IPC IMPortatnt q&A PDF

Preview

Summary

IPC (Repeated questions)1) Ingredients of offence (Mens rea & Actus Reus) - 5From <blog.ipleaders/mens-rea-actus-reus-essentials-crime/>A crime is a moral wrong, committed against the society as a whole. It disturbs the peace, and some crimes may cause widespread panic and disruption of no...

Description

IPC (Repeated questions) 13 April 2022

23:51

IPC (Repeated questions)

1) Ingredients of offence (Mens rea & Actus Reus) - 5 From

A crime is a moral wrong, committed against the society as a whole. It disturbs the peace, and some crimes may cause widespread panic and disruption of normal activities in a community Every crime essentially has four elements: 1. A human being (indicated by the word “whoever” or “person” or “a man”). 2. Evil intent (mens rea or guilty mind). 3. The act (or omission) willed or the consequences of an act or omission (actus reus). 4. Injury. Mens rea and Actus Reus are two essentials of any crime and are the principles used in most common law countries. Mens rea is the ‘guilty mind’ or guilty intention to commit a crime, with the intention of causing hurt to another person, animal, or with the express intention of disturbing the peace. Actus Reus, however, is the “guilty act”, which is a necessity in proving that a criminal act was committed. When dealing with any crime, there are certain principles that need to be followed, and the accused is given the benefit of the doubt. The goal of the defense is to provide the judge or jury with a reasonable doubt since the principles of justice dictate that person cannot be convicted if the charge on which he/she is accused cannot be proven beyond a reasonable doubt. The goal of the defense is to provide the judge or jury with a reasonable doubt since the principles of justice dictate that person cannot be convicted if the charge on which he/she is accused cannot be proven beyond a reasonable doubt. Further, an Act may be voluntary or involuntary, and the guilt is determined by the facts of the case. If a person drives while he’s drunk and involuntarily causes harm to others, he is still guilty as it was a voluntary choice on his part to consume alcohol before driving, even though the crime itself was unintentional.

Actus Reus Actus Reus is the physical aspect of a crime. The accused needs to have done something or omitted to do something, resulting in injury to the plaintiff, or the victim in civil cases. Without a guilty act, there can be no crime and no suit for damages can arise. An act alone does not make a crime, however, and both the intention of the person and the act itself, if such act is prohibited, combine to form the crime. In certain cases, circumstances of the case are also taken into consideration, and are often used to either conclusively prove guilt, or can be used to prove reasonable doubt of intention. Actus Reus can also be the omission of an act, by omitting to do something that the accused knows he is bound by duty or law to do (example: – a mother intentionally omits to feed her female child, leading to the child’s death.) Actus Reus refers to the physical element of a crime. It is not what you think but what you do. There must be an overt act in relation to the crime. An overt act may be referred to as an act put in action to achieve some intention. Actus reus is commonly the commission of some act, e.g. assault, but maybe an omission, e.g. failure to exhibit lights on a vehicle, or a commission by omission, e.g. refraining from feeding an animal. An omission of either kind can be actus reus and criminal only where there was a legal duty to act.

What is Mens Rea? Mens Rea refers to the intention behind an act. The intention of a person makes him act and when this intention is guilty, the same act constitutes a crime provided other conditions are also fulfilled. In other words, Mens Rea means some blameworthy mental condition irrespective of the fact that such an intention is constituted by knowledge otherwise. The only time when this mental element is not needed to establish criminal liability is when the statutory provision directly lists the offence as under strict liability.

That is, irrespective of the fact that the wrong -doer had no guilty intention, the wrong -does will be criminally liable. The general idea of crime associates guilt not with the mere conduct but with a guilty mind, that is, generally there is no crime without an evil mind. This idea is well expressed by the Latin maxim actus non facit reum, nisi mens sit rea. Act and intent both must concur to constitute a crime, that is, physical as well as mental element both must combine to constitute a crime. The mens rea maxim does not apply to all the crimes because nowadays offences are accurately defined with all the constituting elements and insofar as the Code is concerned, it does not apply in its purely technical sense. Though an overwhelming majority of offences in the Code have been defined with a guilty mind as one of the elements, it is not uncommon to find offences in the Code where mens rea has not been expressly mentioned. Thus, in the offence of sedition [S. 124-A], kidnapping [S. 363], bigamy [S. 494], one finds no word indicating the requirement of a guilty mind. Some of the recently added offences to the Code through the Criminal law (Amendment) Act, 2013, for example, Sections 354 -A, 354-C and 354-D also do not have an express mention of guilty mind as a constituting element. It is, however, important to note that the courts in India have interpreted these offences as subject to the doctrine of mens rea.

Difference between Actus Reus and Mens Rea One major difference between Mens Rea and Actus Reus is that the first one is a physical element that is some overt act in connection with the crime while the latter i.e Mens Rea is a mental element behind the criminal act.

Mens Rea and Actus Reus together The Latin Maxim, actus reus nisi mens sit rea together means that the act itself does not constitute an offence unless done with a guilty intention. These two elements must combine together to form a crime unless the act is statutorily declared as triable without criminal intention as discussed above. ___________________________________________________________________________________________________

2) Forgery (Include making fake docs) - 8 Introduction To understand the concept of an offence relating to documents, we need to know what is a document as well as a forgery. According to Section 3 of the Indian Evidence Act,1872 defines document as, “Document” means any matter expressed o 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, for the purpose of recording that matter.” Forgery is defined under Section 463 of Indian Penal Code, Whosoever makes any fake document or incorrect electronic record or part of a document with an intention to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to share with property, or to enter into any express or implied contract, or with purpose to commit fraud or that fraud may be accomplished, commits forgery. Forgery hence can be described as a means to achieve an end - the end is an instance of action or scheme fabricated to mislead someone into believing a lie or inaccuracy.

What Constitutes Forgery? The very basis of the offence is the making of the false documents with the criminal intent to cause damage to any person. The making of a false document with the criminal intent to cause damage to any person. The making of a false document by itself is not punishable in The Indian Penal Court (IPC) under the provision of Chapter XVIII dealing with the offences related to document.

Concept of false Document

According to Section 463 of IPC, A person is declared to make a false document when; Firstly- who dishonestly or fraudulently makes sign, seal or performs a document or part of a document makes any mark

indicating the execution of a document, with the intention of causing it to be believed that such document or part of a document was made signed sealed or executed by the authority of a person by whom authority was not made, signed at a time at which he knows that it was not made sealed or executed; or Secondly- who without legal authority dishonestly or fraudulently by withdrawing or contrarily reconstructs a document in

any material part thereof after it has been made himself or by any person whether such person be alive or dead at the time of such alteration; or Thirdly- whoever dishonestly or fraudulently causes any person to seal, sign, execute or reconstruct a document knowing

that such person by reason of unsoundness of mind or intoxication cannot by reason of deceit practised upon him, he does not know the content of the document or the nature of the alteration. Forgery implies false document, signature or other imitation of the object of utility used with the intent to deceive another. Those who commit forgery are usually charged with the crime of fraud. Objects of the forgery include contracts, identification cards, and legal certificates. The most common form of forgery includes signing someone else’s name to cheque. Objects, data, and documents can also be forged. Legal contracts, historical paper, art objects, certificates, licenses, identification cards can also be forged. Consumer goods and Currency can also be forged but this crime is usually referred to as counterfeiting.  Forgery requires Deception

In most of the jurisdiction, the crime of forgery is not imposed unless it is done with the intent to commit fraud larceny.  Creation of fake document

Forgery also includes the creation of fraudulent or fake documents.  Forgery as Identity Theft

Identity theft is a crime wherein the defendant unjustly acquires and uses another’s person personal data in some way that involves fraud or deception typically for budgetary gain. Initially, states have treated identity theft as deceptive imitation forgery or as theft by deception.  The intention of the forger Section 468 pertains only to the cases where forgery is for the purpose of cheating. Forgery has been explained before as

concerning the presence of one or other of the two elements of dishonesty or fraud. Proof: the prosecution has to prove that the: Accused committed forgery. That he did so with an intention that the document forged shall be used for the purpose of cheating.

Forgery Law in India Section 465 of the Indian Penal Code deals with the penalty for forgery in India. As per this Section, the offence is punishable by a jail cycle elongating up to 2 years or fine or both. It is a non-cognizable, bailable offence in India that is triable by a Magistrate of the first class. Nevertheless, this is not a compoundable offence. According to Section 463 of the Indian Penal Code states that whoever misuses any paper format, computer records, important documents, identity cards or etc publicly or personally or infringing any contract shall be punishable for 2 years. It is applicable to all the citizens of India irrespective of the place or territory. Section 464 states how the forgery of the documents occurs. Under section 464

IPC. It makes it explicit that only the one

who makes a false document can be held liable under the aforesaid provision. Section 465 of the Indian Penal Code describes Punishment for forgery. According to this section, Whoever commits forgery shall be punished with imprisonment of jail term either description for a span which may extend to two years or with the penalty, or with both. Under IPC it is a non -cognizable offence. If the forgery is of a promissory note of the Central Government then it is Cognizable. Therefore, before the practice of the signing of deed originates, the ‘making’ of the false document will prevail under process and the crime will prevail within the stage of ‘preparation’. It will be just like forming a duplicate key to a lock for committing theft or procuring of poison for committing murder. For merely making such a key, even if the planned offence is theft, one cannot be held to have attempted to commit the offence of robbery.

Three Forms of Making False Documents In this variety of forgery, the forger chooses a model signature or writing and tries to replicate the design of letters and other broad features depending upon his ability, practice, and competency. Simulated or copied forgery:

Traced forgery: This means reproducing the exact copy of the original signature. It belongs to the signature or writing prepared of the material by the mental impressions of forms and letters of signatures or writings of the actual writer without examining any model or writing at the time of forgery. Forgery by memory:

When a person nearly writes or signs the name of another person in his own handwriting in a normal manner rather than expressing himself to be that person with some motive involved. Forgery by impersonation:

When Attestation would be Forgery An attestation is a confirmation by a witness that an instrument has been performed in his or her presence according to the formalities expected by law. before an attestation can amount to forgery, one of the main essential elements is that it must be made or signed by the person whom it does not indicate to be made or signed.

Ante-dating a Document It is also known as “backdate”.

Execution without Authority Fraudulent Alteration Fraudulent Alteration involves the material alteration to a Telefacsimile for a fraudulent purpose by a person other than the person who signed and adjusted the instrument.

Intention Not Essential Component Fraudis a deliberate act that results in a material misstatement in financial statements that are the subject of an audit. Two types of misstatements are related to the auditor’s opinion of fraud —misstatements arising from fraudulent financial reporting and misstatements arising from misappropriation of assets. Fraudulent financial reporting may be accomplished by the following: □ Manipulation, falsification, or alteration of accounting records or supporting documents from which financial statements are prepared. □ Misrepresentation in or intentional omission from the financial statements of events, transactions, or other significant data. □ Intentional misapplication of accounting principles correlating to amounts, classification, method of presentation, or disclosure.

Defences in a Charge of Forgery The following are the defences available to a person charged with forgery:  That he did not make the false document or a part of it, or  That the making of the document was not with the dishonest intent: ◊ To cause damage or injury to the public or any particular person, ◊ To support any claim or title, or ◊ To cause any person to part with property, ◊ Or to enter into any express or implied contract, or ◊ To commit fraud or that fraud may be committed.

Scope of Section 466 Section 466 deals with forgery of the following types of documents: 1. Court records and pleadings; 2. Register of birth, death, rebirth, marriage or register maintained by a public servant as such; 3. Certificate or document purporting to be performed by a public servant in his official capacity; or 4. An authority to replace or defend a suit, or to take any proceedings therein, or to confer judgment; or 5. A Power of attorney.

Using a Forged Document as Genuine According to Section 471 of IPC using a forged document as genuine is a cognizable offence. It states that whoever fraudulently or dishonestly accepts as the genuine document which he knows or has ground to believe to be a forged document, shall be punished in the corresponding manner as if he had forged such document.

Conclusion It should be noted that under Section 463 intention is essential, five situations are provided in the section. The intention is the essence of the offence of forgery. To constitute it, some damage or injury must be intended to be caused by the false document to an individual or to the public. __________________________________________________________________________________________________________________________________________________________

3) Kinds of Punishments under IPC - 3 Introduction Under the sanction of the law, punishment is retribution on the offender to the suffering in person or property which is inflicted by the offender. Punishment is the way through which an offender can be stopped from doing offences against person, property, and government.

Sentencing Policy Under the Indian Penal Code, the sentencing policy is measured on the following factors: □ The gravity of the violation; □ The seriousness of the crime; and □ Its general effect upon public tranquillity. □ There is a correlation between measures of punishment and the measure of guilt. Accordingly, the sentencing policy in a particular offence is standardized.

Fundamental Principles for Imposition of Different Types of Punishments

As per the United States Institute of Peace, the principle of the imposition of punishment can be based on: □ The necessity for criminal justice compulsion; and □ The proportionality of punishment based on the nature and degree of the danger which is present against the fundamental freedoms, human rights, social values, rights guaranteed and protected under the Constitution or international law. Supreme Court of India cited a number of principles while exercising discretionary powers by the Court. The general principles are proportionality, deterrence, and rehabilitation. In the proportionality principle aggravating and mitigating factors should be considered. Mitigating circumstances are related to the criminal and aggravating circumstances are related to the crime.

Scope of Section 53 In the Indian Penal Code, 1803 (“Code”), Section 53, specifically deals with different types of punishments which can be given by the Criminal Courts if the person is held liable under the Code. There are five kinds of punishments recognized under Section 53 of the Code:

1) Death; 2) Imprisonment for life; 3) Imprisonment: 4) Rigorous Imprisonment; or 5) Simple Imprisonment. 6) Forfeiture of property; 7) Fine. Considering the above punishments, the courts are supposed to follow the procedures and provisions which are prescribed under other adjective and substantive laws. As per the scheme of the Code the maximum punishment is prescribed, leaving the minimum to the discretion of the Judge. The Judge has all the means to form an opinion on the sentence which would meet the end of justice in a particular case. If the offence is grave in nature then the Code had prescribed the maximum and the minimum duration of the punishment.

Awarding Appropriate Sentence is the Discretion of the Trial Court In the case of Sibbu Munnilal vs State Of Madhya Pradesh , the three-judge bench of the Madhya Pradesh High Court had observed the scheme of punishment as follows: 1) The classification of offences is made with reference to the maximum punishment to which the offender is liable to receive. 2) In the case of the death penalty and imprisonment for life is provided as a punishment under a section. Imprisonment for life shall be considered as an alternative. And death penalty shall only be given if the case comes under the ambit of ‘rarest of rare case’. While giving the death penalty as punishment the Judge shall give due importance to the facts and nature of the case. 3) Imprisonment can be categorized into two categories - simple and rigorous. 4) Imprisonment for life means rigorous imprisonment for twenty years. 5) The difference between imprisonment for life and imprisonment is the former can be rigorous and the imprisonment is till his last breath, however, the duration of the latter can vary from period 24 hours to 14 years. 6) Lastly, offences punishable with fine means the offences for which the maximum penalty can be fine only.

1) Death Sentence The death sentence is a punishment which is sanctioned by the government and ordered by the court where a person is put to death for a crime acted by him. It is also referred to as ‘Capital Punishment’.

Procedure When Death P...