IPC – Offences relating to Public Justice -2- Part – 17

IPC – Offences relating to Public Justice -2- Part – 17

It is third session under this chapter. In first session we have discussed false evidence and in second some of the offences against public justice. Section 226 has been repealed. In this session we have to discuss the following issues, namely –

• Offences by public servant under sections 217 to 223.
• Resisting lawful apprehension under section 224, 225, 225A and 225B.
• Transgression of punishment under section 227.
• Contempt of court under section 228.
• Disclosure of identity section 228A.

(1) OFFENCES BY PUBLIC SERVANT AGAINST PUBLIC JUSTICE

Sections 217 to 223 describe the offences by public servant against public justice, which may be discussed as follows –

(1.1) DISOBEYING DIRECTION OF LAW TO SAVE PERSON FROM PUNISHMENT

Section 217 makes an offence if a public servant disobeying direction of law with intent to save person from punishment or property from forfeiture. The section says that whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is conduct himself as such public servant, intending thereby to save, or knowing it to be likely that he will thereby save, any person from legal punishment, or subject him to a less punishment than that to which he is liable, or with intent to save, or knowing that he is likely thereby to save, any property from forfeiture or any charge to which it is liable by law, shall be punished with imprisonment up to two years, or with fine, or with both.

The very nature of the offence under section 217 shows that it can be committed only by a public servant and none else.[1] It provides punishment for a person who knowingly disobeys any direction of the law either intentionally or with the knowledge that such act is likely thereby to save any person from legal punishment.

• DISTINCTION BETWEEN SECTION 166 & SECTION 217

Section 166 provides punishment for public servant who disobeys law either with intention or with knowledge that thereby he would cause injury to any person. On the other hand, Section 217 provides punishment against public servant who disobeying direction of law with intent to save person from punishment or property from forfeiture. The Bombay High Court held that if the roads are not restored or reinstated after the work was done, certainly it affects and causes injury to the members of the public.[2] The complaint not only makes out prima facie case under section 217 for which process has been issued, it makes out a prima facie case even under section 166 which was invoked by the complainant but for which the process was not issued.

(1.2) FRAMING INCORRECT RECORD TO SAVE PERSON FROM PUNISHMENT

Section 218 makes public servant offender, if he is framing incorrect record or writing with intent to save person from punishment or property from forfeiture. It says that whoever, being a public servant, and being as such public servant, charged with the preparation of any record or other writing, frames that record or writing in a manner which he knows to be incorrect, with intent to cause, or knowing it to be likely that he will thereby cause, loss or injury to the public or to any person, or with intent thereby to save, or knowing it to be likely that he will thereby save, any person from legal punishment, or with intent to save, or knowing that he is likely thereby to save, any property from forfeiture or other charge to which it is liable by law, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Section 217 provides for prosecution of a “public servant disobeying direction of law with intent to save person from punishment or property from forfeiture”, whereas Section 218 deals with a “public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture”.

The offences punishable under Sections 167, 217 and 218 of IPC relate to the act of a public servant framing an incorrect document, the act of a public servant disobeying the direction of law with an intent to save persons and the act of framing an incorrect record with an intent to save persons. To put it in brief, the allegation is that the documents in both the crimes, one is the complaint given by the complainants to the police and the other complaint given by Authority is false record.[3]

The accused, a Lekhpal of a village (Talati), corrected the entries in revenue records by entering the names of two persons as tenants on the basis of his discovery that those persons were actually in occupation of land. It was held that alteration through erroneous, be made by him in the exercise of the powers given to under the Land Revenue Manual and hence could not be ground for prosecution under section 218.

(1.3) CORRUPTLY MAKING REPORT IN JUDICIAL PROCEEDING

Section 219, provides punishment against public servant corruptly making report contrary to law in judicial proceedings. It says that whoever, being a public servant, corruptly or maliciously makes or pronounces in any stage of a judicial proceeding, any report, order, verdict, or decision which he knows to be contrary to law, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

According to Section 219 IPC, when any public servant corruptly or maliciously makes or pronounces in any stage of judicial proceeding any report, order, verdict or decision which he knows to be contrary to law, shall be punished.

Elements of the offence are : (i) the public servant must have acted corruptly or maliciously, while passing or making any order or judgment (ii) such order or judgement may be passed at any stage of judicial proceeding, and (ii) he should have known that the said order or judgment is contrary to law.

In the present case, there is no allegation that any of the three respondents had passed concerned orders corruptly or maliciously or knowing that they were contrary to law. In judicial proceedings possibility of committing error cannot be ruled out and therefore, law provides for appeal or the revision against such orders, so that the appellate or revisional authority may look into the matter and if any mistake is committed, it may be rectified. It is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution and the said provision.[4]

Use of the expression, “official duty” implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The Section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.

(1.4) COMMITMENT FOR TRIAL OR CONFINEMENT CONTRARY TO LAW

According to section 220, whoever, being in any office which gives legal authority to commit persons for trial or to commitment, or to keep persons in confinement, corruptly or maliciously commits any person for trial or to confinement, or keeps any person in confinement, in the exercise of that authority knowing that in so doing he is acting contrary to law, shall be punished with imprisonment up to seven years, or with fine, or with both.

The offence under Section 220 is committed only when a person, being in office, which gives him legal authority to commit persons for trial or to keep persons in confinement, corruptly or maliciously commits any person for trial or confinement or keeps any person in confinement, in exercise of that authority knowing that in so doing he is acting contrary to law. Therefore, under Section 220 also it is necessary to establish that the officer, who committed any person for trial or to confinement, must have acted corruptly or malicious and knowing that he was doing that act contrary to law. In absence of these conditions and circumstances, a person cannot be held guilty under Section 220 of IPC, merely because he has confined or committed any person to confinement in exercise of the authority given to him under the law.[5]

(2) INTENTIONAL OMISSION TO APPREHEND

(2.1) INTENTIONAL OMISSION TO APPREHEND WHEN BOUND TO APPREHEND

Section 221 declared offence of intentional omission to apprehend on the part of public servant bound to apprehend. This section says that whoever, being a public servant, legally bound as such public servant to apprehend or to keep in confinement any person charged with or liable to apprehended for an offence, intentionally omits to apprehend such person, or intentionally suffers such person to escape, or intentionally aids such person in escaping or attempting to escape from such confinement, shall be punished as follows, that is to say:- 

(i)      If the person in confinement, or who ought to have been apprehended, was charged with, an offence punishable with death – is punishable with seven years’ imprisonment; or

(ii)    If the person in confinement or who ought to have been apprehended, was charged with, an offence punishable with life imprisonment or imprisonment for ten years – is punishable with three years; or

(iii)   If the person in confinement, or who ought to have been apprehended, was charged with, an offence punishable with imprisonment for a term less than ten years – is punishable with imprisonment to two years.  

 The core question arises whether mere failure itself is described as a penal offence. The answer is at once clear that nowhere it is found stated so. While visualising such a legal position, we may refer section 221, 222 and 225A of IPC, by way of exemplification of the point that if law contemplates as contemplated in those three sections that mere omission itself would tantamount to a particular offence, then in that case, the prosecution could proceed with this case.

Essential ingredients of the offence under section 221are :

(a)     The person should be public servant.

(b)     Being a public servant, he is legally bound to apprehend for an offence or to keep in confinement any person charged with.

(c)     The person should intentionally – (i) omits to apprehend such person, or (ii) suffers such person to escape, or (iii) aids such person in escaping or attempting to escape from such confinement.

(2.2) OMISSION TO APPREHEND A PERSON UNDER SENTENCE

According to section 222 whoever, being a public servant, legally bound as such public servant to apprehend or to keep in confinement any person under sentence of a Court of Justice for any offence or lawfully committed to custody, intentionally omits to apprehend such person, or intentionally suffers such person to escape, or intentionally aids such person in escaping or attempting to escape from such confinement, shall be punished as follows, that is to say:-

(i)      If the person in confinement, or who ought to have been apprehended, is under sentence of death, an offence punishable with death – is punishable with fourteen years’ imprisonment; or

(ii)    If the person in confinement, or who ought to have been apprehended is subject, by a sentence of a Court of Justice, to life imprisonment or imprisonment for ten years – is punishable with seven years; or

(iii)   If the person in confinement, or who ought to have been apprehended is subject, by a sentence of a Court of Justice, to imprisonment for a term less than ten years – is punishable with imprisonment to two years.  

Essential ingredients of the offence under section 222 are :

(a)     The person should be public servant.

(b)     Being a public servant, he is legally bound to apprehend or to keep in confinement any person under sentence of a Court of Justice for any offence or lawfully committed to custody.

(c)     The person should intentionally – (i) omits to apprehend such person, or (ii) suffers such person to escape, or (iii) aids such person in escaping or attempting to escape from such confinement.

The difference between section 221 and section 222 is that referred person in section 221 is the alleged person (under-trial) and in section 222 is ordered by the court of justice (convicted person). In case of later situation it is sever than first one.

(2.3) NEGLIGENTLY SUFFERS TO ESCAPE FROM CONFINEMENT

Section 223 makes the negligent act of a public servant, which suffers such person to escape from confinement. This section says that whoever, being a public servant legally bound as such public servant to keep in confinement any person charged with or convicted of any offence or lawfully committed to custody, negligently suffers such person to escape from confinement, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

Basic elements of the offence are :

(a)     A public servant must be legally bound to keep in confinement any person charged with or convicted of any offence or lawfully committed to custody, and

(b)     He negligently suffers such person to escape from confinement.

The offence envisaged in terms of Section 223 is one of which a public servant is guilty only while acting as public servant, not otherwise. He cannot be guilty unless he was acting as a public servant.[6] The personnel manning the carrier could be detained by the check post authority, no offence under Section 223 would be committed, if after detention one or more persons detained were let off by the check post authority.

• DETENTION AND CONFINEMENT

The power to detain is not synonymous with the power to confine. Confinement is detention, but detention is not confinement. According to Chamber’s Twentieth Century Dictionary, the word, ‘detain’ means, ‘to hold back: to withhold: to stop: to keep: to keep in custody”. The word ‘confine’ means; “to limit, enclose: to imprison.” Therefore, where an authority, not authorised to confine a person but only to detain, let off such person from his custody no offence under Section 223 of the Code is committed. It is only when the letting off is from a confinement that an offence under Section 223 can be said to have been committed. The check-post authority having no power to confine a person but only to detain cannot, therefore, be guilty of an offence under the said provision of the Code. To detain the truck manned by them, who had escaped, were neither charged with nor convicted of any offence.[7]

(2.4) OMISSION TO APPREHEND OR SUFFERANCE OF ESCAPE IN OTHER CASES

Section 225A makes act of public servant for omission to apprehend, or sufferance of escape in other cases not provided above. It says that whoever, being a public servant legally bound as such public servant to apprehend, or to keep in confinement, any person in any case not provided for in section 221, section 222 or section 223, or in any other law for the time being in force, omits to apprehend that person or suffers him to escape from confinement, shall be punished: –

(a)     If he does so intentionally, with imprisonment up to three years and/or fine; and

(b)     If he does so negligently, with simple imprisonment up to two years and/or fine. 

Justice Akil Kureshi, speaking for Gujarat High Court held that to drive home the charge of Section 225A, it is necessary for the prosecution to establish that the person escaped from the confinement of public servant on account of his intentional acts or on account of negligent actions. In the present case, a person was escaped from the custody of police in a vegetable market. But it was not proved that escape has taken place due to intentional or negligent act of public servant. Simply by establishing on record that two unarmed Constables were in charge of the prisoner and such a prisoner escaped, ipso-facto, without any further evidence cannot establish the charges under Section 225A of IPC.[8]

(3) RESISTANCE OR OBSTRUCTION TO LAWFUL APPREHENSION

(3.1) RESISTANCE OR OBSTRUCTION BY A PERSON TO HIS LAWFUL APPREHENSION

Section 224 makes act of individual provide resistance or obstruction to his lawful apprehension. It says that whoever intentionally offers any resistance or illegal obstruction to the lawful apprehension of himself for any offence with which he is charged or of which he has been convicted, or escapes or attempts to escape from custody in which he is lawfully detained for any such offence, shall be punished with imprisonment up to two years and/or fine.

The section itself explained that the punishment in this section is in addition to the punishment for which the person to be apprehended or detained in custody was liable for the offence with which he was charged, or of which he was convicted.

(3.2) RESISTANCE OR OBSTRUCTION TO APPREHENSION OF ANOTHER PERSON

Section 225 imposes punishment for resistance or obstruction to lawful apprehension of another person. It says that whoever intentionally offers any resistance or illegal obstruction to the lawful apprehension of any other person for an offence, or rescues or attempts to rescue any other person from any custody in which that person is lawfully detained for an offence, shall be punished with imprisonment up to two years and/or fine.   

Or, if the person to be apprehended, or the person rescued or attempted to be rescued, is charged with or liable to be apprehended for an offence, shall be punished with imprisonment of up to three years to ten year and/or fine in different situations.

(3.3) RESISTANT OR OBSTRUCTION TO APPREHENSION OR RESCUE IN OTHER CASES

Section 225B imposes punishment for resistant or obstruction to lawful apprehension, or rescue in any other cases (Residue provisions). It says that whoever, in any case not provided for in section 224 or 225 or in any other law for the time being in force, intentionally offers any resistance or illegal obstruction to the lawful apprehension of himself or of any other person, or escape or attempts to escape from any custody in which he is lawfully detained, or rescues or attempts to rescue any other person from any custody in which that person is lawfully detained, shall be punished with imprisonment up to six months and/or fine.

(3.4) VIOLATION OF CONDITION OF REMISSION OF PUNISHMENT

Section 227 makes violation of condition of remission of punishment. It says that whoever, having accepted any conditional remission of punishment, knowingly violates any condition on which such remission was granted, shall be punished with the punishment to which he was originally sentenced, if he has already suffered no part of that punishment, and if he has suffered any part of that punishment, then with so much of that punishment as he has not already suffered.

(3.5) INTENTIONAL INSULT OR INTERRUPTION TO PUBLIC SERVANT SITTING IN JUDICIAL PROCEEDING

Section 228 makes conduct of person punishable if he intentionally insult or interrupted to public servant sitting in judicial proceeding. It says that whoever intentionally offers any insult, or causes any interruption to any public servant; while such public servant is sitting in any stage of a judicial proceeding, shall be punished with SI up to six months and/or fine up to Rs. 1000. 

(3.6) DISCLOSURE OF IDENTITY OF THE VICTIM OF CERTAIN OFFENCES 

The offence under section 228A was inserted in 1983 by amendment. This section was also amended by Criminal Law (Amendment) Act, 2013. According to this section, it is an offence whoever prints or publishers the name or any matter which may make known the identity of any person against whom an offence under section 376, section 376A, section 376B, section 376C, or section 376D, or 376E is alleged or found to have been committed.

Punishment.- Whoever prints or publishes any matter in relation to any proceeding before a court with respect to any such offence, without the previous permission of such court shall be punished with imprisonment up to two years and fine.

Exceptions to this general rule : According to section 228A (2) it is not an offence if any printing or publication of the name or any matter which may make known the identity of the victim if such printing or publication is:-

(a)     By or under the order in writing of the officer-in-charge of the police station or the police officer making the investigation into such offence acting in good faith for the purposes of such investigation; or

(b)     By, or with authorization in writing of, the victim; or

(c)     Where the victim is dead or minor or of unsound mind, by, or with the authorization in writing of, the next of kin of the victim.

No such authorization shall be given by the next of kin to anybody other than the chairman or the secretary, by whatever name called, of any recognized welfare institution or organization.

For the purpose of this section, “recognized welfare institution or organization” means a social welfare institution or organization recognized in this behalf by the Central or State Government.

The printing or publication of the judgment of any High Court or the Supreme Court does not amount to an offence within the meaning of this section. 

(3.7) FAILURE BY PERSON RELEASED ON BAIL OR BOND TO APPEAR IN COURT

Section 229A makes act of failure by person released on bail or bond to appear in Court. It says that whoever, having been charged with an offence and released on bail or on bond without sureties, fails without sufficient cause (the burden of proving which shall lie upon him), to appear in Court in accordance with the terms of the bail or bond, shall be punished with imprisonment up to one year, or with fine, or with both.

The punishment under this section is- (a) in addition to the punishment to which the offender would be liable on a conviction for the offence with which he has been charged; and (b) without prejudice to the power of the Court to order forfeiture of the bond.

Section 229A was inserted in IPC by the Code of Criminal Procedure (Amendment) Act, 2005.

(4) SUMMARY OF OFFENCES WITH THEIR NATURE

* * * * *

[1]     Sunil Paraskar v. State of Maharashtra, 2006 (6) Mh LJ 690.

[2]     R.N. Kulkarni v. V.V. Kanabar, 1998 (5) Bom CR 647, 1998 (2) Mh LJ 128

[3]     A. Varghese v. Chellappan, 1998 CriLJ 1328 (Mad).

[4]     Shri Pravin Niwritti Sawant v. Hon’Ble Shri J.B. Anandgaonkar, 2008 CriLJ 984 : 2007 (5) Mh Lj 838 (Bom).

[5]     Shri Pravin Niwritti Sawant v. Hon’Ble Shri J.B. Anandgaonkar, 2008 CriLJ 984 : 2007 (5) Mh Lj 838 (Bom).

[6]     Girja Shankar Sahay v. State of Bihar, 1972 CriLJ 988 (Pat)

[7]     Uttaranchal High Court in Vijay Pal Singh v. State of Uttarakhand on 22/12/2009 in Special Appeal No. 213 of 2009.

[8]     Gujarat High Court in State of Gujarat v. Harendrasinh Jayendrasinh Puvar, on 7 February, 2011 in CR.RA/551/2010, Justice Akil Kureshi.