Unit1

INDIAN PENAL CODE-I

LAW-315

Intro. and Objective

Indian Penal Code is the official criminal code of the Republic of India. It provides a general penal
code for India.

Preamble.—WHEREAS it is expedient to provide a general Penal Code for India it is enacted as

follows.

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Title and extent of operation of the Code

•This Act shall be called the Indian Penal Code, and shall extend to the whole of India [except the
State of Jammu and Kashmir]]

•Virendra Singh v. General Officer Commanding (1974) SC

•J&K state re-organization Act, 2019, with effect from 31Oct. 2019. the code applied in J&K also.

• At present THE code is extended and applicable through the territory of India which includes the
Land territory of India OPEN SKY of INDIAN TERRITORI and Indian Maritime Zone or Continental
Shelf which extends to the 12 nautical miles measured from the baseline s

Territorial Operation of IPC

•Punishment of offences committed within India.—Every person shall be liable to punishment

under this Code and not otherwise for every act or omission contrary to the provisions thereof, of
which he shall be guilty within [India] (Sec. 2).

•Sec.2 IPC is based on the Latin maxim “Nullum Tempus occurit regi” which means lapse of time
doesn’t bar the power or right of Crown.
•The maxim suggests the absence of period of limitation or commencement of the period of
limitation. But the rule of the maxim is subject to the provision of Ch. 36 sec. 467- 473 Code of
Criminal Procedure

•Punishment of offences committed beyond, but which by law may be tried within, India.— Any
person liable, by any [Indian law], to be tried for an offence committed beyond [India] shall be
dealt with according to the provisions of this Code for any act committed beyond [India] in the
same manner as if such act had been committed within [India](Sec.3)

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Extra Territorial Operation Sec.4

•Extension of Code to extra-territorial offences.—

•The provisions of this Code apply also to any offence committed by—

•[(1) any citizen of India in any place without and beyond India;

•(2) any person on any ship or aircraft registered in India wherever it may be.]

•[(3) any person in any place without and beyond India committing offence targeting a computer
resource located in India.]

•[Explanation.—In this section— (a) the word “offence” includes every act committed outside
India which, if committed in India, would be punishable under this Code;

Person

•Person under section means as defined under section 11IPC:

•The word “person” includes any Company or Association or body of persons, whether
incorporated or not.

•Person doesn’t include: President of India Governor of state, Officers of UNO& its organs, Foreign
sovereign, foreign enemy war-ship high Commissioners and Ambassadors

•(b) the expression “computer resource” shall have the meaning assigned to it in clause (k) of sub-
section (1) of section 2 of the Information Technology Act, 2000 (21 of 2000);]

•[Illustration]
•A, [who is [a citizen of India]], commits a murder in Uganda. He can be tried and convicted of of
murder in any place in [India] in which he may be found.

Saving Clause

• Certain laws not to be affected by this Act.—

•Nothing in this Act shall affect the provisions of any Act for punishing

mutiny and desertion of officers,

soldiers,

sailors or

airmen

in the service of the Government of India or the provisions of any special or local law.] (Sec.5)

General Postulate of crime

•The general features and characteristics of crime, including actus reus, mens rea, and
concurrence; and then explore other features of a crime such as causation, harm, and legality,
attendant circumstances, and punishment

•“OFFENCE”

•There are two definition of offense

1- Statutory definition

2- General Definition

“Offence” (S.40)—Except in the [Chapters] and sections mentioned in clauses 2 and 3 of this
section, the word “offence” denotes a thing made punishable by this Code. In Chapter IV,
[Chapter VA] and in the following sections, namely, sections 109, 110, 112, 114, 115, 116, 117, 6 4
[64, 65, 66, 5 [67], 71], [118, 119 and 120] 187, 194, 195, 203, 211, 213, 214, 221, 222, 223, 224,
225, 327, 328, 329, 330, 331, 347, 348, 388, 389 and 445,

the word “offence” denotes a thing punishable under this Code, or under any special or local law
as hereinafter defined.

And in sections 141, 176, 177, 201, 202, 212, 216 and 441, the word “offence” has the same
meaning when the thing punishable under the special or local law is punishable under such law
with imprisonment for a term of six months or upwards, whether with or without fine.]
“Offense” General Definition

•Offence is a criminal wrong,

•It is an act or omission forbidden by law and

•committed by any person with guilty intent

• consequent injury

•It is punishable at the instance of the victim or the complainant or at the instance of state
prosecution.

•Public Justice be secured only when the offender or guilty person is punished.

•The Jurisdiction lies with criminal courts

Mens rea and Actus reus

•Principle of mens reus and actus reus is lies in the Latin maxim actus non facit reum nisi mens sit
rea which means actus reus and mens rea both must concur to constitute criminal liability. This
maxim is based on the sermons of Saint Augustin

•Actus Reus

•Actus rea refers to the Physical elements of an offender

•It is an act or omission forbidden by law

•It is such a result of human conduct which the law seeks to prevent (Prof. Keny)

•It must not be under compulsion or force, the person doing an act would not be liable for a
forced act or omission(this idea finds expression in the Latin maxim actus me invito factus non est
mens actus which means an act done by me without my will and under force or compulsion is not
my act)

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Mens Rea

•It is mental element of offense

•It is guilty state of mind

•Its essence lies in producing a result which is forbidden by criminal law

•It may be expressed or admitted, it may be referred from the fact and the circumstance of the
case and such inference must be objectively

•Prosecution or the complainant is under obligation to prove existence of mens rea. And the
burden to prove the existance of mens rea

is strict.

•In certain cases mens rea may be presumed.

•In some cases mens rea may be excluded.

•The presumption of mens rea and exclusion of mens rea is based on category of criminal act.

•There are two category of criminal act:

1. Malumin-se, and

2. Malum in Prohibitem

categorise or classification of criminal act in Malum-in-se and malum in prohibitem was done by
Blackburn. J. in the mater of R v. Prince 1875.

Cont.

•Malum-in-se means the category or the nature of certain criminal act wherein the mens rea is to
be presumed, and the prosecution is not required to prove the existence of mens rea in order to
make the accused criminally liable.

•The existence of mens rea would be presume by the court . This is because of the fact that such
criminal act are immoral and improper in itself

•R(Regina) v Prince LR 2CCR (1875).

•In Malum in Prohibitem, the existance of mens rea is required to be proved by the prosecution
beyond the reasonable doubt.

• In the case of Q v. Tolson 1889 QBT168. The nature of criminal acts which come under category
of malum-in-prohibitem are innocent but such criminal act deserved for punishment
.

•Facts: R v. Prince LR 2CCR (1875).

•Henry Prince (H) was convicted under to section 55 of the Offences Against the Person Act 1861
of taking an unmarried girl under the age of 16 out of the possession of her father without the
father’s consent. The girl, Annie Phillips (A), was in fact 14 years old, however A had told H that
she was 18, and H reasonably believed that that was her age. The appellant appealed against his
conviction.

•Issues

•Section 55 of the Offences Against the Person Act 1861 is silent as to the mens rea required for
the offence. The issue in question was whether the court is required to read a mens rea
requirement into a statute which is silent as to the mens rea for an offence, and therefore if H’s
reasonable belief was a defence to the offence under Section 55.

•Decision/Outcome Blackburn. J

•Where a statute is silent as to the mens rea for an offence, the court is not bound to read a mens
rea requirement into the statute. The offence was one of strict liability as to age, therefore a mens
rea of knowledge of the girl’s actual age was not required to establish the offence. H’s reasonable
belief was therefore no defence, and the conviction was upheld.

Q v. Tolson 1889 QBT168

•Facts: The appellant and defendant were married in September 1880. The appellant went missing
as the ship he was in had got lost into the sea in December 1881. The defendant waited for six
years for her husband (the appellant) with the hope that he shall return.

•Eventually, believing her husband to be dead, the defendant remarries. Eleven months later the
appellant returned and the knowledge of the remarriage of his wife (the defendant) he filed the
appeal of bigamy against her.

•Judgement: The appeal court said that despite the absence of words such as “knowingly
committing bigamy” or “intentionally committing bigamy”, which would have excused her, Ms.
Tolson was saved in this situation by an old common law rule. An “honest and reasonable belief”
in the existence of circumstances that, if true, would make the accused’s acts innocent, was a
proper defense, the court ruled.
•Doctrine of Mens rea

•The principle laid contained in the maxim Actus non facit reum nisi mens sit rea is also known as
Doctrine of mens rea. Which means a wrongful act and the guilty state of mind both must concur
to creat a criminal liability.

•As per Lord Arbinger in the case of R v Aallday 1837 HL, the doctrine of mense rea is more ancient
then English law

•Lord Kenyon in Fuler v. Pedget 1798 HL observed that doctrine of mens rea is recognised undr
English law as well as under natural justice.

•Mens rea is an constituent element of any offence. In exceptional cases person may be held
liable criminally for particular crime even without existence of mens rea.

Mens rea implies in every statutory offences, unless the contrary is shown Wright J. in Sheraj v. D
Rutzen 1895

•Fact

•The defendant was convicted of selling alcohol to a police officer whilst on duty under s.16(2)
Licensing Act 1872. It was customary for police officers to wear an armlet whilst on duty but this
constable had removed his. The appellant therefore believed he was off duty. The statute was
silent as to the question of whether knowledge was required for the offence. He was convicted
and appealed contending that knowledge that the officer was on duty was a requirement of the
offence.

Held: The appeal was allowed and his conviction was quashed.

Wright J:
•"There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of
the act, is an essential ingredient in every offence; but that presumption is liable to be displaced
either by the words of the statute creating the offence or by the subject-matter with which it deals
...

•It is plain that if guilty knowledge is not necessary, no care on the part of the publican could save
him from a conviction under section 16, subsection (2),

•since it would be as easy for the constable to deny that he was on duty when asked, or to
produce a forged permission from his superior officer, as to remove his armlet before entering the
public house. I am, therefore, of opinion that this conviction ought to be quashed."

Hobbs v Winchester Corporation: CA 18 Jun 1910

•Meat had been seized under section 116 of the 1875 Act as unfit for human consumption.

•Although the butcher was acquitted of any offence under section 117 of that Act, on the grounds
that he was unaware that it was unfit for consumption, it was found that he was nonetheless ‘in
default’ for the purpose of section 308, so that his claim for compensation failed.

Kennedy LJ said, ‘I think there is a clear balance of authority that in construing a modern statute
this presumption as to mens rea does not exist’.

•Held that “a statute or its provisions must be construed literally unless there is something to
show that mens rea is required”

Brend v Wood: 1946

•The court discussed the need to assume that conviction for an offence required proof of mens
rea. Unless the requirement of mens rea is excluded by the provion of statute.

Lord Goddard CJ said: ‘It should first be observed that at common law there must always be mens
rea to constitute a crime; if a person can show that he acted without mens rea that is a defence to
a criminal prosecution.
•There are statutes and regulations in which Parliament has seen fit to create offences and make
people responsible before criminal Courts although there is an absence of mens rea, but it is
certainly not the Court’s duty to be acute to find that mens rea is not a constituent part of the
crime.

Nathhulal v. state of MP 1966

•For criminal liability, exclusion of mens rea may be presumed only in such exceptional cases
wherein the very purpose of the statute would other be defeated.

Doctrine of mens rea and Indian Penal Code

•The IPC adopts mens rea negatively through general exception. General exceptions covers the
cases which negate the mens rea.

•IPC adopts the doctrine of mens rea positively by the inclusion of the specific word denoting
mens rea in the penal definition itself.

•The pnal definition in the code must be be strictly interpreted and analysed.

• if the penal definition requires as necessary ingredients, then the mens rea is to be proved on
the other hand if the penal definition does not require any specific mens rea the same is not to be
proved

•Thus it is right to say that the general doctrine of mens rea is inapplicable to IPC

•Specific words denoting mens rea are: intentionally, knowingly, maliciously, rashly, fraudulently,
dishonestly, negligently, malignantly, recklessly and resone to belive.

HISTORICAL BACKGROUND OF IPC

The code was drafted on the recommendations of First Law Commission of India established in
1834 under the charter act of 1833 under the chairmanship of Lord Thomas Babington Macaulay.
It came into force in British India during the early British Raj period in 1862.
Lord Macaulay was the then law minister as well.

Sarvshri Macleod,

Anderson and

Mlllet

were the other members of the commission.

CODIFICATION OF THE PENAL LAW IN INDIA

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- It prepared a draft Penal Code for India which was given for consideration to Governor General
Of India In Council On 14th October 1837.

- But subsequent revisions and amendments took two more decades.It was revised by Sir Barnes
Peacock, Sir JW Colville and Several Others.

- The drafting was completed In 1850 and it was presented to the Legislative Council In 1856.

- It was delayed being placed on the statute book of British India due to the Indian Revolt of 1857.

- The Bill was passed on October 6th, 1860. It received the assent of the Governor General on the
same date and thus became The Indian Penal Code, 1860. The Code came into operation On 1st
January 1862.

NATURE: The draft was based on the simple codification of the law of England, while at the same
time borrowing elements from the Napoleanic code and louisiana civil code of 1825.

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SITUATION BEFORE THE 1860 LAW

There was no criminal law in uncivilized society. Every man was liable to be attacked in his person
or property at any time by anyone. “A tooth for a tooth, an eye for an eye, a life for a life” was the
forerunner of criminal justice. As time advanced, the injured person agreed to accept
compensation, instead of killing his adversary.

The concept of crime and its distinction from a civil wrong emerged much later after the
institution of Kingship and subsequently the State came into existence.

•Ancient Hindu criminal law

•Mohammedan criminal law and

•English Criminal Law

Ancient Hindu criminal law

Of the leading codes of Ancient India, the Code of Manu is the complete digest dealing with law,
religion, custom, and usages then prevalent; assault, battery, defamation, theft, robbery, gambling
and cheating, trespass were the main offences of that time and the punishment prescribed for
them was based on scientific principles and the highest prescribed punishment was the death
sentence.

In the ancient Hindu law, it was the duty of the king to punish the offender. The Hindu law-givers
did not expressly distinguish between civil wrong and crime, still, the difference in penalties and
procedure which they have prescribed indicates that they clearly realized in what way the criminal
aspect of a differed from its civil respect.

-After the conquest of the country by muslims Mohammedan criminal law was introduced in our
country, and the indian courts applied mohammedan criminal law in the administration of justice.

-The muslims imposed criminal law, sharias, as they called it on the hindus whom they had
conquered.

-This was based on the quran and they believed it to be of divine origin.
-Since the laws of quran were inadequate to meet the entire requirement, so certain rules of
conduct called sunna were introduced.

-Crimes were divided into two classes namely: i) crimes against God (adultery and drunkenness)
and ii) crimes against man (murder and robbery).

-The offences against God were considered public wrong and could, therefore, be punished by the
community or society.

-The offences against the man were private wrongs and therefore could be punished by
individuals.

Mohammedan Criminal Law

All offences for punishment were classified under four broad principles:

1. Quisas(retaliation)- They applied especially to offences against a person, willful killing and grave
injury and the injured party had the right to inflict the like injury on the offender.

2. Diyut(blood money)- In certain cases where no retaliation was allowed the injured party had
the right to demand only blood money known as diyut (money paid in compensation to the family
of someone who has been killed)

3. Hadd(fixed penalties)- In the case of hadd the law prescribed and fixed the penalties for certain
offences for example- zina(illicit intercourse), drinking of a wine, theft, highway robbery and
accusing a married woman. In case of theft, hands were cut off and for dacoity and robbery,
maximum punishment was death.

4. Tazir(discretionary punishment)- When no punishment was prescribed, it was at the discretion

of the judge to give any sort of punishment.

This type of Mohammedan criminal law suffered from many defects as many of its provisions were
not in conformity with good government, natural justice and common sense.
-When the East India Company took over the Dominion of Indian, Mohammedan criminal law was
in force.

-In 1765 the company acquired the Nizamat of Bengal, Orrisa, and Bihar.

-The company had to then administer justice for which in the beginning they adopted the policy of
status quo.

-Gradually defects of Mohammedan law were realised, therefore, the first step towards removing
those defects was taken by Warren Hastings who tried to do away with the mutilation for dacoity.

English criminal law and development of IPC, 1860

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=An effort was made to rationalize the punishment by making it proportionate with the crime.

-A regulation of the year 1832 provided that in case of a trial for an offence under the regulations
of non-Muslim could claim exemption from trial under the Mohammedan Criminal law.

-But the changes so introduced were not applicable to all the presidencies. Most of them applied
in B . most of them applied in Bengal alone.

-The result was that different rules prevailed in different presidencies which in turn resulted in
conflicts. Therefore a commission was appointed to examine the conflicting features and
necessary modifications.
=Later on, it was realised that a penal code was necessary.

-A penal code, under the guidance of Governor Elphinstone, was enacted which was known as
Elphinstone code.

-It consisted of 41 sections only. In 1844 a separate code was drawn for the province of punjab
after its annexation.

-An all India legislature was created by the charter act of 1833.

-The office of law member in the council of governor general was created, provision was also
made for the appointment of a law commission.

OUR PRINCIPLE IS SIMPLY THIS- UNIFORMITY WHEN YOU CAN HAVE IT; DIVERSITY WHEN YOU
MUST HAVE IT; BUT, IN ALL CASES CERTAINTY.”

SLIDE 1

POSTULATES OF CRIME

(IPC, UNIT I)

CONTENTS

1.CONCEPT OF CRIME

2.ELEMENTS OF CRIME

3.PRINCIPLES OF LEGALITY[MAXIMS]
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CONCEPT OF CRIME

SLIDE 3

MEANING:

A Crime is an unlawful Act punished by the state or any lawful authority. A crime or an offence is
an act which is harmful not only to the person but also to the community, society or state. Such
acts are forbidden and punished by law.

Unlike torts, crime is not just a wrong against an individual but is also a wrong committed against
the society or a public wrong and includes acts like murder, rape and theft to mention a few. It is
not a case of differences between two parties but is a case between the wrongdoer and the state.

Crime can also be understood as a reflection of the law of a particular nation-state; an act can only
be defined as criminal in accordance to the laws of the state in which it was committed. This
creates a difficulty in defining crime as what may be considered a criminal action in one state or
country may not be viewed the same way in another.

STAGES OF CRIME:

1) The intention is the first stage of a crime.

2) Preparation is the second stage of crime.

3) The third stage is an attempt. It is direct movement of an Act towards execution of an Act after
preparation of the plan.

4) The fourth stage is the accomplishment

THEORIES OF CRIME

Theories are perceptual tools that people use to order, name, and shape a picture of the world. As
such, they play an essential role in the way we interpret facts. Several competing theories
attempting to explain the same evidence can arrive at separate conclusions. That’s because every
theory relies on some set of assumptions, and in the case of sociological theories of crime, those
are often assumptions about the nature of individual people, the group, and the relationship
between the two. In other words, differing assumptions about human nature and its relation to
social order.

There are many theories about what causes people to begin to commit, continue to commit, and
desist from committing crimes (Kubrin, Stucky, & Krohn, 2009).
-Some of these theories assert that crime is due to a collection of personality traits that incline a
person to commit crimes (Wilson & Herrnstein, 1985);

-Some scholars argue that crime occurs when people are led by their culture to want something,
such as monetary success, but are denied access to the means to achieve these things (Agnew,
1992); and

-Still others claim that crime occurs when people get socialized into cultures, subcultures, or
groups that either actively promote or at least openly tolerate criminal behavior

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SLIDE 4

Basic theories of crime

The study and practice of criminology delves into crime causation and factors that contribute to
offender criminality. This means considering four basic theories:

Rational Choice

Sociological Positivism

Biological Positivism and

Psychological Positivism.

The theories rely on logic to explain why a person commits a crime and whether the criminal act is
the result of a rational decision, internal predisposition or external aspects. The law and judicial
system is structured around use of these theories.

1. Rational Choice Theory (RCT): Rational Cause or "choice theory" developed by 18th century
Italian philosopher and politician, Cesare Becarria, is considered the classical school of thought
and depicts criminals as deviants. Classical Theoriy- which argue that people generally choose
their behaviors in rational processes of logical decision making, and with critical theories, which
critique lawmaking, social stratification, and the unequal distribution of power and wealth.

The position of RCT is that criminal behavior is no different from noncriminal behavior in that it is
conduct that persons intentionally choose to undertake (i.e., they are not compelled or forced to
do crime), and the reason that they choose to commit crime is that they think it will be more
rewarding and less costly for them than noncriminal behavior. The offender then plans the crime
by consciously picking the type of crime, location of the crime and target of the crime, and
executes the crime with awareness that it is wrong and control to choose otherwise.
Positivist Theories- Positivist theories are further classified on the basis of the types of external
influences they identify as potentially determinative of individual behavior.

SLIDE 5

Offenders do not have different personalities than non-offenders; neither were they socialized
into a criminal belief or cultural system whose norms require crime (Cornish & Clarke, 1986;
Kubrin et al., 2009).

Rational choice theory is much more broad and general than deterrence theory because it includes
many other factors besides the risk of formal and informal sanctions. The theories are alike,
however, in the assumption that human beings are rational and self-interested beings who are
affected by the consequences of their actions.

2. Sociological Positivism: Sociological Positivism, popularized by statisticians Lambert Adolphe

Jacques Quetelet and André-Michel Guerry in the 1800s, examines relationships between societal
influences and crime. Sociological theory is driven by a study of social structures within an
offender's environment such as family, peer groups, socioeconomic status, education level and
subculture that led to his criminality. The theory focuses on how an offender conforms to his
surroundings, becoming a product of his environment and social learning. This concept proposes
that criminality is inevitable under circumstances such as ongoing exposure to social
disorganization in a criminal culture, stigmatization, strain including poverty, a break-down in
family or moral values and family or community-justified crime.

3. Biological Positivism: Biological Positivism, theorized by Italian criminologist Cesare Lombroso in

the late 1800s, is based in anthropology, and studies the evolution and physiological differences
between criminals and non-criminals, theorizing that some people are born-criminals. The belief is
that criminals are predisposed to commit crime as a result of biological inferiority versus personal
choice. This theory takes an objective and scientific approach to understanding crime by
researching an array of physiological factors that may contribute to criminality such as vitamin
deficiencies, hormonal imbalances, diet and brain function.

SLIDE 6

Biological theories of crime attempt to explain behaviors contrary to societal expectations through
examination of individual characteristics. These theories are categorized within a paradigm called
positivism (also known as determinism), which asserts that behaviors, including law-violating
behaviors, are determined by factors largely beyond individual control.

Biological theories can be classified into three types:

(1)those that attempt to differentiate among individuals on the basis of certain innate (i.e., those
with which you are born) outward physical traits or characteristics;

(2)those that attempt to trace the source of differences to genetic or hereditary characteristics;
and

(3) those that attempt to distinguish among individuals on the basis of structural, functional, or
chemical differences in the brain or body.

4. Psychological Positivism: Psychological Positivism, theorized by French criminologist Alexander

Lacassagne in the 1800s, proposes that the causation of criminality is rooted in offender mental
illness or personality disorders. Examples include schizophrenia, bi-polar disorder, psychopathic
personality, antisocial personality disorder, depression and neuroticism. Disorders may be the
result of sociological or biological factors such as physical or sexual abuse, parental criminology
and intelligence level. Psychological Positivism analyzes criminality as the result of an internal and
unavoidable cause versus that of a controlled decision.

When examining psychological theories of crime, one must be cognizant of the three major
theories.

•The first is psychodynamic theory, which is centered on the notion that an individual’s early
childhood experience influences his or her likelihood for committing future crimes.

•The second is behavioral theory. Behavioral theorists have expanded the work of Gabriel Tarde
through behavior modeling and social learning. The third is cognitive theory, the major premise of
which suggests that an individual’s perception and how it is manifested (Jacoby, 2004) affect his or
her potential to commit crime.

SLIDE 7

ELEMENTS OF CRIME

The most important thing common in all these laws is that they contain certain basic Elements.
The following are four basic elements of crime:

1. Human Being (Accused person)

2.Mens rea

3.Actus reus

4.Injury

1.Human Being (Accused person)

No crime can ever occur out of thin air because that would simply be an accident. In order to
constitute a crime, it is important for somebody to commit it. The law should always be able to
pinpoint the person who is responsible for committing an offence. in ancient times when criminal
law was closely dominated by the idea of ritter bit theory punishment was also inflicted on
animals for the injury caused by them. For Example, if a dog bites anyone he is punished a horse
was killed for kicking a man but in Indian Penal Code if animal cause injury we do not make animal
liable but the owner is held liable for such injury so the first element of crime is human beings who
must be given appropriate punishment and should be under legal obligation to held criminally
liable.

The term accused “person” does not suggest that only a human being can commit offences.
According to Section 11 of IPC, the term “person” also includes a company and an association or
body of persons. The word person includes artificial or juridical persons. Therefore, even a trust,
an NGO and a company can commit offences.

Furthermore, certain offences can implicate more than one person for the same crime. In such
cases, all persons will face trial and may have to face punishment together.

2. Mens rea or guilty intention

The second element is derived from the famous maxim actus non-facit reum nisi mens sit rea. This
maxim is divided into two parts. The first part-

a) mens rea (guilty mind);

b) actus reus ( guilty act ).

It means the guilty intention and guilty act together constitute a crime. It comes from a maxim
that no person can be punished in a proceeding of criminal nature unless it can be shown he has a
guilty mind. The second element is mens rea which can be explained in various forms a guilty
mind; a guilty or wrongful purpose; a criminal intent, guilty knowledge and willfulness all
constitute the same thing that mens rea.

Motive and intention are both aspects in the field of law and justice both are very important. They
are also associated with the purpose of proving or disproving a particular case or crime wrong
motive with guilty intention is necessary to prove criminal liability.

Crimes in the absence of mens rea

Athough mens rea is an essential element of crime, some offences can occur without it. For
example, section 304-A of IPC makes death by negligence a criminal offence. In such cases, a
“negligent act” would not include the intention to cause death.

SLIDE 6
3.Actus reus

Merely possessing a guilty mind and thinking of committing a crime is not enough. The accused
person must also act on that intention and do something in its furtherance. It is the Latin term
used to describe a criminal activity. It is commonly defined as a criminal activity that was the
result of voluntarily bodily movement. This describes a physical activity that harms another person
or damages property. In other words, due to guilty or wrongful intention, some overt Act or illegal
omission must take place. There are two types of Actus reus first is commission and the second
one is an omission.

Thus, Actus reus basically refers to an act or omission which leads to the completion of an offence.
Both mens rea, as well as actus reus, together are important to create an offence.

Actus reus can be a positive act, such as stabbing a person to cause his death. It can also be an
omission (failure) to perform an action. For example, driving a vehicle without a driving license is
an omission. An omission could be falling to warn others that you have created a dangerous
situation, for eg. not feeling an infant who has been left in your care or not completing a work-
related task which resulted in an accident.

Section 33: “Act”, “Omission”.—The word “act” denotes as well a series of acts as a single act: the
word “omission” denotes as well a series of omissions as a single omission.

4. Injury

The last of the basic elements of crime is an injury. There can be no crime if no person faces some
kind of an injury. According to Section 44 of IPC, “injury” means any harm caused to a person
illegally either in mind, body, reputation or property.

However, there can be some crimes which might not require injuries to anybody. For example,
driving without a driving license is a crime even if it may not harm anybody.

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SLIDE 7

PRINCIPLES OF LEGALITY

[MAXIMS]

●The Principle of legality of crimes and punishments (nullum crimen, nulla poena sine lege) refers
to the fact that “an act is not considered a crime and deserves no punishment, unless the
Legislator determines and announces the criminal title and its penalty before”.
The legality principle protects individual security by ensuring basic individual libertties against the
arbitrary and unwarranted intrusion of the state.

●Thus, the criminal judge can't call the individuals' acts crime and assign punishments for them or
exert punishments that are not prescribed by the Legislator without any letter of law. If an act is
morally rebutted or socially is against the public order, it is not regarded as crime and the
Legislator is the only authority who can recognize some acts as crime and punish the actor.

●Thus, no act whether immoral or against public interest or public order is not considered a crime,
if it is not specified by law before.

●As a result, the criminal judge cannot construe the individuals' acts as crime and assign
punishment, even if he proves that it is worthy and useful in respect of the social interests;
because the Legislator is the only authority who is able to assign the criminal titles and predict the
appropriate punishments as he is the representative of the community and is elected by the
individuals of the society.

If the legislator is negligent or inattentive, we cannot let the criminal judge consider as a crime
whatever he recognizes to be against the public interest or order, and he should not assign a
punishment to it. Moreover, if he does so, he can't interfere with it within the scope of the
minimum or maximum of punishment; so he is bound to exert the punishment according to the
legal texts.

The second outcome is the necessity of the restrictive interpretation of the criminal law on the
basis that the criminal judge should refer to the content of legal texts to assign the punsihments
and to identify the accusative titles, without reserting to analogy or adverse notion. The
mentioned statements are coherent and connected phenomena in the logic of law. Therefore, the
legality principle and its consequences are inseparable. One cannot accept a part of it and reject
the rest. Even the legislator, who provides the criminal law cannot deviate from this principle and
its consequences, unless in exceptional cases. He cannot either apply his new laws and rules to the
acts of individuals in the past. This is confirmed in the islamic law, and is based on the individuals'
innate rights; in addition, the articles of the constitution also approve it and make the ordinary
legislator and the judges observe it.

INDIAN PENAL CODE, 1860

General overview

CONTENTS

1.NATURE

2.SCOPE
3.IMPORTANCE

4.STRUCTURE OF THE ACT

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NATURE

The Indian Penal Code, 1860 (“IPC”) is a substantive penal/criminal law. This nature of IPC can be
understood in the following two aspects:

1.How it is different from a procedural law?, and

2.How it is different from civil law?

Substantive Law: A substantive law means a law that constitutes a set of provisions that govern
how members of a society are to behave. It defines the rights and remedies. It is brought into use
in order to apply the facts of each case to ascertain the rights, offense, remedies and penalties and
punishments. It helps to define the relationship between different individuals or between
individuals and the state.

How it is different from a procedural law?

Procedural Law, also known as an adjective law, refers to a law that prescribes the procedures and
methods for enforcing rights and duties and for obtaining redress (as in a suit) and that is
distinguished from law that creates, defines, or regulates rights. It includes set of rules of practice,
procedures and machinery for the purpose of administering and enforcing substantive law. It acts
as a connecting path between the recognition of an offence under the substantive law and the
stage of deciding what punishment under the substantive law is to be awarded.

SUBSTANTIVE LAW

(INDIAN PENAL CODE)

Essentials of an offence

Respective Punishments/Penalties
Procedural Law, the connecting link, that brings the substantive law into action

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How it is different from Civil Law: Criminal Law deals with offences that are committed against the
society. It mets out varying degrees of punishment commensurate with the crime committed.
Criminal Law will deal with serious crimes such as murder, rapes, arson, robbery, assault etc. The
purpose of Criminal Law is to punish the wrongdoers and protect society, maintain law and order
and not for merely awarding compensation or damages. A separate procedure is followed under
the Criminal procedure Code, 1973 from the lodging of the case to deciding over the guilt of the
accused. Unlike civil law which is a general law which solves disputes between 2 organizations or
individuals. As per Civil Law the wrongdoer will have to compensate the affected organization or
individual. Civil Law deals with Property, Money, Housing, Divorce, custody of a child in the event
of divorce etc.

It is to be noted that substantive law constitutes both civil and criminal laws and with respect to
IPC, it can be rightly be said that it is a SUBSTANTIVE CRIMINAL LAW.

Substantive Law

Penal Law

Substantive Penal Law

Different from Procedural Law

Different from Civil Law

SCOPE

The Indian Penal Code is the official criminal code of India, which was drafted way back in 1860.
It’s objective is to provide a general penal code for the country. Its jurisdiction extends to the
whole of India .

The objective of the Indian Penal Code is to lay what is right and what is wrong and to lay down
the punishment for committing such wrong. In criminal law, the “intention” of committing the
crime plays a huge role in deciding the liability of the offense.

The Indian Penal Code starts with an introduction and provides explanations and exceptions used
in it, and then lays down a wide range of offenses.

Though this Code consolidates the whole of the law on the subject and is exhaustive on the
matters in respect of which it declares the law, many more penal statutes governing various
offences have been created in addition to this code. The is other special legislation such as the
Information Technology Act, the Prevention of Corruption Act, Indecent Representation of Women
Act, the Narcotics and Psychotropic Substances Act, etc. also enable classification and punishment
of criminal acts.

The Indian security system has been one that has gone through a lot of tests and examinations
throughout the time. This is due to the political as well as the social situation of the country. India
is a land of diverse cultures and traditions and it is a place where people from various religions as
well as ethnic backgrounds live together.

IMPORTANCE

Indian Penal Code is a very important set of regulation which is very important for the system to
be operated in a proper way.

It has brought in the following advantages:

-Uniformity

-Unbiasedness

-Impartiality

-No Confusion/Inconsistencies

-Maintain law and order

-Reflection of different social and moral values

-Comprehensive

-Equality

-Unity

Thus, Its the main criminal code of India. It includes all the relevant criminal offences dealing with
offences against the state, offenses for public, offences for armed forces, kidnapping, murder, and
rape. It deals with offense related to religion, offences against property and it has an important
section for offences for marriage, cruelty from husband or relatives, defamation and so on so
forth. It is not only important for India but every country should have an Penal Code in order for
its system to be operated in a systematic way.This document majorly covers all the basic offences
which are highlighted in the society.

STRUCTURE
It has 511 sections across 23 chapters, providing the list of crimes along with their definitions and
punishments. The IPC has been amended several times and is now supplemented by other Acts.
Broad classification of crimes under the Indian Penal Code (IPC) –

•Crime against the body – Murder, Culpable homicide not amounting to murder, kidnapping, etc.

•Crimes against property – Theft, dacoity, burglary, etc.

•Crimes against public order – Riots and Arson

•Economic crimes – Cheating and Counterfeiting

•Crimes against women – Rape, dowry death, cruelty by husband and relatives, molestation,
sexual harassment and importation of girls

•Crimes against children – Child rape, kidnapping, and abduction of children, selling and buying of
girls for prostitution, abetment to suicide, infanticide, foeticide.

•And other crimes.

As pointed out, the Indian Penal Code (IPC) covers the substantial part of criminal law in India. It
defines various common criminal offenses. For example, it lays down the definition of murder,
theft, assault and several other offenses and also stipulates appropriate punishments for each one
of them.

JURISDICTION AND APPLICABILITY OF INDIAN PENAL CODE, 1860

Sections 1- 5

CONTENTS

1.Short Title and Commencement (Section 1)

2.Jurisdiction divided into:

c) Intra-Territorial Jurisdiction (Section 2)

d) Extra-Territorial Jurisdiction (Section 4 read with Section 3)

e)Exception [Certain laws not to be affected by this Act.] (Section 5)

6.Code of Criminal Procedure, 1973

7.Information Technology Act, 2000

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Section 1: Title and extent of operation of the Code.—This Act shall be called the Indian Penal
Code, and shall [extend to the whole of India ] [except the State of Jammu and Kashmir]
Amended by the Jammu and Kashmir Reorganisation Act, 2019 (Section 95)

Section 95. (1) All Central laws in Table -1 of the Fifth Schedule to this Act, on and from the
appointed day, shall apply in the manner as provided therein, to the Union territory of Jammu and
Kashmir and Union territory of Ladakh.

Entry 48: In section 1, words, "except the State of Jammu and Kashmir" shall be omitted.

Jurisdiction

Jurisdiction can be defined as the limit within which the Court of law can exercise its powers
concerning suits, appeals, actions, proceedings, etc.

1.Subject-matter Jurisdiction – This type places a limit on Courts to exercise their powers over a
particular type of case or a particular subject matter.

2.Territorial Jurisdiction – This type places a limit on Courts to exercise their powers within a
territorial limit.

3.Pecuniary Jurisdiction – This type deals with limitation of Courts regarding the monetary value
or cost of suits or cases.

4.Original Jurisdiction – This type allows Courts to hear new cases that have been initiated.

5.Appellate Jurisdiction – This type allows Courts to re-hear or review judgments given by lower
courts.

Territorial jurisdiction granted under the Indian Penal Code, 1860.

Section 2: Punishment of offences committed within India.—Every person shall be liable to

punishment under this Code and not otherwise for every act or omission contrary to the
provisions thereof, of which he shall be guilty within 5 [India]

Every Person: The IPC is primarily meant to punish offences committed by natural persons. Section
2 of the Code makes it clear that ‘every person' shall be amendable to the jurisdiction of the code
irrespective of caste, creed, nationality, religion, rank, or sex, for offences committed within
Indian territory.

Within India:

The term ‘territory of India’ includes two types of territories:

1.Geographical territory – Article 1 of the Indian Constitution states that the territory of India
includes the territories of the States, the union territories specified in the First Schedule and such
other territories as may be acquired.
2.Maritime Territory – An area of 12 nautical miles calculated from the appropriate baseline is
known as territorial waters and marks the maritime territory of India. Territorial waters are
regarded as the Sovereign territory of the State. For example, if an offence is committed within 12
nautical miles in the sea from the coast of Mumbai, then the appropriate Court of Mumbai would
have jurisdiction over this matter.

Thus, for the application of Section 2, the priority is to be given to the territorial limits of India .
Within India, if any individual (not necessarily an India Citizen) committed an offence under IPC.,
will be held liable .

Intra-Territorial

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ESSENCE: The essence, these are the following essentials of Section 2 of the IPC:

•An offence must be committed by any person. This means that it is not necessary for the person
to be a citizen of India. As long as a person is within the territories of the Indian subcontinent, they
shall be liable under this Code.

•The person will be liable only under this Code and not otherwise. This means that intra-territorial
jurisdiction under this Code only applies to offences committed under the IPC and does not hold
persons liable for offences committed under other Indian laws.

•The person should have committed some act or omission as per the provisions of this Code. This
is in connection with the previous essential that only for acts or omissions committed under the
IPC, the person shall be liable.

•The person will be guilty of the offences committed within India. They will only be held
accountable in India for their actions or omissions that were committed in India as per the IPC.

The two main aspects of this Section are:

•Every wrongdoer is liable for punishment under this Code, irrespective of caste, creed, nationality
or rank, as long as the offence is committed within the territory of India.
•A foreigner is also liable for punishment under this Code if he commits any act or omission within
the territory of India, irrespective of whether the act or omission is an offence in their native
country.

Maritime Territory

CASE LAWS

In the landmark case of R v. Esop [(1836) 173 E.R. 203]

The accused was charged for the unnatural offence that he committed in India and he defended
himself with the fact that he was not a native of India but of Baghdad, where the action did not
amount to an offence. However, the Court rejected this defence and convicted him for an
unnatural offence.

In another case of State of Maharashtra v. M.H. George [AIR 1965 SC 722]

A German national was travelling to Manila with 34kg of gold, which he failed to declare in the
manifest for transit. The plane arrived in Bombay and the Indian Customs on search recovered the
gold and prosecuted him under the Foreign Exchange Regulation Act. The Supreme Court of India
held that, even though the man remained on the plane, he cannot be exempted from conviction
on the plea of ignorance of the law and convicted him under the said Act.

In the case of Emperor v. Kastya Rama [(1871) 8 Bom H.C.R. 63], the accused sailed into the sea
within 3 miles off the coast and removed the number of fishing stakes that belonged to the
plaintiff. The Bombay High Court held that the local Criminal Court had jurisdiction over this issue
and convicted the accused of mischief.

In the case of Mobarak Ali v. The State of Bombay [AIR 1957 SC 857], a Pakistani national made
false representations from Karachi to a man in Bombay on the pretext that he had a stock of rice
and on receipt of money, he would ship the rice. However, no shipment was made after the
complainant paid the amount. On arrest, the accused claimed that he was in Pakistan at the time
of the offence and therefore, he cannot be held liable for his actions. The Court held that though
the offence was committed in Bombay and that he was not present in Bombay at the time of the
commission of the offence, he would still be held liable.[Section 2] [Corporeal presence not
mandatory]

PERSONS EXEMPTED FROM INDIAN PENAL CODE, 1860

The Indian Penal Code exempts certain officers and persons of rank from liability under the Code.
1.Presidents and Governors – The Presidents of countries and Governors of states are exempted
from the jurisdiction of Criminal Courts as per Article 361 of the Constitution of India[ix].

2.Foreign Sovereigns – Foreign Sovereigns are exempted from this Code, as they are said to
absolute independent authorities and an exercise of criminal jurisdiction on them would be
incompatible with their dignity.

3.Ambassadors and Diplomats – An Ambassador of a country is the representative of a Foreign

Sovereign and enjoys the same immunity as that of the Sovereign. Ambassadors and Diplomats
are provided immunity under the United Nations (Privileges and Immunities) Act, 1947 and the
Diplomatic Relations (Vienna Convention) Act, 1972.

4.Alien Enemies – For any act committed in respect of war, Alien Enemies would not be liable
under the IPC and for them, Martial Law would be applicable. However, Alien Enemies would be
liable for offences committed under the IPC that are not in relation to war, such as theft or
robbery.

5.Foreign Army – Foreign Army personnel who have entered the territory of India with the
permission of the Government of India would be exempted from the jurisdiction of criminal
courts.

6.Warships – Warships of a State enjoy immunity from criminal liability on the territory of another
country on the ground that it is the property of a Sovereign, and not subject to the legal process of
another country.

Section 3 of the Indian Penal Code states that “Any person liable, by any Indian law, to be tried for
an offence committed beyond India shall be dealt with according to the provisions of this Code for
any act committed beyond India in the same manner as if such act had been committed within
India.”

The following are the essentials of this Section:

•A person must be liable under Indian law. Therefore, a citizen of India or any foreigner who is
bound under Indian law is bound by Section 3 of the IPC.

•The offence must be committed beyond the territory of India, either geographical or marine.

•It provides for a deeming fiction which allows the authorities to try the accused in the above
cases for punishment under IPC. Such persons shall be bound by Indian law for any offence
committed outside India, as though the offence was committed within India.

Section 4 lays down the persons who shall be liable under extra-territorial jurisdiction of Criminal
Courts. Such persons include:
1.Any citizen of India, who may be within or outside the territory of India.

2.Any person, citizen or foreigner, on a ship or aircraft within or outside the territory of India that
is registered in India.

3.Any person, citizen or foreigner, who may be within or outside the territory of India, who targets
a computer resource in India.

EXTRA TERRITORIAL

CASE LAWS

In the case of Remia v. Sub-Inspector of Police [1993 CrLJ 1098] the accused, an Indian citizen,
murdered another Indian citizen in Sharjah, UAE. After the Police refused to file an FIR as they
believed to not have jurisdiction over the case, the Court directed the Police to file an FIR.

In the landmark case of the Republic of Italy through Ambassador v. Union of India [(2013) 4 SCC
721], two Indian fishermen were killed off the coast of Kerala aboard the St. Antony, after they
were fired upon by Italian marines on board the Italian ship, Enrica Lexie. The incident occurred at
20.5 Nautical Miles off the Indian Coast, within the contiguous zone area of India’s Exclusive
Economic Zone. Indian Coast Guard got hold of Enrica Lexie near the Lakshadweep Islands and
compelled it to proceed to Kochi. Subsequently, two Italian Marines were arrested and charged
for the offence of murder.

Italy challenged the arrest before the Court alleging that India has no jurisdiction to try the case at
the very first instance, as the incident did not happen on the territorial waters of India but on
international waters. Italy cited Article 97 of the United Nations Convention on the Law of the Sea
(UNCLOS), which stated that “In the event of a collision or any other incident of navigation
concerning a ship on the high seas, only the flag state of that ship can launch penal proceedings”.

The court quashed the writ and held that Section 2 of the IPC conferred the Kerala Police
jurisdiction over such cases. However, India based its jurisdictional claims on domestic legislation,
which confers jurisdiction upon Indian Courts to try any person, citizen, or foreigner, in respect of
an offence committed on board a ship registered in India. The Court held that as per the notice by
the Indian Government issued in pursuant of the Convention on the Law of the Sea, India has
jurisdiction, and thus, the case can be triable in India. Later, the Supreme Court held that subject
to the provisions of Article 100 of The United Nations Convention on the Law of the Sea, 1982 the
Union of India was entitled to prosecute the accused. Article 100 of The United Nations
Convention on the Law of the Sea 1982 that such cases are outside the jurisdiction of provides that
such cases are outside the jurisdiction of the State Governments and can be conducted only at the
Federal/Central Government level. Therefore the court directed the Central Government to set up
a Special Court to try such cases and the State of Kerala had no jurisdiction in the matter.

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Section 5: Certain laws not to be affected by this Act.— Nothing in this Act shall affect the
provisions of any Act for punishing mutiny and desertion of officers, soldiers, sailors or airmen in
the service of the Government of India or the provisions of any special or local law.]

1. In case of Mutiny or Desertion

This section excludes the jurisdiction of the Indian Penal Code in cases of mutiny and desertion of
officers, soldiers, sailors or airmen in the service of the Government of India which are punishable
under any Act or the provisions of any special or local law. Mutiny and desertion needed to be
tackled separately. Many other countries also do likewise. Accordingly, this section specifically
mentions that the Code shall not affect the provisions of any Act punishing mutiny and desertion
in the Army, Navy or Air Force. The main Acts in this connection are the Army Act, 1950, Navy Act,
1957, Air Force Act, 1950 and Air Force and Army Laws (Amendment) Act, 1975. If there are
situations where the person has been discharged or dismissed from his duty from the services and
he is no longer involved in the service of serving the nation, in that case, the provisions of IPC will
be accordingly applicable to such person.

2. In case of Special Law or Local Law

Special or Local laws have not been repealed, modified, suspended or affected by the enactment
of the IPC.

Section 41. “Special law”.—A “special law” is a law applicable to a particular subject.

Section 42. “Local law”.—A “local law” is a law applicable only to a particular part of India

Eg. MCOCA, 1999 in Maharashtra

EXCEPTION (Saving Clause)

Section 188 of the CrPC states that “When an offence is committed outside India

(a) by a citizen of India, whether on the high seas or elsewhere, or

(b) by a person, not being such citizen, on any ship or aircraft registered in India,
he may be dealt with in respect of such offence as if it had been committed at any place within
India at which he may found :

Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such
offence shall be inquired into or tried in India except with the previous sanction of the Central
Government.”

This Section is in connection with Section 4 of the IPC with respect to extra-territorial jurisdiction.
However, there is one addition that needs to be pointed out in Section 188.

It states that prior permission or sanction of the Central Government is needed in order to inquire
or try a person for an offence committed by them outside the territory of India.

In the case of Samaruddin v. Assistant Director of Enforcement [1999 (2) KLT 794; 2009 (1) KLT
943], the Court held that Indian courts do not have authority to try any offence committed outside
the territory of India without the prior of the Central Government.

CODE OF CRIMINAL PROCEDURE, 1973

Section 75 of the IT Act states that “Act to apply for an offence or contravention committed
outside India – (1) Subject to the provisions of sub-section (2), the provisions of this Act shall apply
also to any offence or contravention committed outside India by any person irrespective of his
nationality.

(2) For the purposes of subsection (1), this Act shall apply to an offence or contravention
committed outside India by any person if the act or conduct constituting the offence or
contravention involves a computer, computer system or computer network located in India.”

This section mentions that the IT Act will apply to any persons who commit any offence or
contravention outside the territory of India. It explicitly mentions that it will apply to any person,
irrespective of their nationality.

Sub-section (2) states that this Act will apply to offences or contraventions that involve a
computer, computer system or computer network located in India.

This Section must be read along with Section 4(3) of the IPC.