Anticipatory Bail

An application for bail is made when the accused is arrested and seeks relief to be released from the custody on furnishing some security. Anticipatory bail is, however, a different situation, which is the person making an application for bail even before being arrested. Section 438 of the Criminal procedure code was added by the amendment act of 2005 to the act. This amendment was made on the recommendation of the 41^st Law Commission Report.

WHAT IS ANTICIPATORY BAIL?

Section 438 deals with anticipatory bail which is an application filed by a person who apprehends to be arrested with regard to a non-bailable offense. Such an application after being approved protects the person from arrest at the sole discretion of the court. It protects the person from being arrested in a particular case. However, such protection cannot be passed for an unlimited time, if so, it is liable to be set aside.

Purpose:  The purpose of having such a provision of bail before the arrest is to protect the accused from unnecessary disgrace and harassment in case, the accusation is false. It is a temporary relief granted to a person. No humiliation should be caused to the person at the same time preserving the faith of the people in the judicial system.

In the case of Balchand Jain v. State of Madhya Pradesh[1], the court highlighted that the power has to be exercised carefully and only in exceptional cases.

WHEN CAN ONE APPLY FOR ANTICIPATORY BAIL?

The case of Adri Dharam Das v State of West Bengal,[2] explained that an interim order protecting from arrest would interfere with the investigation and therefore the expression used is “reason to believe” is used to indicate that there should be an apprehension of arrest based on reasonable grounds. Such grounds must be capable of being examined. Mere fear of the applicant is not sufficient for such an application to be made.

WHEN CAN ONE GET ANTICIPATORY BAIL?

While granting anticipatory bail, the court must take into consideration the personal liberty of the applicant on one side and the interest of investigation on the other side as it affects the interest of the public at large.

The following factors are taken into consideration, as laid down in the case of Mohammad Masood v State of Karnataka[3]:

1. The nature and seriousness of the offense;
2. The severity of the offence;
3. Nature of the evidence collected so far;
4. Character and behavior of the accused;
5. The probability that the accused might go absconding;
6. Probability and possibility of the repetition of such crime;
7. The likelihood of tampering and influencing the pieces of evidence and the witnesses respectively;
8. The interest of the people and the state.

After considering the factors, if the court is satisfied that such liberty shall not be misused and all the due process of law shall be followed, then it will grant an application of anticipatory bail. After having an anticipatory bail, the person can be released immediately after arrest.

POWER OF THE COURT

An applicant can make an application in the court of session and being unsuccessful there can move to the High Court for the same. Under the section, the courts have a wide discretionary power. There can be no strict universal application of these rules. Thus, it varies based on the facts of the case and remains unguided. The court on an application received by the prosecution can also cancel the bail and order for the arrest of the person, i.e. cancellation of bail.

The court ought to give a reason for its discretion of granting or not granting such bail. The guidelines, in this case, was reiterated, when the high court exercises power without reason, the Apex court needs to interfere to avoid any failure of justice.

The validity of anticipatory bail: An anticipatory bail is not under the blanket jacket of release for an indefinite period. Anticipatory bail becomes effective at the very moment when a person is arrested, and the person is free from the arrest until the bail is canceled. Anticipatory bail validity is from the day the arrest is made to the day till which court grants permission or the day it is canceled.

Application for anticipatory bail for an offense under section 498A: There is no express provision which provides for not granting an interim release from arrest. However, the thing of consideration is the statement of reason which has to be offered. In the case of Raghuvir Saran Agarwal v State of UP[4], the anticipatory bail was granted by the High Court in case of dowry death but was without any statement of reason, the Apex court intervened and set the same aside because the High Court didn’t provide a proper reason.

CONCLUSION

Anticipatory bail is simply aimed to grant protection to the applicant who may be inducted in a false case. This power vested with the court is an extraordinary power and needs to be used cautiously, and the ultimate aim of the judicial system should be to meet the ends of justice and to protect the interest of the people.

[1] AIR 1977 SC 366

[2] AIR 2005 SC 1057

[3] 2002 CrLJ 1760 (HP)

[4] (1998) 8 SCC 617

Difference Between Police Remand and Judicial Custody

Remand implies an act of sending and keeping an accused in the judicial custody particularly when a trial is going on. The term Remand likewise incorporates the circumstance when custody of the accused is with police authority.

In general, there are two kinds of remands in law:

1. Police remand
2. Judicial Custody

Police remand

In general police, remand comes first out of the above two. When an accused person is sent back to the police station for further inquiry and investigation, it is called police remand.

Judicial custody

Judicial remand often called remand refers to a procedure whereby the higher court sends back cases to the lower court for further action.

It also refers to a situation where the accused is sent back to jail for further investigation.

Purpose of Remand

• The original purpose of remand in custody was to ensure that the accused attends the court as required
• Protection of victims
• The final disposition of matters for which accused is remanded in custody.

Some legal cases are not solved in the trial courts and the defendants have to go to the appellate court. But if the appellate court finds that there are some mistakes made in the trial court, it again sends the case to the trial court and the case is said to be a remanded case.

A very common mistake made in the trial court is that sometimes it does not allow some evidence. Then the appellate court ordered the trial court to allow the evidence and the person who is going to be free is remanded for further few days of 14 or 15 days which can be extended to 60 days.

In India, the Code of Criminal Procedure deals with judicial and police custody under Section 167.

When a man accused of an offense (here the word offense by and large means a non bailable offense as in bailable offense he would  be discharged on bail, so no need of arresting him through detention) is arrested and kept an officer in charge of the police station feels that the investigation process cannot be finished in 24 hours of such arrest and detainment, at that point he will forward to the nearest judicial magistrate (competent to take cognizance of the offense or not) or in his absence to an executive magistrate the transmitting of a duplicate copy of case diary and the forwarding of the accused in person. In any case, regardless of whether it is a non bailable offense then additionally if the officer in charge for the police station sees no reason of forwarding the accused to the magistrate reason being the insufficiency of proof or evidence against him, only then he can release such accused on bail himself and later on can file closure report with the magistrate.

Now when such accused creates the impression that is, surrenders before the magistrate or brought before such magistrate after arrest and confinement or detention, at that point such magistrate can either send the accused to judicial custody that is to the prison jail.

In strict legal theory, people held on remand are held only to guarantee that they are present for their trials. The relevant provision of the ICCPR (International Covenant on Civil and Political Rights provides that remand and sentenced prisoners should be held in separate facilities. Despite what remand prisoners themselves may feel, the law does not regard their confinement as punishment, and therefore allows them a fuller set of rights – and imposes fewer restrictions on them – than it does in the case of convicted prisoners. If they are eventually convicted, the time spent in prison on remand may be credited as part of the sentence served.

Read Also: All About Retirement Age of Judges in India

In general, remand prisoners are held in special remand facilities or in different sections of prisons from those of other prisoners. There may, in practice, be a degree of intermingling between remand and convicted prisoners, especially when the prison system is overcrowded. Intermingling can also occur, as appropriate, in specialist prison units, such as for young adults and vulnerable prisoners, to cater to the needs of the individual prisoner.

Recently, in India the CEO and editor-in-chief of Samachar Plus was on Monday sent to judicial remand till November 8 for allegedly conducting sting operations on prominent persons in Uttarakhand with the intent to extort money, officials said.

Umesh Sharma was arrested from his Ghaziabad residence on 28 October after a journalist with the channel accused him of forcing him to conduct sting operations on prominent politicians in Uttarakhand, including a former CM.

“He was produced before the Additional Chief Judicial Magistrate in Dehradun on Monday,” Dehradun Senior Superintendent of Police Nivedita Kukreti said.

The channel, headquartered in Noida, has a presence in Uttarakhand and UP.

This article aimed to look at the meaning of judicial remand, the difference between police and judicial remand, cases of judicial remand and different aspects of judicial remand.

Section 448 of IPC- Punishment for House Trespass

Section 448- Punishment for House trespass-

“Whoever commits house-trespass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.”

Before going to House trespass, we need to know what is trespass. And, in what circumstances trespass is criminal trespass. Ordinarily, trespass is a civil wrong for which a defendant has the right to sue. Lord Macaulay, defined ” trespass is every usurpation, however slight, of dominion over property’. But only when it includes criminal intention, it becomes Criminal trespass. Whereas, Section 441 on Indian Penal Code defines criminal trespass.

Section 441- Criminal Trespass

“Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit “criminal trespass”.

The only difference between trespass and criminal trespass is Intention. A trespass with an intention to commit an offense is criminal trespass. The object of Section 441 is to protect the possession of the property. This section is concerned with possession, but not with ownership Sahebrao Kisan Jadhav Vs State of Maharashtra[1].  It is not relevant if the person has entered the property lawfully or unlawfully. Lawfully entering a property and staying there unlawfully with an intention to commit an offense, is criminal trespass.

Further, Section 447 lays down the punishment for Criminal trespass. Punishment for Criminal Trespass is imprisonment of up to 3 months or fine up to Rs.500 or both.

Read Also: Top 10 Criminals of India – You Don’t Know

Section 442- House trespass

“Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit “house-trespass”.

The offense of house-trespass is an aggravated form of criminal trespass. The House trespass must have all the ingredients of criminal trespass. moreover, in addition to the element of criminal trespass, the house-trespass occurs at entering or remaining on the property. Here, Property includes any building tent, vessel, place of worship or any place for Human Dwelling.

The building here constitutes any place which can give protection to any human or any person dwelling inside it. Or any property placed inside it. The mere surrounding of any place by fencing or any wire of any opens space does not construe building. And trespass upon such space is not House-trespass.

However, in order to attract House trespass, an illegal entry upon the premises is necessary. A person does not commit house-trespass if he enters the property with permission or consent.

Rajmogali Ashayya Arkal and others. vs. Govind Hanumantu Nandlal and Anr.[2]

Punishment

As stated earlier, House trespass is an aggravated form of criminal trespass. So the punishment is also more than ordinary trespass. Punishment for House trespass can extend up to one year or fine up to 1000 or both. Moreover, this offense is compoundable, bailable and cognizable :

• Compoundable Offence

Those offenses in which compromise can be done at the instance of the party, are compoundable in nature. Hence, a compromise is available in the offense of House trespass. If the aggrieved party gives consent, without any force or undue influence, to compromise. In such a case, they can avoid a trial.

• Cognizable offense

In Cognizable offense, police have the authority to arrest the person without any warrant. Also, police can start an investigation without the order of the court. Here, police can arrest a person on the mere complaint of aggrieved and/or founding accused on the property. Police do not require any warrant or order from the court.

• Bailable Offence

In an offense, police have the authority to release an offender on bail. The offense of House-trespass in enumerated under the list of Bailable offences. Hence, a person accused of House-trespass has the option to get bail. One can provide for security to get the bail.

Conclusion

A person commits House-trespass upon entering any property of others with a criminal intention. For entering, it is not necessary to enter completely, but any part of the body is sufficient to construe House-trespass. The Offence is Compoundable as it is easy to compromise outside the court and the nature of the crime is less serious as it does not harm the body of the individual. Whereas, Cognizable as the police requires to act as soon as possible on the complaint. If the police have to wait for the warrant it will be too late.

Section 144 IPC The Code of Criminal Procedure

The Code of Criminal Procedure (CrPC ) is the principal enactment on the procedure for administration of substantive criminal law in India. It was established in 1973 and came into power on 1 April 1974.

It gives the machinery to the examination of crime, apprehension of suspected criminals, gathering of evidence, assurance of guilt or innocence of the accused individual and the determination of punishment of the guilty. Furthermore, it additionally deals with open public nuisance, prevention of offences and maintenance of wife, child, and parents.

What is Section 144 IPC

Section 144 of the Criminal Code Procedure states the power to issue an order in dire instances of nuisance or apprehended risk.

As indicated by 141-149 of the Indian Penal Code (IPC), the maximum punishment for engaging for taking part in rioting is rigorous imprisonment for 3 years or/and fine. Each individual from an unlawful assembly can be considered responsible for wrongdoing committed by the group. Blocking an officer attempting to disperse an unlawful gathering may pull in further punishment.

In about 1861, Officer Raj-Ratna E.F. Deboo IPS were the creator and draftsman of section 144, which lessened by and large crime in that time in the state of Baroda. He was perceived for his drive and granted a gold medal by the Maharaja Gaekwad of Baroda for setting up Section 144 and lessening by and large crime rate.

The section was imposed for the first time in 1861 by the British Raj, and thereafter turned into a critical instrument to stop every single nationalist protest amid the Indian freedom movement, and its utilization in independent India stays controversial as not much has changed. Usually used to avert freedom of expression by quiet protests or demonstrations, even the law does not utilize the terms, however, it mentions “riot”. Section 144 applies amid mobs and election continuing after the announcement of the election.

144 Section Rules and Conditions

(1) In situations where, in the opinion of a District Magistrate, a Sub-divisional Magistrate or some other Executive Magistrate exceptionally enabled by the State Government for this sake, there is adequate ground for continuing under this section and prompt prevention or speedy remedy is alluring, such Magistrate may, by a written order expressing the material facts of the case and served in the way given by section 134, guide any individual to abstain from a specific act or to take certain order concerning certain property in his ownership or under his management, if such Magistrate thinks about that such course is probably going to prevent, or will in general avert, deterrent, inconvenience or damage to any individual lawfully employed, or threat to human life, health or security, or disturbance of public peacefulness, or an uproar, or an affray.

(2) An order under this section may, in instances of crisis or in situations where the conditions don’t concede to the serving in due time of a notice upon the individual against whom the order is coordinated, be passed ex parte.

(3) An order under this section might be coordinated to a specific individual, or to people dwelling in a specific place or area, or to the general population by and large when frequenting or visiting a specific place or area.

(4) No order under this section will stay in power for over two months from the creation thereof: Provided that, if the State Government thinks so to improve the situation preventing peril to human life, health or security or for keeping an uproar or any affray, it might, by notification, coordinate that an order made by a Magistrate under this section will stay in force for such further period not surpassing a half year from the date on which the order made by the Magistrate would have, yet for such order, lapsed, as it might determine in the said notification.

(5) Any Magistrate may, either on his own or on the use of any individual aggrieved, repeal or alter any order made under this section, by himself or any Magistrate subordinate to him or by his predecessor-in-office.

(6) The State Government may, either on its own or on the use of any individual aggrieved, repeal or change any order made by it under the stipulation to subsection (4).

(7) Where an application under subsection (5) or subsection (6) is received, the Magistrate, or the State Government, by and large, will bear to the applicant an early chance of showing up before him or it, either face to face or by pleader and indicating cause against the order; and if the Magistrate or the State Government, all things considered, rejects the application completely or to a limited extent, he or it will record in writing the reasons behind so doing.

Who enforces Section 144 IPC

The orders for Imposing section 144 have been given to Executive Magistrate when there is a crisis situation.

Limitations enforced when Sec 144 IPC is imposed

• The urgency of the circumstance and the power is to be utilized for keeping up public harmony and peace.
• Private rights might be temporarily superseded when there is a contention between public interest and private rights
• Questions of title to properties or entitlements to rights or disputes of civil nature are not open for adjudication in a procedure under section 144 of Criminal Procedure Code.

How the requests of Sec 144 should be passed?

It must be in written form. Prior to enforcing Section 144, Executive Magistrate needs to guarantee whether there is a need to enforce section 144. For this, he/she have to request material facts.

Duration of Order

• Section 144 would be valid just for a time of two months.
• The state government can expand the validity for two months and maximum up to a half year.
• It can be withdrawn any time of time if the circumstance turns normal.

Section 144 IPC at Kerala

The Pathanamthitta district authority in Kerala has forced Section 144 of the CrPC in Sabarimala and close-by regions ahead of the Chithira Avittom Pooja. The hill shrine in Sabarimala was opened for devotees on November 5 and 6. Prohibitory orders will be set up until November 26.
In the wake of violent protest amid the last monthly pooja, the state police have likewise chosen to increase deployment of forces in Sabarimala area.
Then again, state police keep on taking action against protesters in Pamba and Nilakkal. As per the most recent data, 3,701 individuals have been captured in 543 cases by the police.

At the point when the temple was opened for devotees, at least five ladies attempted to visit the main place of worship. In any case, owing to huge protests at the temple and the police’s failure to give adequate security, the ladies couldn’t enter the shrine.

In conclusion, the article aimed at discovering all the aspects of Section 144 of the CrPC. This Section can be misused at times for political gains and can restrain the freedom of movement of people. Therefore, this section before being imposed should be deliberated upon and if imposed, it should be done with the utmost care and precision.

Everything You Need to Know About Criminal Law In India

Criminal law in India

In India, crime is an offense against the State. The law has given a massive status to crimes, so much so that punishments could range from fine to the death penalty. Crime is against the welfare of society, and therefore, there are many legislations against the same in our country. The prominent ones include the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973, and the Indian Evidence Act, 1872. Besides these significant acts, there are acts such as the Dowry Prohibition Act, 1961, the Juvenile Justice Act, 2000, the Indecent Representation of Women (Prohibition) Act, 1986, the Narcotics drugs and psychotropic substances Act, 1985, etc.

The Three main legislations

The Indian Penal Code (IPC)

The Indian Penal Code is the official criminal code of India, which was drafted way back in 1860. It’s objective is to provide a general penal law for the country. It has 511 sections across 23 chapters, containing the list of crimes along with their definitions and punishments. The IPC has been amended several times and is now supplemented by other Acts. Its jurisdiction extends to the whole of India except the State of Jammu and Kashmir.

The Code of Criminal Procedure (CrPC)

The Code of Criminal Procedure is the primary legislation on the procedure for the regulation of criminal law in India. The CrPC details the procedure for the investigation of the crime, presenting criminals before the court of law, collection of evidence, determination of guilt or innocence of the accused, imposition of penalties or punishments, etc. It further lays down the hierarchy of the courts competent to try criminal lawsuits. In descending order it is the High Court at the top followed by Sessions Court, First Class Judicial Magistrate, Second Class Judicial Magistrate and Executive Magistrate. There is a limit affixed for sentences which these courts can pass against the accused. The Supreme Court is the apex court, and it has the ultimate power. The code was enacted in 1973. At present, the CrPC contains 484 sections cut across 37 chapters. It also has two schedules and 56 forms.

The Indian Evidence Act

The Indian Evidence Act, 1872 contains a set of rules and allied issues which governs the admissibility of evidence in the law courts of India. It comprises 167 sections cut across 11 chapters. Types of evidence mentioned under the Indian Evidence Act, 1872 includes – Oral evidence, documentary evidence, primary evidence, secondary evidence, real evidence, hearsay evidence, judicial evidence, non-judicial evidence, direct evidence, and indirect evidence or circumstantial evidence.

Some other criminal legislation

Dowry Prohibition Act, 1961

The Dowry Prohibition Act was enacted in the year 1961 with the main motive to criminalize the practice of dowry in India. It consolidated the anti-dowry laws which had been passed in certain states of India. If any person gives or takes or abets dowry, then according to Section 3 of the Act he is liable for imprisonment for a minimum period of 5 years and fine of more than INR 15,000 or the value of the dowry received, whichever is higher. The Act also provides for penalty for directly or indirectly demanding dowry which involves a prison term of 6 months or more which is extendable up to 2 years along with a fine of INR 10,000.

Juvenile Justice (Care and Protection) Act, 2015

This Act allows for juveniles within the age bracket of 16-18 who are in conflict with the law and are involved in heinous offenses, to be tried as adults, i.e. above the age of 18. The Act was enforced on 15 January 2016. The Act has put in place a Juvenile Justice Board, which includes psychologists and sociologists, to decide if a juvenile within the age bracket of 16 to 18 should be tried as an adult or not. The Act also aims to make the adoption process of the orphaned, abandoned and surrendered children more smooth. The Act introduced the foster care and Judicial Waiver System in India.

Narcotics drugs and psychotropic substances Act, 1986

Also, referred to as the NDPS Act, this Act came into being on 14 November 1985 and has been amended thrice till date. Until 1985, India had no legislation regarding narcotics. This Act attempts to prohibit production, manufacture, cultivation, possession, selling, purchasing transporting, storing and/or consumption of any narcotic or psychotropic substance in India.

Indecent Representation of Women (Prohibition) Act, 1986

The Act was enacted to prohibit indecent representation of women through ads, publications, writings, paintings, figures or any other such manner.

CONCLUSION

India has a very sophisticated criminal legal framework. It has innumerable legislations covering various crimes and their punishments. It also lists down how the cases must be dealt with, provisions on investigation and evidence can also be found. Besides, the case laws or judicial precedents also play a significant role when judges pronounce the judgment. The decision of the Supreme Court is final and binding on all the criminal and civil courts of India. There is a hierarchy among criminal courts as well. A robust criminal law framework is essential to deter the perpetrators from committing crimes and also makes justice easy, feasible and quick.

Hit and Run cases and legal consequences

Introduction To Hit and Run Cases

Hit and Run cases happen when the drivers while driving incur damage to any person’s life, health or property while rash driving and thereafter failing to register their vehicle and driving license with the concerned legal authorities. In layman’s terms, Hit and Run is hitting a person or property while driving and then fleeing. It becomes very hard to identify and punish the culprits because of lack of evidence and witnesses. However, there have been many instances when the law has convicted them.

Statutory Punishment of Hit and Run

Hit and run cases are not specifically punishable under Indian Penal Code (IPC) as such. Though, Sections 279, 304A, and 338 of the IPC are applicable in the Hit and Run Cases. Section 279 defines and punishes Rash Driving. There is a punishment of jail term extending up to 6 months and a thousand rupees fine under this section. Also, Section 304A punishes death by negligence. This section is directly applicable to Hit and Run cases which result in the victim’s death. The punishment under the Section is for up to 2 years. In cases where the victim hasn’t died but is grievously injured, the punishment is given in Section 338.[i]

The Motor Vehicles Act, 1988 is applicable to the cases of Hit and Run too. Section 161 of the Act defines “hit and run” as “an accident arising out of the use of a motor vehicle or motor vehicles the identity whereof cannot be ascertained in spite of reasonable efforts for the purpose”. As can be observed by the official codified definition, a hit and run does not always pertain to murder or grievous hurt, but to accidents at large. Section 161 also provides for compensation to the victims of the hit and run; twenty-five thousand rupees in case of death and twelve thousand and five hundred rupees in case of grievous hurt.

Section 134(a) of the Act requires the driver to secure medical attention to the injured persons immediately. And section 134(b) requires them to give the information about and relevant to the same to a Police officer as soon as possible. Failing these two duties, the driver will be punishable.[ii]

Statistics of Hit and Run cases

More than 20000 people lost their lives in Hit and Run cases in India alone.[iii] Hit-and-run cases accounted for 11.4% of all accidents in 2015, an increase from 10.9% in 2014, according to road transport ministry data. In a survey, they found that about 74% of respondents expressed unwillingness to assist victims of road accidents. According to a study Impediments to Bystander Care in India conducted by SaveLIFE Foundation, advocacy working for road safety, and TNS India, a global marketing research company, on July 2013. The SaveLife-TNS study also points to another study by the Indian Journal of Surgery published in 2006. There, it was found that 80% of road accident victims do not receive any medical care within the first or golden hour after the accident.

Problems in Hit and Run cases

The biggest issue in the cases of Hit and Run is the absence of any direct evidence. Usually, there is no hard evidence to put the culprit at the crime scene. This makes it very difficult for the Police to pursue the investigation. Sometimes due to the speeding vehicles and a lot of rush, even witnesses aren’t able to help with the investigation. Also, the witnesses often don’t want to be entangled in the legal framework. The Police have to rely on indirect pieces of evidence in such cases. The investigation requires very precise and careful monitoring of the crime scene.

The witnesses of the accident are also unwilling and reluctant to help the victims. This causes a lot of loss of life. In 2013, the Apex Court directed the Government to make laws for the protection of the Good Samaritans. However, even after these laws are made, they are available mostly on paper. In some states like Karnataka however, these laws hold much importance.[iv]

Conclusion

Hit and Run cases have come to the knowledge of most of the Indians after the infamous Salman Khan case in 2002. He was accused of driving his car onto the Footpath into a group of homeless people. One of them had died. There have been many high profile cases of Hit and Run over the years. And, many which couldn’t get as much attention.

The usual reason found behind these instances is Rash driving, On-road racing and Drink and drive. The victims, either injured or dead are left to suffer while the culprits run free. Even the compensation given to the victim is too low as termed by the Apex Court. A bill is pending in the Parliament to increase the same from 25000 rupees to 2 lakhs.

[i] Indian Penal Code 1860.

[ii] Motor Vehicles Act 1988.

[iii] Rahul Mohan  Sharma, ‘There were 7 Hit and Run cases every hour in 2015’ (Scroll.in, 5 August 2016) <https://scroll.in/article/813185/there-were-7-hit-and-run-cases-every-hour-in-india-in-2015> acessed 12 January 2019.

[iv] Karnataka Good Samaritan and Medical Professional (Protection and Regulation during Emergency Situations) Act.

Section 415 of the Indian Penal Code

Cheating is that offense which is understood even by a layman. Often people use the term ‘cheating’ whereby they mean something to be deceitful or fraudulent. Cheating is considered as a wrong act when done, even in some of the trivial issues. Section 415 of IPC (India Penal Code), 1860 defines ‘Cheating’ and this article would be discussing the legal definition and legal aspect of the offense of cheating.

Section 415 – Cheating

Cheating is defined under Chapter XVII which deals with ‘Offences against Property‘ under Section 415 as follows-

Cheating.—Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any proper­ty to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.

Explanation.—A dishonest concealment of facts is a deception within the meaning of this section.[1]

From the above-mentioned definition, some of the basic elements of cheating are as follows-

Fraudulently  

The act should either be fraudulent or dishonest to be termed as under the offense of cheating. The term ‘fraudulently’ is defined under Section 25 of the IPC.

“A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise.”[2]

Acting dishonestly

The intention of the wrongdoer in every criminal offense is of great importance. Therefore, in cheating, also the person who commits the offense should act dishonestly. The term ‘dishonesty’ is defined under Section 24 of the IPC.

“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”.[3]

Property

Section 415 comes under Chapter XVII, which makes the offense of Cheating that is committed against property.

Deceive

The accused must deceive the person in such a way that he is induced to deliver any property or gives consent to the accused to retain a property that he posses. Also, it is very important to note down here that the deception should be with a dishonest or fraudulent intention.[4]

All the elements of cheating specified under Section 415 should be connected to each other in order to make an offense of cheating.

As per the Supreme Court very clearly held that the crux of the offense of cheating is the intention of the person who induces the victim of his representation. The nature of the transaction is irrelevant, which would become decisive in discerning whether there was the commission of an offense or not.[5]

The Supreme Court in a case held that in order to convict a person under the offense of cheating there should be the pre-existing fraudulent or dishonest intention of the accused from the beginning whereas in case of breach of contract the dishonest intention is generally not present at the beginning of the agreement. [6]

Punishment of Cheating

Cheating is punishable under section 417, and the punishment for cheating is imprisonment up to 1 year or fine or both. [7]Imprisonment depends upon the cheating and quantum of the act. If the act is grave, imprisonment and fine, both can be awarded. Whereas, when the act committed is not grave imprisonment is generally not imposed.

Difference between Cheating and Fraud

The offense of cheating and fraud are almost similar, and therefore, sometimes there is confusion between the two. It is very important to know the differences between the two.

1. The offense of Cheating is mentioned under section 415-420 of the Indian Penal Code, 1860, whereas, fraud is mentioned under 421-424 of the Indian Penal Code, 1860.
2. Usually, cheating is committed to obtaining some advantage from a person. Fraud is committed to gain an advantage by another’s loss.
3. Fraud basically is confined to contract cases, but cheating has a wide ambit.

Conclusion

The offense of Cheating, which is very common, includes two main elements, that is deception and inducement. Sometimes cheating is confused with fraud or other civil or criminal offense, but it differs from all of them in one way or the other. Therefore, the conceptual understanding of the offense of cheating becomes very important. Apart from section 415, another section related to cheating are also important.

[1] Indian Penal Code, 1860, s. 415.

[2] Indian Penal Code,1860, s. 25.

[3] Indian Penal Code, 1860, s. 24.

[4] A. Pareed Pillai v State (1973) SC 326.

[5] Rajesh Bajaj v. NCT of Delhi and Ors. (1999) SC 1216.

[6] S.W. Palanitkar V. State of Bihar 2001(10) TMI 1150.

[7] Indian Penal Code, s. 417.