Tag: IPC

Judges are duty-bound to state reasons for granting and denying bail- Karnataka High Court

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-Report by Monishka Allhabadi

The Karnataka High Court recently ruled that an order granting or refusing regular bail must be a speaking order, and courts must consider all evidence on record before reaching a decision. While overturning the Special judge’s order, the court also stated that the Court is required to provide reasons for granting or denying bail, particularly in cases involving serious offences. When a Court hearing a bail application fails to consider all relevant factors, an appellate Court may rightfully overturn the order.

In NELSON RAJ v. THE STATE OF KARNATAKA, the accused had been charged with violating Sections 302, 120B, and 149 of the IPC, as well as Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. As a result, the appellant filed a petition before the Special Court under Section 439 of the Cr.Pc., requesting that they be released on bail. Following that, the Special Court denied the bail request.

Three Criminal Appeals were filed under Section 14(A) of the SC/ST (POA) Act, challenging the special court’s order and praying for an order of regular bail under Section 14(A)(2) of the SC/ST (POA) Act.

CONTENTIONS OF THE APPELLANTS:

The appellants argued that after the appellants were apprehended, the alleged eyewitnesses did not identify them. Their statements recorded under Section 164 of the Cr.P.C are contradictory. It is also claimed that some names of people who have been accused of the offence are not even mentioned in the FIR. Furthermore, the appellants’ liberty has been restricted due to their detention in judicial custody.

RESPONDENTS CONTENTION:

They asserted that due to the heinous nature of the offence committed and the presence of eyewitnesses to the incident in question, the learned Special Judge has correctly denied the bail petition. As a result, it is not a suitable case to release the appellants on bail.

DECISION:

The Bench noted some well-established primary considerations in deciding whether to grant bail. The Bench went on to say that if a court hearing a bail application fails to consider the relevant factors, an appellate court may rightfully overturn the order.

“Bail orders, whether granting or refusing, cannot be issued mechanically or in a cryptic manner without taking into account the material facts of the case. The court must provide reasons for granting or denying bail, especially in serious cases.“

While overturning the order, the HC held

“that when a court considers an application for bail, the Court is required to consider all contentions raised and pass an appropriate order. It is necessary to examine the evidence on record that appears to link the accused to the crime, and based on that evidence, the Court can determine whether a prima facie case has been established and assign reasons for either granting or rejecting a bail petition.”

Furthermore, the court directed the special judge to rehear the parties involved and issue orders on the bail application in accordance with the law as soon as possible.

The police should refrain from taking actions against adult sex workers indulging in a sexual act with his/her own consent :Madras High Court

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A criminal petition had been filed by an individual under Section 482 of the Cr.P.C to quash the FIR registered against the petitioner. The FIR was registered by the Chennai Police for the offences punishable under Sections 3 (2) a, 4 (1), 5 (1) a & 5 (1) d of The Immoral Traffic (Prevention) Act, 1956 and 370 A (2) of the Indian Penal Code, 1860.

The Police had raided a massage center which was allegedly a brothel. The petitioner was also present along with the sex workers and was apprehended. The petitioner argued that firstly the allegations against the petitioner are not true. Secondly, even if they are true, doing sex work is not illegal, only running a brothel is. Therefore, the petitioner cannot be penalized for the offenses.

It was further argued that the petitioner is not the accused as per the FIR, however, it has been stated in the alteration report that the petitioner was present during the raid along with the sex workers. The contentions of the report are false. Further, the act of the petitioner also cannot be said to be an act of pressurizing the sex workers to commit acts, in which they were not interested.

The High Court relied on the judgment of the Apex Court in the case of BUDHADEV KARMASKAR Vs. THE STATE OF WEST BENGAL & ORS wherein it has been held that the sex workers should not be arrested or penalized while raiding a brothel, as only running of the brothel is unlawful. It further observed:

“In the case on hand, merely because the petitioner was in the place, which is alleged by the respondents to be a brothel being run by some person, the petitioner cannot be fastened with any penal consequence………From the aforesaid decision, any sex worker, being an adult and indulging in sexual act with his/her own consent, the police authorities should refrain from taking action against such individuals. From the facts, as is evident from the FIR and the alteration report, there is no whisper about any coercion on the sex workers to commit the act, more so from the petitioner”

Therefore, in light of the above, the FIR against the petitioner was quashed.

Case: Udhaya Kumar vs The State and Others

https://www.mhc.tn.gov.in/judis/index.php/casestatus/viewpdf/658791

WEBINAR: 498-A I.P.C USE & MISUSE

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ABOUT THE ORGANIZATION

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498–A I.P.C:  Use & Misuse {A Special Reference of Lockdown amid COVID-19 Pandemic.}”.


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Wrongful Restraint and Wrongful Confinement

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This article is written by Sharat Gopal, a 2nd-year law student, from Delhi Metropolitan Education, GGSIPU. In this article, he has discussed the terms ‘Wrongful Restraint’ & ‘Wrongful Confinement, along with this, he has also tried to distinguish the two terms from each other.

Introduction

When the constitution was drafted, it granted some rights which were essential for the intellectual, moral and spiritual development of individuals. These rights are called fundamental rights. They are enshrined in part-III (article 12-35) of the constitution. All these rights mentioned in part III have reasonable restrictions too. The constitution of India in article 32 guarantees its citizen, if any of these fundamental rights mentioned in part III of the constitution are infringed, they have the right to move to the Supreme Court of India (Article 32(1)).

Constitution

Our constitution gives us the freedom to move freely throughout the territory of India (Article-19(d)) with reasonable restrictions (Article-19(5)) and personal liberty to live life according to his will, except in the cases where it is deprived by procedure established by law (Article-21).

Indian Penal Code

Indian Penal Code 1860, punishes, whoever wrongfully restraints or wrongfully confines any person. While a person is being restrained or confined, his fundamental rights, Article-19(d) and Article 21 are being violated which has been given to him/her by the constitution of India.

Wrongful Restraint

Wrongful Restraint has been defined under section-339 of the Indian Penal Code. It states that “Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.”  

In simple words it means, whoever voluntarily obstructs, stops or blocks a person to prevent him/her from moving in a certain direction, which that person has all legal rights to move, is known as wrongful restraint.

E.g., ‘B‘ was moving in a certain direction. ‘A’ stops ‘B‘ in the middle of the road and says that ‘B‘ cannot travel on this road. ‘A‘ was not acting in good faith and he just wanted to stop ‘B‘ from travelling in that direction. Here, ‘A‘ has wrongfully restrained ‘B‘.

Ingredients of Section-399:

There are 3 basic ingredients to this section-

  1. There should be an obstruction on the way.
  2. That obstruction prevented the person from moving in a particular direction.
  3. The person obstructed had a right to move in that direction.

These 3 ingredients are important for the application of this section.

It is not necessary that there is physical obstruction. Mare words can also cause obstruction. If a person finds it difficult, or impossible or dangerous to life, to proceed in a certain direction, it will be covered under section-399 of IPC.

Punishment

Wrongful Restraint is punishable under section-341 of IPC. Section-341 states that “Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.” It clearly states that if any person wrongfully Restraints any other person, he/she will be punished with imprisonment which may be up to 1 month, or a fine up to â‚č500.

Case Laws       

In the case of Madala Perayya vs. Varugunti Chendrayya (1954 CrLJ 283 Mad),  two people were jointly using a well for their agricultural purposes for a long time but one day one of the them came with his bullocks by blocking other person movement and created restraint for another one to use them well and asked him not to use it. The court held that accused had committed the offence of wrongful restraint and will be punished under section-341 of IPC.

In Shoba Rani vs. The King (1950-51 CrLJ 668 Cal.), the landlord prevented tenant from using the bathroom, which tenant had a right to use. The Court held that the landlord was guilty of wrongful restraint and was punished under section- 341 of IPC.

Wrongful Confinement

Wrongful confinement is defined under section-340 of IPC. It states that, “Whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said ‘wrongfully to confine’ that person.”

In simple terms, it means that ‘Any person who restrains any person in a manner which he is prevented from going beyond a certain circumscribed limit, is known as wrongful confinement.

E.g., ‘A‘ places ‘B‘ in a room and tells ‘B‘, that if he tries to escape this room, A’s men will fire at him. Here, ‘A‘ has wrongfully confined ‘B‘.

Ingredients of Section-340:

  1. The person should have been wrongfully confined, that means all the ingredients of Wrongful Restraint must be present.
  2.  Such restrain was to prevent the person from going beyond certain circumscribed limit.
  3. The person should have a right to go beyond such circumscribed limit.

These are the essential ingredients of Wrongful Confinement under IPC.

Punishment

Section-342 provides punishment for Wrongful Confinement, according to it if any person confines anyone wrongfully then he shall be punishable for imprisonment of either a term which may extend to 1 year, or with a fine which may extend to â‚č1000, or with both. There are a variety of punishment given under IPC based on gravity and intention of the accused.

Case Laws

In the case of State of Gujarat vs. Keshav Lai Maganbhai Gujoyan (1993 CrLJ 248 Guj), it was held that proof of actual physical restriction was not required. If there are sufficient evidences which show that an impression was created in the mind of the victim, that he was not free to depart is sufficient to prove that he was under wrongful confinement and hence a reasonable apprehension in the mind of the victim is sufficient.

Classification  of wrongful confinement:

There are some different categories of wrongful confinement which cause vary in its punishments, and are discussed in IPC from section-343 to section-348 as follows –

  1. According to Section-343 (Wrongful confinement for three or more days), i.e.,  If wrongful confinement takes place for  3 or more days, it will make it punishable with imprisonment of a term which may extend to 2 years, or with fine, or with both.
  2. According to Section-344 ( Wrongful confinement for ten or more days)- If a person is wrongfully confined for 10 days or more, it will make it be punishable with imprisonment of a term which may extend to 3 years and with a fine as well.
  3. According to Section-345 (Wrongful confinement of person for whose liberation writ has been issued) – If a person keeps anyone in wrongful confinement, knowing that a writ for the liberation of that person has been duly issued, then he can be held liable and punishable with imprisonment of either a term which may extend to 2 years and in addition to this he will also be imprisoned for added term according to chapter XVI (OF OFFENCES AFFECTING THE HUMAN BODY).
  4. According to Section-346 (Wrongful confinement in secret)- If a person is wrongfully confined in a manner which indicates an intention that the confinement of such person may not be known to anyone who would be interested in the person confined, or to any other public servant, or the place of such confinement is not known to or discovered by any such person or public servant mentioned above, shall be punished with an imprisonment of a term which may extend to 2 years in addition to any other punishment to which he may be liable for such wrongful confinement.
  5. According to Section-347 (Wrongful confinement to extort property, or constrain to illegal act)- whoever confines any person for the purpose of extorting from the person confined, or from any person interested in the person confined, for any property or for valuable security or of constraining the person confined or any other person interested in such person to do anything illegal or to give any information which may facilitate the commission of an offence, shall be punished with an imprisonment of a term which may extend to 3 years and fine as well.
  6. According to Section-348 (Wrongful confinement to extort confession or compel restoration of property)- If a person is wrongfully confined any person for the purpose of extorting from the person confined or any person interested in the person confined, for any confession or to discard any information which may lead to the detection of an offence or misconduct, or for the purpose of constraining that person confined or any person interested in the person confined to restore or to cause the restoration of any property or valuable security or to satisfy any claim or demand, or to give information which may lead to the restoration of any property or valuable security, will be punished with imprisonment of a term which may extend to 3 years and fine.

These are the types of confinement mentioned in the Indian Penal Code.

Difference between Wrongful Restraint and Wrongful Confinement

S.NO.WRONGFUL RESTRAINTWRONGFUL CONFINEMENT
1.It is a wider term and has other types in it.It is a type of wrongful restraint.
2.It focuses to restraint in a particular direction.It focuses on the circumscribing limit.
3.It is a partial suspension of a persons’ libertyIt is total suspension of a persons’ liberty.

Conclusion

The article provided above, discuses about wrongful restrain and wrongful confinement, and also how they infringe the fundamental rights provided to us by the Constitution of India. Wrongful restrain is “drawing a line” in front of a person and wrongful confinement is, “drawing a circle” around the person. When a person is in wrongful confinement or wrongful restrain, his fundamental right to move freely throughout the country is violated. His fundamental right to live his life with personal liberty is violated. What happened in Jallianwala Bhag on 13 April 1919, was wrongful confinement, where General Reginald Dwyer, closed all gates and open fired at the mob.

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DIFFERENCE BETWEEN KIDNAPPING AND ABDUCTION

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This article is written by Deepika, pursuing BA-LLB from IIMT & School of Law, GGSIPU, Delhi. In this article, she has discussed ‘kidnapping’ and ‘abduction’ which are offences punishable under the Indian Penal Code along with this, she has also discussed the difference between both the offences.

INTRODUCTION

‘Kidnapping’ and ‘Abduction’ are offences which take place all over the world. From North-America to Asia, the governments are working hard in order to deliver justice by prosecuting the perpetrators. Kidnapping and Abduction are mainly done in return for something which could be anything ranging from money to making others do acts which are illegal in nature to save their loved ones and bring them back home safely.

In our country ‘Kidnapping’ and ‘Abduction’ are increasing at an alarming rate creating a concern both for the government and society. The reason for the seriousness of these two crimes is that they lead to various other crimes and in most cases, their common targets are women and children.

Both these offences of kidnapping and abduction are covered under Chapter XVI of IPC titled ‘of offences affecting the human body’. Apart from the general definition, the Indian Penal Code has given a wider spectrum to define the terms.

Kidnapping

Section 359, 360 & 361 of Indian Penal Code deals with ‘Kidnapping’.

  • Section – 359, IPC states that Kidnapping can be classified into two kinds ‘Kidnapping from India’ or ‘Kidnapping from Lawful Guardianship’.
  • Section – 360, IPC states that whoever conveys any person beyond the limits of India without that person’s consent, the person who takes such person is said to kidnap that person from India.
  • Section 361, IPC provides that when a person entices a minor (16 years for male and 18 years for female) or a person of unsound mind, the person so enticing will be held liable for kidnapping such minor or person from lawful guardianship.  

Essential ingredients of the section are

  1. Taking or enticing away a minor or a person of unsound mind by someone
  2. Such a minor must be under the age of sixteen years, if a male, or under eighteen years, if a female;
  3. The taking or enticing must be out of the keeping of lawful guardian of such minor or person of unsound mind,
  4. Such taking or enticing of the minor must be without the consent of the lawful guardian.

Taking or enticing

To prove the presence of taking or enticing element it is required to show some active part played by the accused.

In S Varadarajan v. State of Madras a girl who was on the verge of attaining majority, voluntarily left her father’s house, arranged to meet the accused at a certain place and went to the sub- registrar’s office, where the accused and the girl registered an agreement to marry. In this case, the accused had not  ‘taken’ her out of the lawful guardianship of her parents, as there was no active part played by the accused to persuade the girl to leave the house. It was held that no offence under this section was made out.

The word ‘entice’  embodies the idea of inducement or pursuance by offer of pleasure or some other form of allurement.   

Keeping of lawful guardian

The expression lawful guardian is much wider term than the expression legal guardian. Lawful guardian includes in its meaning not only legal guardians, but also such persons like relatives, teacher who are lawfully entrusted with care and custody of a minor.

In the State of Haryana v. Raja Ram, the court observed that the word keeping connotes the idea of charge, protection, maintenance and control. Out of keeping of lawful guardian means away from parental roof or control.

Age of Minor

As per the section, the age of a minor child at the relevant point of time should be less than 16 in respect of a male, and less than 18 in respect of a female in order to constitute an offence under this section.

In the State of Haryana v. Raja Ram, the prosecutrix was a young girl of 14 years she was constantly persuaded by one Raja Ram to leave the house and come with Jai Narain, who would give her a life full of a lot of material comforts. The question before the Supreme court was whether Raja Ram could be said to have ‘taken’ the minor girl since she willingly accompanied him.

The Supreme court held that persuasion by the accused person which creates willingness on the part of minor to be taken out of the keeping of lawful guardian would be sufficient to attract the section.

Abduction

Section-362, Indian Penal Code deals with ‘Abduction’

  • Section 362 of the Indian Penal Code states that if a person either by force compels a person or induces another person to go from any place is said to abduct such person.

Essential ingredients of this section are

  1. Forcible compulsion or inducement by deceitful means.
  2. The object with which such compulsion or inducement caused must be to make a person go from someplace.

DIFFERENCE BETWEEN KIDNAPPING AND ABDUCTION

Society very frequently uses both the terms ‘Kidnapping’ and ‘Abduction’ synonymously as if they were the same thing. The reason behind the confusion is because there’s a thin line difference between both the terms. Following are the differences between the terms ‘Kidnapping’ and ‘Abduction’, which makes both the terms different from each other:

Age

  • Kidnapping from guardianship is committed only in respect of a minor (16 years old, in case of males and 18 years old, in case of females) or a person of unsound mind.
  • Abduction may be in respect of a person of any age. Any person by force compelled or induced any other person to go from any place irrespective of the age shall be booked with abduction.

Removal From Lawful Guardianship

  • In Kidnapping, a person is taken away from the guardianship of a person who has been authorized by law to take care of the person who has yet not attained the age of majority.
  • In Abduction, concerns the person who has been abducted, there’s no involvement of a lawful guardian.

Means

  • In Kidnapping, the means used are irrelevant.
  • In Abduction, means of force, compulsion and deceitful means are used.

Consent

  • In Kidnapping, the consent of the person taken away has no significance, as the person being kidnapped is a minor, who’s incapable of giving a ‘free consent’
  • In Abduction, person condones the offence of abduction.

Continuity of crime

  • Kidnapping is not a continuing offence. It is complete, the moment a person is removed from India or from the keeping of lawful custody of the guardian.
  • Abduction is a continuing offence. It continues as long as the abducted person is removed from one place to another.

Punishment

  • Kidnapping is substantive offence, punishment for kidnapping is given in Section – 363, where a person shall be punished with imprisonment of either description of a term which may extend to seven years and in addition, he will also be liable to fine.
  • Abduction is an auxiliary act. It becomes punishable only when it is done with either of the intents specified in Section – 364 to 366.

Conclusion

So, after going through all these points, we can say though they are differences between Kidnapping and Abduction. But, both the offences have a detrimental effect upon the society. The victims of such offences goes through a traumatic experience. Though the crime itself may have ended but its manifestation in the mind of the victim remains there for a long time.

Reference

  • PSA Pillai 13th Edition
  • K D Gaur 6th Edition
  • NCRB report 2018

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