or fine, or both.

Broken down: what "waging war" means

It is not war in the international sense. No army, no declaration, no uniform and no foreign State is required.

Facts. State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600, arose out of the attack on Parliament on 13 December 2001. Five armed men entered the Parliament complex and were killed, along with nine other people, and the surviving accused were prosecuted.

Held. The attack was waging war against the Government of India within section 121 of the Penal Code, now section 147. What matters is whether the act was done with the object of overawing the Government of India or striking at the authority of the State, judged by the intention and purpose of those who act, and not by their numbers, their arms or their prospects of success.

Why that matters. A handful of people with rifles can wage war on this test, and a large riot about a local grievance cannot, because the second lacks the object of striking at the authority of the State.

Mohd. Ajmal Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1, applied the same reasoning to the attacks in Bombay in November 2008. A small group of armed men who attacked the city over several days were held to have waged war against the Government of India on the same test of intention and purpose.

It is not treason. English law had an offence of treason resting on a duty of allegiance to the Crown. Indian law never enacted it, and section 147 requires no allegiance, so a foreign national in India can wage war against the Government of India.

Distinctions that carry marks

A worked example

A group of eleven armed men crosses into India, seizes a district collectorate, raises a flag and announces that the district is no longer under the authority of the Union. They hold the building for two days before being overpowered.

Is this waging war under section 147? Yes, on the Navjot Sandhu test. The object was to strike at the authority of the State, and the intention and purpose of the actors decide the question, not their number or their prospects. The punishment is death, or imprisonment for life, and fine.

Does it matter that they are foreign nationals? No. Indian law has no offence of treason and requires no allegiance, so section 147 applies to them exactly as it would to citizens.

A twelfth man stayed abroad and planned the operation. He is within section 148, which reaches a person who conspires "within or without and beyond India", and by its Explanation no act need have been done in pursuance of the conspiracy for him to be liable.

A thirteenth collected the weapons and the men in a village three months earlier. He is within section 149, preparation, punishable with life or ten years. Note that this would be no offence at all outside Chapter VII.

A fourteenth knew of the plan and said nothing, hoping it would succeed. He is within section 150, concealment, up to ten years and fine.

Change the facts. Suppose instead a crowd of two thousand storms a district office because a local water scheme has failed, damaging property and driving out the staff. That is not waging war, however large. There is no object of striking at the authority of the State, and the offences are rioting under sections 189 to 195 and mischief under Chapter XVII.

What beginners get wrong

Thinking numbers matter. They do not. Navjot Sandhu is explicit that the offence is judged by intention and purpose, not by numbers, arms or prospects of success.

Calling it treason. There is no offence of treason in Indian law, and no requirement of allegiance.

Assuming preparation is never punishable. Section 149 punishes it here, as an exception to the general position stated in the chapter on attempt.

Thinking section 148 needs an overt act. Its Explanation removes that requirement expressly.

Limits and criticism

The same punishment for waging, attempting and abetting is hard to defend on ordinary sentencing principles, and it means the court's discretion between death and imprisonment for life is doing all the grading.

Section 150 punishes an omission to speak with ten years. It creates a duty to inform, which the general criminal law does not, and it does so without defining who owes the duty.

"Overawe by criminal force or the show of criminal force" in section 148 is undefined, and it covers conspiracies far short of war, which is why the section carries a lower maximum than section 147.

The overlap with section 113 is now substantial. An attack of the Navjot Sandhu kind will satisfy both waging war and the terrorist act provision, and nothing in either section says which is to be preferred.

Quick revision

Section 147. Waging, attempting to wage, or abetting the waging of war against the Government of India: death, or imprisonment for life, and fine.

The test. Navjot Sandhu, (2005) 11 SCC 600: any act done with the object of overawing the Government of India or striking at the authority of the State, judged by intention and purpose, not by numbers, arms or prospects of success. Kasab, (2012) 9 SCC 1, applied it to the 2008 attacks.

Section 148. Conspiracy, within or beyond India, to commit a section 147 offence or to overawe a Government by criminal force: life, or ten years, and fine. No overt act needed.

Section 149. Collecting men, arms or ammunition, or otherwise preparing: life, or ten years, and fine.

Section 150. Concealing a design to wage war, intending or knowing it will facilitate the war: ten years and fine.

Section 151. Assaulting or overawing the President or a Governor to compel or restrain the exercise of a lawful power: seven years and fine.

Not treason. Indian law has never enacted it and requires no allegiance.

Test yourself

1. What is the test for waging war, and which case supplies it? Any act done with the object of overawing the Government of India or striking at the authority of the State, judged by the intention and purpose of the actors rather than by their numbers, arms or prospects of success. State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600, applied to the attack on Parliament of 13 December 2001.

2. Does a conspiracy under section 148 require an overt act? No. The Explanation to section 148 provides expressly that it is not necessary that any act or illegal omission take place in pursuance of the conspiracy.

3. Is preparation to wage war an offence? Yes, under section 149, which punishes collecting men, arms or ammunition or otherwise preparing, with imprisonment for life or up to ten years and fine. That is an exception to the general rule that preparation is not punished.

4. Can a foreign national commit the offence in section 147? Yes. Indian law has no offence of treason and requires no allegiance, so the section applies to anyone who wages war against the Government of India.

5. What does section 150 punish, and why is it unusual? Concealing, by act or illegal omission, the existence of a design to wage war, intending or knowing that the concealment will facilitate it. It is unusual because it punishes a failure to speak, which the general criminal law does not do absent a duty to act.

Facts. S.G. Vombatkere v. Union of India came before the Supreme Court on a challenge to section 124A, while the Government informed the Court that it proposed to reconsider the provision.

Held. On 11 May 2022 the Court directed that all proceedings under section 124A be kept in abeyance while that reconsideration took place. A statute in force was, in effect, suspended, and the order is without real precedent.

The provision itself

Section 152. "Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years, and shall also be liable to fine."

The Explanation. "Comments expressing disapprobation of the measures, or administrative or other action of the Government with a view to obtain their alteration by lawful means without exciting or attempting to excite the activities referred to in this section do not constitute an offence under this section."

Broken down: how section 152 differs from section 124A

The change of target is the most important line in the comparison. Section 124A protected the Government; section 152 protects the State. Criticism of a Government, however fierce, is not on its face within section 152 at all, because a Government is not the sovereignty, unity or integrity of India.

The mental element is now on the face of the statute. "Purposely or knowingly" does what Kedar Nath Singh had to read in, so the limit is no longer a gloss that a police station may not know about.

Two of the means are new. Electronic communication is added, and so is "use of financial mean", which reaches funding rather than speech.

But the maximum has more than doubled, from three years to seven, alongside imprisonment for life which both sections carried.

The Explanation is narrower than it looks

It protects comments expressing disapprobation of Government measures or action. It requires the comment to be made with a view to obtaining their alteration by lawful means, and it falls away where the comment excites or attempts to excite the activities the section names.

Note what it does not say. Section 124A had three Explanations, one of which made clear that disaffection includes disloyalty and all feelings of enmity, and two of which protected criticism. Section 152 has one.

"Subversive activities" is not defined. Neither is "separatist activities". These are the two expressions on which the section will be litigated, because they are broad, undefined, and not obviously confined by the requirement of exciting or encouraging.

A worked example

A columnist writes that a State's forest policy is destroying tribal livelihoods, that the Union Government is complicit, and that the people of the region should refuse to cooperate with the administration until the policy is withdrawn.

Would this have been sedition under section 124A? On the section's bare words, arguably yes, because it invites contempt for the Government. On Kedar Nath Singh it is not, because there is no intention or tendency to create disorder or incitement to violence.

Is it within section 152? Almost certainly not, and for a better reason. The target of the section is the sovereignty, unity and integrity of India, not the Government. A call to withdraw cooperation from an administration until a policy changes is not exciting secession, armed rebellion or subversive activities.

Add one fact. Suppose the same columnist writes that the region should separate from India and form its own State, and urges readers to support an armed group pursuing that aim. Now the section is engaged: this is exciting secession and encouraging feelings of separatist activities, done knowingly, and the maximum is imprisonment for life.

Add another. Suppose the columnist does not write at all, but transfers money to that armed group. "Use of financial mean" is one of the means named in section 152, so the section reaches the funder without any speech at all.

Take the facts of Balwant Singh. Two men raise separatist slogans twice in a street; nobody responds and nothing happens. Under section 152 the question would be whether they excited or attempted to excite secession, or encouraged feelings of separatist activities. The reasoning of Balwant Singh transfers: slogans that evoke no response and cause no disturbance did not excite anything, though the wording of the new section makes the "attempts to excite" limb a harder answer than it was.

What beginners get wrong

Saying sedition has been retained under a new number. It has not. Section 152 is a different offence with a different target, a stated mental element and a heavier maximum.

Saying sedition has simply been abolished. That is also wrong. The conduct at the serious end of section 124A, as limited by Kedar Nath Singh, is within section 152, and the punishment for it has increased.

Thinking Kedar Nath Singh is now irrelevant. Its reasoning about the difference between disaffection towards a Government and incitement to disorder is what shaped section 152's target, and it remains the leading case on how far criticism of the State may go.

Forgetting that section 124A still governs old conduct. An act done before 1 July 2024 is charged under the Penal Code, so a prosecution under section 124A can still be launched, subject to whatever the Vombatkere order requires.

Limits and criticism

The undefined expressions are the main objection. "Subversive activities" and "separatist activities" have no statutory content, and a section carrying imprisonment for life ought not to depend on words nobody has defined.

The maximum rose while the offence was being narrowed. Seven years against three is a substantial increase, and it sits oddly with the reform's stated purpose.

"Endangers sovereignty or unity and integrity of India" is a limb of its own. Read separately from the exciting and encouraging limbs, it punishes an act that endangers those interests without requiring any incitement at all, which is wider than anything in section 124A.

The Explanation may be too narrow. It protects disapprobation aimed at obtaining alteration "by lawful means". A commentator who says a policy should be resisted by civil disobedience is, on the words, outside the protection.

Quick revision

Section 124A is gone. The concordance run across both statutes reports it as matching no Sanhita heading.

Section 152. Purposely or knowingly, by words spoken or written, signs, visible representation, electronic communication, use of financial means, or otherwise, exciting or attempting to excite secession, armed rebellion or subversive activities; or encouraging feelings of separatist activities; or endangering sovereignty or unity and integrity of India; or indulging in or committing any such act. Life, or seven years, and fine.

The Explanation. Comments expressing disapprobation of Government measures or action, with a view to obtaining their alteration by lawful means, without exciting the activities named, are not an offence.

The history. Tara Singh Gopi Chand, Punjab High Court, 28 November 1950, and Ram Nandan, AIR 1959 All 101, held section 124A unconstitutional. Kedar Nath Singh, AIR 1962 SC 955, upheld it by reading in a requirement of incitement to violence or disorder. Balwant Singh, (1995) 3 SCC 214, Bilal Ahmed Kaloo, 6 August 1997, and Vinod Dua applied the limit. S.G. Vombatkere, 11 May 2022, put all proceedings in abeyance.

The four differences to state. The target moved from the Government to the State; the mental element is now express; electronic communication and financial means were added; and the maximum rose from three years to seven.

Test yourself

1. Is sedition still an offence in India? Not under that name. Section 124A of the Penal Code has no counterpart in the Sanhita. Section 152 occupies part of the same ground, but its target is the sovereignty, unity and integrity of India rather than the Government established by law.

2. What did Kedar Nath Singh v. State of Bihar decide? That section 124A was constitutional only if confined to acts involving an intention or tendency to create disorder or disturbance of law and order, or incitement to violence, so that strongly worded disapprobation of Government action without such a tendency was outside it.

3. Give three differences between section 124A and section 152. Any three of: the target moved from the Government established by law to the sovereignty, unity and integrity of India; the mental element "purposely or knowingly" is now on the face of the section; electronic communication and use of financial means were added to the list of means; the maximum term rose from three years to seven; and three Explanations were reduced to one.

4. What was unusual about the order in S.G. Vombatkere v. Union of India? On 11 May 2022 the Supreme Court directed that all proceedings under section 124A be kept in abeyance while the Government reconsidered the provision, which in effect suspended a statute that was in force.

5. Which expressions in section 152 are undefined, and why does it matter? "Subversive activities" and "separatist activities". It matters because the section carries imprisonment for life and its reach therefore depends on expressions to which Parliament has given no content.

The Explanation to section 158. A State prisoner or prisoner of war permitted to be at large on parole within certain limits in India is said to escape from lawful custody if he goes beyond those limits.

Broken down

"Depredation" means plundering or laying waste. It is not defined in the Sanhita, and it is the old word for a raid across a border for plunder rather than for conquest.

Section 154 punishes preparation as well. Like section 149 in the previous chapter, this is a departure from the general rule that preparation is not an offence, and for the same reason: the harm the section guards against occurs at the moment the expedition sets out.

Sections 156 and 157 are the same conduct at two levels of fault. Voluntarily allowing an escape carries life or ten years; negligently suffering one carries three years of simple imprisonment. The gap is very wide, and the whole case will turn on which side of it the officer's conduct falls.

Section 158 reaches four separate acts. Aiding an escape, rescuing or attempting a rescue, harbouring an escaped prisoner, and resisting a recapture.

Distinctions that carry marks

A worked example

A group in a border district of India assembles men and weapons and crosses into a neighbouring country with which India has diplomatic relations, plundering two villages before returning.

Which offences? Section 154 covers the depredation on the territories of a foreign State at peace with the Government of India, punishable with up to seven years, fine, and forfeiture of the property used or acquired. If the raid was of a scale and purpose amounting to waging war against that State's Government, section 153 applies instead, carrying imprisonment for life.

Preparation. The men who assembled the arms but did not cross are within section 154, which punishes making preparations to commit depredation.

A trader who buys the plundered goods knowing where they came from is within section 155: up to seven years, fine, and forfeiture of the property received.

A different case. Suppose a soldier of a foreign army is held in India as a prisoner of war, and the officer in charge of the camp allows him to walk out because he has been paid to do so. That is section 156, imprisonment for life or up to ten years.

Change the officer's state of mind. Suppose instead the officer simply failed to lock a gate and did not check the count. That is section 157, and the maximum falls to simple imprisonment for three years.

A villager hides the escaped prisoner for a week. Section 158 applies, imprisonment for life or up to ten years, because harbouring or concealing an escaped State prisoner or prisoner of war is one of the four acts the section names.

The prisoner was on parole within a defined area and left it. By the Explanation to section 158 he is said to have escaped from lawful custody, so anybody who helps him thereafter is within the section.

What beginners get wrong

Thinking section 153 requires India to be involved in the war. It does not. India's interest is that its territory and its people should not be used to attack a State it is at peace with.

Thinking "at peace with" is a formality. It is an ingredient. If the two States are not at peace, sections 153 to 155 do not apply.

Confusing sections 156 and 157. The first needs the escape to be voluntarily allowed; the second covers negligence, and the punishments are very far apart.

Reading section 158 as covering only an escape. It covers rescuing, attempting a rescue, harbouring, and resisting a recapture as well.

Limits and criticism

"Depredation" is an archaism. The Sanhita re-enacted a nineteenth century word without defining it, in a section that also carries forfeiture of property.

Section 153 offers a court an unusually wide range, from a fine alone to imprisonment for life, with no guidance on how to choose.

Sections 156 to 158 assume a category of "State prisoner" that the Sanhita does not define, and the expression is left to other law and to context.

The gap between sections 156 and 157 is very large for a single distinction of fault, and the difference between voluntarily allowing and negligently suffering an escape is often a matter of inference from the same facts.

Quick revision

Section 153. War against a foreign State at peace with India: life, or seven years, or fine.

Section 154. Depredation, or preparations for it, on such a State's territory: seven years, fine, forfeiture.

Section 155. Receiving property taken under section 153 or 154, knowingly: seven years, fine, forfeiture.

Section 156. Public servant voluntarily allowing a State prisoner or prisoner of war to escape: life, or ten years, and fine.

Section 157. Negligently suffering the escape: simple imprisonment up to three years and fine.

Section 158. Aiding an escape, rescuing or attempting a rescue, harbouring an escaped prisoner, or resisting a recapture: life, or ten years, and fine. The Explanation brings a parole breach within "escape from lawful custody".

Test yourself

1. Why does the Sanhita punish waging war against a foreign Government? Because a private war launched from Indian soil damages India's peaceful relations with the State attacked, and the offence protects that diplomatic interest. The words "at peace with the Government of India" are an ingredient.

2. What is the difference between sections 156 and 157? Section 156 punishes a public servant who voluntarily allows a State prisoner or prisoner of war to escape, with life or ten years and fine. Section 157 punishes the same officer who negligently suffers an escape, with simple imprisonment up to three years and fine.

3. Name the four acts punished by section 158. Knowingly aiding or assisting a State prisoner or prisoner of war to escape from lawful custody; rescuing or attempting to rescue such a prisoner; harbouring or concealing one who has escaped; and offering or attempting to offer resistance to the recapture of such a prisoner.

4. Is preparation punishable under section 154? Yes. The section punishes making preparations to commit depredation as well as committing it, which is an exception to the general rule that preparation is not an offence.

5. When does a prisoner on parole escape from lawful custody? By the Explanation to section 158, when he goes beyond the limits within which he was permitted to be at large.

Section 168. Wearing any garb or carrying any token resembling that used by a soldier, sailor or airman, not being one, with the intention that it may be believed that he is: up to three months, or fine up to two thousand rupees, or both.

Broken down: the pattern of the abetment sections

Four of them come in pairs, and the second of each pair is heavier. Abetment of mutiny is section 159; abetment where mutiny follows is section 160. Abetment of assault on a superior officer is section 161; abetment where the assault follows is section 162.

That is the opposite of the general scheme. Under section 49 an abettor whose offence is committed gets the punishment for the offence, and under sections 55 and 56 an abettor whose offence is not committed gets a fraction of it. Here Parliament has written both cases out expressly with their own figures.

Section 160 is one of very few capital offences in the Sanhita. Abetment of mutiny, where mutiny follows, carries death. That measures how gravely the law treats an attack on the discipline of the armed forces.

Section 165 is unusual in creating liability without knowledge. The master of a merchant vessel is liable "though ignorant of such concealment", provided he might have known of it but for neglect of duty or want of discipline. It is a penalty rather than imprisonment, and it is capped at three thousand rupees.

Distinctions that carry marks

A worked example

A political organiser addresses soldiers outside a cantonment, urging them to refuse orders and to take over the depot.

Which section? Section 159 if nothing follows: abetting the committing of mutiny, or attempting to seduce servicemen from their allegiance or duty, punishable with imprisonment for life or up to ten years and fine.

Some of the soldiers mutiny. Now section 160 applies, because the mutiny was committed in consequence of the abetment, and the punishment extends to death.

Could the organiser be tried by a court martial? No. He is not subject to the service Acts, so service law does not reach him, and section 167 does not protect him because it protects only persons who are subject to those Acts.

Could the soldiers be tried under the Sanhita? No. They are subject to the Army Act, 1950, so section 167 takes them out of this Chapter, and they face a court martial.

A different case. Suppose a shopkeeper lets a man he knows to be a deserter sleep in his storeroom for a month. That is section 164, harbouring a deserter, up to two years, or fine, or both.

Another. Suppose a man buys a uniform and wears it at a public function so that people will believe he is an officer. That is section 168, three months, or two thousand rupees, or both. Note that the offence needs the intention that it be believed he is a serviceman; wearing military-style clothing as fashion is not within it.

Another. Suppose a deserter stows away on a cargo ship and the master, who did not know, is shown not to have kept a proper muster. Section 165 makes him liable to a penalty of up to three thousand rupees although he was ignorant of the concealment, because he might have known but for neglect of duty or want of discipline on board.

What beginners get wrong

Thinking this Chapter punishes soldiers. It does not. Section 167 excludes every person subject to the three service Acts from punishment under the Chapter.

Missing that section 160 carries death. It is one of a small number of capital provisions in the Sanhita and it is regularly overlooked.

Treating sections 159 and 160 as the same offence. They are distinguished only by whether mutiny followed, and that single fact is the difference between ten years and death.

Thinking section 168 punishes wearing a uniform. It punishes wearing a garb or carrying a token resembling a serviceman's with the intention that it be believed the wearer is one.

Limits and criticism

Death for abetment of mutiny is a very old measure of gravity. It was set at a time when the loyalty of the armed forces was the immediate guarantee of the State's survival, and the Sanhita re-enacted it without revisiting the question.

Section 165 imposes liability without knowledge, which the general criminal law avoids, and it does so in a section whose penalty has never been revised in real terms.

The Chapter has no provision for the modern equivalents of seduction from duty. Attempts to influence servicemen now happen through electronic communication, and nothing in the Chapter names it, though "attempts to seduce" in section 159 is wide enough to cover it.

Quick revision

Section 159. Abetting mutiny, or attempting to seduce a serviceman from allegiance or duty: life, or ten years, and fine.

Section 160. The same where mutiny is committed in consequence: death, life, or ten years, and fine.

Sections 161 and 162. Abetting an assault on a superior officer: three years; seven years if the assault follows.

Sections 163 and 164. Abetting desertion; harbouring a deserter: two years, or fine, or both.

Section 165. Master of a merchant vessel, deserter concealed on board: penalty up to three thousand rupees, even if ignorant, where he might have known but for neglect of duty or want of discipline.

Section 166. Abetting an act of insubordination, where committed in consequence: two years, or fine, or both.

Section 167. No person subject to the Air Force Act, 1950, the Army Act, 1950 or the Navy Act, 1957 is punishable under this Chapter.

Section 168. Wearing a serviceman's garb or token with intent to be believed one: three months, or two thousand rupees, or both.

Test yourself

1. Who is excluded from this Chapter, and by which provision? Every person subject to the Air Force Act, 1950, the Army Act, 1950 or the Navy Act, 1957, by section 167. They are dealt with under service law instead.

2. Which section of this Chapter carries the death penalty, and when? Section 160, abetment of mutiny by a serviceman, where mutiny is committed in consequence of the abetment.

3. Distinguish sections 161 and 162. Both punish abetting an assault by a serviceman on a superior officer in the execution of his office. Section 161 applies where the assault is not committed and carries three years; section 162 applies where it is committed in consequence and carries seven.

4. Can the master of a merchant vessel be liable although he did not know a deserter was on board? Yes. Section 165 makes him liable to a penalty of up to three thousand rupees though ignorant, if he might have known but for some neglect of his duty or some want of discipline on board the vessel.

5. What must be proved under section 168 besides the wearing of the garb? The intention that it may be believed that the wearer is a soldier, sailor or airman in the service of the Government of India.

Section 171(1), undue influence. Voluntarily interfering, or attempting to interfere, with the free exercise of any electoral right.

Section 171(2) deems two things to be such interference. Threatening any candidate or voter, or any person in whom a candidate or voter is interested, with injury of any kind; and inducing or attempting to induce a candidate or voter to believe that he, or a person in whom he is interested, will become or be rendered an object of Divine displeasure or of spiritual censure.

Section 171(3) saves three things. A declaration of public policy, a promise of public action, and the mere exercise of a legal right without intent to interfere with an electoral right.

Section 172, personation. Applying for a voting paper or voting in the name of another person, living or dead, or in a fictitious name; or, having voted once, applying at the same election for a voting paper in one's own name; and abetting, procuring or attempting to procure such voting. The proviso saves a person authorised to vote as proxy for an elector under any law, so far as he votes as proxy.

Section 173, punishment for bribery. Up to one year, or fine, or both, with a proviso that bribery by treating shall be punished with fine only.

Section 174. Undue influence or personation: up to one year, or fine, or both.

Section 175, false statement. Making or publishing, with intent to affect the result of an election, a statement purporting to be a statement of fact which is false and which the maker knows or believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate: fine.

Section 176, illegal payments. Incurring or authorising expenses on a public meeting, advertisement, circular or publication, or in any other way, for the purpose of promoting or procuring a candidate's election, without the candidate's general or special authority in writing: fine up to ten thousand rupees. A proviso deems expenses not exceeding ten rupees to be authorised if the candidate's written approval is obtained within ten days.

Section 177, election accounts. Failing to keep accounts of election expenses where required by law or by a rule having the force of law: fine up to five thousand rupees.

Broken down: the two provisos that save ordinary politics

Without them section 170 would criminalise every manifesto. A promise of free electricity is, on the bare words, a gratification offered to induce voters to exercise an electoral right in a particular way.

So the proviso to section 170(1) excludes a declaration of public policy or a promise of public action, and section 171(3) repeats the exclusion for undue influence and adds the mere exercise of a legal right without intent to interfere.

Facts. S. Subramaniam Balaji v. State of Tamil Nadu, (2013) 9 SCC 659. The petitioner challenged the distribution of free televisions, mixers, grinders and other articles that had been promised in an election manifesto, contending that it was bribery and a corrupt practice.

Held. A promise in an election manifesto is not a corrupt practice under section 123 of the Representation of the People Act, 1951 by the candidate, because the manifesto is issued by the political party rather than by the candidate, and because such a promise falls within the express saving for a declaration of public policy.

But the Court did not approve the practice. It recognised that it shakes the roots of free and fair elections, and directed the Election Commission to frame guidelines on the contents of manifestos in consultation with the recognised political parties, which became part of the Model Code of Conduct.

The Divine displeasure limb, and appeals to religion

Section 171(2)(b) is unusual. It treats as interference the inducing of a candidate or voter to believe that he, or someone he is interested in, will be rendered an object of Divine displeasure or spiritual censure.

Facts. Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, (1976) 2 SCC 17. Speeches made at an election appealed to religion and threatened voters with religious consequences if they voted a particular way.

Held. Such speeches fall foul of that limb, and the secular character of the electoral process must be maintained.

Facts. Abhiram Singh v. C.D. Commachen, (2017) 2 SCC 629, came before a seven judge Bench on the meaning of "his" in section 123(3) of the Representation of the People Act, 1951, and so on whose religion, race, caste, community or language an appeal had to invoke to be a corrupt practice.

Held. An appeal for votes on the ground of religion, race, caste, community or language, whether of the candidate or of the voter, is a corrupt practice under that section. The appeal is corrupt however it is directed.

Distinctions that carry marks

A worked example

In a municipal election in Kolhapur, a candidate's supporter distributes cash to voters in one ward on the eve of the poll.

Which offence? Bribery under section 170(1)(i): a gratification given with the object of inducing persons to exercise an electoral right. The punishment under section 173 is up to one year, or fine, or both.

The voters who took the money. They are within section 170(1)(ii), accepting a gratification as a reward for exercising an electoral right, and are equally punishable.

A man who merely promised money and never paid. Section 170(2) deems a person who offers or agrees to give a gratification to have given one, so he is within the offence.

Change the facts. Suppose the candidate's party manifesto promises free bicycles to schoolgirls. That is a promise of public action and a declaration of public policy, and the proviso to section 170(1) takes it out of the section. Subramaniam Balaji is the authority, and it should be cited with the qualification that the Court disapproved of the practice and directed guidelines.

Change them again. Suppose a religious functionary tells voters from the pulpit that anyone voting for a named candidate will be outside the community and will incur divine punishment. Section 171(2)(b) deems that to be interference with the free exercise of an electoral right, and Ziyauddin Bukhari is the authority. Whether it is also a corrupt practice under the electoral law is governed by Abhiram Singh.

Once more. Suppose a rival publishes a fabricated account of the candidate's private conduct three days before polling. That is section 175: a false statement of fact about the personal character or conduct of a candidate, published with intent to affect the result. The punishment is fine, which is a poor answer to the harm, and the real remedy is an election petition.

What beginners get wrong

Thinking a manifesto promise is bribery. The proviso to section 170(1) and Subramaniam Balaji say otherwise, and the reason given, that the manifesto is the party's and not the candidate's, is worth stating.

Thinking undue influence needs a threat. Section 171(1) is wider: any voluntary interference, or attempt to interfere, with the free exercise of an electoral right. Sub-section (2) merely deems two particular things to be within it.

Thinking section 175 covers any false statement. It is confined to a statement of fact about the personal character or conduct of a candidate.

Overlooking the proxy proviso in section 172. A person voting as an authorised proxy under any law is outside personation, so far as he votes as proxy.

Limits and criticism

The punishments are trivial. One year for bribery in an election and a fine for a false statement about a candidate are figures that no longer match the money and the reach involved in a modern campaign.

Section 176's ten rupee proviso has not been revised, and it now describes a sum that cannot be spent on anything.

The line drawn by Subramaniam Balaji is fragile. It rests on the manifesto being the party's rather than the candidate's, and it leaves the substance of the objection, that public money is promised to buy votes, to a Model Code of Conduct that has no statutory force.

Section 171(2)(b) is expressed in the language of 1920. "Divine displeasure" and "spiritual censure" are wide enough to cover most appeals to religious authority, but a modern drafter would say so directly.

Quick revision

Section 169. Candidate; electoral right, meaning the right to stand, not to stand, withdraw, vote or refrain from voting.

Section 170. Bribery: giving a gratification to induce or reward the exercise of an electoral right, or accepting one. Proviso: a declaration of public policy or a promise of public action is not an offence. Sub-sections (2) and (3) deem offering and obtaining to be giving and accepting.

Section 171. Undue influence: voluntary interference or attempted interference with the free exercise of an electoral right. Deemed: threat of injury of any kind; threat of Divine displeasure or spiritual censure. Saved: public policy, public action, and the mere exercise of a legal right without intent to interfere.

Section 172. Personation, with a proviso for an authorised proxy.

Sections 173 and 174. One year, or fine, or both. Bribery by treating: fine only.

Sections 175, 176, 177. False statement about a candidate's personal character or conduct: fine. Unauthorised election expenses: fine up to ten thousand rupees, with a ten rupee proviso. Failure to keep election accounts: fine up to five thousand rupees.

The cases. Subramaniam Balaji, (2013) 9 SCC 659, manifesto promises. Ziyauddin Bukhari, (1976) 2 SCC 17, religious appeals and threats. Abhiram Singh, (2017) 2 SCC 629, appeals on the ground of religion, race, caste, community or language, whether of the candidate or of the voter.

Test yourself

1. Define an electoral right. By section 169(b), the right of a person to stand, or not to stand as, or to withdraw from being, a candidate, or to vote or refrain from voting at an election.

2. Is a promise of free goods in an election manifesto bribery? No. The proviso to section 170(1) excludes a declaration of public policy or a promise of public action, and S. Subramaniam Balaji v. State of Tamil Nadu, (2013) 9 SCC 659, held that such a promise is not a corrupt practice by the candidate because the manifesto is the party's. The Court nevertheless directed the Election Commission to frame guidelines.

3. What two things does section 171(2) deem to be interference? Threatening a candidate or voter, or a person in whom either is interested, with injury of any kind; and inducing or attempting to induce a candidate or voter to believe that he or such a person will become or be rendered an object of Divine displeasure or spiritual censure.

4. What did Abhiram Singh v. C.D. Commachen decide? A seven judge Bench held that an appeal for votes on the ground of religion, race, caste, community or language, whether of the candidate or of the voter, is a corrupt practice under section 123(3) of the Representation of the People Act, 1951.

5. What is the punishment for bribery by treating? Fine only, by the proviso to section 173.

Section 181, instruments and materials. Making, mending, performing any part of the process of making or mending, buying, selling, disposing of, or possessing any machinery, die, instrument or material for the purpose of being used, or knowing or having reason to believe it is intended to be used, for forging or counterfeiting: imprisonment for life, or up to ten years, and fine.

Section 182, documents resembling notes. Making, causing to be made, using for any purpose, or delivering to any person, a document purporting to be, resembling, or so nearly resembling as to be calculated to deceive, any currency-note or bank-note: fine up to three hundred rupees. Sub-section (2) punishes a refusal, without lawful excuse, to disclose to a police officer the name and address of the maker: fine up to six hundred rupees. Sub-section (3) presumes, until the contrary is proved, that a person whose name appears on such a document caused it to be made.

Sections 183 to 185, misuse of revenue stamps. Section 183 punishes fraudulently, or with intent to cause loss to Government, removing or effacing a writing or document for which a stamp has been used, or removing a used stamp so that it may be used again: up to three years, or fine, or both. Section 184 punishes fraudulently, or with intent to cause loss to Government, using a revenue stamp known to have been used before: up to two years, or fine, or both. Section 185 punishes erasing or removing the mark denoting that a stamp has been used, or possessing, selling or disposing of a stamp from which such a mark has been erased, or selling a stamp known to have been used: up to three years, or fine, or both.

Section 186, fictitious stamps. Making, uttering, dealing in or selling a fictitious stamp, using one for a postal purpose, possessing one without lawful excuse, or making or possessing without lawful excuse the die, plate, instrument or materials for making one: fine up to two hundred rupees. Sub-section (2) provides for seizure and forfeiture. Sub-section (3) defines a fictitious stamp as one falsely purporting to be issued by Government to denote a rate of postage, or any facsimile, imitation or representation of such a stamp. Sub-section (4) extends the meaning of "Government" for postage stamps to the persons authorised by law to administer executive government in any part of India or in any foreign country.

Section 187, mint employees. A person employed in a mint who causes a coin to be of a different weight or composition from that fixed by law.

Section 188. Unlawfully taking a coining instrument from a mint.

Broken down: what counterfeiting includes

The Explanation to section 178 is far wider than "making a fake".

Altering a genuine article counts. Causing a genuine stamp of one denomination to appear like another denomination is counterfeiting a Government stamp. Causing a genuine coin to appear like a different coin, intending deception, is counterfeiting a coin.

Damaging a coin counts. The offence includes diminishing the weight of a coin, altering its composition, or altering its appearance. Clipping the metal from the edge of a coin is counterfeiting.

The definitions are not confined to Indian money. A bank-note issued by a person carrying on banking anywhere in the world is within the definition, and so is a coin issued by any State or Sovereign Power. Counterfeiting foreign currency in India is an offence here.

Distinctions that carry marks

A worked example

Vinayak buys a printer and paper and begins producing notes resembling five hundred rupee currency notes in a room in Ulhasnagar.

Which offences? Section 178 for the counterfeiting itself, punishable with imprisonment for life or up to ten years and fine. Section 181 for possessing the machinery and materials for the purpose, which carries the same punishment and is complete before a single note is printed.

He gives a hundred notes to Sanjay to pass in shops. Sanjay is within section 179, using as genuine and trafficking in counterfeit notes, knowing them to be counterfeit, and faces the same life or ten years.

A shopkeeper who is given one, realises what it is, and keeps it to pass on. He is within section 180: possession, knowing or having reason to believe the note counterfeit, intending it to be used as genuine, up to seven years, or fine, or both.

A shopkeeper who takes one innocently and hands it to the police. No offence. Section 180 requires both the knowledge and the intention that it be used as genuine.

Change the article. Suppose Vinayak instead prints an advertising leaflet designed to look like a currency note. That is section 182, and the maximum is a fine of three hundred rupees. If his name appears on it, sub-section (3) presumes he caused it to be made unless he proves the contrary, and if he refuses without lawful excuse to tell the police who printed it, sub-section (2) adds a fine of up to six hundred rupees.

Change it again. Suppose a clerk peels a used revenue stamp off an old agreement, removes the cancellation mark and affixes it to a fresh document. Section 185 covers erasing the mark, up to three years; section 184 covers using a stamp known to have been used before, up to two years; and section 183 covers removing the stamp from the writing for which it was used, up to three years.

And once more. Suppose an employee of a mint deliberately produces coins with less silver than the law prescribes. That is section 187, which exists because such a person can do the harm from inside.

What beginners get wrong

Thinking counterfeiting means making something from nothing. Altering a genuine coin or stamp so that it appears to be a different one is counterfeiting under the Explanation to section 178.

Thinking possession alone is enough under section 180. It is not. Knowledge or reason to believe, and the intention that the article be used as genuine, are both required.

Thinking foreign money is outside the sections. It is not. The definitions of bank-note and coin extend to notes issued by bankers anywhere in the world and coins issued by any State or Sovereign Power.

Confusing section 182 with counterfeiting. A document that merely resembles a note, without being passed as one, is a three hundred rupee matter, not a life sentence.

Limits and criticism

The fines are museum pieces. Three hundred rupees, six hundred rupees and two hundred rupees were meaningful sums in 1860 and are meaningless now, and the Sanhita re-enacted them unchanged.

Section 186 is about postage stamps in an age that barely uses them, and it occupies a section of the general penal code while more modern instruments of value, such as prepaid electronic vouchers, are left to be squeezed into "valuable security" or the property offences.

The presumption in section 182(3) reverses the burden on authorship for an offence punishable only with a fine, which is a heavy device for a light offence.

The merger of two chapters left the punishments uneven. Counterfeiting a revenue stamp attracts imprisonment for life under section 178, while misusing one under sections 183 to 185 attracts two or three years, and the gap between altering a stamp's denomination and re-using a cancelled one is very wide for conduct that costs the revenue the same.

Quick revision

Section 178. Counterfeiting coin, revenue stamp, currency-note or bank-note: life, or ten years, and fine. Explanation: bank-note and coin defined widely, including foreign issues; altering a denomination or a coin's appearance, weight or composition is counterfeiting.

Section 179. Trafficking in or using as genuine, knowing or having reason to believe: life, or ten years, and fine.

Section 180. Possession with knowledge and intent that it be used as genuine: seven years, or fine, or both.

Section 181. Machinery, dies, instruments or materials: life, or ten years, and fine.

Section 182. Documents resembling notes: fine up to three hundred rupees; refusal to name the maker, six hundred; presumption of authorship in sub-section (3).

Sections 183, 184, 185. Removing a stamp or its writing, three years; using a stamp known to be used, two years; erasing the used mark, three years.

Section 186. Fictitious postage stamps: fine up to two hundred rupees, with seizure and forfeiture.

Sections 187 and 188. Mint employee causing a coin of wrong weight or composition; unlawfully taking a coining instrument from a mint.

Test yourself

1. Give three things the Explanation to section 178 treats as counterfeiting. Any three of: causing a genuine stamp of one denomination to appear like a stamp of a different denomination; causing a genuine coin to appear like a different coin, intending deception or knowing it likely; diminishing the weight of a coin; altering its composition; and altering its appearance.

2. What must be proved under section 180 besides possession? Knowledge or reason to believe that the article is forged or counterfeit, and the intention that it be used as genuine or that it may be used as genuine.

3. Does the Sanhita protect foreign currency? Yes. A bank-note includes one issued by any person carrying on the business of banking in any part of the world, and a coin includes metal stamped and issued by or under the authority of any State or Sovereign Power.

4. What is the punishment for making a document that merely resembles a currency note? A fine which may extend to three hundred rupees under section 182(1), with a further fine of up to six hundred rupees under sub-section (2) for refusing without lawful excuse to tell a police officer who made it.

5. Which offence in this group is complete before a single counterfeit article exists? Section 181, making, mending, buying, selling, disposing of or possessing machinery, a die, an instrument or material for the purpose of forging or counterfeiting, which carries imprisonment for life or up to ten years and fine.

Section 189(3). Joining or continuing knowing that the assembly has been commanded in the manner prescribed by law to disperse: up to two years, or fine, or both.

Section 189(4). Being a member while armed with a deadly weapon, or with anything which used as a weapon of offence is likely to cause death: up to two years, or fine, or both.

Section 189(5). Knowingly joining or continuing in an assembly of five or more likely to cause a disturbance of the public peace after it has been lawfully commanded to disperse: up to six months, or fine, or both. Its Explanation directs that if the assembly is unlawful within sub-section (1), the offender is punishable under sub-section (3).

Section 189(6) to (9) reach the organisers and the hired. Hiring, engaging, employing, promoting or conniving at the hiring of a person to join an unlawful assembly: punishable as a member, and for any offence committed by that person in pursuance of the hiring, as if the hirer had committed it. Harbouring or assembling such hired persons in premises in one's occupation, charge or control: six months. Being hired or engaged, or offering or attempting to be, to do any of the acts in sub-section (1): six months. Going armed, or offering to go armed, when so hired: two years.

Section 190, constructive liability. Set out above.

Section 191, rioting. Where force or violence is used by an unlawful assembly, or by any member of it, in prosecution of the common object, every member is guilty of rioting: up to two years, or fine, or both, and up to five years where the rioter is armed with a deadly weapon or anything likely to cause death.

Section 192, provocation to riot. Malignantly or wantonly doing something illegal, giving provocation to any person, intending or knowing it likely that the provocation will cause rioting: one year if rioting follows, six months if it does not, or fine, or both.

Section 193, liability of the owner or occupier of the land. Sub-section (1) fines the owner or occupier, and any person claiming an interest in the land, up to one thousand rupees where, knowing or having reason to believe an unlawful assembly or riot is being, has been, or is likely to be committed there, he does not give the earliest notice in his power to the officer in charge of the nearest police station, and does not use all lawful means in his power to prevent, disperse or suppress it. Sub-sections (2) and (3) fine the person for whose benefit a riot is committed, and his agent or manager, where they fail to use all lawful means to prevent and suppress it.

Section 194, affray. Two or more persons who, by fighting in a public place, disturb the public peace commit an affray.

Section 195. Assaulting or obstructing a public servant when suppressing a riot.

Broken down: the four questions under section 190

One: was there an unlawful assembly? Five or more persons, with a common object of one of the five kinds. If the number falls below five, the assembly ceases to be unlawful and section 190 falls with it.

Two: was the accused a member at the time the offence was committed? Section 190 fixes liability on a person who "at the time of the committing of that offence, is a member of the same assembly". Membership before or after does not do.

Three: was the offence committed in prosecution of the common object? This is the first limb, and it asks whether the act advanced the shared object.

Four, in the alternative: did the members know it to be likely to be committed in prosecution of that object? This is the second limb, and it is much wider. Nobody need have intended the act; it is enough that the members knew it was likely.

Distinctions that carry marks

A worked example

Seven men gather outside a disputed plot in Kalyan intending to take possession of it by force. Two carry iron rods. During the confrontation one of them stabs the watchman, who dies.

Is this an unlawful assembly? Yes. There are five or more, and the common object, taking possession of property by criminal force, falls within section 189(1)(d).

What is each of the seven liable for? Membership under section 189(2), six months. The two who were armed are within section 189(4), two years. If force or violence was used in prosecution of the common object, all seven are guilty of rioting under section 191, and the two armed men under sub-section (3), five years.

Who is liable for the killing? Test section 190. The killing was committed by a member. Was it in prosecution of the common object of taking possession? Perhaps not, if the object was to take the plot and not to kill. But the second limb asks whether the members knew a killing to be likely in prosecution of that object, and where two of the group carried iron rods to a confrontation over land, that knowledge is readily inferred. If it is, all seven are guilty of murder, whichever of them struck.

One man arrived after the stabbing. He is not liable under section 190 for the killing, because the section requires membership "at the time of the committing of that offence". He may still be a member for what happened afterwards.

One man left before the stabbing. Same answer, for the same reason.

A man who paid the seven to go. Section 189(6) makes a person who hires or engages another to join an unlawful assembly punishable as a member, and also for any offence committed by that person as a member in pursuance of the hiring, as if he had committed it himself.

The owner of the plot for whose benefit the riot took place. Section 193(2) fines him if, having reason to believe the riot was likely, he did not use all lawful means in his power to prevent and suppress it.

Change the facts. Suppose only two men fight in a market and disturb the peace. That is an affray under section 194: two or more persons, fighting, in a public place, disturbing the public peace. There is no unlawful assembly and section 190 has no application.

What beginners get wrong

Thinking the five must all share a criminal purpose from the start. The first Explanation to section 189(1) says an assembly that was lawful when it assembled may become unlawful later.

Thinking section 190 needs proof of who did what. It does not, and that is its purpose. Every member at the time is guilty of the offence.

Forgetting the second limb. Most section 190 cases are decided on knowledge of likelihood, not on prosecution of the object.

Thinking rioting needs violence by everybody. Section 191 says force or violence used "by an unlawful assembly, or by any member thereof", and every member is then guilty.

Limits and criticism

Constructive liability is the most criticised device in Indian penal law. A person who stood at the back of a crowd of seven may be convicted of murder without any evidence that he touched anyone, and the safeguard is only the requirement that the members knew the act to be likely.

The number five is arbitrary. A group of four with the same object and the same weapons is outside sections 189 to 191 entirely, and the prosecution has to fall back on common intention.

Section 193 fines a landowner for what other people did on his land. The obligation to give the earliest notice in his power and to use all lawful means is imposed on a person who may have had no part in the assembly at all.

The fines have not been revised. One thousand rupees under section 193(1) is not a deterrent to anyone with an interest in land worth fighting over.

Quick revision

Section 189(1), five common objects. Overawing a Government, Parliament, a Legislature or a public servant; resisting the execution of law or legal process; committing mischief, criminal trespass or other offence; taking possession of property or enforcing a right by criminal force; and compelling a person by criminal force to do or omit something.

Explanation. An assembly lawful when it assembled may become unlawful.

Section 189(2) to (9). Membership, six months. Continuing after a command to disperse, two years. Armed membership, two years. Assembly likely to disturb the peace after a command to disperse, six months. Hiring, harbouring, being hired, and going armed when hired.

Section 190. Every member at the time is guilty of an offence committed by any member in prosecution of the common object, or such as the members knew to be likely to be committed in prosecution of it.

Section 191. Rioting: two years, or five if armed with a deadly weapon.

Section 192. Provocation to riot: one year if rioting follows, six months if not.

Section 193. Owner, occupier, beneficiary, agent or manager: fine, up to one thousand rupees under sub-section (1).

Section 194. Affray: two or more fighting in a public place, disturbing the public peace.

Test yourself

1. State the two limbs of section 190. An offence committed by a member in prosecution of the common object; or an offence such as the members of the assembly knew to be likely to be committed in prosecution of that object. Every person who is a member at the time of the offence is guilty of it.

2. Give four differences between common intention and common object. Any four of: two or more against five or more; a prior meeting of minds against a common object of one of the five statutory kinds; participation in the act required against membership at the time being enough; section 3(5) creates no offence while membership of an unlawful assembly is itself an offence under section 189(2); and section 190 has a second limb covering acts known to be likely.

3. Can a lawful assembly become unlawful? Yes. The first Explanation to section 189(1) provides that an assembly which was not unlawful when it assembled may subsequently become an unlawful assembly.

4. Distinguish rioting from affray. Rioting requires an unlawful assembly of five or more with a common object, and force or violence used in prosecution of that object, anywhere. Affray requires only two or more persons fighting in a public place and thereby disturbing the public peace.

5. Who is liable under section 193(1), and for what failure? The owner or occupier of the land on which an unlawful assembly or riot takes place, and any person claiming an interest in it, if he or his agent or manager, knowing or having reason to believe, fails to give the earliest notice in his power to the officer in charge of the nearest police station and to use all lawful means in his power to prevent, disperse or suppress it. The penalty is a fine not exceeding one thousand rupees.

Section 197(1)(b). Asserting, counselling, advising, propagating or publishing that a class of persons shall, by reason of such membership, be denied or deprived of their rights as citizens of India.

Section 197(1)(c). Making or publishing an assertion, counsel, plea or appeal concerning the obligation of a class of persons by reason of such membership, where it causes or is likely to cause disharmony or feelings of enmity, hatred or ill-will between them and other persons.

Section 197(1)(d). Making or publishing false or misleading information jeopardising the sovereignty, unity and integrity or security of India.

Punishment. Up to three years, or fine, or both, and up to five years and fine under sub-section (2) where committed in a place of worship or a religious assembly.

Section 197(1)(d) is new and it will be asked

The Penal Code's section 153B had three clauses. Section 197 has four, and the fourth has no ancestor.

It punishes false or misleading information. No group needs to be targeted, no enmity need be promoted and no public tranquillity need be disturbed. The ingredients are the falsity or misleading character of the information and its jeopardising the sovereignty, unity and integrity or security of India.

That makes it the Sanhita's nearest approach to an offence of disinformation, and its breadth is the obvious objection: who decides what is misleading, and how a court is to measure jeopardy to those interests, are questions the section does not answer.

The leading case, and what it settles

Facts. Amish Devgan v. Union of India, (2021) 1 SCC 1, decided on 7 December 2020. A television anchor faced multiple first information reports in different States under sections 153A, 295A and 505 of the Penal Code for remarks about a Sufi saint made during a broadcast.

Held. The Court refused to quash the proceedings but consolidated the first information reports, and in doing so wrote the most detailed Indian analysis of hate speech to date.

Four things it decided, and they should be stated in this order. Article 19(1)(a) must be balanced against the right to dignity under Article 21, which includes participatory equality. The offence turns on the content, the intent, the context and the harm. The speaker's position and reach are relevant, because the same words carry different force from a person with influence. And protected political or academic discourse, even if inaccurate or offensive, is distinguished from hate speech by the presence of incitement and a proximate link to violence or disorder.

What the law still does not have

Facts. Pravasi Bhalai Sangathan v. Union of India, (2014) 11 SCC 477. The Supreme Court was asked to lay down guidelines against hate speech by elected representatives.

Held. The Court declined, holding that the remedy lay in enforcing the existing law, and referred the question of a fresh definition to the Law Commission of India.

The Law Commission answered in Report No. 267 of March 2017. It recommended inserting two new provisions, one on incitement to hatred and one on causing fear, alarm or provocation of violence in certain cases.

Neither recommendation was enacted, and the Sanhita did not take the opportunity. That omission is the sharpest available criticism of the recodification on this subject, and it is the answer to a question asking whether the new law improved the position on hate speech.

Distinctions that carry marks

A worked example

A speaker at a public meeting in a town says that people of a named community are disloyal, that they cannot be trusted to obey the Constitution, and that shopkeepers should refuse to serve them. The speech is broadcast on a social media channel with a large following.

Which provisions? Section 197(1)(a) covers the imputation that the community cannot bear true faith and allegiance to the Constitution. Section 197(1)(b) covers the assertion that they should be denied their rights as citizens. Section 196(1)(a) covers the promotion of enmity, hatred or ill-will between communities on the ground of religion or community, and "electronic communication" is expressly among the means.

Does the broadcast make a difference? Yes, on the reasoning in Amish Devgan. The Court held that the speaker's position and reach are relevant, because the same words carry a different force from a person with influence, and content, intent, context and harm are all in issue.

Change the place. Suppose the same speech is made inside a temple during a ceremony. Section 196(2) and section 197(2) each raise the maximum from three years to five, with fine.

Change the content. Suppose the speaker says only that a Government policy has failed and that a named community has been unfairly favoured by it, without more. That is political discourse, and on Amish Devgan it is distinguished from hate speech by the absence of incitement and of a proximate link to violence or disorder. The fact that it is offensive or inaccurate does not make it an offence.

Change it again. Suppose the speaker circulates a fabricated document claiming that a foreign power has been given control of a border district. No group is targeted at all. Section 197(1)(d) applies, because false or misleading information jeopardising the sovereignty, unity and integrity or security of India needs nothing more.

What beginners get wrong

Calling these hate speech provisions. India has no offence of hate speech as such. These are public tranquillity offences that do part of the work.

Thinking public disorder is always an ingredient. It is an ingredient of section 196(1)(b) and of nothing else in either section.

Missing section 197(1)(d). It is the only genuinely new clause, and it operates without any group being targeted.

Thinking Amish Devgan quashed the proceedings. It did not. It consolidated the first information reports and refused to quash.

Limits and criticism

"Any other ground whatsoever" in section 196(1)(a) makes the list of grounds open. A section carrying three years should not turn on an unbounded category.

Section 197(1)(d) has no defined standard. "Misleading" and "jeopardising" are both undefined, and a person who publishes information later shown to be inaccurate is exposed to a criminal charge without any requirement of intent to mislead.

The offences are bailable and lightly punished, and they are also very widely invoked. The complaint made in Pravasi Bhalai was about under-enforcement against the powerful; the complaint made in Amish Devgan was about multiple first information reports in different States for one broadcast. Both problems survive the recodification.

The Law Commission's recommendations were not enacted. Report No. 267 of March 2017 proposed provisions on incitement to hatred and on causing fear, alarm or provocation of violence, and the Sanhita adopted neither.

Quick revision

Section 196(1). Three clauses: promoting disharmony, enmity, hatred or ill-will between groups on the listed grounds or any other ground; acts prejudicial to harmony which disturb or are likely to disturb public tranquillity; and organising or participating in training in criminal force or violence against a group causing fear, alarm or insecurity.

Section 197(1). Four clauses: imputations of inability to bear allegiance to the Constitution; assertions that a class be denied citizens' rights; assertions about a class's obligations causing enmity; and false or misleading information jeopardising sovereignty, unity and integrity or security of India, which is new.

Both. Three years, or fine, or both. Five years and fine in a place of worship or a religious assembly.

Amish Devgan, (2021) 1 SCC 1. Content, intent, context and harm; the speaker's position and reach matter; incitement and a proximate link to violence separate hate speech from protected discourse; Article 19(1)(a) balanced against dignity under Article 21.

Pravasi Bhalai, (2014) 11 SCC 477. The Court declined to frame guidelines and referred the definition to the Law Commission, whose Report No. 267 of March 2017 was not enacted.

Test yourself

1. Which clause of section 197 is new, and what does it punish? Clause (d) of sub-section (1), which punishes making or publishing false or misleading information jeopardising the sovereignty, unity and integrity or security of India. It requires no group to be targeted.

2. Is a disturbance of public tranquillity always required? No. It is an ingredient of section 196(1)(b) alone. Clauses (a) and (c) of section 196 and all four clauses of section 197 do not require it.

3. What four things did Amish Devgan v. Union of India say the offence turns on? The content, the intent, the context and the harm. The Court added that the speaker's position and reach are relevant, and that incitement with a proximate link to violence or disorder separates hate speech from protected political or academic discourse.

4. What happens if the offence is committed in a place of worship? Sub-section (2) of each section raises the maximum from three years to five years, with fine.

5. Does India have an offence of hate speech? No. In Pravasi Bhalai Sangathan v. Union of India, (2014) 11 SCC 477, the Supreme Court declined to lay down guidelines and referred the question to the Law Commission, whose Report No. 267 of March 2017 recommended two new provisions. Neither was enacted, and the Sanhita did not enact them either.

Section 201. A public servant charged with the preparation or translation of a document or electronic record who frames, prepares or translates it in a manner he knows or believes to be incorrect, intending or knowing it likely to cause injury: up to three years, or fine, or both.

Section 202. A public servant legally bound not to engage in trade who engages in trade: simple imprisonment up to one year, or fine, or both, or with community service.

Section 203. A public servant legally bound not to purchase or bid for certain property who purchases or bids for it, in his own name, in another's, jointly or in shares: simple imprisonment up to two years, or fine, or both, and the property, if purchased, shall be confiscated.

Section 204. Personating a public servant.

Section 205. Wearing the garb or carrying a token used by a public servant with fraudulent intent.

Section 199(c) is the provision to know

It answers a very old complaint. A person who tries to report a serious offence and is turned away at the police station had no criminal remedy against the officer; the failure was a matter of departmental discipline.

The section makes it an offence with a minimum sentence. Six months rigorous imprisonment is the floor, which removes the possibility of a fine alone.

It is confined to a list. The listed offences are the sexual offences in sections 64 to 71 and 74 to 79, the acid offence in section 124, and trafficking and the exploitation of a trafficked person in sections 143 and 144. A failure to record information about a theft or a robbery is not within the clause.

It depends on a section of the other Sanhita. Section 173(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 is the provision under which information about a cognizable offence is given to an officer in charge of a police station, so section 199(c) cannot be read without it.

Section 200 is new in a different way

It binds a person who is not a public servant at all. The section reaches anyone in charge of a hospital, public or private, whoever runs it.

It is entirely dependent on the other Sanhita. Section 397 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is what imposes the duty; section 200 supplies the punishment for contravening it.

Its placement is odd. A hospital administrator is not a public servant, and the section sits in a Chapter headed "Of offences by or relating to public servants", which is the best that could be done once the duty was put in the procedure code.

Distinctions that carry marks

A worked example

A woman goes to a police station in Thane to report a sexual assault. The officer in charge tells her the matter is a family dispute and refuses to write anything down.

Which provision? Section 199(c). The offence alleged is punishable under one of the listed sections, information was given under section 173(1) of the Bharatiya Nagarik Suraksha Sanhita, and the officer failed to record it. The punishment is rigorous imprisonment of not less than six months extending to two years, and fine.

Does it matter that she suffered no further injury? No. Clause (c) requires no prejudice, unlike clause (b).

Change the offence reported. Suppose she reported the theft of a motorcycle and was turned away. Section 199(c) does not apply, because theft is not in the list. Section 198 might, but it requires proof that the officer intended or knew he was likely to cause injury, which is a heavier burden.

She is taken to a private hospital which refuses to treat her. Section 200 applies to the person in charge of the hospital, whether the hospital is public or private, for contravening section 397 of the Bharatiya Nagarik Suraksha Sanhita: up to one year, or fine, or both.

A different case. Suppose a revenue officer, required to prepare a record of rights, deliberately enters the wrong name so that a claimant loses his land. Section 201 applies: a public servant charged with the preparation of a document who frames it in a manner he knows to be incorrect, intending or knowing it likely to cause injury, up to three years.

Another. Suppose a municipal officer, forbidden by his service rules to bid at auctions of municipal property, bids through his brother-in-law and succeeds. Section 203 applies, and the section adds that the property, if purchased, shall be confiscated, which is the real sanction.

What beginners get wrong

Thinking this Chapter covers bribery. It does not. Corruption by a public servant is dealt with by the Prevention of Corruption Act, 1988.

Reading section 199(c) as covering every offence. It is confined to the sections it names, which are the sexual offences, the acid offence and the trafficking offences.

Thinking section 200 applies only to Government hospitals. It applies to a hospital run by the Central Government, a State Government, a local body "or any other person".

Missing the confiscation in section 203. It is not a punishment the court may choose; the section says the property shall be confiscated.

Limits and criticism

The punishments for a public servant's disobedience are light. One year of simple imprisonment under section 198 for knowingly disobeying the law in order to injure somebody is a small figure for an abuse of office.

Section 199(c)'s list is hard to justify. A refusal to record information about a murder or a dacoity is outside it, and the choice of listed offences appears to have followed public controversy rather than any principle about which failures matter most.

Section 200 punishes a duty defined elsewhere. A person reading the Sanhita alone cannot know what section 397 of the other Sanhita requires, and a penal provision that cannot be understood from its own text is a poor one.

Community service in section 202 is anomalous. It is offered for a public servant unlawfully engaging in trade but not for any other offence in this Chapter, and no reason for the selection appears.

Quick revision

Section 198. Public servant knowingly disobeying a direction of law, intending or knowing injury is likely: one year simple, or fine, or both.

Section 199. Three clauses: prohibited summons for investigation; disobeying investigation rules to a person's prejudice; failing to record information under section 173(1) of the Bharatiya Nagarik Suraksha Sanhita about offences under sections 64 to 71, 74 to 79, 124, 143 and 144. Six months to two years rigorous imprisonment, and fine.

Section 200. Person in charge of any hospital contravening section 397 of the Bharatiya Nagarik Suraksha Sanhita: one year, or fine, or both.

Section 201. Framing an incorrect document or electronic record: three years, or fine, or both.

Section 202. Unlawfully engaging in trade: one year simple, or fine, or both, or community service.

Section 203. Unlawfully buying or bidding for property: two years simple, or fine, or both, and confiscation.

Sections 204 and 205. Personating a public servant; wearing his garb or carrying his token with fraudulent intent.

Not here. Bribery, which is under the Prevention of Corruption Act, 1988.

Test yourself

1. What does section 199(c) punish, and what is the minimum sentence? A public servant's failure to record information given under section 173(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 in relation to a cognizable offence punishable under the listed sections. The minimum is six months rigorous imprisonment, and the maximum two years with fine.

2. Which offences are in that list? Sections 64, 65, 66, 67, 68, 70, 71, 74, 76, 77, 79, 124, 143 and 144, which are the sexual offences, the acid offence, and trafficking and the exploitation of a trafficked person.

3. Who can commit the offence in section 200? Any person in charge of a hospital, public or private, whether run by the Central Government, a State Government, a local body or any other person, who contravenes section 397 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

4. What additional consequence follows a conviction under section 203? The property, if purchased, shall be confiscated.

5. Is bribery by a public servant an offence under this Chapter? No. It is dealt with by the Prevention of Corruption Act, 1988, which is a separate statute.

Refusing to speak: sections 213 to 216. Section 213 punishes refusing an oath or affirmation when duly required by a public servant to make it. Section 214 punishes refusing to answer a public servant authorised to question. Section 215 punishes refusing to sign a statement. Section 216 punishes making a false statement on oath or affirmation to a public servant or a person authorised to administer one.

Misusing the officer: section 217. Giving a public servant information known or believed to be false, intending or knowing it likely to cause him to do or omit what he ought not, or to use his lawful power to the injury or annoyance of any person.

Interfering with process on property: sections 218 to 220. Section 218 punishes resistance to the taking of property by the lawful authority of a public servant. Section 219 punishes obstructing the sale of property offered for sale by the authority of a public servant. Section 220 punishes illegally purchasing or bidding for property offered for sale by such authority.

Obstruction and non-assistance: sections 221 and 222. Voluntarily obstructing a public servant in the discharge of his public functions: three months, or two thousand five hundred rupees, or both. Intentionally omitting to render assistance when bound by law: one month or two thousand five hundred rupees, rising to six months or five thousand rupees where the assistance was demanded for executing a court's process, preventing an offence, suppressing a riot or affray, or apprehending an offender or an escaped person.

Disobedience to a promulgated order: section 223. Knowing that an order promulgated by a lawfully empowered public servant directs him to abstain from an act or to take certain order with property, and disobeying: six months or two thousand five hundred rupees where the disobedience causes or tends to cause obstruction, annoyance or injury, or their risk, to a person lawfully employed; and one year or five thousand rupees where it causes or tends to cause danger to human life, health or safety, or a riot or affray. Its illustration is a person who knowingly takes a religious procession down a street an order has closed to it, and thereby causes danger of a riot.

Threats: sections 224 and 225. Threatening injury to a public servant to induce him to act or forbear; and threatening injury to induce a person to refrain from applying for protection to a public servant.

Section 226. Attempting to commit suicide with intent to compel or restrain the exercise of lawful power by a public servant: simple imprisonment up to one year, or fine, or both, or community service.

Section 223 is the section that reaches the public

It is the provision behind every prohibitory order. An order restricting an assembly, closing a road to a procession, or imposing a curfew is promulgated by a public servant, and section 223 supplies the punishment for disobeying it.

Three ingredients. Knowledge of the order; that it was promulgated by a public servant lawfully empowered; and disobedience of a direction to abstain from an act or to deal with property in a certain way.

The grading is by consequence, not by intention. Clause (a) needs obstruction, annoyance or injury to a person lawfully employed, or a risk of it. Clause (b) needs danger to human life, health or safety, or a riot or affray, or a tendency to cause one.

Section 226 is the survivor of the suicide offence

Section 309 of the Penal Code is gone, as the chapter on abetment of suicide explains. Section 226 keeps a narrow version.

Its ingredient is the intent. The attempt must be made with the intent to compel or restrain a public servant from discharging his official duty. An attempt made in despair is outside it.

It is one of the six offences carrying community service. That is a deliberate signal about how the conduct is to be treated.

Distinctions that carry marks

A worked example

A District Magistrate promulgates an order prohibiting the carrying of weapons and the assembly of more than four persons in a locality for a week. Rohit knows of the order, and leads a group of thirty through the area carrying sticks. A fight breaks out.

Which provision? Section 223. He knew of an order promulgated by a lawfully empowered public servant directing him to abstain from an act, and he disobeyed it. Because the disobedience caused an affray, clause (b) applies: up to one year, or fine up to five thousand rupees, or both.

Change the consequence. Suppose nothing happened except that a municipal sweeper could not get through the street. That is clause (a): obstruction to a person lawfully employed, up to six months or two thousand five hundred rupees.

The police call for help from bystanders to disperse the group and one refuses. Section 222(b) applies to a person bound by law to render assistance where the demand was made for suppressing a riot or affray: six months, or five thousand rupees, or both.

A man in the crowd pushes an officer to stop him making an arrest. Section 221, obstructing a public servant in the discharge of his public functions, three months or two thousand five hundred rupees. If criminal force was used, section 132 in the assault chapter applies as well, with two years.

A second man later tells the police that a rival was the organiser, knowing it to be untrue and intending the rival to be arrested. Section 217, giving false information to a public servant intending to cause him to use his lawful power to the injury of another.

A third man is summoned to give evidence in the resulting trial and leaves the country to avoid the summons. Section 206(b), because the process was to attend in a Court: six months, or ten thousand rupees, or both.

What beginners get wrong

Ignoring the two-clause structure. Most of these sections have a lower and a higher punishment, and answering with only one is answering half the section.

Confusing sections 212 and 217. Section 212 punishes a person under a legal duty to inform who lies. Section 217 punishes a volunteer who lies in order to make the officer misuse his power.

Thinking section 221 needs force. It needs voluntary obstruction. Force turns it into an assault offence as well.

Thinking attempting suicide is an offence. Only under section 226, and only where the intent was to compel or restrain a public servant.

Limits and criticism

The punishments remain very low. Three months for obstructing a public servant and one month for failing to assist reflect an era in which the officer's authority was rarely challenged, and the revised fines do not change the position.

Section 223 is extremely widely used and very lightly defined. It punishes disobedience to an order whose content and validity are decided by the officer who made it, and the only real control on the section is the requirement that he be lawfully empowered.

Section 226 keeps a small piece of the suicide offence alive. A person in distress who acts in a way a court can read as aimed at a public servant is still exposed, which sits awkwardly beside the policy of the Mental Healthcare Act, 2017.

Sections 213 to 216 punish refusal to speak. They sit uneasily with the protection against self-incrimination in Article 20(3), and the boundary is drawn by that Article rather than by anything in the sections.

Quick revision

The pattern. Most sections in the Chapter have clause (a) for the ordinary case and clause (b) for the aggravated one, which is usually a court's process, information about an offence, or danger to life.

Sections 206 to 209. Absconding from service; preventing service; non-attendance; non-appearance on a proclamation under section 84 of the Bharatiya Nagarik Suraksha Sanhita, three years or seven for a proclaimed offender.

Sections 210 to 212. Failing to produce a document or electronic record; failing to give notice or information; furnishing false information, six months or two years where it concerns an offence.

Sections 213 to 216. Refusing an oath; refusing to answer; refusing to sign a statement; false statement on oath.

Section 217. False information intending the officer to misuse his lawful power.

Sections 218 to 220. Resisting the taking of property; obstructing a sale; illegal purchase or bid.

Sections 221 and 222. Obstruction, three months. Omission to assist, one month, or six where demanded for a court's process, preventing an offence, suppressing a riot or affray, or apprehending an offender.

Section 223. Disobedience to a promulgated order: six months where obstruction, annoyance or injury results; one year where danger to life, health or safety, or a riot or affray, results.

Sections 224 to 226. Threat of injury to a public servant; threat to deter a person from seeking protection; attempted suicide to compel or restrain lawful power.

Test yourself

1. What is the two-clause pattern in this Chapter? Clause (a) sets a lower punishment for the ordinary case and clause (b) a higher one for the aggravated case, which is typically that the process was a court's, that the information concerned an offence or its prevention, or that the disobedience endangered life, health or safety.

2. Distinguish sections 212 and 217. Section 212 punishes a person legally bound to furnish information who furnishes false information as true. Section 217 punishes a person under no duty who volunteers information he knows or believes to be false, intending to cause the public servant to act wrongly or to use his lawful power to another's injury or annoyance.

3. State the three ingredients of section 223. Knowledge of the order; that it was promulgated by a public servant lawfully empowered to promulgate it; and disobedience of its direction to abstain from an act or to take certain order with property in his possession or management.

4. When is a refusal to assist a public servant punished with six months? Under section 222(b), where the assistance was demanded by a competent public servant for executing a process lawfully issued by a Court, or preventing the commission of an offence, or suppressing a riot or affray, or apprehending a person charged with or guilty of an offence or who has escaped from lawful custody.

5. What must be proved under section 226 besides an attempt to commit suicide? The intent to compel or restrain a public servant from discharging his official duty.

Section 231, serious non-capital cases. Giving or fabricating false evidence intending or knowing it likely to cause a person to be convicted of an offence not capital but punishable with imprisonment for life or seven years or upwards: punished as a person convicted of that offence would be liable to be punished. Its illustration is a person who gives false evidence to have another convicted of dacoity, and who is therefore liable to imprisonment for life or imprisonment, with or without fine.

Section 232, threatening a witness. Threatening another with injury to person, reputation or property, or to the person or reputation of anyone in whom he is interested, with intent to cause him to give false evidence: up to seven years, or fine, or both. Sub-section (2): if an innocent person is convicted and sentenced in consequence with death or imprisonment for more than seven years, the person who threatened is punished with the same punishment and sentence, in the same manner and to the same extent.

Sections 233 to 237. Section 233 punishes using evidence known to be false. Section 234 punishes issuing or signing a false certificate. Section 235 punishes using as true a certificate known to be false. Section 236 punishes making a false statement in a declaration which is by law receivable as evidence. Section 237 punishes using such a declaration knowing it to be false.

Section 238, destroying evidence or screening an offender. Knowing or having reason to believe an offence has been committed, causing evidence of it to disappear with the intention of screening the offender, or with that intention giving information known or believed to be false: seven years and fine where the offence is capital; three years and fine where it is punishable with life or up to ten years; and up to one fourth of the longest term where the offence is punishable with a term not extending to ten years. Its illustration is a person who helps a murderer hide the body.

Section 239. Intentionally omitting to give information of an offence which the person is legally bound to give: six months, or fine up to five thousand rupees, or both.

Section 240. Giving false information respecting an offence committed.

Section 241. Destruction of a document or electronic record to prevent its production as evidence.

Broken down: what "legally bound to state the truth" means

Three ways it can arise. An oath; an express provision of law; or a legal obligation to make a declaration on a subject.

Not every lie is within the section. A person who lies to a neighbour, or to a journalist, or in a private letter is under no such obligation and commits no offence under section 227.

The statement need not be spoken. Explanation 1 covers a statement made "verbally or otherwise", so a false affidavit and a false entry in a signed form are within it.

A false statement of belief counts. Explanation 2 is the one students miss: saying "I believe X" when you do not is giving false evidence, quite apart from whether X is true.

Materiality is not an ingredient of section 227. The section punishes the false statement, whether or not it mattered to the outcome. Contrast section 228, where the fabricator must intend the false material to cause an erroneous opinion on a point material to the result.

Sections 230 and 232 both reach the death penalty

Section 230(2) permits death where an innocent person was convicted and executed in consequence of the false evidence. That is a rare provision and it is examinable precisely because it is unusual: the liar is treated as the executioner.

Section 232(2) does something structurally similar for the threatener. If an innocent person is convicted and sentenced to death, or to more than seven years, in consequence of evidence given under a threat, the person who threatened suffers the same punishment and sentence, in the same manner and to the same extent.

Section 231 uses the same technique without the extremity. The person who gives false evidence to procure a conviction is punished as the person convicted of that offence would be liable to be punished.

Distinctions that carry marks

A worked example

Nilesh is a witness in a trial for murder. He testifies on oath that he saw the accused at the scene, knowing that he was not there and that he never saw anything.

Which offence? Giving false evidence under section 227: he was legally bound by an oath to state the truth and made a statement he knew to be false. Because it was at a stage of a judicial proceeding, section 229(1) applies, with up to seven years and a fine up to ten thousand rupees.

The offence he was trying to procure a conviction for is murder, which is capital. Section 230(1) therefore applies instead, with imprisonment for life, or rigorous imprisonment up to ten years, and a fine up to fifty thousand rupees.

The accused is convicted and executed, and is later shown to have been innocent. Section 230(2) permits Nilesh to be punished with death.