WRITE A SHORT NOTE ON THE INDIAN PENAL CODE

Abstract

When we talk about our country’s criminal justice system the first law that comes to our mind is the Indian Penal Code. It is a comprehensive legislation that includes so many criminal activities and also mentions punishment for it. This legislation was made in the 1860s and till the present time, it is relevant. Different amendments were made to make the laws flexible with the needs of contemporary society. Most of the people in our country are not aware of the laws of the country.

In this article, the author has tried to explain some of the important sections of this law in detail. So that a lawman as well as a layman can understand the basic criminal laws.

Keywords

Indian Penal Code, Crime, Judiciary, Offences

Introduction

Crime exists everywhere in the world. Not even a single country can designate itself as crime-free. The government of a nation is mainly responsible for controlling the crime situation in a country.  As crime rates are increasing every day, we need a comprehensive law to fight against it. Criminal law mentions different types of crimes and conditions that can designate an act as a crime and also provide punishments for each crime. In India, we have various criminal laws for fighting against different types of crimes out of those the most inclusive one is the Indian Penal Code. This statute was drafted and enacted by the Britishers and from that time it has nearly been 160 years since the law prevailed in our country. But the law cannot remain static it has to become flexible with the changing needs of the society. Throughout the years this law has gone under various amendments but there still exists some provision that carries the colonial legacy.

So, there was a need to revamp the penal code that will be more appropriate in the present society. As a result, a new criminal law named Bharatiya Nyaya Sanhita, 2023 has been approved by the government that will substitute IPC and will make criminal law more updated with contemporary society.

History of the Indian Penal Code

The Indian Penal Code was drafted during the Colonial Era by the Britishers. Before the Indian Penal Code Mohammedan law was effected in India. The Mohammedan law applied to both the Hindus and Muslims.

• Under the Charter Act of 1833, the First Law Commission was established in 1834 under the chairmanship of Sir Thomas Babington Macaulay the Indian Penal Code was drafted and the Bill was submitted to the Governor General of India Council in 1837, later it was revised.
• Later the revised code was completed in 1850 and was tabled before the Legislative Council in 1856 because of the 1857 rebellion the Statute was not passed.
• The Bill was finally passed into law in 1860 the law was carefully revised by Barnes Peacock who later became the Calcutta High Court’s First Chief Justice.
• The law was applied to the entire British India from 1862.
• However, the law did not apply to the Princely States until the 1940s because those states had their own courts and legal systems.
• After independence, this Indian Penal Code was continued and it was applicable throughout the territory of India except Jammu and Kashmir. After 2019 when Jammu and Kashmir’s special status was abrogated, it took effect there by replacing the State’s previous code.[1]

Structure of the Indian Penal Code

The Indian Penal Code contains 23 Chapters and 511 Sections each of the Chapters focuses on Various types of Crimes, essential elements to constitute the crime, and the penalties.

Some Important Chapters of the Indian Penal Code

Chapter IV talks about General Exceptions

1. Mistake of Fact and Mistake of Law

“ignorantia facti excusat, ignorantia juris non excusat” This maxim says that Ignorance of Fact is an excuse, and ignorance of law is not an excuse.

In the IPC Section 76[2] and Section 79[3] describes Mistake of Fact.

When a person under honest misapprehension believes certain facts to be true and takes action based on those circumstances. The person will not be held guilty if he can prove that he has done the act under the veil of mistake of fact.

But if any person does any wrongful act and pleads before the court that he was not aware of that particular law. That will not work as a defense and the person will get punished.

State of Maharashtra v. Mayer Hans George (1965)[4]

In this case, a German smuggler was carrying some amount of gold with him which was above the permitted limit of India. When his flight arrived in Bombay. The gold was discovered by him. But he pleaded before the court that he had no mens rea to commit this crime, and as a non-resident of India, he is unaware of the law prevailing in the country.

The magistrate court found him guilty but the High Court acquitted the individual. But the Supreme Court upheld the magistrate Court’s judgment that within the Indian territory, no person can plead for not-guilty based on ignorance of the law, as that is not a defense.

2. Right of Private Defense

In the IPC section 96[5] to Section 106[6] talks about Private Defense.

Every person has the right to save themselves, their property, or any other person from theft, robbery, mischief, or criminal trespass. To save themselves if they use a reasonable amount of force that will not be considered a crime.

State of Uttar Pradesh v Ram Swaroop[7]

In this case, the respondent’s father went to the market to buy some vegetables the victim underestimated him, and the victim and his close aides also lathi-charged the respondent’s father. An hour later the respondent along with his father and two brothers went to the market to take revenge. The respondent shot the victim in a fit of rage while the victim was trying to escape the crime scene.

The Supreme Court, in this case, held that the respondent cannot plead for the right to Private defense as there was no imminent threat or danger present when he attacked the victim. The court also held that harm may be inflicted in proportion to the threat that is present and cannot exceed that. The respondent in this case has exceeded his limit. So, he cannot take the defense and he was convicted of his guilt.

Chapter V-A talks about Criminal Conspiracy

1. Criminal Conspiracy

Section 120-A[8] states that when two or more than two people with their joint evil intent conspire to do any illegal act such an agreement will be regarded as Criminal Conspiracy. It is completely irrelevant whether the illegal act is the direct result of the conspiracy or it has happened merely incidentally.

Section 120-B[9] says that when criminal conspiracy leads to an offense of such a grievous nature for which punishment can be death, life imprisonment, and rigorous imprisonment in those cases an imprisonment of two years or upwards will be provided. In case the grievousness of the offense is not so high maximum of six tears punishment can be provided.

Topan Das v. State of Bombay (1956)[10]

In this case, four people were convicted of criminal conspiracy for doing an illegal act. They were also charged under some other sections of IPC. The magistrate court acquitted all the offenders. Then the state appealed the matter before the Bombay High Court. The high court reversed the acquittal of the accused No. 1 and upheld the acquittal of three other persons. Then the matter came before the Supreme Court through a Special Leave Petition.

The Apex Court set aside the High Court’s judgment on the contention that a single person cannot commit criminal conspiracy minimum of two persons are required to do this crime. Therefore, the Court acquitted the person and upheld the magistrate court’s judgment.

Chapter VI discusses different offenses committed against the state

1. Waging War Against the Government of India

Section 121[11] of the IPC states that when any person attempts to create war war-like situation in India or abets in such an act or commits such a heinous offense for such an offense the offender can get life imprisonment and, the death penalty and will also be liable for paying fine.

Mohammad Ajmal Amir Kasab v State of Maharashtra[12]

In this case, four terrorists landed in Mumbai intending to attack India. They planned to attack high-profile landmarks in Mumbai so that they could kill many people. In that attack, 162 people died and 238 were injured and property worth millions was destroyed. The Indian Security forces gunned down three terrorists and the Sole survivor was Ajmal Kasab.

The Session Court sentenced him death penalty. The High Court also upheld the Judgment when the death sentence was appealed in the Supreme Court the Court said that as the accused has no remorse for his acts there is very little possibility that he will be reformed in the future. The Court also upheld the death penalty verdict.

2. Sedition

Section 124-A[13] of the IPC explains that whenever a person either through spoken or written words or using signs or through any kind of visible interpretation creates a situation of hatred against the government of India or tries to create disharmony among people so that general people do anything against the government of India that is an offense of Sedition.

For committing Sedition against the government the accused can be punished through life imprisonment along with a fine or the person may get imprisonment for a term of three years and a fine may be added to that.

Kedarnath v State of Bihar[14]

In this case, the respondent criticized the ruling dispensation and he was booked under Sedition. The Sessions court gave him a rigorous punishment of 1 year. The High Court also upheld the punishment. Then the respondent appealed before the Supreme Court. He contended that Sec 124A is violative of the freedom of Speech that has been provided under Article 19(1)(a) and the section is ultra-vires of the Constitution.

The Supreme Court held that the provision of Sedition is violative of freedom of speech and expression. Criticizing a particular government cannot be specified as Sedition. To penalize someone under Sedition it needs to be proved that the person’s opinion has created violence and hatred in the society by inciting people. The judgment also emphasized that freedom of speech is necessary but there should also be reasonable restrictions to it.

Chapter XVI discusses offenses that affect the human body

Culpable Homicide and Murder

Homicide means killing a Human being. Culpable Homicide is regarded as the genus and Murder is regarded as a Species.

Section 299[15] explains Culpable Homicide. As per this section whenever death has happened intending to cause it, to cause severe bodily injury that results in death, when a person knows that such acts will result in death.

Section 300[16] explains Murder. Other than the five exceptions that are mentioned in this section all acts of Culpable Homicides are Murder.

Exceptions

1. In the rage of grave and Sudden provocation when a person loses his self-control if he commits the death of the person who gave him provocation that will not be considered murder.
2. When an offender without any pre-mediation in the exercise of his Private defense causes the death of the person against whom he was exercising his rights that will not be considered Murder.
3. When a public servant or someone who was acting for public justice exceeds their lawful power without any ill-will towards the person whose death has occurred that act of Culpable Homicide will not be considered as Murder.
4. When a death has happened without any premeditation in between a sudden fight without any act of cruel or unusual manner that will not be considered Murder.
5. When a person aged above 18 voluntarily causes any act that results in his death that will not be considered as Murder.

Palani Goudan v. Emperor[17]

In this case, a husband while in a fight with his wife struck a violent blow on his head that resulted in her unconsciousness. The Husband mistook the unconsciousness as a death and to conceal his crime he hanged the wife. Later it was held that the death did not happen because of the hit in the head rather it was caused by hanging.

The court found the husband guilty of culpable homicide only as the act happened within a fit of rage and he had no premediate intention to kill his wife.

Dowry Death

As per Section 304-B[18] of the IPC when a woman has died within seven years of marriage and the reason behind marriage was burning and any other bodily injury that was unnatural. There is also circumstantial evidence that the lady was subjected to cruelty from her husband or any of the relatives in connection to the demand for dowry. Such a case is designated as Dowry death.

Offenders of the dowry death are punished with imprisonment the term of which extended from a minimum of seven years to life imprisonment.

Rape

Section 375[19] defines rape. When a male person forcefully cohabits with a woman by inserting his penis or any of his body parts into the vagina, mouth, urethra, or anus of a woman or forces the woman to do that with him or any other person that is considered rape.

The act to become rape should fall under any of the seven circumstances-

The incident happened without the consent of the woman or against her will, or when the woman’s consent was taken forcefully, or when the consent was taken under misrepresentation, or when she was intoxicated while giving consent, or when the woman was under eighteen, or when the woman was not in a position to give her consent.

Section 376[20] provides rape punishment. The punishment is imprisonment where the tenure can be a minimum of ten years to a maximum life imprisonment and a fine can also be added.

Vishaka & Ors. v. State of Rajasthan[21]

In this case, a social activist in Rajasthan has stopped a child marriage incident in her village. The relatives of the girl gang-raped the activist. The police were not cooperating with the lady. The lower court acquitted all the offenders. The High Court held that the act of gang rape happened for taking revenge on the activist. Later the matter reached to Supreme Court when various PILs were filed.

The Court held that having a safe working environment for women is their fundamental right. There should be a proper mechanism in every workplace to prevent such cases. The court also defined the term sexual harassment in a broader perspective.

Unnatural Offences

 Section 377[22] states that when a person voluntarily is involved in intercourse against nature’s order with any human being or with any animal, he will be punished with imprisonment from a minimum of ten years to a maximum of life imprisonment and the person is also liable for paying fine.

Navtej Singh Johar v Union of India[23]

In this case, the petitioner member of the LGBTIQ community filed a petition before the Supreme Court on the contention that the right to sexuality and the right to choose a sexual partner is a right provided under Article 21 is the Right to life with dignity.

The court in this case partially struck down Article 377 whereby they upheld the right of the LGBTIQ community to have consensual sex between same-sex partners. The court also clarified that the State has nothing to do with a person’s right to choose their partner irrespective of their sexuality.

Chapter XVII Discusses Offences Against Property

There are various offenses like Theft, Extortion, Robbery, and Dacoity that happen against any person’s property.

Section 378[24] defines Theft which says whenever a person without any lawful authority takes out some person’s property that is designated as theft.

Section 383[25] says that when an owner of any property delivers his valuable properties to some miscreants under the fear of injury that is regarded as Extortion.

For both theft and Extortion imprisonment of three years is provided or a fine can also be taken or sometimes both. (Section 379[26] and Section 384[27])

Robbery and Dacoity

Section 390[28] explains that when theft or extortion is committed under the fear of instant death, hurt, or wrongful restraint that is known as Robbery.

Section 392[29] defines the punishment of robbery as a maximum of ten years of rigorous imprisonment along with a fine. When Robbery is committed on the Highway between Sunset and Sunrise then the tenure of imprisonment is extended to fourteen years.

Section 391[30] explains that when Robbery is committed by five or more persons it becomes Dacoity. The Punishment for Dacoity is also ten years of rigorous imprisonment along with a fine which is provided in Section 395[31].

Bharatiya Nyaya Sanhita, 2023

After remaining implemented for 160 years the government felt the need to update the IPC by introducing BNS that will also be free from colonial marks. The change is not new Vohra Committee in 1993 and the Malimath Committee in 2003 have suggested some changes from time to time. In the new law, there are 356 sections within 19 chapters some new sections were added and some were also deleted, changes can also be seen in the punishment provisions as well.

Let’s discuss some of the differences between IPC and BNS.

• Sedition laws are not relevant in today’s time as it was used by the Britishers to penalize the freedom fighters. The new law has repealed the name of the section but has described it under section 150[32] as when a person tries to create upheaval in society through their words and gestures or using any financial means or takes help of any electronic mode they will be punished from minimum 7 years to maximum life imprisonment.
• A new section named organized crime is added under section 109[33]. This section is used to clamp down on different trafficking bodies that work for human prostitution, illegal drugs, and weapons. Punishment under this section varies with the severity of crimes. In case the crime has resulted in death the punishment can be varied from Life imprisonment to even the death penalty and in other cases, not less than 5 years of imprisonment is provided.
• The new law has added community service as a form of punishment. This is a kind of reformative punishment. This punishment is provided in case of less severe offences like defamation or when a public servant gets involved in unfair trade or when a person tries to commit suicide.
• The new law has introduced a section for mob lynching under section 101(2)[34] that says when five or more than five people on the grounds of language, sex, caste, place of birth, or personal belief murder a person then every member of such group will be punished from minimum 7 years to maximum life imprisonment and in some cases death penalty as well.
• The terminologies that were used to depict differently-abled people such as ‘lunatic’ and ‘unsound mind’ were replaced with more gentle words like ‘mental illness’ and ‘person with intellectual disability’.

Significance of the New Law

The BharatiyaNyaya Sanhita has tried to align the new law with the contemporary society it has introduced some specific crimes like organized crime, the offense of terrorism, and other things. Sections like unnatural offenses and adultery have also been repealed, and changes have also been introduced on the part of punishment as well.

Though the new law is welcoming there is some criticism also as – the name of the sedition is repealed only but the offense still exists, sec 377 got repealed which means there is no section to protect a man from getting raped, religion is not made the ground under organized crimes where such a type of crime is happening in our society, laws are still not gender-neutral, there is an absence of direct provision regarding victim compensatory fund.

Despite so many shortcomings, the new legislation has given freedom to the criminal justice system from colonial-era laws. The government should make the necessary changes so that the statute can fulfill its purpose.

Conclusion

The Indian Penal Code is a comprehensive statute that consists of so many offenses and punishments as well. So, many amendments have happened at different times to make the sections appropriate to the changing needs of society. Some people still criticize it as it was legislation made by the Colonial rulers, the laws are not gender-neutral in some cases, and there is also a question about the Sedition law’s validity in the present time.

Though some flaws are present in the IPC proper amendment is needed or in case the country needs new legislation free from colonial-era law still the importance of the Indian Penal Code in India’s legal system can never be denied it will continue to hold its place.

References

1. TESTBOOK, https://testbook.com/ias-preparation/indian-penal-code-ipc (last visited October 20, 2024)
2. The Indian Penal Code, 1860, § 76, No. 45, Acts of Parliament, 1860 (India).
3. The Indian Penal Code, 1860, § 79, No. 45, Acts of Parliament, 1860 (India).
4. State of Maharashtra v. Mayer Hans George, AIR1965 SCR (1) 123
5. The Indian Penal Code, 1860, § 96, No. 45, Acts of Parliament, 1860 (India).
6. The Indian Penal Code, 1860, § 106, No. 45, Acts of Parliament, 1860 (India).
7. State Of U.P vs Ram Swarup & Anr, AIR 1975 SCR (1) 409
8. The Indian Penal Code, 1860, § 120A, No. 45, Acts of Parliament, 1860 (India).
9. The Indian Penal Code, 1860, § 120B, No. 45, Acts of Parliament, 1860 (India).
10. Topandas vs The State Of Bombay, AIR 1955 SCR (5) 881
11. The Indian Penal Code, 1860, § 121, No. 45, Acts of Parliament, 1860 (India).
12. Md. Ajmal Md. Amir Kasab @Abu Majahid vs State Of Maharashtra, AIR 2012 SUPREME COURT 3565
13. The Indian Penal Code, 1860, § 124 A, No. 45, Acts of Parliament, 1860 (India).
14. Kedar Nath Singh vs State Of Bihar, AIR 1962 SCR SUPL. (2) 769
15. The Indian Penal Code, 1860, § 299, No. 45, Acts of Parliament, 1860 (India).
16. The Indian Penal Code, 1860, § 300, No. 45, Acts of Parliament, 1860 (India).
17. Krishna Ayyar And Anr., Palani Goundan … vs Emperor 49IND. CAS.337
18. The Indian Penal Code, 1860, § 304B, No. 45, Acts of Parliament, 1860 (India).
19. The Indian Penal Code, 1860, § 375, No. 45, Acts of Parliament, 1860 (India).
20. The Indian Penal Code, 1860, § 376, No. 45, Acts of Parliament, 1860 (India).
21. Vishaka & Ors vs State Of Rajasthan & Ors AIR 1997 SUPREME COURT 3011
22. The Indian Penal Code, 1860, § 377, No. 45, Acts of Parliament, 1860 (India).
23. Navtej Singh Johar vs Union Of India Ministry Of Law And … AIR 2018 SUPREME COURT 4321
24. The Indian Penal Code, 1860, § 378, No. 45, Acts of Parliament, 1860 (India).
25. The Indian Penal Code, 1860, § 383, No. 45, Acts of Parliament, 1860 (India).
26. The Indian Penal Code, 1860, § 379, No. 45, Acts of Parliament, 1860 (India).
27. The Indian Penal Code, 1860, § 384, No. 45, Acts of Parliament, 1860 (India).
28. The Indian Penal Code, 1860, § 390, No. 45, Acts of Parliament, 1860 (India).
29. The Indian Penal Code, 1860, § 392, No. 45, Acts of Parliament, 1860 (India).
30. The Indian Penal Code, 1860, § 391, No. 45, Acts of Parliament, 1860 (India).
31. The Indian Penal Code, 1860, § 395, No. 45, Acts of Parliament, 1860 (India).
32. The Bharatiya Nyaya Sanhita, 2023, § 150, NO. 45 Acts of Parliament, 2023 (India)
33. The Bharatiya Nyaya Sanhita, 2023, § 109, NO. 45 Acts of Parliament, 2023 (India)
34. The Bharatiya Nyaya Sanhita, 2023, § 1o1(2), NO. 45 Acts of Parliament, 2023 (India).

---

[1] TESTBOOK, https://testbook.com/ias-preparation/indian-penal-code-ipc (last visited October 20, 2024)

[2] The Indian Penal Code, 1860, § 76, No. 45, Acts of Parliament, 1860 (India).

[3] The Indian Penal Code, 1860, § 79, No. 45, Acts of Parliament, 1860 (India).

[4] State of Maharashtra v. Mayer Hans George, AIR1965 SCR (1) 123

[5] The Indian Penal Code, 1860, § 96, No. 45, Acts of Parliament, 1860 (India).

[6] The Indian Penal Code, 1860, § 106, No. 45, Acts of Parliament, 1860 (India).

[7] State Of U.P vs Ram Swarup & Anr, AIR 1975 SCR (1) 409

[8] The Indian Penal Code, 1860, § 120A, No. 45, Acts of Parliament, 1860 (India).

[9] The Indian Penal Code, 1860, § 120B, No. 45, Acts of Parliament, 1860 (India).

[10] Topandas vs The State Of Bombay, AIR 1955 SCR (5) 881

[11] The Indian Penal Code, 1860, § 121, No. 45, Acts of Parliament, 1860 (India).

[12] Md. Ajmal Md. Amir Kasab @Abu Majahid vs State Of Maharashtra, AIR 2012 SUPREME COURT 3565

[13] The Indian Penal Code, 1860, § 124 A, No. 45, Acts of Parliament, 1860 (India).

[14] Kedar Nath Singh vs State Of Bihar, AIR 1962 SCR SUPL. (2) 769

[15] The Indian Penal Code, 1860, § 299, No. 45, Acts of Parliament, 1860 (India).

[16] The Indian Penal Code, 1860, § 300, No. 45, Acts of Parliament, 1860 (India).

[17] Krishna Ayyar And Anr., Palani Goundan … vs Emperor 49IND. CAS.337

[18] The Indian Penal Code, 1860, § 304B, No. 45, Acts of Parliament, 1860 (India).

[19] The Indian Penal Code, 1860, § 375, No. 45, Acts of Parliament, 1860 (India).

[20] The Indian Penal Code, 1860, § 376, No. 45, Acts of Parliament, 1860 (India).

[21] Vishaka & Ors vs State Of Rajasthan & Ors AIR 1997 SUPREME COURT 3011

[22] The Indian Penal Code, 1860, § 377, No. 45, Acts of Parliament, 1860 (India).

[23] Navtej Singh Johar vs Union Of India Ministry Of Law And … AIR 2018 SUPREME COURT 4321

[24] The Indian Penal Code, 1860, § 378, No. 45, Acts of Parliament, 1860 (India).

[25] The Indian Penal Code, 1860, § 383, No. 45, Acts of Parliament, 1860 (India).

[26] The Indian Penal Code, 1860, § 379, No. 45, Acts of Parliament, 1860 (India).

[27] The Indian Penal Code, 1860, § 384, No. 45, Acts of Parliament, 1860 (India).

[28] The Indian Penal Code, 1860, § 390, No. 45, Acts of Parliament, 1860 (India).

[29] The Indian Penal Code, 1860, § 392, No. 45, Acts of Parliament, 1860 (India).

[30] The Indian Penal Code, 1860, § 391, No. 45, Acts of Parliament, 1860 (India).

[31] The Indian Penal Code, 1860, § 395, No. 45, Acts of Parliament, 1860 (India).

[32] The Bharatiya Nyaya Sanhita, 2023, § 150, NO. 45 Acts of Parliament, 2023 (India)

[33] The Bharatiya Nyaya Sanhita, 2023, § 109, NO. 45 Acts of Parliament, 2023 (India)

[34] The Bharatiya Nyaya Sanhita, 2023, § 1o1(2), NO. 45 Acts of Parliament, 2023 (India)

 Disclaimer: The materials provided herein are intended solely for informational purposes. Accessing or using the site or the materials does not establish an attorney-client relationship. The information presented on this site is not to be construed as legal or professional advice, and it should not be relied upon for such purposes or used as a substitute for advice from a licensed attorney in your state. Additionally, the viewpoint presented by the author is personal.