INDIAN PENAL CODE, 1860

THEFT

Theft is defined under Section 378 which defines theft as whoever intending to take
dishonestly any movable property out of the possession of any person without that person’s
consent, moves that property is said to have committed theft.

Intention plays a big role and is a crucial element in theft. Such an intention should also have
an element of Dishonesty. For which S.378 also through the illustration ‘p’ has made it clear
that thing taken under claim of right provided that claim is fair, good, and bona fide, the
thing so taken cannot be dishonest.

INGRIDIENTS OF THEFT ARE;

- Dishonest Intention
- Property must be movable in nature
- Should be taken away from the possession of one person.

DISHONEST INTENTION

Dishonesty is defined under S. 24 of this code which defines it as an act intended to cause
wrongful gain to one and wrongful loss to other.

PROPERTY MUST BE MOVABLE IN NATURE

Property should be movable in nature. Movable property is defined under S. 22 of the Code.
Movable property is any property which can be moved from one place to another. As per the
established precedents, Movable property also includes the following;

- Animals, that also includes the pets which are kept by the owners.
- Fish, though it is a nature of animal which is supposed to move freely thus no one
has any absolute ownership over it but when such fishes are kept by a owner in any
particular tank or place which belong to the owner. Such Fishes also become part of
Movable property.
- Human Corpse though is not a living person therefore it is not covered under this
section but it may come under S. 403 of this Code that is criminal misappropriation.
- Electricity is also under this purview and stealing of that is also considered as theft.

PROPERTY SHOULD BE TAKEN AWAY FROM THE POSSESSION OF ONE PERSON

Regarding possession, it is the continuity exercise of claim to the exclusive use of a thing.
Moving or taking away does not always mean an absolute act but also includes an implied
act which can be sufficiently inferred by a prudence man as a precursor to a final moving or
taking. For e.g., Vehicle which is carrying treasure changes the route without any excuse can
said to have fulfilled the element of taking or moving.
In the case of Pyare Lal Bhargava v. State of Rajasthan, a government employee took a file
from the office and gave it to Mr. A and brought it back two days later. It was held that he
took the property away with a dishonest or malicious intention and that is enough to term it
as a theft.

S. 379, PUNISHMENT OF THEFT

Section 379 states the punishment for theft which is Imprisonment for either description
which may extend to 3 years or fine or both.

S.380 OR AGGRAVATED FORM OF THEFT

S. 380 envisages the aggravated form of theft that is the theft in building, tent or vessel used
for dwelling or residence. And the punishment for this form is also greater that is
Imprisonment up to 7 years along with fine.

EXTORTION

S. 383 of the Code defines extortion as whoever intentionally puts any person in fear of
injury to that person or any other person thereby dishonestly induces the person to deliver
to any person any property, or valuable security or anything signed or sealed which may be
converted to valuable security.

INGRIDIENTS OF EXTORTION

- Putting a person in fear. There should be an act which should create fear and that too
reasonable fear in a prudence man.
- The fear created must be a fear of Injury. Injury is defined under S. 44 of this code,
which defines it as injury done to person, body, mind, reputation, and property.
- The fear must have been created intentionally and dishonestly. The dishonesty is
defined under S. 24 of this code, which defines it as an act intended to cause
wrongful gain to one person and wrongful loss to the other.
- As a consequence of such fear the person put in fear must be induced to deliver any
property, valuable security or anything signed or sealed which can be converted to
any valuable security.

In the landmark case of R.S. Nayak v. A.R Antulay, A.R. Antulay, a CM, promised the sugar
cooperatives whose cases were pending before the government for consideration that their
cases would be looked into if they donated money. It was held that fear or threat should be
used for extortion, and since in this case, there was no fear of injury or threat it would not
amount to extortion.
PUNISHMENT FOR EXTORTION

Section 384 of the Indian Penal Code defines the punishment for extortion. It states that any
person who commits extortion shall be punished with imprisonment of up to 3 years or with
fine or with both.

DIFFERENCE BETWEEN THEFT AND EXTORTION

1. Theft is defined under section 378 and extortion is defined under section 383.
2. There is no involvement of any form of consent whereas there is a wrongfully
obtained consent which is not valid.
3. Property involved is movable in nature whereas Property involved is both movable
and immovable in nature.
4. There is no involvement of force whereas there is an involvement of element of
force.
5. There is no element of fear involved whereas there is an element of fear involved.
6. The scope is very narrow and the scope of extortion is narrow.
7. The property is dishonestly removed whereas the property delivered is due to fear
induced.

ROBBERY

Robbery is defined under S. 390 of the code which defines Robbery as that it includes
either theft or extortion.

Causing Death, Hurt or Wrongful Restraint or Fear

Death, hurt, wrongful restraint or fear can be caused when theft is a robbery or when
extortion is robbery. These two are explained below with the help of two situations.

When theft is robbery

Theft is a robbery when in order to commit theft, the offender voluntarily causes or
attempts to cause to any person death, subject him to wrongful restraint, cause hurt or
induce fear of instant death, instant wrongful restraint or cause instant hurt.

Theft can be called as a robbery when the conditions given below are satisfied:

 When the offender voluntarily attempts to cause death;

 wrongful restraint;
 fear of instant death;
 instant wrongful restraint;
 instant hurt.
And the above acts are done:
 while committing the theft,
 While carrying away the property acquired by theft, or
 While attempting to carry away property.
For example, if A holds B down and fraudulently takes B’s money from B’s clothes
without B’s consent. Here A has committed theft and by committing theft he has
voluntarily caused wrongful restraint to B. Therefore, A has committed robbery.

When extortion becomes robbery

Extortion becomes robbery when the person committing the offence of extortion put the
other person in fear and commits extortion by putting that person in fear of death,
instant wrongful restraint or instant hurt to that person or to some other person and by
doing so induces the person so put in fear then and there deliver the thing that has been
extorted.

For example, if A meets B and B’s child is on a road. A takes the child and threatens to
fling it down a height unless B delivers his purse. B delivers his purse. Here A has
extorted the purse from B by causing B to be in fear of instant hurt to the child who is
present. A has therefore robbed B. However, if A obtains the property by saying that your
child is in my hand of my gang and he/she will be put to death unless you send us ten
lakh rupees. This will amount to extortion, and punishable as such, but it would not be
considered as robbery unless B is put in fear of instant death of his child.

PUNISHMENT FOR ROBBERY

Indian Penal Code, 1860 deals with all kinds of punishments related to criminal law.
Under Section 392 of this code, the punishment for robbery is defined. This section says
that any person who commits robbery shall be punished with imprisonment which may
be extended up to ten years and shall also be liable for fine.

Further, this section says that if a person commits a robbery on a highway, then the term
for imprisonment will be of 14 (fourteen) years.

Section 393 of the Indian Penal Code defines the punishment for an attempt to commit
robbery. The punishment for this is imprisonment for up to 7 years and also liable for
fine.

Section 412 of the Indian Penal Code deals with the punishment for being a member of a
gang of robbers. This section deals with the person who retains or receives stolen
property the possession of which he/she knows that it is due to the commission of a
dacoity. It further says that when a person receives from another person whom he or she
knows or has justification to believe that property belongs to a group of dacoits, and
knows or has reason to believe that the property has robbed or stolen.

For all such people, the punishment is imprisonment of life or with a rigours term which
can be extended to 10 years. This section punishes everyone who receives any property
which has been acquired by the commission of dacoity.

DACOITY

According to the dictionary of oxford, dacoity means an act of violent robbery which is
committed by an armed gang. There is only one factor which differentiates dacoity from
robbery and that is the number of offenders. One person can also commit a robbery and
more than 1 person can also commit robbery. But when 5 or more than 5 commit a
robbery, it is termed as dacoity.

Section 391 of the Indian Penal Code defines robbery. It says that when 5 or more than 5
conjointly commit or attempt to commit a robbery, or where the whole number of
persons conjointly committing or attempting to commit a robbery, and persons present
and aiding such commission or attempt, amount to five or more, every person so
committing, attempting, or aiding, is said to commit “dacoity”.

INGRIDIENTS OF DACOITY

In order to commit dacoity, there are 3 essentials which must be there. These essentials
are:

 There should be at least five or more than five persons;

 They should conjointly commit or attempt to commit dacoity;

 They should have dishonest intention.

SENTENCE FOR DACOITY

Punishment for dacoity is defined under Section 395 of the Indian Penal Code, 1860. This
section says that a person who commits dacoity shall be punished with imprisonment for
life, or with rigorous imprisonment for a term which can be extended to ten years, and
shall also be liable to pay the fine. This offence is cognizable, non-bailable, and non-
compoundable in nature.

The State vs Sadhu Singh and Ors in this case, four and one Kurda Singh was involved in
committing a dacoity. They all were armed with deadly weapons such as rifles and
pistols. They committed a robbery at the house of gharsiram. They injured Gharsiram,
Jugal Kishore and Sandal. The dacoits, in this case, tried to take a wristwatch and a shawl
of one person but as they were villagers the dacoits were not able to take anything with
them. When dacoits started running from the villagers, they received a hot chase from
them and in return dacoits shot a fire. As a result, dharma, one of the villagers died but
the villages captured one of the dacoits. In this case, the dacoits were charged under
Section 395 of the Indian Penal Code.

AGGRAVATED FORM OF DACOITY

Aggravated form of dacoity is defined under Section 396 of the Indian Penal Code, 1860.
Under Section 396 aggravated form is defined as dacoity with murder. It says that if
anyone of five or more than five persons, who are conjointly committing dacoity,
commits murder in so committing dacoity, every one of those persons shall be punished
with death, imprisonment for life or rigorous imprisonment up to 10 years and shall also
be liable to fine.

THE INGREDIENTS OF SECTION 396 ARE:

- The offence of dacoity must be committed with the joint act of the accused persons;
- Murder must be committed in course of the commission of the dacoity.
- If anyone of the five or more persons who are committing robbery commit murder
while committing dacoity then, every one of them will be held liable for murder even
if some of them did not participate in committing the murder.

Under Section 396 of the IPC, it is not necessary to prove whether the murder was
committed by a single person or it was committed by all of them. It is also not necessary
to prove the common intention. The prosecution is only required to prove that the
murder was committed while committing the dacoity. If the prosecution successfully
proves that the murder was committed while committing dacoity, then all of the
members will be punished under Section 396 of the IPC.

If the offenders are running and while chasing them if one of the dacoits kill someone
then the other members of the gang cannot be held guilty under Section 396 of the IPC.
In one of the landmark case laws i.e., Laliya v state of Rajasthan it was observed that
whether the murder is a part of dacoity or not, it totally depends on the circumstances
of that time.

The court decided that the attention has to be paid on these points before concluding.
These points are:

- Whether the dacoits retreated or not and the murder was committed while
retreating or not?
- What is the time interval between the attempt of murder and dacoity?
- What is the distance between the places where they attempt to murder and attempt
to dacoity was committed?

In one of the cases i.e., in Shyam Behari v. State of Uttar Pradesh, the dacoit killed one
of the victims, who had caught the robber’s associate in an attempt to commit dacoit.
The robber was convicted under Section 396 of IPC because any murder committed by
the dacoits during their fight would be treated as murder.

OFFENCES CONNECTED WITH DACOITY

Before committing any offence intention plays a very important role in it. Under criminal
law, the intention is known by Mens Rea. Mens rea means guilty of Mind. For every
criminal offence, there should be Mens rea on the part of the offender. If put in other
words it means that there has to be intention to commit a crime. The term “Intention”
has not explicitly defined under the Indian Penal Code, 1860 But under IPC Section 34 of
it deals with common intention.

Section 34 of IPC defines acts done by several persons in furtherance of common

intention. This section says that “when a criminal act is done by several persons in
furtherance of the common intention of all, every such person is liable for the act in the
same manner as if it were done by him alone.”

This section requires a particular criminal intention or knowledge and the act should be
committed by more than one person. Everyone who joins the act with the knowledge of
the consequences, all of them should be made liable under this section.

PREPARATION TO COMMIT DACOITY

Section 399 of the Indian Penal Code, 1860 has talks about preparation to commit
dacoity. It says that whoever makes any preparation for committing dacoity shall be
punished with rigorous imprisonment for a term which may extend to ten years, and
shall also be liable to fine.

ASSEMBLING FOR THE PURPOSE OF COMMITTING DACOITY

Assembling for purpose of committing dacoity is defined under Section 402 of the Indian
Penal Code. It says that whoever, at any time after the passing of the act, shall be one of
five or more persons assembled for the purpose of committing dacoity, shall be punished
with rigorous imprisonment for a term which may extend to seven years and shall also
be liable to fine.

BELONGING TO GANGS OF DACOITS

Belonging to gangs of dacoits is defined under Section 400 of the IPC. It says that
anybody who at any time after the passing of this act, shall belong to a gang of persons
associated for the purpose of habitually committing dacoity will be punished with
imprisonment for life, or with rigorous imprisonment for a term which may extend to ten
years, and shall also be liable to fine.

Basis of Robbery Dacoity

Differentiation

Robbery is an aggravated form of theft

Dacoity is an advanced form
or extortion, wherein there is fear of
Meaning wherein at least 5 perpetrators
death, (grievous) hurt, or wrongful
conjointly in its commission.
restraint.

X meets Y on the high roads, shows a

X boards a bus at night. He finds
pistol, and demands Y’s purse. Y in
D, and E are standing, armed w
consequence, surrenders his purse.
They induce X to deliver all h
Here X has extorted the purse from Y by
Illustration falling which, they warn him of
putting him in fear of instant hurt, and
bones. X, fearing grievous hu
being at the time of committing the
delivers his valuables. A, B, C, D
extortion in his presence. A has
conjointly committed dacoity.
therefore committed robbery.

Section 392 of the IPC prescribes the Section 395 of the IPC pre
punishment for robbery, which is up to Punishment for dacoity, wh
10 years of rigorous imprisonment as imprisonment, or up to 10 year
Punishment well as fine. Further, up to 14 years of imprisonment as well as fine.
imprisonment has been specified if
robbery is ‘committed on the highway
between sunset and sunrise’.

Liability for Robbery is only punishable in the last
Intention/ two stages of crime, viz., attempt and
Preparation/ accomplishment.
Attempt/
i) Attempt to commit robbery is
Commission
punishable by a separate Section of IPC
that is Section 393. It is punishable with
up to 7 years of rigorous imprisonment
as well as fine. An attempt to commit
robbery when armed with deadly
weapons is punishable under Section
398 with a minimum of 7 years of
imprisonment.
ii) Commission of robbery is punishable
under Section 392.
Dacoity is the only offense in
punishable at all stages of crime
i) Intention to commit dacoity i
under Section 402 of IPC. U
402, intention is inferred from th
the person, viz., ‘assembling for
of committing dacoity’. It is pun
up to 7 years of rigorous impr
well as fine.
ii) Preparation to commit
punishable under Section 399
prescribes a punishment of up t
rigorous imprisonment as well a
iii) Punishment for an attemp
 dacoity is contained in Sections
398.

iv) Commission of dacoity is

under section 395.

It is a Cognizable, non-bailable, and It is a Cognizable, non-bailabl

Nature of the
non-compoundable offense and is compoundable offense and is t
Offense
triable by Magistrate of the first class. Court of Session.

There must be five or more pe

Number of The minimum number of perpetrator(s) must be noted that aiders and
Perpetrators is one. also included while counting th
perpetrators.

Dacoity is a graver and more he

than robbery and is an aggrav
Robbery is relatively less grave than robbery. This is because dacoi
Gravity
dacoity. robbery, and because robbery i
form of theft or extortion,
comprises theft and extortion.

CRIMINAL MISAPPROPIATION

The word misappropriation is defined under Section 403 of Indian Penal Code,1860 as
whoever dishonestly mis-appropriates or converts to his own use any movable property,
shall be punished with imprisonment of either description for a term which may extend to
two years, or with fine, or with both.

ESSENTIAL INGREDIENTS

To constitute the offence of misappropriation the following essential ingredient must be

there;

The property must be of Another

For constituting criminal misappropriation, the essence behind this act is that the property
must be of some other owner other than the person using it dishonestly for his own use.

Case 1
Person A took something from person B by mistake or unknowingly but returned it when he
found property belong to person B. In this case, there is no misappropriation of property.

Case 2

Person A took something from person B by mistake or unknowingly but don’t return it even
when he found property belong to person B.

Finding of Property

Someone gets a property of others on the roadside, let us say, a gold ring or wallet and he
keeps it to himself since the real owner is unknown but even if the true owner is identified
he uses and keeps the property with himself this act is an offence known as
misappropriation of property.

Explanation to this section involves that in case of a finding of the property if one has taken
all the careful measures to ascertain the true owner and kept the goods for a subsequent
time for restoring it to the real owner but if instantly misappropriate the goods, he would be
liable under this section of IPC.

Converts to Own Use;

The essence ‘converts to his own use’ signify the usage or deals with the property in
decrying the right of the owner.

Dishonest Intention

Whoever dishonestly misappropriated or converted to his own use any movable property
shall be punished with imprisonment of duration which may extend to two years or with fine
or more.

For example;

 When two people, A and B jointly own a property let’s say a car and later B without
the consent of A sold that particular good for his own self motive.

 Found some property whose owner can be found and you used it personally for own
use. Using of property whose owner is not known but you used it immediately for
your own gain without waiting for sufficient time. A Criminal complaint regarding this
matter is not maintainable under court, referring to the case U. Dhar & Anr vs The
State of Jharkhand.

DISTINCTION BETWEEN THEFT AND CRIMINAL MISAPPROPRIATION

Before discussing the distinction between theft and criminal misappropriation let’s get clear
about the similarities between the two which areas:
 1. Movable property- For constituting the offence of criminal misappropriation and
theft the basic common element behind this is that the means of property or goods
should be movable in nature for committing these acts. To be precise, the property
should move from one place to another for executing the purpose of theft or
misappropriation of the property.

2. Dishonest intention- The intention or the motive behind these acts should be
dishonest. The act involves fraud or misappropriation activity by default.

Now talking about the differences

 In the case of theft, the intention behind this act is dishonest or malafide with
irrational motive and the person constituting theft is cognizant about the process
that he is doing wrong.

Whereas, in the case of criminal misappropriation initially there may be the case that
there is no dishonest intention in the finder of goods for misappropriating the goods
but the offence is committed when after due time the property is detained with the
wrong person illegally without the knowledge of the actual owner of the property.
Later after some time, there might be the wrong intention to commit
misappropriation of the property for his personal use.

 The second difference between the two is that in theft the consent of the true owner
is not known to the party on the other hand in case of misappropriation initially the
true owner gave consent to the person for using the property and later maliciously
the person used it for his own purpose. In theft, the consent is nowhere involved.

 Timing of the offence- In theft, the moment when someone took the property of the
owner dishonestly, he committed the offence of theft. Rather in case of
misappropriation, the offence is committed when the person unduly denies giving
the property to the true owner, he committed the offence of misappropriation
without the consent of the true owner in his own favour. Then the act of
misappropriation is committed.

CRIMINAL BREACH OF TRUST

According to Section 405, this offence requires a person to confer a property or dominion
over it onto others. Moreover, this is basically a form of trust which the victim accords on
the offender with respect to his property.

Secondly, the offender must misappropriate or convert that property to his own use. He may
even fraudulently use or dispose of that property by infringing a law to control or direct
according to rule principle of law for proper functioning. This may even lead to the breach of
any express or implied contract between the defendant and the victim himself.
For instance, A may lend his car to his friend B to use it for transportation. B, instead, uses it
for transporting illegal goods like ivory. Here, B is guilty of criminally breaching A’s trust.

ESSENTIAL INGREDIENTS

Entrustment

Entrustment means control over the property by one person to the other in such a way that
the person on whose interests the property is handed over continues to be an owner. The
word entrustment is very essential to constitute the offence of criminal breach of trust.

Property

The defendant must spend with a trust or secure the property with authority. There must an
entrustment of property. Presiding over the case of Ramaswami Nadar vs State of Madras,
SC held that the basic requirement of entrustment must be there to fulfil the essentials of
criminal breach of trust offence under Section 405.

Dominion Over Property

The domain is the superior right of property inland; it is the most and fullest right of goods
or property which is a legal concept derived from dominium of the Roman law. The domain
is the right of the property as well as the possession or use of the property. It is absolute and
complete ownership of property or land. The government can under some situation seize
property without or with permission.

Misappropriation

‘Dishonest misappropriation’ is the basic element of this action. Dishonesty is as defined in

Sec.24, IPC, generating wrongful gain or wrongful loss to a person. The meaning of wrongful
gain and wrongful loss is defined in Section 23 IPC. In order to constitute an offence, it is not
enough to attain that the money has not been accounted for or mismanaged. It has to be
accepted that the defendant has insincerely put the property for his own use or to some
without the permission of the owner before using. Dishonest intention to misappropriate is
a crucial fact to be proved to bring home the charge of criminal breach of trust.

Case Krishan Kumar V Union of India

Misappropriation arises when a person illegally sets apart or assigns to some other person
use to which it should assign to some other person to the exclusion of the owner in case of
actus rea it will consist of either of the four positive acts:

 Conversion

 Misappropriation

 Disposal of property

 User
PUNISHMENT

Whoever commits criminal breach of trust shall be punished with imprisonment of either
description for a term which may extend to three years, or with fine, or with both.

AGGRAVATED FORMS OF CRIMINAL BREACH OF TRUST

According to the section of 407, if any carrier, warehouse keeper or a wharfinger who is
entrusted with that property not necessarily movable but dishonestly misappropriated or
converts the property for own use then, in that case, he shall be punishable under the
offence of criminal breach of trust. And the punishment for the same would be liable with
imprisonment of 7 years with a subsequent amount of fine.

Section 408 deals with ‘criminal breach of trust by clerk or servant.

CHEATING

Cheating is defined under Section 415 of the Indian Penal Code as whoever fraudulently or
dishonestly deceives a person in order to induce that person to deliver a property to any
person or to consent to retain any property.

If a person intentionally induces a person to do or omit to do any act which he would not
have done if he was not deceived to do so and the act has caused harm to that person in
body, mind, reputation, or property, then the person who fraudulently, dishonestly, or
intentionally induced the other person is said to cheat.

Any dishonest concealment of facts which can deceive a person to do an act which he would
not have done otherwise is also cheating within the meaning of this section.
ELEMENTS

The first part of Section 415 deals with a situation where there is-

1. Deceit by accused

2. Inducement of someone by the deception

3. The inducement so caused is fraudulent and/or dishonest

4. The person induced either delivers some property or consents for the retention of
any property by any other person

The second way cheating can take place under this section is cases where:

1. The accused deceived someone

2. The deceit caused the inducement of someone

3. The inducement so caused was intentional

 4. The person induced, committed, or omitted to do something that they wouldn’t have
done otherwise

5. The act or omission either caused or was likely to cause damage or harm to the
person induced in their body, mind, reputation, or property.

In the case of Ram Jas v State of Uttar Pradesh (1970) the Apex Court laid the following
elements as essential in constituting the offence of cheating-

1. Fraudulent or Dishonest inducement by the person deceiving, and

2. The person deceived should be

1. Induced to deliver the property to a person or consent that any person shall
retain a property; or

2. The person deceived should be intentionally induced to do something or omit

to do something that they would not have done in case they had not been
deceived, and

3. In case of b), the act or omission of intentional inducement should be of a

nature that is likely to cause or actually causes damage or harm to the person
so induced. This damage may be to their body, mind, reputation or property.

SECTION 420 IPC

Section 420 lays down the punishment for aggravated forms of cheating where the offender
dishonestly induces a person so deceived to deliver any property or interfere with any
valuable security.

In other words, Section 420 specifically punishes aggravated cases of cheating. Any act of
cheating, whether fraudulently or dishonestly, is punishable under Section 417. In contrast,
Section 420 specifically punishes a case where cheating is done by dishonest inducement
and its subject matter is property or valuable security.

Under this section, the person so deceived is

1. Either induced to deliver any property to some other person, or

2. Make, alter, or destroy

1. The whole or any part of valuable security, or

2. Something that is signed, sealed and is capable of being converted into a

valuable security

3. A guilty intention must exist at the time of inducement or of delivery of property

Here, it is essential to prove that the parting of the property is by virtue of dishonest
inducement of the accused. Moreover, the delivered property has to be of some monetary
value to the person who has been cheated.

INGREDIENTS OF CHEATING

Deception

Proving deception is integral to a successful prosecution under Section 420. In common

parlance, deception is understood to mean intentionally leading someone to believe
something that is not true or false. This deliberate leading may be direct or indirect and by
words or conduct. It may be expressed or implied in the nature of a transaction. However,
what actually constitutes deception is dependent on the facts and circumstances of each
case.

For an offence under Section 420, the fraudulent or dishonest intention to conceal facts
must be present at the time of making a promise or representation. The prosecution needs
to prove that the offender had known or ought to have known that the representation made
by them was false. Moreover, the representation has to be made specifically with the intent
to deceive another person. According to the explanation under Section 415, dishonest
concealment of facts is deception. This concealment itself need not be illegal and can even
be practised when there is no legal obligation to speak.

A case where the accused makes a promise that they had no intention to keep would fall
under cheating. This lack of intention must be proved at the time the representation was
made or when the inducement was offered by an accused. If someone has the intention of
keeping a promise but subsequently fails, the prosecution under Section 420 would fail. The
case might create civil liability but not a criminal one.

Dishonestly (Section 24 IPC)

The word ‘dishonestly’ has been defined under Section 24 of the IPC. It covers any act that is
done with an intent to cause wrongful gain or wrongful loss of property. Harm to reputation
is not covered under Section 24.

To be within the ambit of this section, the act must cause gain or loss by unlawful means.
The consequence of such an act should be the gain in property that one is not legally
entitled to or loss of property from another who is legally entitled to it.

Fraudulently (Section 25 IPC)

‘Fraudulently’ is defined under Section 25 of the IPC. The only element needed to make an
act fraudulent under the IPC is for it to be done with an intent to defraud and actual or
possible injury.

In the case of Dr Vimla v. Delhi Administration (1962), the test of deceit was laid down. The
offender intentionally represents something false or untrue as the truth. Moreover, they
must derive some benefit from the act that would not have been possible had the truth
been known.

Intentional inducement

For an act to fall under this element, there must be an intentional inducement for any
person to do any activity that is detrimental to them. The act to the advantage of the
inducer should not have been possible if the induced was not deceived. This inducement
should actually damage or be likely to damage that person in body, mind, reputation, or
property.

Wilful representation

Mens rea is essential to the crime of cheating. Wilful misrepresentation with the intent to
deceive amounts to cheating. Thus, the person constructing the misrepresentation must be
aware that their representation is false at the time of making it.

Inducement

For the offence of cheating, a fraudulent or dishonest act must induce the person deceived
to deliver property or interfere with valuable security.

In the case of Shri Bhagwan Samardha, a godman’s claim that his touch could cure a little
girl of her disability for money was held to be an inducement. The court explained that
simply offering prayers would not amount to inducement. However, the representation that
the man had divine powers was made and in consequence, he was given money. Thus, it
would amount to an offence under Section 420.

Damage

For an offence under Section 420, it is essential to prove that some damage has accrued to
the victim or is likely to have been caused.

Causal connection

The definition of cheating under Section 415 covers all direct, proximate natural and
probable consequences of an inducement. However, a causal connection must exist
between dishonest inducement and damage. The harm so caused must not be remote,
vague, contingent or by chance.

No damage caused

A situation where no benefit accrues to the accused but the deceit causes loss to another is
covered under the offence of cheating.

In a case, the Madras High Court was faced with a peculiar case. The accused obtained loans
by virtue of fraudulent misrepresentation. However, the bank did not suffer any losses. It
was not likely to either, since the loans were fully covered by the securities given by the
accused. However, wrongful gain accrued to the accused. They were thus convicted for the
offence of cheating.

PUNISHMENT FOR SECTION 420 IPC

Punishment for an offence under Section 420 is for up to seven years along with a
mandatory fine. This imprisonment may be simple or rigorous, depending on the discretion
of the court.

Evidence

For a case under Section 420, it is advisable to retain anything that can be used to prove that
there was an intent to cheat right from when the accused made a representation. All acts
and omissions of the accused after this would help prove the deception if there was no
effort by the offender to perform their promise. Any document, records of conversations
(including text messages), witness accounts, etc. may be used to achieve this.

Section 417 IPC

Section 417 of the IPC punishes a simple case of cheating. The person cheated is injured
because of reasons other than being induced to part with property or interference with
valuable security.

Section 416 and 419 IPC

Section 416 and 419 of the IPC deal with cheating by personation. Section 416 explains
cheating by personation as circumstances where one pretends to be another real or
imaginary person; knowingly substitutes one for another, or represents that they or another
person is someone else. Section 419 allows a case described under 416 to be punished by up
to three years, a fine, or both.

Section 418 IPC

Section 418 defines and punishes the offence of cheating with the knowledge that the
offender is likely to cause wrongful loss to someone whose interest they must protect. The
cheating must be related to a transaction in which the offender is legally bound to protect
the one they deceive. It covers fiduciary and financial relationships like that of a principal
and agent, banker and customer and advocate and their client. Imprisonment under this is
defined as three years, with a fine or both.

Promise to marry

The Karnataka court in a case held that breach of a promise to marry per se would not
amount to cheating under 420. It needs to be proven that there was no intent to marry at
the time of making the promise and there was a loss of property or interference with
valuable security in consequence. In case of a failure to prove this, the prosecution would
not be successful.
MISCHIEF

Section 425 of the IPC defines the crime of mischief which ensures that a property belonging
to a person is not damaged by someone else without the prior permission of the owner.
Hence, even though a person has not moved the property but he has completely destroyed
or shrunk its value or usage to the extent that it does not appear or can be used in the same
manner that it was before the act of the perpetrator, mischief is said to have occurred. It is
based upon the principle ‘sic utre tuo ut allenum non leadas’ which means that ‘use your
own property, so as not to injure your neighbours’ property’. Hence, this law protects the
owner or any person associated with a property from any kind of wrongful harm caused by
others.

In order to constitute mischief, it is necessary that there is some kind of harm that has been
casted upon the property/commodity such that it does not remain what it was before. This
can vary from merely changing the shape to the usage to complete destruction of the
property.

The degree of harm has no impact over the question of whether mischief has taken place or
not. What is important is the irreversible act of the doer which changes the value or the
structure of the property. The harm can vary from complete destruction to a mere change of
shape of the property or from partial destruction to change in the value or usage of the
commodity.

NECESSARY INGREDIENTS TO PROVE THAT A PERSON IS GUILTY UNDER THIS ACT

 Mens Rea

In order to become guilty under this section a person should know that the consequence of
his act would be damage to other person’s property. He should have seen that by doing such
an act, a party whether a particular person or general public should be at loss. The loss can
be wholly (destroying the property altogether) or party by lowering down the value of the
property.

It is therefore conclusive that a mere negligent act of a person which causes loss to the other
person by diminishing the value of the property would not itself amount to negligence. The
person should have foreseen that by doing such an act he would intentionally cause loss to
another person.

 Should cause damage

It is essential that the property in question must have suffered some harm or the other such
that it does not remain what it was originally before the act was done. Also, it is necessary to
note that even if the property was in any way associated with the accused or he had a right
over it in any way, still this would not entitle him to diminish the value of the property in
such cases. This is because the law would never encourage a party to not follow the legal
recourse in any matter.

 The worth of the property should decrease

Take the example of a newly purchased computer, it’s present value would be nearly the
market value. Now, if someone in order to cause damage to the owner puts a scratch on the
screen of the monitor, the market value of the commodity quickly decreases. Here, it is
worth noting that even though a scratch would not decrease the usage of the computer but
it surely decreases its market value.

QUANTUM OF PUNISHMENT

Section 426 signifies the standard quantum of punishment which shall be given in cases of
mischief. It says that the person committing the act of mischief could be imprisoned which
can extend to three months or he could be made liable for fine or he can be punished with
both. Section 427 onwards till section 440, special/aggravated cases of mischief have been
referred to in which different quantum of punishment with respect to each case has been
specified.

These are essentially based on:

(1) The value of the damage caused;

(2) The nature of the property damaged;

(3) The method adopted to cause damage; and

(4) Other criminal motives influencing the act.

As per section 427, whoever commits mischief and thereby causes loss or damage to the
amount of fifty rupees or upwards, shall be punishable with imprisonment of either
description for a term which may extend to two years, or with fine, or both.

CRIMINAL TRESPASS

According to Section 441 of The Indian Penal Code, whoever enters into property in the
possession of another with the intent to commit an offence or to intimidate, insult or annoy
any person in possession of such property, or having lawfully entered into such property, but
remains there with intent thereby to intimidate, insult or any such person, or with an intent
to commit an offence, is said to commit ‘criminal trespass’.

Thus, it can be deduced that criminal trespass occurs when a person unlawfully without any
right or an express or implied license enters into the private property of another person or
remains into such property with a criminal intention. The object of making criminal trespass
an offence is to ensure that people can enjoy their private property without any kind of
interruption from outsiders.
INGREDIENTS OF CRIMINAL TRESPASS

Criminal trespass has two limbs, firstly, entering into the property of another with criminal
intent and secondly, entering lawfully but remaining in the property with a criminal intent to
harm or cause annoyance. Thus, the essential ingredients for committing Criminal trespass
are:

‘Whoever enters’

To commit the offence of criminal trespass, there must be an actual entry into the property
of another by the accused person. No trespass can occur if there is no physical instrument by
the accused into the private property of the victim.

Property

The term property under this Section includes both movable and immovable property.
Wrongful entry into one’s car or other movable property would have similar liability as
wrongful entry into one’s house.

Possession of another

The possession of the property should be in the possession of the victim and not the
trespasser. Having the ownership of the property is not necessary, mere possession is
sufficient to claim criminal trespass against the trespasser. However, it is not necessary for
the person having possession or the owner of the property to be present at the time when
the trespassing occurred, no presence of owner or possessor would also amount to
trespassing as long as the premises are entered into by the trespasser to annoy. For instance,
writing love letters and delivering them to a girl’s house against her will would also amount
to criminal trespass, even if at the time of delivering such letters, the girl was not at home.

Intention

If it is proved that the intention of the accused parties was not to insult, harm or annoy the
owners or possessors of the property, then it would not amount to criminal trespass. The
Intention is the essence of this crime, and if there is no dominant motive to commit the
crime, no criminal trespass. The test for determining whether the entry was done with an
intent to cause annoyance or any kind of harm is to determine the aim of a trespasser at the
time of such entry.

AGGRAVATED FORMS OF CRIMINAL TRESPASS

House-trespass

Section 442 of IPC, defines house-trespass as committing criminal trespass by entering into
or remaining in any building, tent or vessel used as a human dwelling, place of worship or as
a place for the custody of the property. A place of human dwelling does not always have to
be a permanent resident of the defendant, temporary residents like school or railway
platforms also count as a human dwelling. However, for a building to be a human dwelling it
must have some walls or some kind of security and a mere fence cannot amount to a human
dwelling. This offence is an aggravated form of criminal trespass; thus, every house-trespass
is criminal trespassing but not vice versa. As house-trespass is against the possession of a
property, it cannot take place if the defendant is not in actual possession of the property.

As per IPC, the defendant guilty of house-trespass may be imprisoned for a term not
exceeding 1 year, fined for INR 1,000 or less or both.

Lurking house-trespass

Section 443 of IPC, deals with a further aggravation of house-trespass, known as lurking
house-trespass. The section defines this offence as committing house trespass and taking
precautions to conceal the offence of house-trespassing from any person who has a right to
exclude or eject the trespasser from the building which is the subject of the trespass. The
court held that unless active steps are taken by the accused to conceal his presence, no
charge under Section 443 can be made. Thus, the ingredients of lurking house-trespass
would include:

1. Trespass;

2. House-trespass;

3. Concealing the house-trespass from someone who has the right to exclude to the
trespasser.

Therefore, hiding in a porch behind a tree would fall within this section and the trespasser,
under Section 453 of IPC, would be liable to imprisonment for a maximum of 2 years and
fine as may be prescribed by the court.

Lurking house-trespass by night

Section 444 of IPC, talks about an aggravated form of lurking house-trespass, i.e. trespass
committed at night. Any lurking house-trespass committed after sunset and before sunrise
fall within the ambit of this section. This offence is punishable with imprisonment not
exceeding three years and fine, according to Section 456 of IPC.

House-breaking

Housebreaking is also an aggravated form of house-trespass and implies forceful entry into
one’s house. Section 445 of IPC lays down 6 ways in which housebreaking can occur, namely:

1. Through passage made by the house breaker himself;

2. Through any passage not used by any person other than the intruder;

3. Through any passage opened for committing an offence of housebreaking which

was not intended by the house occupier to be open;
 4. By opening any lock;

5. By using criminal force at either entrance or departure;

6. By entering or quitting any passage fastened against such entrance or exit. The
word ‘fasteners’ implies something more than being closed, merely pushing of
door shutters would not amount to house-breaking.

The first three ways are the one in which entry is affected by using passage which is not the
ordinary means of entry or exit and the last three ways are the ones in which entry is
affected by use of force. The entry of any part of the human body is sufficient to constitute
housebreaking under Section 445 of IPC if the following ingredients are present:

1. Trespass;

2. House-trespass;

3. The entrance by the trespasser must be done in any of the 6 ways prescribed
above.

Housebreaking by night

When housebreaking is committed after sunset and before sunrise, it is considered an

aggravated form of house-breaking and is governed by Section 446 of IPC. This offence is
punishable with imprisonment not exceeding three years and fine, according to Section
456 of IPC.

CRIMINAL VS CIVIL OFFENCE

Trespass is ordinarily a civil wrong for which the plaintiff can sue for damages, but when
such trespass occurs with a criminal intention it amounts to criminal trespass.

The trespass in torts does not require ill intent and just the unlawful and unauthorized
presence of the trespasser on the property of the plaintiff. However, when the act of
trespass is committed with the intention of committing an offence or to intimidate or insult
any person in possession of property is said to commit ‘criminal trespass,’ defined under
Section 441 of the Indian Penal Code.

Hence, the only difference between trespass in tort and criminal trespass is the criminal
intentions of the trespasser.

BIGAMY

The Indian Penal Code, 1860 explains bigamy under Section 494. The said provision states
that any person who already has a wife or husband living, further proceeds to marry another
person while being lawfully wedded to such wife or husband shall be punished with
imprisonment of either description for a term which may extend to seven years, and shall
also be liable to fine. Moreover, such marriage shall be considered void in whatsoever case.

There are certain exceptions to the aforementioned provision wherein the person who
marries another individual shall not be liable for bigamy. The exceptions are as follows –

1. The said provision does not extend to any individual whose marriage with their
partner from the prior marriage has been declared void by a court of competent
jurisdiction.

2. The said provision does not extend to any individual who contracts a marriage during
the lifetime of their former partner wherein such partner at the time of such
individual’s second marriage was not heard of for a period of seven years or wherein
there is no information of them being alive. By virtue of presumption provided
under Section 108 of the Indian Evidence Act, 1872, it may be concluded that a
person who has been missing for more than seven years is presumed to be dead and
that when the individual contracts a second marriage, it shall be understood that no
husband or wife is living at the time of the second marriage and thus, the offence of
bigamy is not constituted. The condition that is inclusive of this exception is that the
individual contracting the second marriage must, before the second marriage takes
place, inform the person they are about to marry about the facts to the best of their
knowledge regarding their previous partner.

SECTION 495 OF THE INDIAN PENAL CODE, 1860

Section 495 of the Indian Penal Code, 1860 further talks about the offence of bigamy but
with the addition of the vice of concealment. When an individual does the act of bigamy by
concealing the fact of their former marriage from the person with whom they contract their
second marriage then such individual shall be liable under Section 495. Such individuals shall
be punished with imprisonment of either description for a term which may extend up to ten
years and shall be liable to fine or both. In addition to this, a complaint about cheating can
be filed under Section 415 of IPC in case the individual conceals the fact of first marriage.

ESSENTIAL ELEMENTS TO CONSTITUTE THE OFFENCE OF BIGAMY

As per Section 494 of the Indian Penal Code, 1860, the following are the essential elements
to constitute the offence of bigamy –

Existence of a prior lawful marriage

In the offence of bigamy, one of the essential elements is that of the existence of a prior
lawful marriage. The mere subsistence of a prior lawful marriage itself declares the
subsequent marriage void because it confirms the existence of a living wife or husband of
such individual. In case the prior marriage is not valid in the eyes of the law then marrying
again will not be labelled as bigamy
Validity of subsequent marriage

It is understood from the first element that the prior marriage must be a lawful one,
however, the second essential element is that the subsequent marriage in question must
also be a lawfully valid one. The couple willing to marry must take part in all the mandatory
rituals and ceremonies as required in the personal law that governs their marriage. In case
the subsequent marriage is contracted without following or performing the required rituals
then it shall be void in itself which in turn declares that the offence of bigamy cannot be
constituted.

Existence of the partner from prior lawful marriage

The sole basis of the second marriage being void shall be due to the existence of the partner
from the prior lawful marriage. This means that the wife or husband of such individual from
the prior lawful marriage must be alive during the time of the subsequent marriage to
declare it void and establish a case of bigamy. It is pertinent to note that this element does
not apply to the cases where subsequent marriages are allowed by personal laws such as
Sharia law.

PROCEDURE TO FILE A COMPLAINT AGAINST BIGAMY

The aggrieved person can record a case of bigamy either in the police station or at the court.
The father of such an aggrieved female can likewise make a complaint under Section 494
and Section 495 of the Indian Penal Code, 1860. A request for declaring the subsequent
marriage void can be recorded by the parties of such subsequent marriage and not the first
partner.

CRUELTY

In recent years, marriage disagreements have increased dramatically. In this nation, the
institution of marriage is highly cherished. Section 498A was created with the express
purpose of combating the threat of harassment a woman could experience from her
husband and his family. According to Section 498A, whoever, being the husband or a relative
of the husband of a woman, subjects such woman to cruelty must be punished by
imprisonment for a term of up to three years and a fine. The term cruelty, as defined under
the Act, means;

1. Any intentional behaviour that poses a serious risk to the woman’s life, limb, or
health (whether physical or mental) or that is likely to provoke suicidal ideation;

2. Harassing the woman with the intent to coerce her or any person connected to her
into satisfying any unlawful demand for any property or valuable security or because
she or any connected person failed to satisfy the demand.
Cruelty has been defined broadly to encompass inflicting physical or emotional injury on the
woman’s body or health, as well as engaging in acts of harassment to persuade her or her
relatives to satisfy any unlawful demand for any property or valued security. One of the
components of ‘cruelty’ is creating a circumstance that drives a woman to commit suicide

In another case of Inder Raj vs Sunita Malik, it was found that pestering a woman to force
her or any associated parties to comply with an unlawful demand for any property or
valuable security falls under the concept of ‘cruelty’. The husband was found guilty of aiding
in his wife’s suicide under Section 306 of IPC because the husband had an unlawful
connection with another woman and used to beat her, which constituted continuous cruelty
as defined by Section 113A of the Evidence Act of 1872.

INGREDIENTS OF SECTION 498A IPC

The following elements must be present for an offence under Section 498A to be committed:

1. The woman must be married;

2. She must have experienced abuse or harassment; and

3. The abuse or harassment must have been perpetrated by the woman’s spouse or a
relative of her husband.

A cursory examination of this provision reveals that the term ‘cruelty’ encompasses the
occurrence of the following act(s):

1. Any deliberate actions that put a woman’s life, limb, or safety in peril or that might
force her to commit suicide;

2. A woman’s physical or mental well-being;

3. Harassing a woman if she is being harassed compels her or any other person
associated with her to comply with an unlawful demand for any property or valued
security.

SECTION 304B

“Dowry death” is penalised under Sec.304B, and such death must have happened within
seven years of the marriage. There is no such term indicated in Section 498A, and the
husband or his relative would be responsible for ‘cruelty’ to the wife at any point after the
marriage. It should also be noted that a person accused and acquitted under Sec.304B can
be convicted under Sec.498A without a charge if such a case is made out. However, from the
standpoint of practice and procedure and to avoid technical flaws, it is necessary in such
cases to frame charges under both Sections. If the case is established, they can be found
guilty under both Sections, but Section 498A does not require a separate sentence because
Sec. 304B already provides a substantive sentence for the major offence.
ADULTERY

The historical background of Section 497 of IPC

The enactment of adultery law dates back to colonial times when the Indian Penal Code was
enacted in 1860. The Indian Penal Code criminalised adultery under Section 497. However,
adultery was not provided as a ground for divorce until the enactment of Hindu Marriage
Act in 1955. There were two reasons for the absence of adultery as a ground for divorce:

1. Before the enactment of the Hindu Marriage Act of 1955, Hindus did not have any
provision for divorce since marriage was considered a sacrament in ancient times.
Since there was no law for divorce, the provision for adultery as a ground for divorce
was not present.

2. Another reason was that in ancient times, a Hindu man was allowed to marry any
number of women and indulge in sexual intercourse with them. Therefore, a
provision for punishing the husband for indulging in sexual intercourse was pointless
since the man could eventually marry the woman with whom he had sexual
relations.

However, things changed after the advent of Hindu Marriage Code in 1955 under which a
Hindu man could marry only one woman. Therefore, in order to protect the institution of
marriage and prevent its breakdown, adultery was enacted as a ground for divorce. This
would deter the man from indulging in sexual relations with the woman other than his wife.

It is, however, critical to note that even after the announcement of adultery as a ground for
divorce; it was still criminalised under Section 497 of IPC. It was for this reason that
criminalisation of Adultery was questioned from time to time by various women rights
activists and lawyers. There are three cases in which adultery law was challenged in the
Court.

AN ANALYSIS OF SECTION 497 OF THE IPC

Section 497 of the IPC gave a husband the exclusive right to prosecute the person with
whom the wife committed adultery by indulging in sexual intercourse with him. The husband
can also file for divorce against his adulterous wife on grounds of adultery. However, a
similar right was not conferred on a wife to prosecute the woman with whom her husband
has committed adultery. Secondly, the provision did not confer any right on the wife to
prosecute her husband for adultery. This is, however, one perspective of looking at this
provision.

The second perspective is that this section punishes sexual intercourse of a man with a
married woman without the consent of her husband. However, in case there is a sexual
intercourse of a man with an unmarried woman with her consent or with a married woman
with the consent of her husband, then the man cannot be liable for adultery. What is crucial
to this perspective is that the section does not provide any punishment for the unfaithful
wife and only provides for the punishment to the man who indulged in sexual intercourse
with the married women.

THE SUPREME COURT’S JUDGEMENT IN THE PRESENT CASE

The constitutionality of Section 497 of IPC was challenged in the case of Joseph Shine v.
Union of India, 2018. In this case, the petitioners contended that criminal law should be
used only as the last method of social control and it should not be used to check or control
private morality or immorality. Centre, on the other hand, argued that adultery is an
intentional action which impinges on the sexual fidelity and sanctity of marriage. It is an
action knowingly and willingly done with the full knowledge that it would hurt the family,
the children, and the spouse.

After hearing both the sides, the Supreme Court in a Bench headed by the then Chief Justice
of India, Deepak Misra, pronounced that Section 497 of the Indian Penal Code is
unconstitutional and hence, struck it down. The court held that the provision was based on
gender stereotypes and hence violated Article 14 (equal protection of laws) and Article 15
(non-discrimination on grounds of sex) of the Indian Constitution. The court also struck
down Section 198 (2) of the Criminal Procedure Code which allowed a husband to bring
charges against the man with whom his wife has committed adultery. The Court also held
that for adultery to be termed as a criminal offence, it is essential that one of the spouses
committed suicide in the course of the events. In such a case, the other spouse would be
made liable for abatement to suicide under Section 306 of IPC.

Chief Justice Deepak Misra, while pronouncing the judgement, observed that any provision
asserting husband as the master of the wife and treating women with inequality cannot be
considered constitutional. Responding to the question of consent, CJI Misra observed that in
case of absence of consent of the married woman, it amounts to rape. On the contrary, if
the sexual intercourse is done with the consent of both the adults, then the act fails to
qualify the test of an offence. Justice Indu Malhotra, while reading her judgment, observed
that Section 497 “institutionalises discrimination” and therefore, such a provision needs to
be struck down.

ANALYSIS OF DECRIMINALISING ADULTERY

Although marriage is a both a civil contract and a sacrament, it is not a standard form of
contract. Therefore, it should be up to the discretion of the husband and wife as to whether
they want to penalise the other spouse in case they enter into an adulterous relationship or
not. It is unwarranted to make provisions in penal law to regulate a personal and private
contract like Marriage.

Even the presence of adultery as a ground for divorce is to reach a settlement and not
prosecute the person for that offence since prosecution cannot be an effective remedy for
the aggrieved against whom adultery has been committed. Due to this, most western
countries have decriminalised adultery and even in countries where it still exists,
prosecution is rarely the preferred path.