Euthanasia is described as the deliberate and intentional killing of a person for the benefit of that person in order to relieve him from pain and suffering. The term ‘Euthanasia’ is derived from the Greek words which literally means “good death” (Eu= Good; Thanatos=Death). Euthanasia is defined as the act of bringing the death of a person (patient) for the purpose of relieving the patient’s intolerable and incurable suffering. Typically, the physician’s motive is merciful and intended to end suffering. In voluntary euthanasia, a consent from the patient is taken. In non-voluntary euthanasia, the consent of patient is unavailable due to some reason.

In active euthanasia, the death of patient is brought directly by giving him a lethal dose of poisonous drug. In passive euthanasia, the life supporting system to the patient is discontinued and ultimately patient dies. In Aruna Shanbaug v. Union of India, the Supreme Court opposed active euthanasia but has given nod to passive euthanasia.

Aruna Shanbaug v. Union of India, AIR 2011 SC 1290

The Facts of Cases:

The petitioner in this case, Aruna Ramchandra Shanbaug used to work as a Nurse in King Edward Memorial Hospital, Parel, Mumbai. On the evening of the 27th November 1973 a sweeper of the same hospital attacked her and he wrapped her neck with a dog chain and yanked her back with it. The sweeper also tried to rape her but when he found out that she was menstruating he sodomized her. To prevent her from moving or creating any chaos, he twisted that chain really hard around her neck. Next day, a cleaner found her body lying on the floor unconscious with blood all over. It was believed that the supply of oxygen to the brain stopped because of strangulation by the chain and hence the brain got damaged. This incident caused permanent damage to her brain and led her into a permanent vegetative state (PVS). Later an activist-journalist Pinki Virani filed a petition in the Supreme Court under Article 32 of the constitution alleging that there is no possibility for her to revive again and get better. So, she should be allowed to go with the passive euthanasia and should be absolved from her pain and agony.

To this petition the respondent parties i.e., KEM Hospital and Bombay Municipal Corporation filed a counter petition. This led to a rise in the disparities among both the groups. Since there were disparities, the Supreme Court in order to get a better picture of the situation appointed a team of 3 eminent doctors to investigate and provide a report of the exact mental and physical condition of Aruna Shanbaug. During this study doctors investigated her entire medical history and opined that her brain is not dead. She has her own way of understanding and reacting to situations. Also, Aruna’s body language did not show any sign of her willingness to terminate her life. Neither the nursing staff of the hospital showed any carelessness towards taking care of her. Thus, it was believed by the doctor that the euthanasia in the current matter is not essential. She stayed in this position for 42 years and died in 2015.

Issues Raised:

• When a person is in a permanent vegetative state (PVS), should withholding or withdrawal of life sustaining therapies be permissible or `not unlawful’?
• If the patient has previously expressed a wish not to have life-sustaining treatments in case of futile care or a PVS, should his/ her wishes be respected when the situation arises?
• In case a person has not previously expressed such a wish, if his family or next of kin makes a request to withhold or withdraw futile life-sustaining treatments, should their wishes be respected?

Respondent’s Arguments:

The dean of the Hospital contended that Ms. Shanbaug was being fed and taken care of by the nurse and hospital staff for as many as 36 years. The staff had exceptionally and with utmost responsibility and willingness to take care of her. Therefore, they oppose and resent the idea of Ms. Shanbaug being euthanized. Now that the patient has crossed as many as 60 years of age she might naturally succumb to death.

They begged the court to not permit the act of killing. The staff has been diligently and with respect taking care of all her fundamental necessities and prerequisites. On the off chance that this is legitimized, the act of euthanasia can be profoundly inclined to abuse. One of the medical attendants has even been willing to take care of her without being renumerated. The petitioner unlike the clinic staff neglects to have such a close-to-home association with the patients and lacks the necessary emotional attachment.

Since the staff diligently and with utmost dignity took care of Mrs. Shanbaug for many years. They looked after her basic needs and requirements. Legalization of passive euthanasia can be prone to misuse by family members, relatives, etc. they pleaded with the court to reject the allowance of practice of euthanasia. The hospital staff has an emotional connection with the patient to the extent that one of the nurses is ready to look after Mrs. Shanbaug for the rest of her life without being renumerated.

Terminating Ms. Shanbaug’s life would be immoral and inhuman since she has a right to live. Moreover, the hospital’s staff’s exceptional and selfless service must also be taken into consideration. Furthermore, since the patient herself is not in a condition to give consent for withdrawal from the life support system the next big question to come into the picture Is who would consent for Ms. Shanbaug.

Petitioner’s Arguments:

A petition was filed by Ms. Shanbaug’s friend under article 32 of the Indian Constitution. The counsel for the petitioner contended that the right to life guaranteed under article 21 includes the right to life with utmost dignity. It must therefore also include the right to die with dignity. Any individual suffering from any terminal illness or is in a permanent vegetative state must be included under the ambit of the “right to die” in order to end the prolonged suffering and agony. She lacks any awareness of her surroundings, is even devoid of the ability to chew her food, can’t express anything on her own, and is just bedridden for the past 36 years with no scope of improvement. The patient is virtually dead and the respondents by not feeding Ms. Shanbaug won’t be killing her.

Opinion of Amicus Curiae:

The Court appointed Mr. T. R. Andhyarujina as amicus curiae. He submitted that in common law, it is the right of every individual to control of his own free will. He submitted that a patient has a right to consent and even the right not to consent. This is known as self-determination. He clarified that this applies when a patient of a sound mind requires for discontinuation of life support. He was also in favour of passive euthanasia provided the decision was taken by a responsible medical practitioner. He submitted that the decision to withdraw the life support is taken in the best interests of the patient by a body of medical persons. It is not the function of the Court to evaluate the situation and form an opinion on its own. He also said that withdrawal of nutrition by stopping essential food by means of nasogastric tube is not the same as unplugging a ventilator which artificially breathes air into the lungs of a patient incapable of breathing resulting in instant death. In case of discontinuance of artificial feeding the patient will as a result starve to death with all the sufferings and pain and distress associated with such starving. He also requested the Court to recognize the deep agony of nurses of the hospital who have with deep care looked after her for over 37 years and who may not appreciate the withdrawal of the life support.

Judgement:

The court declared that Aruna is not brain dead and for its judgement relied on the doctor’s report and definition of brain death given under the Transportation of Human Organs Act, 1994. She was able to breathe on her own without a machine’s support, she had feelings and used to show some symptoms. Though she was in a PVS but still her condition was stable. So, the grounds presented here are not sufficient for terminating her life. It would be unjustifiable. Further, the court while addressing the issue opined that in the present case next to the kin of the patient would be the staff of the KEM Hospital not Pinki Virani. Thus, the right to take any such decision on behalf of her is vested in KEM Hospital. In the present case it was the food on which she was surviving. Thus, removal of life saving techniques would here mean depriving her of food which is not justified in Indian Law in any way.

The Supreme Court allowed passive euthanasia in certain conditions. But the court decided that in order to prevent misuse of this provision in the future, the power to determine the termination of a person’s life would be subjected to High Court’s approval following a due procedure.

Whenever any application will be filed in High Court for passive euthanasia, the Chief Justice of the High Court should constitute a Bench of at least two judges deciding the matter that whether such termination should be granted or not. The Bench before laying out any judgement should consider the opinion of a committee of 3 reputed doctors. These doctors are also nominated by the Bench after discussing with the appropriate medical practitioners. Along with appointing this committee, it is also the duty of the court to issue a notice to the state, relatives, kins and friends and also provide them with a copy of the report made by a committee of doctors, as soon as it is possible. And after hearing all the sides, the court should deliver the judgement. This procedure is to be followed in India everywhere until any legislation is passed on the subject.

In the Ultimate decision of this case, by keeping all the important facts of the case in consideration, Aruna Shaunbaug was denied euthanasia. Court also opined that if at any time in the future, the hospital staf feels a need for the same, they can approach the High Court under these prescribed rules. The verdict of this case has helped in clarifying the issues relating to passive euthanasia in India by providing a broad structure of guidelines which are to be followed. The court also recommended the repealing of section 309 of the IPC. We have discussed all about the case. Now let’s discuss the emergence of two important features which came out in this case and have been discussed a lot in subsequent events.

Guidelines for Advance Directives:

In Aruna Shanbaug’s case Supreme Court laid down guidelines for passive euthanasia. These guidelines provided for withdrawal of life support system which can ultimately lead to a person’s death. This verdict made passive euthanasia possible in India in certain conditions which will be decided by the High Court. Later in the year 2018, Supreme Court passed another order in the case of Common Cause v. Union of India, in which right to die with dignity was again recognized and passive euthanasia was legalized and permit was given to withdraw the life support system of those who are terminally ill and are in life long coma.

Along with this the Court also provided with the concept of “living wills” i.e. Advance Directives. Living will mean a document that allows a person to make decisions in advance with regard to what course of treatment he wants in case he gets seriously ill in the future and becomes unable to take decisions.

The Court noticed that there is no legal framework regarding Advance Medical Directives in India and therefore in order to protect the rights of citizens as enshrined in Article 21 of the Constitution, in exercise of the power under Article 142 of the Constitution and the law stated in Vishaka v State of Rajasthan and Others it issued comprehensive guidelines and safeguards pertaining to Advance Directives. The said guidelines are to remain in force till the Parliament introduces legislation in this regard. The guidelines are as follows:

Who can execute the Advance Directive and how?

• The Advance Directive can be executed only by an adult who is of a sound and healthy state of mind and in a position to communicate, relate and comprehend the purpose and consequences of executing the document.
• It must be voluntarily executed and without any coercion or inducement
• It shall be in writing clearly stating as to when medical treatment may be withdrawn or no specific medical treatment shall be given which will only have the effect of delaying the process of death that may otherwise cause him/her pain, anguish and suffering.

What should it contain?

• It should clearly indicate the decision relating to the circumstances in which withholding or withdrawal of medical treatment can be resorted to.
• It should mention that the executor may revoke the instructions/authority at any time.
• It should disclose that the executor has understood the consequences of executing such a document.
• It should specify the name of a guardian or close relative who, in the event of the executor becoming incapable of taking decision at the relevant time, will be authorised to give consent to refuse or withdraw medical treatment in a manner consistent with the Advance Directive.

How should it be recorded and preserved?

• The document should be signed by the executor in the presence of two attesting witnesses, preferably independent, and countersigned by the jurisdictional Judicial Magistrate of First Class (JMFC) so designated by the concerned District Judge.
• The witnesses and the jurisdictional JMFC shall record their satisfaction that the document has been executed voluntarily and without any coercion or inducement or compulsion and with full understanding of all the relevant information and consequences.
• The JMFC shall inform the immediate family members of the executor, if not present at the time of execution, and make them aware about the execution of the document.
• The JMFC shall handover copy of the Advance Directive to the family physician, if any.

When and by whom can it be given effect to?

• In the event the executor becomes terminally ill and is undergoing prolonged medical treatment with no hope of recovery and cure of the ailment, the treating physician, when made aware about the Advance Directive, shall ascertain the genuineness of the same from the jurisdictional JMFC before acting upon it.
• The instructions in the document must be given due weight by the doctors. However, it should be given effect to only after being fully satisfied that the executor is terminally ill and is undergoing prolonged treatment or is surviving on life support and that the illness of the executor is incurable or there is no hope of him/her being cured.
• If the physician treating the patient (executor) is satisfied that the instructions given in the document need to be acted upon, he shall inform the executor or his guardian/close relative, about the nature of illness, the availability of medical care and consequences of alternative forms of treatment and the consequences of remaining untreated. He must also ensure that he believes on reasonable grounds that the person in question understands the information provided and has come to a firm view that the option of withdrawal or refusal of medical treatment is the best choice.
• The physician/hospital where the executor has been admitted for medical treatment shall then constitute a Medical Board consisting of the Head of the treating Department and at least three experts from different fields, with experience of at least twenty years. This Medical Board shall visit the patient in the presence of his guardian/close relative and form an opinion on whether or not to certify carrying out the instructions of withdrawal / refusal of further medical treatment. This decision shall be regarded as a preliminary opinion.
• In the event the Hospital Medical Board certifies that the instructions contained in the Advance Directive ought to be carried out, the physician/hospital shall inform the jurisdictional Collector about the proposal. The jurisdictional Collector shall then constitute a second Medical Board comprising the Chief District Medical Officer of the concerned district as the Chairman and three expert doctors with experience of at least twenty years. They shall jointly visit the hospital where the patient is admitted and if they concur with the initial decision of the first Medical Board of the hospital, they may endorse the certificate to carry out the instructions given in the Advance Directive.
• The Board constituted by the Collector must ascertain the wishes of the executor if he is in a position to communicate and is capable of understanding the consequences of withdrawal of medical treatment. In the event the executor is incapable of taking decision or develops impaired decision-making capacity, then the consent of the guardian nominated by the executor in the Advance Directive should be obtained.
• The Chairman of the Medical Board nominated by the Collector, that is, the Chief District Medical Officer, shall convey the decision of the Board to the jurisdictional JMFC before giving effect to the decision to withdraw the medical treatment. The JMFC shall visit the patient at the earliest and, after examining all aspects, authorise the implementation of the decision of the Board.
• It will be open to the executor to revoke the document at any stage before it is acted upon and implemented.

What if permission is refused by the Medical Board?

• If permission to withdraw medical treatment is refused by the Medical Board, the executor of the Advance Directive or his family members or even the treating doctor or the hospital staff can approach the High Court by way of writ petition under Article 226 of the Constitution.
• If such application is filed before the High Court, the Chief Justice of the said High Court shall constitute a Division Bench to decide upon grant of approval or to refuse the same. The High Court will be free to constitute an independent Committee consisting of three doctors with experience of at least twenty years.
• The High Court shall hear the application expeditiously after affording opportunity to the State counsel.

Revocation of Advance Directive

• An individual may withdraw or alter the Advance Directive at any time she has the capacity to do so, and by following the same procedure as provided for recording of Advance Directive. Withdrawal or revocation of an Advance Directive must be in writing.

Where there is no Advance Directive

• The Court has held that the same procedure and safeguards that apply in cases where an Advance Directive exists, will be followed when there is no Advance Directive. However, the Court has prescribed an additional procedure to be followed in such cases.
• In cases where the patient is terminally ill and undergoing prolonged treatment in respect of ailment which is incurable or where there is no hope of being cured, the physician may inform the hospital which, in turn, shall constitute a Hospital Medical Board. This Board shall discuss with the family physician and the family members and record the minutes of the discussion in writing. During the discussion, the family members shall be apprised of the pros and cons of withdrawal or refusal of further medical treatment to the patient. If they give consent in writing, then the Hospital Medical Board may certify the course of action to be taken. Their decision will be regarded as a preliminary opinion.
• The rest of the procedure will remain the same as is followed in case there is an Advance Directive.

Other Judgments:

• In State of Maharashtra v. Maruti Sripati Dubal, 1987 (1) Bom CR  case, the Bombay High Court stated that Right to life under Article 21 also includes Right to die. It was contended that Section 309 of Indian Penal Code (attempt to commit suicide) is thus unconstitutional, as it is violative of Article 21 of the Constitution. Court clearly stated in this judgement that Right to die is just uncommon not unnatural.
• In P. Rathinam v. Union of India, case, the Supreme Court also accepted that Right to live also includes Right not to live under Article 21 of our Constitution. 

Conclusion:

The court drew the distinction between active and passive euthanasia. Active euthanasia can be seen as the positive and deliberate termination of one’s life by injecting and administering lethal substances. It is considered to be a crime worldwide except permitted by legislation. In India, active euthanasia is a straight infringement of section 302 ² and section 304³ of the IPC. Moreover, physician-assisted suicide is an offense under section 309 ⁴ of IPC. Passive euthanasia on the other hand is the withdrawal of life-supporting systems or medical treatment. The main distinction between active and passive euthanasia is that in “active” something is done deliberately to end life whereas in “passive” something is not done. A proper procedure and guidelines were enlisted by the apex court for granting passive euthanasia in the “rarest of rare circumstances” while rejecting the plea made by the petitioner.

In Gian Kaur v. State of Punjab, AIR 1996 SC 946 case, the Supreme Court overruled the P .Rathinam’s judgement and declared that Right to life does not include Right to die but at the same time court also stated that Right to life will include live with human dignity and the right to die with dignity. The court held that the right to die with dignity should be distinguished from Right to die. As right to die is an unnatural death which takes away natural span of a person’s life, on the other hand the right to die with dignity is a subsistence provided to a person. For instance, a person who is in a condition of PVS, if provided the right to die, it will end his suffering, physical and mental agony. 

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Section 497 IPC and 198(2) of CrPC:

Section 497 IPC lays down that whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.

Ingredients for Adultery:

• Sexual Intercourse must have happened between a married man and a woman whom he believes to be the wife of another man.
• The woman must have consented to such sexual intercourse.
• The act should take place without the consent of the husband of the man.
• All the parties should be proven to be married.

Plain reading of Section 497 shows that adultery in India is based on the notion of patriarchy and male chauvinism. This offence makes a man criminally liable who has sexual relations with a woman, who is the wife of another man. And if the husband consents or connives to such an act it will no longer be adultery. There is no right to a woman in case her husband commits adultery. Thus, the law on adultery was for the benefit of the husband, for him to secure ownership over the sexuality of his wife. It was aimed at preventing the woman from exercising her as a sexual agency. This law basically provides that any person who is engaged in sexual relation with the wife of another man and the husband of that woman gives his consent for the same then such act won’t be charged for adultery. This clearly denotes that how women are considered as a toy in the hands of their husbands.

Section 198(2) of CrPC:

Section 198(2) of CrPC lays down that for the purposes of sub- section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf. 

Earlier Precedents:

Yusuf Abdul Aziz v. Sate of Bombay, (1954) SCR 930, AIR 1954 SC 321:

In this case, the Hon’ble court was dealing with a fact situation where the question arose that whether section 497 contravened Articles 14 and 15 of the Constitution of India. In the said case the appellant was being prosecuted for adultery under Section 497 of IPC. As soon as the complaint was filed, the husband applied to the High Court of Bombay to determine the constitutional validity of section 497 IPC. The Court observed that S. 497 IPC was a special provision which was made for women only and was saved by Article 15(3) of the Constitution.

According to the Court sex was a sound classification and although there can be no discrimination in general on that ground, the Constitution itself provides for special provisions in the case of women and children. The two articles read together validate the impugned clause in Section 497 of the Indian Penal Code.

Sowmithri Vishnu v. Union of India, (1985) Supp SCC 137:

A petition was filed and preferred under article 32 of the Constitution which challenged the validity of Section 497 of IPC. It was contended before the Court that the concerned section does not confer any right upon the wife to prosecute the woman with whom her husband had committed adultery. The wife also had no right to prosecute the husband who has committed adultery with another woman. It was submitted that Section 497 did not take in its ambit those cases where the husband has sexual relations with an unmarried woman and that husbands had a free licence under the law to have extramarital affair or a relationship with unmarried woman. The submission was advanced that section 497 is a flagrant instance of “gender discrimination, legislative despotism and male chauvinism”. However, the Hon’ble Court repelled the aforesaid submissions and held “The argument really comes to this that the definition should be recast by extending the ambit of the offence of adultery so that, both the man and the woman should be punishable for the offence of adultery. Were such an argument permissible, several provisions of the penal law may have to be struck down on the ground that, either in their definition or in their prescription of punishment, they do not go far enough.” The court stated that breaking a matrimonial home is no less a crime than breaking a house. The Court felt that these arguments could only be taken into consideration by the Parliament for amending the relevant provisions. The court also placed reliance on Yusuf Abdul Aziz case and held that the same does not offend Articles 14 and 15 of the Constitution and opined that the stability of marriages is not an ideal to be scorned. Being of this view, the Court dismissed the petition.

V. Revathi v. Union of India And Others, (1988) 2SCC 72:

In this case the court analysed the design of the provision and ruled that “the law permits neither the husband of the offending wife to prosecute his wife nor does the law permit the wife to prosecute the offending husband for being disloyal to her. Thus, both the husband and the wife are disabled from striking each other with the weapon of criminal law’’.

Here the Court placed heavy reliance on the three-judge bench in Sowmithri Vishnu case and proceeded to state that the community punished the outsider who broke into the matrimonial home subject to the rider that the erring man alone could be punished and not the erring woman. It was observed that there was reverse discrimination in favour of the woman rather than against her. According to the Court there was no discrimination against the woman insofar as she was not permitted to prosecute her husband.

By expressing the above said view, the court stated that the concerned provision or section was not vulnerable to any kind of hostile discrimination.

W. Kalyani V. State Through Inspector of Police and Another, (2012) 1 SCC 358:

In this case, the court noted that section 497 IPC was under criticism from certain quarters for displaying a strong gender bias because it made the position of a married woman almost a property of her husband. The provision also came under criticism on the ground that only a man could be proceeded against and punished for adultery and the wife could not be punished even as an abettor. The issue of constitutional validity of Section 497 of IPC and Section 198 CrPC did arise in the concerned case.

Joseph Shine v Union of India, AIR 2018 SC 4898, 2018 SC 1676

In December 2017, a Public Interest Litigation Petition was filed challenging the constitutional validity of the offence of adultery under Section 497 of the IPC read with Section 198(2) of the CrPC. A three Judge Bench, headed by the then Chief Justice of India, Deepak Mishra, had referred the petition to a five Judge Constitution Bench, conceding that the law dis seem to be archaic.

Facts of the Case:

• The petition was filed by a non-resident of Kerala named Joseph Shine who has raised question on the constitutionality of the Section 497 of the Indian Penal code.
• Petition was filed under Article 32 and he challenged the constitutionality of Section 497 of IPC read with Section 198 of Code of Criminal Procedure, he said that this is being violative of Article 14, 15 and 21.
• The reason behind this petition was to shield Indian men from being punished for extra marital relationships by vengeful women or their husbands.
• As it was observed that, Petitioner’s close friend in Kerala committed suicide when a women co-worker made malicious rape charge on him.
• Further he claimed that Section 497 is an egregious occurrence of sexuality unfairness, authoritative imperialism and male patriotism.
• The traditional framework within which Section 497 was drafted, is not any longer applicable in modern society.
• This was initially a PIL filed against adultery.
• The petitioner claimed the availability for adultery to be arbitrary and discriminatory on the idea of gender.
• The petitioner claimed that such a law demolishes the dignity of a lady.

Issues Involved:

• Whether section 497 of Indian Penal Code is unconstitutional?
• Whether exemption granted to married women under section 497 violates the right to equality under constitution?
• Whether section 497 should be made gender neutral by including women as offenders?

Following issues were also addressed:

• Law of adultery provides that man to be punished in case of adultery but no action is suggested for the women.
• Section 497 does not provide that a woman can file a complaint of adultery against her husband.
• And if the husband gives the consent for such an act, then such act is no more considered as a crime
• Section 198(2) of Criminal Procedure Code allows a husband to bring charges against adultery not the wife.

Provisions Discussed:

• Section 198 (2) of The Code of Criminal Procedure – defines that only the husband can be the aggrieved party.
• Section 479 of the Indian Penal Code – defines punishment for adultery.
• Article 14 – Right to equality – Adultery only prosecuted men and not women and hence, it was considered to be a violation of Article 14.
• Article 15(1) – prohibits the State from discriminating on the grounds of sex – The law only considered the husbands as the aggrieved party and no charges against women.
• Article 21 – protection of life and personal liberty – Women were treated as the property of their husbands under this law, which is against their basic dignity and individuality.

Contention of Petitioner:

The Counsel of Petitioners contented that:

1. The Petitioner argued on an outlined numerous components of Section 497 that the counsel believed were infringing on his fundamental rights.
2. The counsel urged that, it was maintained that the law provided for a man’s penalty in the event of adultery, but not for a woman’s punishment. Due to the lack of a legal provision to that effect, a woman could not make a complaint against her husband for adultery under the Section.
3. Furthermore, the counsel of Petitioner claimed that under this rule, women were treated as objects because the act was considered “illegal” depending on the husband’s agreement or lack thereof.
4. The Petitioner claimed that because of their paternalistic and arbitrary nature the restrictions infringed on fundamental rights guaranteed by Articles 14, 15, and 21 of the Constitution. Since sexual intercourse was a mutual and willing act for both participants, it was argued that neither should be held liable.
5. The Petitioner also claimed that Section 497 of the IPC violated Article 21- fundamental right to privacy because the choice of an intimate partner lay clearly within the realm of sexuality autonomy. It was argued that each individual (married or not; male or woman) had an unrestricted right to engage in sexual intercourse outside of his or her marital connection.

Contention of Respondent:

The counsel of Respondent Countered the Argument of the Petitioner and contented that:

1. Allowing persons to have sexual encounters outside of marriage.
2. According to the counsel of Respondent, it would eventually destroy the institution of marriage, and hence the clause criminalising adultery was necessary to safeguard the sanctity of marriage.
3. The counsel argued that an act that it offended society’s morality and its members should be punished.
4. The Respondent claimed that the right to privacy and personal liberty guaranteed by Article 21 was not absolute and might be limited when a legitimate public interest was at risk. Section 497 was also considered to be lawful as a type of affirmative action in favour of women.

Judgment:

The court in its judgement to this case struck down Section 497 of the IPC and held that this Section is violative of Articles 14, 15 and 21 and declared it unconstitutional. Court also held that Section 198(2) of the CrPC is also unconstitutional to the extent it is applicable to Section 497 of IPC. Thus, court here overruled all the previous judgements passed in this matter.

• The court in explanation said that every individual has full autonomy to make decisions regarding their sexual life. 
• If any wrong has criminal sanctions it should be a public wrong, but in adultery cases the wrongs are considered as private wrong. The right to dignity provides that punishments should be granted only when absolutely necessary and a proper analysis should be done before deciding it.
• Also no one can treat a woman as a chattel or some property.
• This law is almost ancient and has been created in a period when there was no constitution and thus, in those times the constitutionality not even a question nut now in present times such patriarchal laws do not hold any significance.
• Though the act of sexual infidelity is morally wrong but it does not give sufficient conditions to criminalize the same. The harm principle contains 3 elements. 1) harm 2) a wrongdoing 3) public element. All of these elements are needed to be proved to classify a wrongful act as a criminal offence. 

Thus, on above lines the Apex Court in its judgement declared that the law is quite discriminatory and is not consonant with the contemporary times and hence declared void. Thus, adultery as an offence has ceased to exist and now it can only be used as an excuse for divorce but its committers can’t be penalised.

Conclusion:

Law of adultery i.e. Section 497 is anachronistic and is unconstitutional. This section denies the substantive equality and it reinforces that women are unequal participants in a marriage, and she is incapable of freely consenting to a sexual act in legal order which regards them as the sexual property of their spouse that is why it is violating Article 14, 15 and 21. Section 497 is no longer a criminal offence still it is a ground of divorce and maintenance. Crime does not affect an individual, it affects the whole society, adultery is a personal issue, if adultery is treated as a crime, then it would be equivalent to the state entering into a real equivalent to the state entering into a real private realm. Adultery is not fitted in the concept of the crime as it extends into the private space of marriage. The husband is not the master of his wife. Section 497 shows arbitrariness. In the judgment it was illustrated that a consent given by the husband does not preserve the sanctity of the marriage.

Though the judgement is a progressive one but it totally rules out the crime of adultery from our laws and hence making the protection of the rights of a spouse in a marriage quite vulnerable. It somehow weakens the institution of marriage by giving absolute liberty by striking down adultery. Thus, this law is criticized on the notes of its socio- cultural impact. Thus this case gives a vague ending to the concept of Adultery. 

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To understand the maxim “res ipsa loquitur’ we need to understand the concept of negligence first. To establish negligence, the plaintiff must prove the following:

• Duty: Defendant had a duty to care for the victim.
• Breach of duty: Defendant failed to provide this care.
• Causation: The breach of duty caused the victim’s injuries.
• Damages: The victim was indeed injured.

The plaintiff has the burden of proof to demonstrate these four elements of negligence. Thus, it is the plaintiff’s responsibility to produce necessary evidence against the defendant to have the judgment in his favour. In some cases, mere facts of incidence taken place become prima facie evidence of negligence. The legal doctrine of res ipsa loquitur relieves a plaintiff of his burden of proving any specific act of negligence on the part of the defendant. In a res ipsa loquitur case, the facts warrant an inference of negligence. A judge will determine whether the doctrine of res ipsa loquitur applies.

Elements of ‘res ipsa loquitur’: 

1. The event that caused injury to the plaintiff would not have occurred if someone has not acted negligently. i.e., the incident was of a type that does not generally happen without negligence.
2. The evidence presented rules out all the possibilities of the fault of the plaintiff or third party. Thus, there is no contributory negligence on part of the plaintiff. i.e., it was caused by an instrumentality solely in the defendant’s control and that there are no other plausible explanations.
3. There is a duty of care of the defendant towards the plaintiff which he breached.

If these elements are met, the burden shifts to the defendant to show that he was not negligent

Let us understand with some examples:

1. Small things and tools like hammer may fall out of window injuring somebody walking below the window. It may be negligence or even mischief of somebody. But slipping of small things and tools is not unusual. Hence the doctrine res ipsa loquitur is not applicable.
2. If some heavier thing like a piece of furniture like chair, table falling out of window injuring somebody walking below the window is unusual. It is a clear indication of the negligence. Hence the doctrine res ipsa loquitur is applicable.
3. However, in some cases, there is no direct evidence of negligence. For example, spectators are watching a football game on a college ground. The spectators are sitting on temporarily fabricated benches. The benches collapse, injuring the spectators. The spectators file a personal injury action against the college, which built and maintained the benches. However, the spectators are unable to determine why the benches collapsed. Therefore, the spectators cannot prove that the college was negligent in any particular way. In such a case, a court may invoke the legal doctrine of res ipsa loquitur. If the judge in the collapsing benches case decided to apply the doctrine of res ipsa loquitur, then the spectators would not have to show any specific act of negligence on the part of the college. They would merely have to prove that benches do not ordinarily collapse in the absence of negligence, that the college had exclusive control of the benches, and that the spectators did not contribute to the collapse of the benches by their own negligence. If the spectators proved those three elements, then the college would have to prove that it was not negligent in order to win the case.

Case Laws (Doctrine Applicable):

In Byrne v. Boadle,  2 H. & C. 722, 159 Eng. Rep. 299 (Exch. 1863) case, a man was walking on a sidewalk outside of a flour warehouse when a barrel of flour fell from a warehouse window. The man did not see the barrel fall out of the window, nor could he produce any evidence to indicate how or why the barrel fell from the window of the warehouse. Still, the court thought it apparent that the flour barrel almost certainly came from the flour manufacturer. Moreover, barrels of flour don’t ordinarily fall from warehouse windows in the absence of negligent conduct of the people running that warehouse. The warehouse workers had exclusive control of the barrel that fell out of the window and the plaintiff’s actions did not contribute to his injury. The court allowed the case to proceed because of the nature of the harm-causing event and Defendant’s relationship to it, i.e., as it was Defendant’s responsibility to control the contents of his warehouse, the accident itself is evidence of negligence.

In Read v. S. Pine Elec. Power Asso., 515 So. 2d 916 (Miss. 1987) case, the Court held that under res ipsa loquitur, the defendant’s negligence may be presumed and thus does need not be proven.

In Hayes v. Peters, 645 S.E.2d 846 (N.C. Ct. App. 2007) case, the Court said that under res ipsa loquitur, the finder of fact must be able to infer, through common knowledge and experience, that negligence occurred.

In Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750 case, due to the collapse of the Clock Tower situated opposite the Town Hall in the main Bazar of Chandni Chowk, Delhi, a number of persons died. The Clock Tower belonged to the Municipal Corporation of Delhi and was exclusively under its control. It was 80 years’ old but the normal life of the structure of the building, which had fallen, could be 40-45 years, having regard to the kind of mortar used. In these circumstances, the Supreme Court held that the fall of Clock Tower tells its own story in raising an inference of negligence on the part of the defendant. Since the defendants could not prove the absence of negligence on their part, they were held liable. And also, a Clock tower in the heart of the city will need extra care and if it falls and causes injury to several people, the defendants will but obviously be held liable for the same under this principle. In such cases, direct evidence of proving negligence is not important, but the plaintiff has to establish a prima facie case, either by direct or circumstantial evidence of the defendant’s negligence.

In Nihal Kaur v. Director, P.G.I., Chandigarh, August 23,1996 case, where scissors were left in the body of a patient during an operation. Then his condition worsened and he died. Scissors were recovered from the ashes after cremation. Compensation of Rs. 1,20,000 was awarded to the defendants of the deceased.

Case Laws (Doctrine Not Applicable):

In O’Neal v. Burlington N., Inc., 413 N.W.2d 631 (Minn. Ct. App. 1987) where Intoxicated man aged 30 years brought action to recover for injuries sustained when train ran over his left leg while he was sleeping or sitting on the ground next to the railroad tracks with one leg extended across the track.  Appellant contended that he should be considered as irresponsible as a child because he was extremely intoxicated. The Court of Appeals held that man was not within class of persons (child) intended to be protected by statute requiring railroads to build and maintain fences on each side of lines.

In K. Sobha v. Dr. Mrs. Raj Kumari Unithan, 2 November, 1998 case, the plaintiff, aged 35 years, who had an 8-year-old son, approached the defendant, a gynaecologists’, to consult regarding the non-conception of another child. She was advised to test tubing to remove possible obstruction in the fallopian tube. With the plaintiff’s consent, the needful was done by a simple procedure of blowing air through the apparatus into the vagina under controlled pressure. Subsequently, some infection had occurred in the plaintiff’s reproductive system and the same had to be removed. There was no evidence to indicate any negligence on the part of the defendant which could have caused the infection. The cause of infection was, however, unknown. So, under these circumstances, The Kerala High Court held that it was not a case of res ipsa loquitur, as the inference of negligence could not be drawn from the facts of the case.

In R.S.R.T.C. v. Smt. Sayar Bai, AIR 1999 Raj 96 case, there was an accident which was alleged to have occurred due to the mechanical failure of the bus. There was no apparent evidence to indicate the negligence of the bus driver. It was held that the doctrine of res ipsa loquitur could not be applied under the circumstances of the case and the Rajasthan State Road Transport Corporation could be held liable only after its negligence was proved.

Defence Available to Defendant:

Defendants can still rebut the presumption of negligence that res ipsa creates by refuting one of the three elements listed above.

1. The defendant could prove by a preponderance of the evidence that the injury could occur even if reasonable care took place to prevent it. In the flour-barrel example, the defendant can prove an earthquake could shake an item loose and it could fall out of the warehouse window.
2. Prove that the victim contributed to the incident in some way. In the flour-barrel example, if the defendant shows that the plaintiff was standing in an area marked as dangerous it could rebut the presumption of negligence created by res ipsa.
3. The defendant could establish that he did not owe the plaintiff a duty of care under the law, or that the injury did not fall within the scope of the duty owed. For example, if the law only imposes a limited duty on the defendant not to behave recklessly, then res ipsa will not help the plaintiff by creating an inference of negligence since a negligent action would not violate the duty owed to the plaintiff.

Conclusion:

Res ipsa loquitur and negligence per se are both doctrines that assist in proving breach of duty in certain negligence cases. The former allows negligence to be inferred from the circumstances and the latter allows it to be inferred from a violation of law. Both have many applications that allow causes of action to go forward where there is a lack of direct evidence proving negligence.

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Q11. Write down important causes of prostitution

Prostitution is generally defined as the practice of providing sexual services for money, but because it requires a buyer and a seller it can more appropriately be defined as the practice of exchanging money for sexual services

Causes of prostitution

• Poverty and unemployment: Poverty and unemployment are seems to be the main reason where woman will choose to enter the industry of prostitution. 
• Woman has been tricked into prostitution: Most of the women who are lived in rural society earn lower income compared to women in urban areas. They are often tricked into prostitution with guarantees of decent job opportunities in the city or abroad.
• Family expectation and problem: Women in particular are pressured to pay for their sibling’s education or support a sick family member. Other aspects such as dysfunctional families or constant sexual abuse from parents have led adolescents to leave their home.
• Careless parental care: In order to provide a better education for children, parents often send their children to other countries and let them rent cheap rooms. As a result, they are exposed to male predators.
• Other Causes: Other causes include, bad company, family prostitutes, social custom, inability to arrange marriage, lack of sex education, prior incest and rape, early marriage and desertion, lack of recreational facilities, ignorance, and acceptance of prostitution. Psychological causes include desire for physical pleasure, greed, and dejection

Q12. Explain what is crime syndicate.

A syndicate is a general term describing any group that is formed to conduct some type of business. The term syndicate is also associated with organized crime. In the 1930s, the term crime syndicate was often used to describe a loose association of racketeers in control of organized crime throughout the United States. Crime syndicate is a mastermind of highly skilled and professionalized gang leaders. Despite known records, well documented criminal statistics, the leading gangsters remain most of the part of there career immune from prosecution and punished although the lower members of the gang get punished many times.

The term ‘crime syndicate’ refers to a gang of criminals engaged in the business of providing some forbidden or illegal service to the customers who are desirous of having it and are willing to pay handsomely for the service. Thus gambling, bootlegging, commercialized prostitution, supply of narcotic drugs, and other intoxicants, etc. are mostly carried on by the syndicates of criminals. Their crime exists due to illegitimate demand of public which cannot be fulfilled legitimately due to legal prohibitions. These syndicates earn huge profit through monopolistic approach.

Q13. Write note on Born Criminal Theory

Since the early times sociologists have tried to find the reason behind certain acts that are revolting to the human sensibilities, acts that are crimes or deviances. As the civilization progressed slowly sociologists tried to relate crime with the personality of the offender. A number of theories were put forward to define crime as well as criminal liabilities. The various theories of crime causation are biological theory, psychological theory, sociological theory, economic theory, and multiple theory.

Cesare Lombrosso (1876) was the first person who tried to separate crime and its causes from religious superstitions through his born criminal theory. This theory is also known as biological theory of causation of crime. He believed that criminals are born with criminal tendencies and have certain physical features that are different from normal individuals. He measured the sizes of heads of prisoners and noted that criminals have certain ‘abnormal’ features that meke them feel inferior and thus are helpful in identifying as to which individuals are likely to commit crimes. However, this theory had the drawback that it did not take into consideration a person’s psychology.

Q14. Explain Neo-classical school

A school of thought in criminology is made up of a number of theoretical perspectives, each of which are closely related in that they share, to some degree, similar underlying assumptions. Neoclassical criminology can be defined, simply, as a school of thought that assumes criminal behaviour as situationally dynamic and individually-determined. Neoclassical theories of crime assert that deterring, reducing, or eliminating crime can occur through stricter child-rearing practices, enhanced punishments, and/or an increase in surveillance and security. Neoclassical thought is typically linked to politically conservative crime control policies. This is primarily because these theories advocate for an increase in more aggressive forms of policing, zero-tolerance parole and probation practices, and increased prison sentences for all crimes.

The most important assumption that neoclassicists share is that criminal behaviour is a rational choice. The rational choice perspective assumes that all human beings have free will, they know all of their choice options, and will make choices that maximize pleasure and minimize pain. Neoclassical theories minimize or ignore other factors, such as historical oppression, blocked opportunities, and poverty. Neoclassical theorists place the blame for committed crimes solely on the individuals, rather than on environmental factors.

Q15. Explain the following in details

(i) Juvenile Justice Board:

The Juvenile Justice System in India is based on the following assumptions:-

1. young offenders should not be tried in courts, rather they should be corrected in all the best possible ways and they should get a chance to reform
2. A separate system of Juvenile Justice Boards should be set up to avoid court room setups and procedures.
3. The trial for juvenile in conflict with law should be non-penal treatment through the social control agencies for e.g. Observation Homes and Special Homes.

According to Section 4 of the Juvenile Justice (Care and Protection of Children) Act, 2000, the State Government may by notification in the Official Gazette, constitute for a district or a group of districts specified in the notification, one or more Juvenile Justice Boards for exercising the powers and discharging the duties conferred or imposed on such Boards in relation to juvenile in conflict with law. The Board comprises of a Judicial Magistrate of First Class or a Metropolitan Magistrate (as Principal Magistrate) and two social workers among whom at least one should be a woman. The Magistrate must have special knowledge or training in child psychology or child welfare. The Social workers must be actively involved in health, education, or welfare activities associated with children for at least seven years. The members of Boards can resign or their services can be terminated on the basis given in Section 4 of the Act.

The Juvenile Justice Board has exclusive jurisdiction to deal with Juvenile in conflict with law notwithstanding any other law for the time being in force. The powers that could be exercised by the Juvenile Justice Board can be exercised by the High Court or the Court of Sessions while dealing with appeals / revision.

The following are the functions of the Juvenile Justice Board, as per Rule 10 of the 2007 Rules:-

• To adjudicate and decide cases of a juvenile in conflict with the law;
• Take cognizance of crimes committed under section 23 to 28 of the Act
• Monitor Institutions for juveniles in conflict with the law
• Deal with non-compliance on the part of concerned government functionaries or functionaries of voluntary organizations
• Direct District authority and Police to provide necessary infrastructure or facilities so that minimum standards of justice and treatment are maintained in the spirit of the Act
• Maintain liaison with the Child Welfare Committee in respect of children needing care and protection
• Liaison with Boards in other districts to facilitate speedy inquiry and disposal of cases through due process of law;
• Send quarterly information about juveniles in conflict with law produced before them to the District and State Child Protection Unit, State Government and Chief Judicial Magistrate or Chief Metropolitan Magistrate
• Grant permission to visit the premises of an Institution.

(ii) Home-guard Police:

The post independence era in India witnessed a radical change in the socio-political conditions of the country. As a result of these changes, an auxiliary police establishment was needed to help the regular police in times of need. Therefore new police wing called Home Guard Police was established to assist the police in times of flood, famine, or other calamities.

The Home Guards & Civil Defence is a parallel line of defence, primarily manned by civilians and to be utilized not only during war time but also during peace time, especially for combating civil emergency and safeguard the civilian population in disaster and natural calamities. The main objective of Civil Defence is to save life, minimize damage to property and maintain continuity of production.

Home Guard It is voluntary service organization. It is a part of Police Force meant for auxiliary function of assisting the main Police Force by means of recruiting volunteers as Home Guards and they perform various functions at Police Station level and assist the Police in day-to-day functioning as well as during special occasion and law and order situations. The Civil Defence wing takes care of training of the citizens to react to the various emergencies like natural calamities, acts of war etc.

Q16. Explain in detail

(i) Prison System in U.S.A.:

(ii) Cause of Juvenile Delinquency:

In India, the concept of Juvenile delinquency is clear and confined to the violation of the ordinary penal law of India so far as the jurisdiction of the juvenile court is concerned.  Juvenile Crime is not naturally born in the child but it is largely present in him because of the surroundings that he is brought up in, his own absurd actions, or simply lack of discipline and proper education. The following are some causes of juvenile delinquency.

• Unplanned Urbanization: Industrial development and economic growth has resulted in urbanization. Which in turn resulted in the migration of large population from village to urban area. It resulted in new problems such as housing, slum dwelling, overcrowding, etc. The high cost of living in urban areas makes it necessary even for women to take up outdoor jobs for supporting their families financially. This results in the neglect of children and ineffective or almost nil parental control.  The temptation of luxuries of life lures young people and they may act in the wrong way to satisfy their wants. Thus, unplanned urbanization is one of the important causes of juvenile delinquency.
• Economic Problems: Most of the time, the cause of juvenile delinquency is economic problems in the family. Youth belonging from poor economic status easily get involved in criminal activities. The failure of parents to provide necessities of life such as food, clothing, etc. draws their children to delinquency in a quest for earning money by whatever means. The intention to change the economic status fast by any means results in juvenile delinquency.
• Family Problems: For the full and harmonious development, of their personality, children should grow up in a family environment, in an atmosphere of happiness, love and understanding. The family has more influence when the child is young, as the child reaches adolescence, the peer group becomes increasingly important as an influence on behaviour. The disintegration of joint families, broken families, single-parent families, separated families, frequent parents fight, lack of trust and confidence among the parents, criminal parents, psychological problems in parents, siblings rivalry, or unequal treatment between children may become reasons behind juvenile delinquency.
• Inefficient Education Infrastructure: Due to poor education infrastructure classrooms are very small. Less number of teachers are available. The classrooms concentrate a large number of children in a small area for a major part of their day. Misconduct in school ranges from discourtesy to teachers to vandalism, assault, drug use, and alcohol abuse. Other problems observed are the use of obscene language, cheating, lying, petty theft, weapon possession, etc. Many schools themselves handle most of the misconduct through relatively well-developed discipline and observing policies.
• Neighbourhood: After the family and school, he spends the rest part of the day in the company of neighbours. An antisocial neighbourhood can contribute to juvenile delinquency.
• Peer Groups: The peer group is an informal network of individuals of similar age
  and generally formed spontaneously in areas where children readily meet
  and interact. Habits of children and their friends such as stealing and smoking, gambling and smoking, consuming alcohol, and smoking are generally found among such peers.
• Unemployment: Not merely regular employment, but satisfactory employment is needed to keep a man away from crime. Unemployment increases poverty, inequality and resentment against society. Repeated rebuffs and disappointment sin getting a job makes a man antisocial.  Thus unemployment can be considered as one of the reason for juvenile delinquency.

Q17.Explain in detail the multiple theory of crime causation

Since the early times sociologists have tried to find the reason behind certain acts that are revolting to the human sensibilities, acts that are crimes or deviances. As the civilization progressed slowly sociologists tried to relate crime with the personality of the offender. A number of theories were put forward to define crime as well as criminal liabilities. The various theories of crime causation are biological theory, psychological theory, sociological theory, economic theory, and multiple theory.

The multiple-factor approach in criminology grew out of discrepancies in single-factor approach. Its adherents argued that crime should be understood in terms of varied contributions made by a variety of factors.  The assumption was that crime is the product of many factors biological, psychological, economic and social and those different crimes will be the result of different combinations of factors.   According to the multiple causation theory, no one reason can be given for criminal tendencies. It stated that a medley of a variety of factors such as motility, economic, biological, psychological, social contact, conditions of living, family background, politics, religion, geographical conditions, together lead to criminal behaviour. The multiple-factor approach has been criticised by scholars like Albert Cohen and many others.

Q18. X, from India, instigates a foreigner in Japan to commit murder in Japan – (i) Is X guilty of any crime? (ii) What is Admiralty Jurisdiction?

Q19. What are two important elements of a crime? (Any TWO)

Human Being:

The first essential element of the crime is a ‘Human being’. It requires an act to be a crime, it is necessary that the act must be committed by a human being. Section 2 of Indian Penal Code provides that – “Every person shall be liable to punishment under this Code for every act or omission contrary to the provisions thereof, of which he shall be guilty within India”.  Section 11 of Indian Penal Code, which provides that the word ‘Person’ includes a company or association or a body of persons whether incorporated or not. It means the artificial persons are also liable for the breach of the statutory duty imposed on them but they are not liable for the act which can be committed only by the living person as Murder, Rape, and Bigamy etc.

Guilty Mind (Mens Rea):

‘Mens rea’ is the second and important essential elements of crime. It is also known as ‘evil intent’. A Latin maxim “Actus reus non facit reum nisi mens sit” means the act itself does not constitute guilt unless done with a guilty intent. Mens rea implies that there must be a state of mind with respect to an actus reus, that is, an intention to act in the prescribed fashion. If the offender has been found guilty of wrongful intentions, he shall be prosecuted by the court of law. Absence of Guilty intentions may save him from punishment.

Act (actus reus):

‘Actus Reus’ is the third and important essential element of crime. It is the Latin term used to describe a criminal activity and is defined as a criminal activity that was the result of voluntarily bodily movement. This describes a physical Activity that harms another person or damages property. ntention or mens-rea alone shall not constitute a crime unless it is followed by some external or overt act which is forbidden by some prevailing law. Generally, omitting to do something will not amount to actus resus of an offence.

Injury to Victim of Crime:

The fourth essential of crime is the ‘Injury’ to another person or to society at large. Such injury must be illegally caused to a person. To constitute a crime, there must always be result brought about human conduct, a physical event which the law prohibits. The word ‘Injury’ has been defined under Section 44 of Indian Penal Code as “the word ‘injury’ denotes any harm whatever illegally caused to any person in body, mind, reputation or property”. Thus, the word ‘injury’ is wide enough to include all injuries caused by tortious act. The threat of injury is also punishable under the Indian Penal Code.

Q20.What are the main causes of white collared crime?

Poorly designed job incentives:

When incentive programs are introduced hastily or without a thorough thought process, or not sufficient to suffice expectations of the employee, it may start to encourage the wrong behavior.

Management nonchalance towards ethics: 

Expected managerial traits are dignity, respectfulness, helping others, compassion, serving others, justice, teamwork, and most importantly honesty. If management itself is not giving importance to honesty, then there is a possibility of wrong behavior. Many investment firms use expert networks to legitimize the use of inside information for stock trading. Such cues may lead an employee of these firms to breach securities laws.

Unethical behavior perceived as harmless: 

Sometimes offender may think himself as omnipotent and he is invincible, untouchable, and hyper-capable. Similarly, the offender thinks as it is victimless crime and hence it is harmless. Excessive pride in success can lead to a feeling of invincibility and magnify the effects of decision-making biases. 

Aggressive Goals / Motivational Blindness: 

Aggressive goals are special characteristics of present merit-based culture but sometimes without any goal post. Sometimes the offenders are blinded by their motivation to achieve the goal and do the wrong behavior.  They fail to acknowledge their failures.

Pilfering public or private entities:

Many times it is found that offenders take stealing from a large company or government alluring. They think there is a big pile of cash to steal from and no guilt of hurting “a person.” Or even pilfering from such large cash is unnoticeable.

Disregard for the law and a false belief that everyone misbehaves: 

In such cases, offenders argue that there is no victim and the law is stupid. Similarly, their argument is that “I am not the only one.”

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Q1. Define Criminology. Mention various causes of crime.

Definition of Criminology:

• The law Lexicon defines it as ” the study of crimes, their nature, the causes, detection, and prevention of crimes”.
• Dr. Kenny defines it as “the branch of criminal science which deals with crime-causation, analysis, and prevention of crimes”.
• Edwin Sutherland and Donald Cressey define it as “the body of knowledge regarding crime as a social phenomenon” It includes the process of making of laws, of breaking of laws, and reacting towards breaking of laws.

Causes of Crime:

The different causes of crime are as follows:

• Poverty,
• Peer Pressure,
• Drugs,
• Politics,
• Religion,
• Family Background,
• Society,
• Unemployment,
• Unequal rights’
• Unfair justice system

Q2. Define i) Organized crime ii) Cyber Crime iii) Penal Couple.

• Organised Crime: Organized crime may be defined as unlawful activities of members of a highly organized, disciplined association engaged in supplying illegal goods and services including but not limited to gambling, prostitution, loan sharking, narcotics, labour racketeering, extortion, collection of protection money from rich businessmen, contract killing, kidnapping and other unlawful activities of members of such association.

Section 2(i) (e) of The Maharashtra Control of Organized Crime Act (1999) defines that organized crime means any continuing illegal activity by an individual singly or jointly either as a member of Organized crime or on behalf, such syndicates, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary or other undue economic or other advantage for himself or any other person or promoting insurgency.

• Cyber Crime: A cybercrime or a cyber tort is the latest and perhaps the most complicated problem in the cyber world. A generalized definition of a cyber tort is “unlawful acts wherein the computer is either a tool or target or both” Thus cyber tort is a tort done on cyberspace. The computer may be used as a tool in the following the activities like financial crimes, a sale of illegal articles, pornography, online gambling, intellectual property crime, e-mail spoofing, forgery, cyber defamation, cyberstalking.
• Penal Couple: Generally, in any crime their two parties, the perpetrator and the victim.The penal couple is defined as the relationship between perpetrator and victim of a crime. That is, both are involved in the crime. 

Q3. Explain in brief any three Theories of Punishment.

The term punishment is defined as, “pain, suffering, loss, confinement or other penalty inflicted on a person for an offence’ by the authority to which the offender is subjected to.” Punishment is a social custom and institutions are established to award punishment after following the criminal justice process, which insists that the offender must be guilty and

Different theories of punishment are as follows:

• Deterrent Theory: The word ‘deter’ means to prevent. Here, deterrent theory refers to refraining from doing a particular act. The main goal behind using this theory is to restrain criminals from committing a crime. In such theories, punishments awarded are severe in nature which creates a fear not only in the criminal’s mind but also in the mind of others. This theory is still prevalent in some Islamic countries.
• Retributive Theory: Retributive theory is the most ancient theory of justice. The word ‘retribute means to give in return the same thing that has been received. It is also known as Vengeance Theory. This theory proposes tit for tat, eye for an eye, tooth for a tooth. The punishment has to be proportional to the crime committed. The believers of this theory say that criminals must suffer pain.
• Preventive Theory: The main aim of this theory is to prevent crime. When the criminals are kept in jails, they are kept out of society. The object of this theory is to prevent or disable the offenders from repeating the offence by giving them punishment. A supporter of preventive theory is Paton. Punishments under this theory include death, life imprisonment, forfeiture of property etc.
• Reformative Theory: This theory focuses on reforming the criminals and bringing the criminals back to society as good and law-abiding citizens. This is based on the Gandhian principle: Hate the sin, not the sinner. This theory was successful to some extent in the case of juveniles. Some work or craftsmanship is imposed on the offender during his period of confinement with the aim that he will start a new life after his punishment is over.
• Utilitarian Theory: This theory applies discouraging methods on criminals to prevent crimes such as crippling or disablement, etc. This theory provides both affirmative and negative results. Such punishments are considered to be very harsh in nature.
• Expiatory or Compensatory Theory: The object of this punishment theory is self-realization. If the offender, after committing an offence, realizes his guilt, then he must be forgiven. This theory relies on compensation to the victim for the loss caused by the accused. In this way, the offenders are made to realize the same sufferings they have caused to the victim.
• Incapacitation Theory: This theory puts the criminals into the state of being incapacitated to prevent the offence. A fear also grows in the mind of the criminals and future generations before attempting to commit future crimes, thus preventing it.

Q4. Define Victimology. What is the impact of victimization?

Broadly speaking victimology may be defined as the scientific study of victimization, including the relationships between victims and offenders, the interaction between victioims and the criminal justice system; i.e., the police and the courts, and correlational officials. It also includes connection between victims and other social groups and institution, such as the media, businesses and social movements.

Victimization is what happens to a person when they are impacted as the result of a crime. These actions can have severe consequences on emotional, psychological, and social levels. 

Emotional Impact:

Once the shock of the incident goes away, the emotional impact makes many victims feel angry or fearful. They may project that anger onto others. Victims may become angry at themselves for not being aware of their surroundings. They may even begin to hate everyone who has a loose association of the offender, such as sharing the same gender, race, or occupation. They may become fearful of going to a place similar to where the crime occurred. Victims of sexual violence may feel shame or humiliation.

Psychological Impact:

Victims of a crime are put in situations beyond their control. Following the initial shock, the psychological impact may cause a victim to go through a period of disorganized activity. They may have distressing thoughts about the event, trouble sleeping. They may use substance abuse as a coping mechanism and withdraw socially. They may suffer from post-traumatic stress disorder (PTSD).

Social Impact:

Victims of a crime may suffer a social impact following the event. Social isolation by others, avoidance, or secondary impacts as a result of daily interactions with people can often re-victimize the victim. Insensitive comments from others, being isolated by peers who do not know what to say or do for the victim, or not receiving help or information can lead to continued struggles for the victim. Victims may have difficulties performing social roles. Work, parenting, socializing, or intimacy with a partner can all be affected as a result of the crime.

Q5. Explain the functions and responsibilities of the Juvenile Justice Board.

The following are the functions and responsibilities of the Juvenile Justice Board, as per Rule 10 of the 2007 Rules:-

• To adjudicate and decide cases of a juvenile in conflict with the law;
• Take cognizance of crimes committed under section 23 to 28 of the Act
• Monitor Institutions for juveniles in conflict with the law
• Deal with non-compliance on the part of concerned government functionaries or functionaries of voluntary organizations
• Direct District authority and Police to provide necessary infrastructure or facilities so that minimum standards of justice and treatment are maintained in the spirit of the Act
• Maintain liaison with the Child Welfare Committee in respect of children needing care and protection
• Liaison with Boards in other districts to facilitate speedy inquiry and disposal of cases through due process of law;
• Send quarterly information about juveniles in conflict with law produced before them to the District and State Child Protection Unit, State Government and Chief Judicial Magistrate or Chief Metropolitan Magistrate
• Grant permission to visit the premises of an Institution.

Q6. Define i) Juvenile ii) Foster care iii) Heinous offences

Juvenile: According to Section 2(35) of the Juvenile Justice (Care and Protection of Children) Act, 2015, “juvenile” means a child below the age of eighteen years; Following two conditions must coincide to bring a person under the definition of juvenile under this Act.

1. He should have been alleged to have committed an offence; and
2.  He should not have completed the age of eighteen years on the date of the commission of the offence.

Foster Care: According to Section 2(29) of the Juvenile Justice (Care and Protection of Children) Act, 2015, “foster care” means placement of a child, by the Committee for the purpose of alternate care in the domestic environment of a family, other than the child’s biological family, that has been selected, qualified, approved and supervised for providing such care;

Heinous Offence: According to Section 2(33) of the Juvenile Justice (Care and Protection of Children) Act, 2015, “heinous offences” includes the offences for which the minimum punishment under the Indian Penal Code or any other law for the time being in force is imprisonment for seven years or more.

Q7. State the duties of Probation Officer.

According to Section 14 of the Offenders Probation Act of 1958, a probation officer is supposed to undertake the following duties, subject to any terms or limits that may be imposed:

• Investigate any individual accused of an offense’s circumstances or home environment with the goal, in line with any Court instruction, to assist the Court in determining and reporting the most suitably advised approach to his dealing with it;
• Supervising probationers and other people under his supervision and, if required, locating suitable jobs;
• Counseling and assisting victims in the payment of fines or fees by the Court;
• Advice and assistance to people released under Section 4 in such situations and manner as may be required; Perform any other tasks that may be prescribed.
• According to Section 14 of the Act, a probation agent’s primary responsibilities include investigation, monitoring and direction, counselling, and professional control of criminal probation. As an inspiring, guiding and supporting probationer, this probation officer facilitates the rehabilitation of the criminal as a law-abiding member of society.

Q8. Death Penalty is awarded in which kind of case? Mention various kinds of punishment.

The term punishment is defined as, “pain, suffering, loss, confinement or other penalty inflicted on a person for an offence’ by the authority to which the offender is subjected to.” Punishment is a social custom and institutions are established to award punishment after following the criminal justice process, which insists that the offender must be guilty and the institution must have the authority to punish.

The Death sentence may be awarded for offences under sections 121, 132, 194, 302, 305, 307, 364-A, 376 – E, and 396 of the IPC. In addition to the above, the death penalty can also be imposed under Ss. 34, 109, 120-B, and 149 of IPC. The Apex Court has held that the death penalty should be avoided in rarest rare case.

Section 53 of the Indian Penal Code enumerates the different punishments which the courts may award to a person convicted for a crime:

• Death penalty;
• Imprisonment for life;
• Imprisonment which is of either description: rigorous or simple;
• Forfeiture of Property;
• Fine.

In respect of each of the above punishments, the courts are supposed to follow the procedure prescribed by the relevant provisions of the substantive and the adjective laws.

Q9.Write short note on “White Collar Crime”.

National White Collar Crime Centre which is a non-profit organization of the United States defines white-collar job as:  “Illegal or unethical acts that violate fiduciary responsibility or public trust, committed by an individual or organization, usually during the course of legitimate occupational activity, by persons of high or respectable social status for personal or organizational gain.” The National Crime Record Bureau of India in its glossary defines white-collar crime as including criminal breach of trust, cheating, counterfeiting, corruption, and all other organized\economic crimes.

Characteristics of White Collar Crime:

• White-collar crimes differ primarily from other types of crime in that they are non-violent offenses.
• They use deception to obtain money, property or some other advantage or to cover up other criminal activity.
• Both mens rea and intention in the crime are to obtain money, property or some other advantage or to cover up other criminal activity.
• In most white-collar crimes multiple actors are involved who conspire together to commit fraud.
• White-Collar offences can be committed by individuals or corporations.
• White-Collar crime is not only committed by the people of high social status in their occupational capacity but also is committed by the people of lower strata.
• It is an illegal act or series of illegal acts committed by non-physical means and by concealment or guile.

Causes of White Collar Crimes:

• Poorly designed job incentives:
• Management nonchalance towards ethics
• Unethical behavior perceived as harmless
• Aggressive Goals / Motivational Blindness
• Pilfering public or private entities
• Disregard for the law and a false belief that everyone misbehaves

Q10.Write short note on “Prison Problems”.

Prison reforms have been a subject of intense debate and discussion for several decades in India but even today little appears to have changed on the grass-roots level. The Indian Judiciary has played a proactive role for the improvement of prisons but still the issues relating to prisons in the country and their reform continue to pose a big hurdle in criminal justice system. In Rama Murthy v. State of Karnataka, AIR 1997 SC 1739, the Supreme Court identified following nine issues (problems) concerning prisons:

1. Overcrowding;
2. Delay in trial;
3. the torture and ill-treatment of prisoners;
4. neglect of health and hygiene;
5. insubstantial food and inadequate clothing. 
6. Prison vices;
7. Deficiency in communication;
8. Stramlining jail visits;
9. Management of open air prisons.

The court noted that these major problems needed immediate attention. Inviting attention of the Apex Court to the inhuman conditions prevailing in 1382 prisons in India, Shri R.C. Lahoti, former Chief Justice of Undia pointed out that these prisons suffered fro four major issues viz: overcrowding of prisons, unnatural deaths of prisoners, Gross inadequacy of the staff; and available staff being untrained or inadequately trained.

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Section 27 of the Code Of Criminal Procedure, 1973 discusses the jurisdiction in the case of juveniles. It lays down that “Any offence not punishable with death or imprisonment for life, committed by any person who at the date when he appears or is brought before the Court is under the age of sixteen years, may be tried by the Court of a Chief Judicial Magistrate, or by any Court specially empowered under the Children Act, 1960 (60 of 1960), or any other law for the time being in force providing for the treatment, training and rehabilitation of youthful offenders.

Now, such an offender is tried under the Juvenile Justice (Care and Protection) Act, 2015. It is very surprising that though CrPC was amended in the year 2005, sec.27 was not amended or altered to bring in conformity with the existing juvenile legislation. Therefore, this provision of CrPC has become redundant.

In Ram Singh v. State of Haryana, (2000) 6 SCC 759 case, The Supreme Court held that juvenile legislation shall be supreme in juvenile cases, no matter the nature of the offence committed. Furthermore, to avoid any doubt in this respect, sec. 1(4) of Juvenile Justice (Care and Protection) Act, 2000 states ―notwithstanding anything contained in any other law for the time being in force the provisions of this Act shall apply to all cases involving detention, prosecution, penalty or sentence of imprisonment of juveniles in conflict with law under such other law.

Various stakeholders like the Police, the Probation Officer, the Juvenile Justice Board, the NGOs, Advocates, Legal Services Authority, State Government, Central Government and others have been involved in the Juvenile Justice System. Their function and role in the Juvenile Justice Delivery Mechanism is critical. In this article we shall study about Juvenile Justice Board.

Juvenile Justice Board:

Chapter II of the Act deals with Juvenile in conflict with the law. Section 4 of the Act deals with the Juvenile Justice Board.

4. Juvenile Justice Board.-

1. Notwithstanding anything contained in the Code of Criminal Procedure, 1973,.(2 of 1974) the State Government may, within a period of one year from the date of commencement of the Juvenile Justice (Care and Protection of 3 Children) Amendment Act, 2006, by notification in the Official Gazette, constitute for every district, one or more Juvenile Justice Boards for exercising the powers and discharging the duties conferred or imposed on such Boards in relation to juveniles in conflict with law under this Act.

2. A Board shall consist of a Metropolitan Magistrate or a Judicial Magistrate of the first class, as the case may be, and two social workers of whom at least one shall be a woman, forming a Bench and every such Bench shall have the powers conferred by the Code of Criminal Procedure, 1973 (2 of 1974) on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of the first class and the Magistrate on the Board shall be designated as the principal Magistrate.

3. No Magistrate shall be appointed as a member of the Board unless he has special knowledge or training in child psychology or child welfare and no social worker shall be appointed as a member of the Board unless he has been actively involved in health, education, or welfare activities pertaining to children for at least seven years.

4. The term of office of the members of the Board and the manner in which such member may resign shall be such as may be prescribed.

5. The appointment of any member of the Board may be terminated after holding inquiry, by the State Government, if –

i. he has been found guilty of misuse of power vested under this Act,

ii. he has been convicted of an offence involving moral turpitude, and such conviction has not been reversed or has not been granted full pardon in respect of such offence.

iii. he fail to attend the proceedings of the Board for consecutive three months without any valid reason or he fails to attend less than three-fourth of the sittings in a year.

Constitution of Board:

The Amendment made to Juvenile Justice Act, 2000, in the year 2006 mandates the constitution of a Juvenile Justice Board in every District. The Board should consist of (a) Principal Magistrate and (b) two Social Workers of whom at least one shall be a woman.

Qualification for Principal Magistrate:

Principal Magistrate must be a Metropolitan Magistrate or a Judicial Magistrate of the first class (though practically the division between first class and second class has been erased) having special knowledge or training in child psychology and child welfare.

Qualifications for Social Workers:

• who has been actively involved in health, education, or welfare activities pertaining to children for at least seven years;
• not less than 35 years of age;
• who has a post-graduate degree in social work, health, education, psychology, child development or any other social science discipline;
• should not: (a) have been convicted under any law; (b) have indulged in child abuse or employment of child labour or any other human rights violations or immoral act; (c) be holding such other occupation that does not allow him to give the necessary time and attention to the work of the Board;
• selected by a Selection Committee headed by a retired High Court Judge;

Tenure of the Members of Board:

General tenure is three years. Members of the Board can be appointed for a maximum of two consecutive terms.

Termination of Member of the Board:

• Out of three members of the Juvenile Justice Board, the Principal Magistrate being a judicial officer, the service conditions are governed by relevant State Judicial Service Rules.
• With regard to the Members of the Board, the aspect of termination will be decided by the State Government, after holding an inquiry, if – (i) He has been found guilty of misuse of power vested under this Act or (ii) He has been convicted of an offence involving moral turpitude, and such conviction has not been reversed or he has not been granted a full pardon in respect of such offence or (iii) He fails to attend the proceedings of the Board for consecutive three months without any valid reason or he fails to attend less than three-fourth of the sittings in a year

Allowances:

• Principal Magistrate being a judicial officer, pay and allowances are governed by relevant State Judicial Service Rules.
• The social worker members of the Board shall be paid a minimum of Rs.500/- per sitting.

Jurisdiction:

The Juvenile Justice Board has exclusive jurisdiction to deal with Juvenile in conflict with law notwithstanding any other law for the time being in force. The powers that could be exercised by the Juvenile Justice Board can be exercised by the High Court or the Court of Sessions while dealing with appeals / revision.

In Sant Das Vs. State of U.P, 2003 CriLJ 3424 case, the Court held that where Juvenile Justice Board is not constituted, the Magistrate concerned has jurisdiction to deal with cases of juvenile and appeal will go before the Sessions Judge.

In Nanlabhai Kukabhai Rathwa v. State of Gujarat 2005 (33) AIC 572 (Guj) case, the Court held that if a juvenile is tried by the Sessions Court in ignorance of the fact that he is a juvenile, the trial would stand vitiated.

Working of Board:

5. Procedure etc. in relation to Board.-

1. The Board shall meet at such times and shall observed such rules of procedure in regard to the transaction of business at its meetings, as may be prescribed.

2. A child in conflict with law may be produced before an individual member of the Board, when the Board is not sitting.

3. A Board may act notwithstanding the absence of any member of the Board, and no order made by the Board shall be invalid by reason only of the absence of any member during any stage of proceedings;

Provided that there shall be at least two members including the principal Magistrate present at the time of final disposal of the case (4) In the event of any difference of opinion among the members of the Board in the interim or final disposition, the opinion of the majority shall prevail, but where there is no such majority, the opinion of the principal Magistrate shall prevail.

Even though the Juvenile Justice Board consists of three members, when the Board is not sitting, the juvenile shall be produced before any single member of the Board, who is empowered to pass all appropriate orders except final disposal88. Any such order shall be ratified by the Board in the next meeting89. However, 2 members including Principal Magistrate can pass final order

In the event of any difference of opinion among the members of the Board in the interim or final disposition, the opinion of the majority shall prevail. Where there is no such majority, the opinion of the Principal Magistrate shall prevail

Working Conditions:

Rules for Selecting Premises (Rule 9 (1) & (2) of the 2007 Rules):

• Proceedings to be held in the premises of an Observation Home or in its proximity.
• Not to be held within any court premises.
• The premises shall be child-friendly and shall not look like a courtroom.
• The board shall not sit on a raised platform.
• There shall be no witness box.

Rules of Meeting (Rule 9 (3), (4) & (5) of the 2007 Rules):

• The board shall meet on all working days of a week unless the case pendency is less in a particular district and concerned authority issues an order in this regard.
• A minimum of three-fourth attendance of the Chairperson and Members of the Board is necessary in a year.
• Every member of the Board shall attend a minimum of five hours per sitting.

Infrastructure (Rule 83 of the 2007 Rules):

Infrastructure The Juvenile Justice Board should have the following minimum infrastructure facilities:-

• A Board Room,
• Waiting room for children,
• A room for Principal Magistrate and Members,
• A record room, · Room for Probation Officers,
• Waiting room for parents and visitors,
• Safe drinking water facility and toilets,
• Steno-typist or computer operator,
• Peon,
• Safai karamchari.

Functions of the Board:

The following are the functions of the Juvenile Justice Board, as per Rule 10 of the 2007 Rules:-

• To adjudicate and decide cases of a juvenile in conflict with the law;
• Take cognizance of crimes committed under section 23 to 28 of the Act
• Monitor Institutions for juveniles in conflict with the law
• Deal with non-compliance on the part of concerned government functionaries or functionaries of voluntary organizations
• Direct District authority and Police to provide necessary infrastructure or facilities so that minimum standards of justice and treatment are maintained in the spirit of the Act
• Maintain liaison with the Child Welfare Committee in respect of children needing care and protection
• Liaison with Boards in other districts to facilitate speedy inquiry and disposal of cases through due process of law;
• Send quarterly information about juveniles in conflict with law produced before them to the District and State Child Protection Unit, State Government and Chief Judicial Magistrate or Chief Metropolitan Magistrate
• Grant permission to visit the premises of an Institution.

Powers of Juvenile Justice Board

6. Powers of Juvenile Justice Board.-

1. Where a Board has been constituted for any district, such Board shall, notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act, have power to deal exclusively with all proceedings under this Act relating to juvenile in conflict with law.

2. The powers conferred on the Board by or under this Act may also be exercised by the High Court and the court of Session, when the proceedings comes before then in appeal, revision or otherwise.

Juvenile Justice Act has an overriding effect and all offences including offences under the NDPS Act, Arms Act, SC/ST Prevention of Atrocities Act allegedly committed by a juvenile has to be inquired into by the Board and not by the Courts constituted under the respective special enactments. (Raj Singh vs. State of Haryana: 2000 (6) SCC 759; Mohd. Irsahd vs. State (Delhi) : 2006 (134) DLT 507; State vs. Harshad (Kant.): 2005 CriLJ 2357; Ex. General Ajit Singh vs. UOI (Delhi): 2004 (110) DLT 326; Ratan Lal vs. State (Raj): 2004 CrLJ 734; Manish Tyagi Vs. State of U.P. : 2007 CriLJ 3165)

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In this article, we shall discuss what is meant by property crimes and various forms of property crimes.

Property crimes are crimes that do not necessarily involve harm to another person. Although they may involve physical or mental harm to another, they primarily involve interference with another person’s right to use or enjoy their property. In property crimes, a property may be destroyed or defaced in some way or taken away without the consent of the person having its possession. Property crimes include Larceny, theft, robbery, burglary, embezzlement, forgery, false pretences, receipt of stolen goods, auto-theft, shoplifting, trespass, vandalism, arson, etc. It is possible that individuals may be harmed, as in the case of vandalism and arson.

Larcency:

One commits larceny by taking something of value without consent and with the intent to permanently deprive the rightful owner of the object. Larceny is the stealing of items which can be taken from one place to another, a pen, jewellery, money in the form of cash, tangible things. It is a common-law crime.

Theft:

Theft is the act of intentionally depriving someone of his or her property. Theft is the stealing of tangible and intangible things. It is a statutory crime. Section 378 defines theft as: “Whoever, intending to take dishonestly any moveable property out of the possession of any person without that per­son’s consent, moves that property in order to such taking, is said to commit theft.”

Sections 378 to 382 of Indian Penal Code deal with the offence of theft.

Shoplifting:

Shoplifting is the theft or concealment of merchandise from a retail establishment without the intent to pay for it, such as placing items in one’s pocket and walking out of a store or place of business.

This is treated as theft and Sections 378 and 379 of the Indian Penal Code deals with it.

Extortion:

Extortion is the gaining of property or money by almost any kind of force or threat of violence, property damage, and harm to reputation, or unfavourable government action i.e. by coercion. Extortion differs from robbery in that the threat in question does not pose an imminent physical danger to the victim. Section 383 of the Indian Penal Code defines extortion as “Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishon­estly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits “extor­tion”.

Sections 383-390 of IPC deal with the offence of extortion.

Robbery:

It is an aggravated form of theft or extortion. One commits robbery by using force or the threat of force to take money or property from another individual, such as pointing a gun at a bank teller and demanding cash. As per Section 390 of the Indian Penal Code, theft or extortion may be a robbery. According to Section 390 of the Indian Penal Code: “Theft is “robbery” if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.  Similarly “Extortion is “robbery” if the offend­er, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.”

Sections 390, 392 – 394, 397, 398 deal with the offence of robbery.

Burglary:

Burglary is the unlawful entry into a home or other closed structure, often by force or coercion, with the intent of stealing property from another or committing some other crime. Section 445 of the Indian Penal code defines housebreaking (burglary) as: “A person is said to commit “house-breaking” who commits house-trespass if he effects his entrance into the house or any part of it in any of the six ways hereinafter de­scribed; or if, being in the house or any part of it for the purpose of committing an offence, or, having committed an offence therein, he quits the house or any part of it in any of such six ways….”. The section explains 6 ways of committing the offence of housebreaking or burglary.

Sections 445-462 deal with the offence of burglary.

Dacoity:

It is an aggravated form of robbery. It is an act of violent robbery committed by an armed gang. Section 391 defines dacoity as: “When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit “dacoity”.”

Sections 391, 395- 402 deal with the offence of dacoity.

Embezzlement:

Embezzlement is a theft or misappropriation of funds placed in one’s trust or belonging to one’s employer. Section 403 of the Indian Penal Code defines criminal misappropriation of property and provides punishment as: “Whoever dishonestly misappropriates or converts to his own use any movable property, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

Section 403 and 404 deal with the offence of criminal misappropriation of property.

Section 405 of the Indian Penal Code defines criminal breach of trust as: “Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”.”

Sections 405-409 deal with criminal breach of trust

Receipt of Stolen Goods:

Section 410 of the Indian Penal Code defines stolen property as: “Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and proper­ty which has been criminally misappropriated or in respect of which criminal breach of trust has been committed is designated as “stolen property”. Section 411 of the Indian Penal Code define the meaning of the phrase “dishonestly receiving of stolen property” and specifies punishment as: “Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”

Sections 410-414” deal with the offence of receipt of stolen property.

False Pretence:

False pretence is a deliberate misrepresentation of facts, as to obtain title to money or property.

Cheating:

Cheating means a dishonest or unfair act in order to gain an advantage at the loss of others. Section 415 of the Indian Penal Code defines cheating as: “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”.

Sections 415 – 424 of the Indian Penal Code deals with the offence of cheating.

Trespass:

Trespass means entering someone’s land or property without permission. Section 441 of the Indian Penal Code defines criminal trespass as: “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”. 

Sections 441-462 deal with the offence of criminal trespass.

Vandalism:

Vandalism occurs when an individual destroys, defaces or otherwise degrades someone else’s property without their permission; sometimes called criminal damage, malicious trespass, or malicious mischief. Section 425 of the Indian Penal Code defines mischief as: “Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits “mischief”.”

Sections 425 – 440 of the Indian Penal Code deal with the offence of mischief.

Arson:

Arson is the intentional burning of almost any type of structure, building or forest land, with more severe degrees recognized if it causes bodily injury, or involves an inhabited building or intent to defraud insurers.

Sections 435 and 436 of the Indian Penal Code under heading mischief deal with the offence of arson.

Forgery:

Forgery is the crime of forging money, documents, or paintings. Section 463 of the Indian Penal Code defines forgery as: “Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent 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 part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.”

Sections 463 – 477 deal with the offence of forgery.

Theft of Property Marks:

Section 479 defines Property mark as: “A mark used for denoting that movable property belongs to a particular person is called a property mark.”

Sections 479 – 489 deal with the offence of theft or counterfeiting property mark.

Indian Legal System > Legal Concepts > Criminology > Concept of Crime > Property Crimes

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Insanity is a mental defect or disease that makes it impossible for a person to know what he or she is doing; or if he or she does know, to know that what they are doing is wrong. Insane defendants are those defendants who acted under an irresistible impulse, even if they knew their actions were wrong. Defendants who are criminally insane cannot be convicted of a crime, because criminal conduct involves the conscious intent to do wrong, a choice that the criminally insane cannot meaningfully make.

Dr. E.A. Hooton carried intensive research on insane criminals and concluded that they were inferior to civilians in nearly all their physical standards and they commit criminal acts because of their unsoundness of mind and insanity. Henry Goodard observes, “fifty percent of criminals suffered from mental deficiency and they were unable to appreciate the consequence of their behaviour or meaning of the law.” The test of mental insanity came up for judicial consideration in the historic case, M’Naghten case in 1843, which is a landmark decision on insanity as a defence in English criminal jurisprudence.

There are a variety of criminal defense strategies that a lawyer may utilize when defending a client in a criminal case. Courts will determine legal insanity by applying one of the following tests/rules:

• The M’Naghten Rule.
• The Irresistible Impulse Test
• The Durham Rule
• The Model Penal Code Test

The court has no discretion to decide which test to apply. Their decisions are governed by the laws of a particular state.

The M’Naghten Rule:

The M’Naghten Rule (or test) was established by the English House of Lords in the mid-19th Century in a famous case known as M’Naghten Case. This case was tried in London before Tindal C.J. and two other judges and defended by Mr. Cockburn who later on became the Lord Chief Justice of England. The test thus enunciated in this case is known as “The Right and Wrong Test” and is applied today in England, India, Canada and practically in all the American States

Facts of the Case:

In January 1843, at the parish of Saint Martin, Middlesex, Daniel M’Naghten took a pistol and shot Edward Drummond (Secretary of the British Prime Minister), who he believed to the British Prime Minister Robert Peel, wounding him fatally. M’Naghten believed that Prime Minister Sir Robert Peel was conspiring against him.  At the time of his arrest, he told police that he came to London to murder the Prime Minister because he was told to do so.  Drummond died five days later and M’Naghten was charged with his murder. During the trial, he pleaded not guilty by reason of insanity.

Medical evidences were provided that M’Naghten was not capable of exercising control over his acts whilst under his delusion. Due to the nature of M’Naghten’s condition these delusions went on gradually until they reached a climax, ending with Drummond being shot. Defense counsel introduced expert and lay witnesses who testified about the Defendant’s obsession with delusions and that he suffered from acute insanity. The Chief Justice in his charge to the jury said that the question for them to be determined was whether at the time of committing the act he had or had not the use of his understanding so as to know that he was violating the law of God and man. The jury reached a verdict of not guilty by reason of insanity.

Questions Put to the Judges:

Following the trial, there was a meeting at the House of Lords attended by fifteen judges in order to determine the standards for the insanity defense. Fourteen of the judges united in their answers. The opinion of the majority was delivered by Tindal C.J. these questions & answers are known as the M’Naghten Rules which form the basis of the modem law on insanity in England & India. The following questions were put to the judges:

Question-1: What is law in respect of the alleged offences committed by the persons laboured with insane delusion in respect of one or more particulars subject or persons; e.g. Where at the time of the commission of the alleged crime the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing revenging some supposed grievance or injury, or of producing some supposed public benefit?

Answers: Assuming that your Lordship’s inquiries are confined to those persons who labour under such partial delusion only and are not in other respects insane we are of the opinion that notwithstanding the accused did the act complained with a view, under the influence of insane delusion of redressing or revenging some supposed grievance or injury, or of producing’ some public benefit, he nevertheless punishable according to the nature of the crime committed, if he knew at the time of committing such crime that he was acting contrary to law, by which expression we understand your lordship to mean the law of the land.

Questions 2 and 3: What are the proper questions to be submitted to the jury where a person alleged to be afflicted with insane delusion respecting one or more particular subjects or persons is charged with the commission of a crime, eg. murder and insanity is set-up as a defence? In what terms are the questions to be left to the jury as to the Prisoner’s state of mind, at the time when the act was committed?

Answer: As these two questions appear to us to be more conveniently answered together, we submit our opinion to be that the jury ought to be told in all cases that every man is to be presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity it must be clearly proved that at the time of committing the act, the accused was labouring under such a defect of reason from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong. The mode of the latter part of the question to the jury on these occasions has generally been, whether the accused at the time of doing the act know the difference between right and wrong, which made though rarely if ever leading to any mistake with the jury, is not, as we conscience so accurate when put generally and in the abstract, as when put with reference to the party’s knowledge of right and wrong in respect to every act which he is charged. If the question were to be put as to the knowledge of the accused solely and exclusively with reference to the law of the land, it might tend to confound the jury by inducing then to believe that actual knowledge of the law of the land was essential in order to lead to a conviction; whereas the law is administered upon the principle that everyone must be taken conclusively to know it, without proof of that he does know it, without proof of that he does know it. If the accused was conscious that the act was at the same time contrary to the law of the land, he is punishable and unusual course, therefore, has been to leave the question to the jury, whether the party accused had a sufficient degree of reason to know that he was doing an act that was wrong and this course we think is correct accompanied with such observation and explanations as the circumstances of each particular case may require.

Question 4: If a person under an insane delusion as to existing facts commits an offence in consequence thereof, is thereby excused?

Answer: The answer must depend on the nature of the delusion, but making the same assumption as we did before, namely that he labours under such partial delusions only and is not in other respects insane we think he must be considered in the same situation as to the responsibility as if the facts with respect to which the delusion exists were real. For instance, if under the influence of his delusion he supposes another man to be in the act of attempting to take away his life, and he kills, that man as he supposes, in self-defence, he would be exempted from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune and he killed him in revenge for such supposed injury, he would be liable to punishment.

Question-5: Can a medical man, Conversant with the disease of insanity who never saw the prisoner previously to the trial, but who was present during the whole trial and the examination of all the witnesses, be asked his opinion as to the state of the prisoner’s mind at the time of the commission of the alleged crime, or his opinion whether the prisoner was conscious at the time of doing the act that he was acting contrary to law, or whether he was labouring under any, and what delusion at the time?

Answer: The medical man, under the circumstances supposed, cannot in strictness be called or asked his opinion in the terms of above stated, because each of those questions involve the ascertainment of the truth of the facts deposed to, which it is for the jury to decide and the questions are not mere questions upon a matter of science, in which such evidence is admissible. But where facts are admitted or not disputed and the question becomes substantially one of the science only, it may be convenient to allow the question to be put in that general form, though the same cannot be insisted on as a matter of right.

After careful consideration their lordship found M’Naghten not guilty on the ground of his mental insanity. Their lordship observed that every man is presumed to be sane and to possess a sufficient degree of reason to be held responsible for his crime until the contrary is proved. In order to establish a defence on the ground of insanity, it must be clearly proved that at the time of committing the act the accused was laboring under such a degree of reason from disease of the mind, as not to know the nature and quality of the act he was doing or if he did know it he was doing what was wrong.

The answers given by the judges in M’Naghten case may be summarized in the following five rules:-

• That every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes until the contrary be proved to the satisfaction of the court
• In order to establish defence on ground of insanity it must be clearly shown that at the time of committing the act, the accused was labouring under such a defect of reason from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know that what he was doing was wrong.
• If the accused was conscious that the act was one which he ought not to do and if that act was at the same time contrary to the law of the land, he is punishable.
• Whereas criminal act is done by a man under some insane delusion as to the surrounding facts, which conceals him from the true nature of the act he is doing, he will be under the same degree of responsibility as he would have been on the facts as imagined them to be
• A medical witness who has not seen the accused before trial should not be asked on the evidence whether he thinks that the accused was insane.

Examples of Insanity Using the M’Naghten Rule

The best way to get a better understanding of this type of legal insanity is to see a few examples of how the rule may be applied to certain scenarios.

Example 1: A man murdered his wife and daughter, and then waited calmly for the police to arrive. Three mental health experts testified that he was too psychologically ill to understand that his criminal acts were wrong. He was found not guilty by reason of insanity and sentenced to 10 years in a mental health facility.

Example 2: A woman with severe schizophrenia is charged with assault and battery after attacking her next-door neighbor with a shovel. She claims the neighbor was actually a demon who was trying to harvest her soul. She was found not guilty by reason of insanity after the court determined that she failed to understand the nature of her actions.

Position of “Insanity” in India:

Section 84 of the Indian Penal code explains the act of a person of unsound mind. Section 84 contains the provision which relieves the accused person from criminal liability on the ground of unsoundness of mind. Section 84 in substance is similar to the M’Naghten rules because there is very little distinction between section 84 and answers 2 and 3 of the M’Naghten rules.

 Section 84 provides as under: “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”.

The accused is not protected if he knows at the time of doing an act that what he was doing was wrong even though he did not know that it was contrary to law. Sec 84 of Indian Penal Code contains a basic principle of the criminal jurisprudence that is “actus non facit reum nisi mens sit rea” which means that the act itself does not make a person guilty unless and until the intention was so. Therefore, in order to constitute an offence, the act must be accompanied by the intention to commit that act so the section imposes no criminal liability upon an insane person as they can possess no rational thinking or necessary ill will or the mens rea.

There is a minor distinction in Section 84 and answers 2 and 3 of the M’Naghten rule. The M’Naghten rules provide the terms “nature and quality” of the act whereas Section 84 does not provide the terms “Quality”. Likewise, the term “Contrary to Law” used in Section-84 is not present in the M’Naghten rules.

In RV Codere, 1916,12 Cr. App.R.21 case, the court of criminal appeal held that there is no distinction between the two terms “nature and quality” as both refer to the physical character of the act. A similar view was adopted by the Indian Supreme Court in Amrit Bhushan Gupta v. U.O.I. AIR 1977 SC 608 case. One more difference has also been found to exist between M’Naghten rules and Section 84 of Indian Penal code. That is in M’Naghten Rules Word ‘Insanity’ of the accused is defined and explained. According to Stephen, it is equivalent to unsoundness of mind, which is explained in Section 84 of Indian Penal code.

In order to get the benefit of the provisions of Section 84 three elements are considered necessary or any one of which must be established by the accused, because of unsoundness of mind, was,

• Incapable of knowing the nature of the act.
• The act was contrary to law.
• That the act was wrong.

So in order to establish insanity or unsoundness of mind, it is necessary to prove that the cognitive faculties of the person are such that he does not know that what he has done or what would be the consequences of his act.

M’Naghten rules refer to “disease of the mind” while the Indian Penal code in its Section-84 uses the expression “unsoundness of mind.” This appears to cover not only any form of insanity or mental disease but also any form of deficiency, like idiocy, imbecility and even feeble-mindedness. Instead of the word “insanity”, the framers of the Indian Penal Code have preferred the term “unsoundness of mind” because ‘insanity’ has a very confined scope whereas “unsoundness of mind” is a more comprehensive term. Any kind of mental derangement, caused by any reason whatever maybe, is unsoundness of mind but the same may not be insanity always. The framers of the Indian Penal Code wished to give a very wide scope to the unstable mind while recognizing the non-compos mends, i.e. not of sound mind notion as a defence under the Indian Criminal law.

In Pancha V. Emperor, AIR 1932 All, 233 case, the Allahabad High Court held that section 84 of the Indian Penal Code has borrowed the definition of unsoundness of mind which is recognized as a good excuse from the M’Naghten rules.

In State V. Kartik Chandra, AIR 1951 Ass. 79 case, the Assam High Court held that this enunciation of the law of England is the basis of Section 84 of the IPC and is embodied in it and section 84 of Indian Penal Code has borrowed the definition of unsoundness of mind which is recognized as a good excuse from the M’Naghten rules.

In State V. Chhote Lal, AIR 1959 M.P. 203, the Madhya Pradesh High Court held that the Principle underlying the Section 84 is substantially similar to the landmark M’Naghten rules and consequently, considerable assistance in understanding its content can be from the English decisions.

In State of Madhya Pradesh v Ahmadulla, AIR 1961 SC 998 case, the Supreme Court affirmed that the burden of proof that the mental condition of the accused was at the crucial point of time when the offence was committed was of such a degree as described in section 84 of the IPC lay on the person who claimed the benefit of this exception. The plea of insanity under an epileptic fit may succeed, only if it is established that at the very time when the offence was committed, the accused was under the epileptic seizure which rendered him incapable of knowing the nature of the act.

In Dhayabhai Chhaganbhai Thakkar v State of Gujarat, AIR 1964 SC 1563, case, the Court held that the crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of section 84 IPC, can only be established from the circumstances which preceded attended and followed the crime.

In Jai Lai v Delhi Administration, AIR 1969 SC 15, case the Court observed that the general burden is on the prosecution to prove beyond reasonable doubt not only the actus rea but also the mens rea.

In State of Gujarat v Kanaiyalal Manilal, 1997 Cri. L.J. 4245 case, the court has said that Sections 20, 22 and 78 of Mental Health Act, 1987 state that person who is mentally ill shall be sent to the psychiatric hospital. The court shall pass the order of reception and cost of maintenance of such person which is to be borne by the State Government.

Recommendation of 42^nd Report of Law Commission in India

• Should the existing provision (Section 84) relating to the defence of insanity be modified or expanded in any other way?
• Should the test be related to the offender’s incapacity to know that the act is wrong or to his incapacity to know that it is punishable?
• Should the defence of insanity be available in cases where the offender, although aware of wrongful, or even criminal nature of his act, is unable to resist from doing because of his mental condition?

Conclusion:

The study of the above cases reveals that the courts are sympathetic to the person with mental illness and have generally favoured acquittal on finding of insanity. The court have also highlighted that the detention of insane into psychiatric hospital helps in reformation and rehabilitation of the person suffer from insanity. Therefore the court takes into account the legal insanity and the court has also pointed out that legal insanity is different from medical insanity. To get the benefit of acquittal from criminal responsibility it is necessary for the accused to prove the three essentials as the burden of proof rests upon him. Thus persons should be taken into safe custody under hygiene condition so that he regain to society.

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The Subject Matter of Ownership:

The main subject-matter of ownership consists of a material object, such as land and chattels. But ownership is by no means limited to things of this category. A man’s wealth1 may consist not only of his land and goods but of such things as interests in the land of other people, debts due to him by his debtors, shares in companies, patents, copyrights, and his interests in trust funds. None of these are materials or physical things. They are in fact nothing other than right i.e. right to recover the debt from the debtor, the rights of a shareholder under company law, the right of exclusive exploitation of the patent or copyright, and the right to be paid out of the trust fund.
According to Salmond besides material objects, the right may also be the subject-matter of ownership through a man. From this point of view, many rights cannot be considered as the subject-matter of ownership. For example, one has a right of speech or right of reputation but it is never said that he owns these rights, nor can he alienate them. It must also be stated that though material objects from the subject-matter of ownership but there are certain exceptions to this general observation. For instance, wild animals living in forests cannot be owned. Likewise, since slavery has now been abolished, living persons cannot form the subject matter of ownership. Again, the air, the sea, the sun, the moon, the star, corpses, etc. cannot be owned.
From the above discussion, we can conclude that a man’s wealth consists of lands and goods; these are material objects of ownership. But his wealth also consists of interests in other people’s lands, debts due to him, shares in companies, patents, copyrights, etc. These are not material objects or physical things. They are rights. We shall see the subject-matter of ownership as “owning of things ’’ in the sense of both owning of material objects and also rights. Precisely what things in the wise sense can form the subject-matter of ownership will depend upon the rules of a given system of law. Whether ownership, in the sense of individual ownership, is at all ethically justified and whether state or corporate ownership gives rise to a managerial cadre possessing very much the same powers as owners and having the same defects are not the subject-matter of study in jurisprudence. But the trend seems to be to restrict or burden ownership in social interest.

Modes of Acquiring Ownership:

There are various modes of acquiring ownership over a thing. The ancient Roman and Hindu jurists have given the following modes of acquisition of ownership.

• Inheritance
• Gain
• Purchase
• Conquest
• Application of wealth
• Employment, and
• Acceptance of gift form proper persons.

Many of these modes of acquisition of ownership have been well recognized and some of them exist in a modified form even today. We shall study those methods applicable in modern days. According to Salmond, basically a person is said to acquire ownership in two ways:

• By operation of law, or
• By reason of some act or event.

In modem times the chief modes of acquisition of ownership may be either original or derivative

Original Acquisition:

This mode of acquisition of ownership is said to have taken place when ownership is acquired by reason of some act on part of the acquirer or event. It is of three types, viz.

• Absolute
• Accessory, and
• Extinctive

Absolute Acquisition:

When things are acquired which have not or have never had an owner “ers nullius”. Romans termed them as cases of absolute original acquisition. Manu has termed this mode of acquisition as Pratigraha. The type of absolute ownership is acquired in two ways: occupatio and specificatio.

Occupatio:

“Occupatio” in Roman means taking possession. If a thing is without owner, anyone is at liberty to take and keep it; he makes it his own by the very act of taking possession. Manu, a celebrated jurist in ancient India, has also given a similar view. He said that the first strike of an arrow to prey becomes the owner of it. The person taking possession must be able to show by some such act or fact that the previous owner really intended to divest himself at his ownership. Occupatio was considered as the original mode of acquiring all ownership.

A thing might be without owner because that thing was never possessed by anybody or because somebody who before owned it

• had voluntarily relinquished or abandoned it,
• had thrown it away or had given up exercising the rights of an owner.

Examples of Absolute Ownership by Occupatio:

• Undomesticated animals as long as they have their natural freedom are considered as without an owner.
• If the caged bird escapes from its confinement, the owner’s right ceases, until he can catch and confine it again. If anybody else catches it while free, he is entitled to keep it as his own. The previous owner cannot take it from him.
• The man who can catch a hare, may keep it and cook it. And this, even if he caught it in his neighobour’s land, where he had no right to go. In such a case he is liable to punishment for his poaching in neighbour’s land but was not required to restore the hare to the neighbor.
  game
• Treasures or valuable which had been concealed so long that none could tell whom they belonged, considered as being without an owner. If a man found such treasures, on his own land whether accidentally or by searching for them, was entitled to make them his own. It is to be noted that he is not allowed to search for them on his neighbour’s land. In such a situation that would be a gross violation of his neighbour’s rights. If he explored the lands of another for this purpose, he could lay claim to anything that he found. But if he was in anybody’s land for other purposes and chanced while there to come upon such a hidden treasure, he could keep half of it for himself and the other half going to the owner of the land.
• In England, hidden treasure belongs to the crown whereas under Roman law; it is equally divided between the finder and the owner of the place where it was found.

Specificatio:

Specificatio in Roman means making of new species or kind of product. For e.g. a man making cloth from another man’s wool, or bread from another man’s grain, a sculptor making statute out of clay collected from other person’s land, etc. In such acquisition of ownership, the material belonging to one person is given a new shape by another person. Thus the right of ownership was acquired in something which was previously without an owner. But there are cases in which a thing that had an owner passed without his consent into the ownership of another person. Now in such acquisitions, there are two rights involved: first the right of the owner of the material and the second the right of the manufacturer. There was a difference of opinion between two great schools of jurists. The Sabinian School maintained that the owner of the material was entitled for ownership, whereas the Proculian School maintains that the ownership belonged to the manufacturer. The main point, however, with regard to the principle of specifictatio is that it regards ownership of a thing as a result of individual labour.

Accessory:

When the ownership of property is acquired by way of accession to some existing property, then the acquisition of ownership is called accessory acquisition. Examples are the produce of lands or animals or fruits of trees. Manu has termed this mode of acquisition as Prayog. It was immaterial to see which party made the union; the previous owner of the principal thing, however, became the owner of the new whole, while the owner of the accession lost his right of property and could only claim compensation for his loss. Let us understand the case, by the following examples:

• X owned a piece of cloth. Y made embroidery on that cloth using his own blue thread. In this case, embroidery with blue thread is an accession to the principal thing the cloth. Now X, the owner of the cloth (principal thing) is the owner of the cloth after accession. While Y has lost is ownership of the thread.
• A man erected a building on another man’s land acting in good faith, believing the land to be his own i.e. he believed that the title was in his own name. In the judicial decision, it was proved that the title was defective. In this case, the land is the principal thing and the erected building is accession. Thus the man erecting building loses his ownership. The owner of the land is the owner of the building. This rule is applicable when the structure so erected is fixed and permanent and cannot be easily detached from the soil (res soli). If the structure is demolished, the materials of which the structure is composed, ceased to have any close connection with the soil, they were no longer “res soli” and could be claimed by the erector of the building.

Extinctive

When ownership is acquired by a person by some act on his part, which destroys the title of the previous owner, it is called extinctive acquisition. For instance, the acquisition of ownership by prescription is extinctive acquisition. There may be acquisitive prescription in which, after the expiration of the necessary period, the law gives to the adverse possessor a full legal title. In India, adverse possession by a person of the land of another for 12 years extinguishes the ownership of the previous owner and the person being such adverse possession becomes the owner.

Derivative Acquisition:

A person is said to acquire derivately when he accepts a conveyance of title from a previous owner. This type o mode may include the acquisition of ownership by inheritance – intestate and testamentary, and transfer inter-vivos-purchase, acceptance of gift, etc.

Acquisition of ownership by derivative method of different types of property can be deemed to be complete and effective only when the formalities laid down therein in concerned statute are complied with accordingly. In India, these formalities may be found in the Transfer of Property Act, 1882 “for the transfer of immovable property”, the Sale of Goods Act, 1930 “for the transfer of movable property”, the Partnership Act, 1932 “for the transfer of firm property”, the Companies Act, 1956 “for the transfer of company property”, the Registration Act, 1908, and many other acts.

For example when a gift of an immovable property is made, the transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by atleast two witnesses. In case of a gift of movable property, transfer may be effected either by a registered instrument signed as aforesaid or by delivery of possession.

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In Salmond’s view, ownership exhibits the following incidents:-

• An owner shall have a right to possess the thing which he owns. He may, however, not be necessarily in actual possession of it;
• He has normally the right to use and enjoy the thing owned;
• The owner has a right to consume, destroy or alienate the thing;
• Ownership has the characteristic of being indeterminate in duration;
• The owner has a residuary character.

Characteristics of Ownership:

The characteristics of ownership can be obtained from Salmond’s analysis:

Right of Possession:             

The owner has a right to possess the thing he owns. It is immaterial whether he is in possession of the thing. The thing might have been stolen, it might have been given temporarily on hire, it might have been pawned, mortgaged or leased, etc. But in all these cases the owner still has an interest in the thing and a right to repossession or termination of the impediment. In some cases, he can institute suits to protect damage to his reversionary right. For example, A’s car is stolen by B, then B has the actual possession of the car but ownership remains with A. X has mortgaged his land with Y. Now Y has the possession of the land but X has the ownership of the land. X can claim possession from Y by repaying the loan for which the mortgage is made in prescribed in the time period. If Y fails to give possession back to X, even after satisfying all the conditions of the mortgage, then X can sue Y in the Court of law.

Rights of Use and of Enjoyment:

Normally the owner has the right to use and enjoy the things as he likes. According to Salmond, these are liberties to use and enjoy the owned thing. He is under no duty not to use it but every other being is under a duty not to use it or interfere with it. But the owner can be restricted by agreements or by operation of law, such as:-

• The owner of a thing cannot be allowed to use the thing in a manner which is injurious to others. This is expressed by the maxim, “sic utere tuo, ut alie-num non laedas” which means “so use your property as not to injure your neighbours’’
• The ownership may be subject to encumbrance in favour of others in which case the power of the user of the owner is curtailed by the rights of the encumbrance.
• The state officials have a right to enter the owner’s premises in pursuance of a warrant issued by a court or for any lawful purpose.

Right of Disposition:

The right of disposition implies the right of consumption, exhaustion, alteration, destruction or alienation of property.  The owner has a right to consume and exhaust the thing when using it. Similarly, the owner has the right to alienate or destroy the thing over which he has ownership. Thus a man can effectively dispose of his property by a conveyance during his lifetime or by will after his death. A maxim nemo dat quod non habet meaning he who has not can give not applies here. Thus a person having possession but not ownership cannot transfer the right of ownership. However, there are well-recognized exceptions to this rule to be found in the Indian Contract act and in Sale of Goods Act.

The owner can be restricted by agreements or by operation of law, such as:-

• The owner of a thing cannot be allowed to dispose off the thing in a manner which is injurious to others. This is expressed by the maxim, “sic utere tuo, ut alie-num non laedas” which means “so use your property as not to injure your neighbours’’
• The ownership may be subject to encumbrance in favour of others in which case the power of the disposition of the owner is curtailed by the rights of the encumbrance.
• Legal restrictions may hamper the unrestricted disposition of the property.
• An owner of the property is not allowed to dispose of the same with a view to defect or delay his creditors.
• There are certain disabilities imposed on infants and lunatics with regard to the disposal of property.

Indeterminate Duration:

Ownership has the characteristic of being indeterminate in duration. All other non-owners in possession have interests which are determinable at a point of time “e.g. interest of a bailee or lessee comes to an end when the period of hire or lease comes to a close” owner’s interest is not determined even by his death, the property descending by either rule of inheritance of conditions of will. The right shall exist so long as the owner and the thing exists. It is a perpetual interest which shall devolve upon the heirs of the owner after his death, but the right shall not be extinguished.

The abolition of Zamindari system India, the abolition of privy purses, nationalization of Bank etc. are some example of the fact that the ownership can be cut short by the state for a public purpose and its duration is not unlimited.

Residuary Nature:

Ownership has a residuary character in the sense that even after all the lesser rights, e.g. lease, easements, etc. have been given away the residuary rights vest in the owner. On determination or extinction of the lesser rights, they revive all original rights in the owner. For instance, if a land-owner gives a lease of his property to A, an easement to B and a right of profit to C, then his ownership shall consist of the residual rights.

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