(1) GENERAL PRINCIPLES TO INTERPRET DEFINITIONS UNDER IPC :
The IPC basically deals with definitions of various offences and provides punishment therefor. Section 6 of the Code declares general principle of interpretation of the definition of offences mentioned throughout the Code. It says that throughout this Code every definition of an offence, every penal provision, and every illustration or every such definition or penal provision, shall be understood subject to the exceptions contained in the Chapter entitled “General Exceptions”, though those exceptions are not respected in such definition, penal provision or illustration.
For example it is not necessary to mention in every case that a child below the age of seven years is not liable for that offence but it is general exception that a child blow the age of seven years is not criminally liable for any offence enumerated in the Code. Similar explanation is also suitable for intoxicated person and a person with mental disorder, etc.
‘A’, a police officer, without warrant, apprehends ‘Z’, who has committed murder. Here ‘A’ is not guilty of the offence of wrongful confinement for he was bound by law to apprehend ‘Z’ and therefore the case falls within the general exception which provides that “nothing is an offence which is done by a person who is bound by law to do it”.
In fact, section 6 of the Code provides that if the case of the accused falls within a general exception (Chapter IV of the Code) he is immune from criminal liability. It is not necessary to repeat in every section defining or punishing an offence that it is subject to Chapter IV.[1]
Every expression which is explained in any part of this Code in conformity with the explanation has to be read. These are the general clarification –
- The words importing the singular number include the plural number, and words importing the plural number include the singular number.
- The pronoun ‘he’ and its derivatives are used of any person, whether male or female.
- The word ‘man’, denotes a male human being of any age and the word ‘woman’ denotes a female human being of any age.The principal significance of section 10 lies in the words “if any age”. Thus ‘woman’ includes infant females as also mentioned in section 354 of IPC.
- Wherever the word “year” or the word “month” is used, it is to be understood that the year or the month is to be reckoned according to the British calendar.
(2) MEANING OF ‘PERSON’ AND CRIMINAL LIABILITY OF CORPORATION
The word ‘person’ includes any company or association or body of persons, whether incorporated or not. Section 11 has the effect of including within the expression :
(a) any company, whether incorporated or not;
(b) any association of persons, whether incorporated or not; and
(c) any body of persons, whether incorporated or not.
(2.1) CRIMINAL LIABILITY OF CORPORATIONS AND THEIR OFFICERS
The general proposition that corporations may be criminally liable gets some support from section 11, which has also the effect of giving them the benefit of criminal law if they happen to become the victim of specific offences sentenced to imprisonment.[2] Conversely, if the offence is punishable with fine only, the corporation can be punished.
More important is the question of liability of Directors and responsible officers of corporations. Where, technically, the offender is a corporation, the Directors or responsible officer may still be liable (in addition to the criminal liability of the corporation) if their own participation in the offence amounts to abetting the offence within the meaning of sections 107 and 108 of IPC. Besides this, Directors and/or Officers, who are in charge of the affairs of the corporation and responsible to the corporation for the conduct of the affairs of the corporation, are also declared criminally liable for an offence against that special Act, unless they can prove that the offence was committed without their knowledge, or that they exercised all due diligence to prevent the commission of that offence.
(2.2) CRIMINAL LIABILITY OF PARTNERS
The Supreme Court has held that with reference to section 10 of the Essential Commodities Act, 1955, the true position is that only a partner responsible for conduction the business of the firm could be convicted.[3] However, this provision does not render any such person liable to any punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention. More often it is common that some of the partners of a firm may not even be knowing of what is going on day to day in the firm. There may be partners, better known as sleeping partners, who are not required to take part in the business of the firm. There may be ladies and minors who were admitted for the benefit of partnership.
(3) MEANING OF PUBLIC SERVANT
According to section 21 of the IPC, the words “public servant” denotes a person falling under any of the descriptions hereinafter following namely –
(1) Every Commissioned Officer in the Military, Naval or Air Forces of India;
(2) Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory function;
(3) Every officer of a Court of justice (including a liquidator, receiver or commissioner) whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court, and every person specially authorized by a Court of Justice to perform any of such duties.
(4) Every juryman, assessor, or member of a panchayat assisting a Court of justice or public servant;
(5) Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of justice, or by any other competent public authority;
(6) Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;
(7) Every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;
(8) Every officer whose duty it is, as such officer, to take, receive, keep or extend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue process, or to investigate, or to report, on any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government;
(9) Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district;
(10) Every persons who holds any office in virtue of which he is empowered to prepare, publish maintain or revise an electoral roll or to conduct an election or part of an election;
(11) Every person –
(a) In the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;
(b) In the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as defined in section 617 of the Companies Act, 1956.
A Municipal Commissioner is a public servant. Persons falling under any of the above descriptions are public servants, whether appointed by the Government or not. Wherever the words “public servant” occurs, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation. Besides, any officer declared as public servant by any of the law is in force for the time being.
(3.1) EMPLOYEES OF GOVERNMENT COMPANY AND OF NATIONALIZED BANK
A Senior Divisional Manager and an Assistant Manager of Insurance Company; and officers of the LIC and General Insurance are public servants as defined under section 21 of IPC for entitling sanction under section 197 of the Code of Criminal Procedure.
An employee of a nationalised bank is a ‘public servant’ within the meaning of clause (12)(b) of section 21, being the employee of a Government company or of a corporation controlled by the Government of India. The Andhra Pradesh High Court held that an employee of the Nationalised Bank, viz. Canara Bank, is a public servant within the meaning of section 2 of the Prevention of Corruption Act for being prosecuted thereunder.
A government company is not a public servant, but every employee of the company is a public servant. Municipal Commissioner is government, but chairperson and secretary of a government society is not government officer. The President and Secretary of the Co- operative Society are not public servants within the meaning of clause 12(b) of section 21. Co-operative Societies are not corporations owned or controlled by the State. Their officers are not public servants, not even those on deputation from Government.
(3.2) MINISTERS, MP AND MLA :
The Supreme Court held that Ministers are public servants because : (a) they receive ‘pay’, an expression wider than salary, (b) they are appointed by the Governor (Articles 164 and 167 of the Constitution), (c) they perform public functions.[4] The Supreme Court also held that a Member of Parliament (MP) is a Public Servant under section 2(c) of the Prevention of Corruption Act, 1988.[5]
The Supreme Court held that the Examiner of a University (a lecturer of a Government College) is not a public servant within the meaning of section 21(9) of IPC. Therefore, he cannot be prosecuted under Section 5(1)(d) of the Prevention of Corruption Act.[6] Private Medical Practitioners are also not public servants even if their names are included in the panel of doctors.[7]
(4) MEANING OF INTENTIONAL ACT
(4.1) MEANING OF WRONGFUL GAIN AND WRONGFUL LOSS
According to section 23 of IPC, “wrongful gain” is gain by unlawful means of property to which the person losing it is legally entitled. On the other hand, “wrongful loss” is the loss by unlawful means of property to which the person losing it is legally entitled.
Gaining wrongfully, losing wrongfully.– A person is said to gain wrongfully. A person is said to lose wrongfully when such person retains wrongfully, as well as when such person retains or acquire wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property.
This paragraph makes it clear that it covers wrongful acquisition as well as wrongful retention in other words, initial wrongfulness or subsequent wrongful.
(4.2) MEANING OF DISHONESTLY
Section 24 of IPC defines ‘dishonestly’, as whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thin ‘dishonestly’. An act done with the intention to cause ‘wrongful gain’ can be said to be dishonest.
The term dishonestly defined in Section 24 IPC means doing anything with the intention of causing wrongful gain to one person or wrongful loss to another. So, the offence is completed when misappropriation of the property has been made dishonestly. Accordingly, even a temporary misappropriation falls within the ambit of the said offence. Concealment may amount to dishonesty.
(4.3) MEANING OF FRAUDULENTLY
Section 25 of IPC says that a person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise. It is necessary to point out that pecuniary advantage or pecuniary harm is not necessary for an act to amount to ‘fraud’. Conversely, deception is necessary to constitute fraud, but not necessary for causing wrongful gain or wrongful loss. If there is neither deceit nor dishonest gain or loss, the case may not fall under either.
(4.4) MEANING OF VOLUNTARILY
According to section 39 of IPC, a person is said to cause an effect “voluntarily” when he causes it by means whereby he intended to caused to cause it, or by means, at the time of employing those means, he knew or had reason to believe to be likely to cause it.
Illustration.- ‘A’ sets fire, by night, to an inhabited house in a large town, for the purpose of facilitating a robbery and thus causes the death of a person. Here, ‘A’ may not have intended to cause death; and may even be sorry that death has been caused by his act; yet, if he knew that he was likely to cause death, he has caused death voluntarily.
(5) DEFINITIONS OF DOCUMENT AND VALUABLE SECURITY
(5.1) DEFINITIONS OF DOCUMENT
Section 29 of IPC says that the word “document” denotes any matter expressed or described upon any substance by means of letters, figures, or marks, or by more than one of those means, intended to be used or which may be used, as evidence of that matter.
It is immaterial by what means or upon what substance the letters, figures or marks are formed, or whether the evidence is intended, for or may be used in, a Court of Justice, or not. Illustrations are –
- A writing expressing the terms of a contract, which may be used as evidence of the contract, is a document.
- A cheque upon a banker is a document.
- A ‘power of attorney’ is a document.
- A map or plan which is intended to be used or which may be used as evidence, is a document.
- A writing containing directions or instructions is a document.
Whatever is expressed by means of letters, figures or marks as explained by mercantile or other usage, shall be deemed to be expressed by such letters, figures or marks within the meaning of this Section, although the same may not be actually expressed.
Illustration.- A writes his name on the back of a bill of exchange payable to his order. The meaning of the endorsement, as explained by mercantile usage, is that the bill is to be paid to the holder. The endorsement is a document, and must be construed in the same manner as if the words “Pay to the older” or words to that effect had been written over the signature.
“Electronic Record” means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche.[8]
The words “a will” denote any testamentary document. Section 31 of IPC may be compared with section 2(h) of Indian Succession Act, 1925. The latter defines “will” as the legal declaration of the intentions of a testator with respect to his property when he desires to be carried into effect after his death. Forgery of a will is punishable under Section 467 of IPC.
(5.2) DEFINITIONS OF ‘VALUABLE SECURITY’
Section 30 of IPC says that the words “valuable security” denote a document which is, or purports to be, a document where by any legal right is created, extended, transferred, retracted, extinguished or released, or where by any person acknowledges that he lies under legal liability, or has not a certain legal right.
Illustration.- A writes his name on the back of a bill of exchange. As the effect of this endorsement is to transfer the right to the bill to any person who may become the lawful holder of it the endorsement is a “valuable security”.
The principal sections of IPC in which the expression “valuable security” occurs are concerned with (a) offences against the human body (Sections 329-331, 347, 348), (b) offences against property (Section 420), and (c) offences relating to documents (Sections 467 and 471). The essence of ‘valuable securities’ lies in its essential link with (a) a legal right, or (b) a legal liability. In the case of a legal right, a mere acknowledgement that a person does not have a legal right becomes a valuable right.
An unregistered document (which is not fully effective without registration) is not, in the strict sense, a valuable security but it purports to be a valuable security and so falls within section 467 (forgery of valuable security, etc). If a document purports to be only a copy of a valuable security, its forgery is not punishable under Section 467. However, in certain circumstances, such conduct may amount to the offence of cheating.
(6) CONCEPT OF ‘ACT AND ‘OMISSION’
Words referring to acts include illegal omissions.- According to section 32, in every part of IPC, except where a contrary intention appears from the context, words which refer to acts done extend also to illegal omissions.
According to section 33, 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. According to Salmond, “act” means any event which is subject to the control of the human will. The emoluments of an “act” are – (a) its origin in some mental or bodily activity of the doer, (b) its circumstances, and (c) its consequences.
Read with sections 32 and 33 yields some of the propositions. “Act” includes : (a) a single positive act, (b) series of acts, (c) a single illegal omission, or (d) a series of illegal omissions. Compare Section 3(2), General Clauses Act, 1897 (latter part) where it enacts that words which refer to acts done extend also to illegal omissions.
Omission is covered with in ‘act’ if it is illegal. But, it does not appear to be necessary that the omission should be intentional. If there is a duty to take care in a particular situation, omission to take care in that situation would be punishable.[9] An omission to act with care if caused by ‘mental’ blackout, would be excused.[10]
‘Illegal’ or ‘legally bound to do’.- Section 43 of IPC says that the word “illegal” is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action; and a person is said to be “legally bound to do” whatever it is illegal in him to omit.
The word ‘illegal’ in the section has been given a very wide meaning. It consists of three ingredients: (1) everything which is an offence; (2) everything which is prohibited by law; and (3) everything which furnishes ground for civil action.
Section 44 of IPC states that the word “injury” denotes any harm whatever illegally caused to any person, in body, mind, reputation or property.
(7) REASON TO BELIEVE, GOOD FAITH, OATH AND HARBOR
(7.1) MEANING OF “REASON TO BELIEVE”
Reason to believe and good faith are the two terms which directly linked with day to day performance of police duty i.e. police is going to arrest a person without warrant, it should have ‘reason to believe’ that such person has committed the alleged act. Section 26 of IPC says that a person is said to have “reason to believe” a thing if he has sufficient cause to believe that thing but not otherwise.
(7.2) MEANING OF GOOD FAITH
As far good faith is concerned, it is also very important for police and an official working in clean mind and with clean hand, even their act is wrong in the eyes of law. The person acted upon good faith is the best defence for person acting upon without criminal intention or motive. The word is defined by section 52 of IPC, which says that nothing is said to be done or believed in “good faith” which is done or believed without due care and attention.
(7.3) MEANING OF OATH
Section 51 of IPC says that the word “oath” includes a solemn affirmation substituted by law for an oath, and any declaration required or authorized by law to be made before a public servant or to be used for the purpose or authorized by law to be made before a public servant or to be used for the purpose of proof, whether in a Court of Justice or not.
(7.4) MEANING OF HARBOR
Section 52A of IPC says that except in section 157, and in section 130 in the case in which the harbour is given by the wife or husband or the person harboured, the word “harbor” includes the supplying a person with shelter, food, drink, money, clothes, arms, ammunition or means or conveyance, or the assisting a person by any means, whether of the same kind as those enumerated in this section or not, to evade apprehension.
It means a spouse who has given harbor to her spouse is not harbor, except the offence against the state. Even, in some of the cases mother and father is also exempted from allegation of harboring.
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[1] Khageswar Pujari v. State of Orissa, 1984 Cr. LJ 1108 (Orissa).
[2] Syndicate Transport Co., (1963) 66 Bom LR 197.
[3] Sham Sundar v. State of Haryana, JT 1989(3) SC 523.
[4] M. Karunanidhi v Union of India, AIR 1979 SC 598.
[5] P.V. Narasimha Rao v. State, (CBI/SPE), (1998)1 SCJ 529.
[6] State of Gujarat v. M.P. Dwivedi, AIR SC……
[7] Dr. Arvind C. Shah v. State of Gujarat, (1986)1 GLR 481.
[8] Section 2 (t) of the Information Technology Act, 2000 read with section 29A of IPC.
[9] Benoy Chandra, 1984 Cr LJ 1038(Cal).
[10] Bratty v. Attorney General for Northern Ireland, (1961) 3 All ER 523(HL).