Adv. Nilesh Gupta

Section 320 of Indian Penal Code deal with offences related to body as regard to ‘grievous hurt’. It doesn’t cover all kinds of hurt. Only following kinds of hurt are termed as “grievous”: 1. Emasculation : This clause is confined to males only. It means depriving a male of masculine vigour, i.e. to render a man impotent.   This clause was inserted to counter to counteract the practice common in this country for women to squeeze men’s testicles on the slightest provocation. 2. Injury to Eyesight : The test of gravity is the permanency of the injury caused to one eye or both eyes. 3. Deprivation of Hearing : It may be with respect to one ear or both ears. To attract this clause the deafness caused must be permanent. 4. Loss of Limb or Joint : The expression used in is section is deprivation of any member, section or joint, crippling a man with life-long misery. The term member is used to mean nothing more than an organ or a limb. 5. Impairing of Limb : Disabling is ...

We often come across colorful tents to host a function blocking entry and exit of the houses and the streets. Sometimes a personal task of construction or community gatherings intervene us on the roads. But, the question is whether such obstructions are legal or reasonable? The Constitution of India guarantees the right to freedom of movement to every person freely throughout territory of India and guarantee personal liberty under Articles 19 & 21 respectively. To safeguard the rights conferred upon a person through the Constitution of India against any person other than state, the Indian Penal Code provides for the provisions of ‘Wrongful Restraint’ and ‘Wrongful Confinement’ contained in Sections 339 to 348 of the code. Section 339 : Wrongful Restraint - “Whoever voluntarily obstructs any person so as to prevent that person from proceeding the direction in which that person has a right to proceed.” In simple way, it means to obstruct a person from moving one place to anothe...

Section 76 of the Indian Penal Code:   Nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it. [i] Mistake of fact arises when an accused misunderstood some fact that negates an element of crime. This legal weapon can be used, where accused succeeds to prove that he/she was mistaken to the existence of some facts or ignorant of the existence of such facts. It is a condition that such mistake must pertain to fact not law. In  R v. Princes (1875) LR 2 CCR 154 , in this case, the accused was charged of unlawfully taking an unmarried girl of 16 years against the will of her father, it was found that the accused had bona fide and reasonable belief that the girl was older than 16 years. It was held that the defense was not valid on the ground that act of abduction is a wrongful and immoral act. [ii]   Section 79 of the Indian Penal Code...

Section 84 of the Indian Penal Code :   “Act of a person of unsound mind.—Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.” This is a general defense  under Indian Penal Code on pretext that one, who is insane and has no mind, cannot have the necessary mens rea to commit a crime. Hence, unsoundness of mind is often termed as Insanity. In layman words, Insanity is mental abnormality. Generally or medically, Insanity means a disorder of the mind which eradicates the reasoning capacity of a man, to such an extent as to render him incapable of understanding the nature and consequences of his acts. But to avail the defense of insanity legally, the tests of insanity need to be passed. Ø   Test of Insanity From time to time many tests have been done for this purpose but the most acceptable of all time...

Section 23 of the Indian Penal Code: Provision of wrongful gain or wrongful loss. Wrongful gain : It is gain by unlawful means of property to which the person gaining is not legally entitled. Wrongful loss : It is loss by unlawful means of property to which person losing it is legally entitled. For Illustration: If X takes away Y’s watch out of Y’s possession, without Y’s consent with intention of keeping it, he cause, “Wrongful Loss” to Y and Wrongful Gain to himself.* ____________ * Book referred: Indian Penal Code by K.D. Gaur

Section 21 of Indian Penal Code does not define who is a Public Servant but lays down various categories that are included in the category of Public Servant. The words “public servant” denotes a person falling under any of the descriptions hereinafter following, namely: 1.       *** ( Clause 1 st omitted by the A.O. 1950 )   2.       Every Commissioned Officer in the Military, Naval or Air Forces of India;   3.       Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons. any adjudicatory functions;   4.       Every officer of a Court of Justice (including a liquidator, receiver or commissioner) whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or to take charge or dispose of any property, or to execute a...

Section 52 of Indian Penal Code: Good Faith - Nothing is said to be done or believed in “Good Faith” which is done or believed without due care and attention. Good Faith has a special significance under Criminal Law. In Bux Chowdry v. King, AIR 1938 , it was held that an accused who let his servant work outside the area covered by his license without taking the precaution to ascertain whether that area was covered by his license or not, cannot be said to have acted in good faith even though there may have been no element of dishonesty in his conduct. The provision hence, regards honesty as immaterial and the presence of “care” and “intention” the sole criteria of good faith.

Section 24 of the Indian Penal Code: Dishonest - Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing “Dishonestly.”   Essential Elements 1.        Intentional Act 2.       Wrongful Gain to one 3.       Wrongful Loss to another In the case of Giridhar Lal 1886 , it was decided the sole test to be applied for determining “Dishonestly”, is what was the intention of the accused at the time of the act occurred for which purpose only the primary and not the more remote intention of the accused must be ascertained.

Blackstone had once thoughtfully said,          “Infancy is a defect of understanding and infants under the age of discretion ought not to be punished by any criminal prosecution whatsoever.” To adopt the above statement legally, the law makers made various provisions. Section 82 and 83 of the Indian Penal Code gives immunity from criminal liability to children up to the age of 12 years. However, the age discretion differs from country to country. For illustration: In Argentina a minor under the age of 16 years   is exempted from criminal responsibility and in France a child under the age of 13 is not punishable, while in Denmark and Sweden the age bar is set at 15 years. [i] Indian Penal Code’s- Ø   Section 82:  Act of a child under seven years of age. — Nothing is an offence which is done by a child under seven years of age. Children below 7 years under this section are termed as Doli Incapax and get complete immunit...

Fundamental Rights are the most important rights of all the basic human rights without which survival of an individual is not possible and are well-recognized by our supreme Indian Constitution to live a protected life with dignity and protect it from invasion by the state. Fundamental Rights were included in Part III of the draft of Constitution.  These were discussed for 16 days  (1) . The idea of Fundamental Rights was borrowed from the Constitution of United States.  Fundamental Rights being the essence of people’s life needed an unbreakable shield. The Constitution of India has this shield in the name of Article 13(2).  Article 13 : Laws inconsistent with or in derogation of the fundamental rights.— (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.  (2) The State shall not make any...