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preliminary lecture on ipc- criminal law definition etc.

The old Roman law says that, without law there is no crime. The legislature,

while defining crime takes into consideration various factors viz. social and

sociological factors, economic factors, political conditions and other things as it

thinks fit.

Crime is a public wrong. Public wrong in the sense it causes injury to the public

or community as a whole and any member of the public can move the court, it

causes threat to social security and creates social disorder. It is a wrong pursued

by the sovereign or its subordinate i.e. Police, Judicial Officials etc. for

example Murder, Rape, Theft, Forgery etc. New crimes in new era :- Use of computer network has given rise to cyber-crimes and other computer

related unlawful activities of twenty-first century's hi-tech world. Cyber-crimes

are harmful acts committed for or against a computer or against information on

computer network. These crimes differ from most terrestrial crimes in four

ways:

(1) It is easy to learn how to commit them, (2) they hardly require any resources. (3) they can be committed in a jurisdiction without being physically

present in it, and (4) they are often not clearly illegal. Some criminals operate around the computer network, undeterred by the prospect of arrest or

prosecution, and therefore are a menace to e-mail or e-commerce users. Frauds,

hackers, viruses, pornography, harassment, stalking, data-diddling etc are these

cyber-crimes cover a wide range of illegal activities. These offences are needed

to recognise the fact that criminal law must continue to address itself

adequately to new developments in information technology. Because of the

cyber crimes' international potential, there is need for an effective anti cyberspace international law for preventing cyber-crimes.

In recent years has made the crime situation still worse as evinced by scams, corrupt practices,

bomb-blasts, sex-scandals and all sorts of violent activities. Information and technology act ,2000 has provided some of the offences under the following sections : 65. Tampering with computer source documents.

66. Computer related offences.

66A. Punishment for sending offensive messages through communication service, etc. (struck down by Supreme Court in Shreya Singhal v. union of India violating the freedom of speech guaranteed under Article 19(1)(a) of the Constitution of India)

66B. Punishment for dishonestly receiving stolen computer resource or communication device.

66C. Punishment for identity theft.

66D. Punishment for cheating by personation by using computer resource.

66E. Punishment for violation of privacy.

66F. Punishment for cyber terrorism.

67. Punishment for publishing or transmitting obscene material in electronic form.

67A. Punishment for publishing or transmitting of material containing sexually explicit act, etc., in

electronic form.

67B. Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form. 71. Penalty for misrepresentation.

72. Penalty for Breach of confidentiality and privacy.

72A. Punishment for disclosure of information in breach of lawful contract.

73. Penalty for publishing electronic signature Certificate false in certain particulars. Many prominent jurists have made attempts to define „Crime

1. Sir William Blackstone

In his 'Commentaries on Law of England', Sir William Blackstone

defined Crime as "an act committed or omitted in violation of Public

Law forbidding or commanding it" 1. As a public wrong

Sir William Blackstone defines crimes in two ways, in his work, first as,

“Committed or omitted act to violate of a „Public Law‟ avoiding or leading it”.

The violation of a „public law it would be only political offences and such

offences are only a part of the criminal law. If „public law is to denote

„positive‟ or „municipal laws it will be wide and cover all legal wrongs, but every

legal wrong is not a crime.

At a second stage Blackstone modified his definition as:

“A crime is violation of the public „rights and duties due to the whole

community, considered as a community”

Sergeant Stephen, while editing Blackstone's commentaries modified the

definition to some extent and his definition is:

“A crime is a violation of a right considered in reference to the evil tendency of

such violation as regards the community at large”. 2. As a moral wrong

The word crime has comes from the Greek statement „Krimos‟, which is the

same with the Sanskrit, word „Krama‟, meaning social order. So the word crime

is applied to those acts against the social order and are earnest of serious guilty

verdict.


The word crime has also its origin in a Latin word, meaning „to accuse‟ and a

Sanskrit word „kri‟(to do). Combining the modem meaning of both the roots,

crime is a „most validly accusable act‟.


Raffaele Garofalo defines crime in some sociological perspective in the

following words:

“An immoral and harmful act is Crime that is viewed as criminal by public

opinion, because it is an injury to the moral sense as is possessed by a community- a measure which is indispensable for the adaptation of the

individual society” In this definition Garofalo says that crimes are that acts, which society

cannot reject to recognise as wrong and which are redressible by penalty. He

takes into account crime means some act „considered as criminal by public

opinion. For example, immoral acts similar to lack of gratitude, hard

heartedness, cruel disregard for miseries of others, and yet immoral, do not

amount to crime. There are, equally, some harmless crimes like begging and

strolling, some crimes like consorting and possession of forbiddengoods, for

example, weapons, drugs, illegal imports, and goods unlawfully obtained, but

because social convenience requires. 3. As a conventional wrong


Edwin Sutherland, noted criminologist defines crime in terms of criminal

behaviour as:

“Criminal behaviour is an act in violation of criminal law. It is not the degree of

immorality, reprehensibility, or indecency of an act; it is not a crime unless it is

prohibited by criminal law. The criminal law is defined conventionally as a

body of specific rules regarding human conduct which has promulgated by

political authority, which apply by all members of the class to which the rules

referred and which are enforced by punishment which is administered by the

state, characteristics which distinguish the body of rules regarding human

conduct from other rules- politically, specificity, uniformity and penal

sanction”. 4. As a social wrong


The definition, form and concept of crime, can change with the time and

regimes and attitudinal scopes of society. Some crimes become obsolete and

some crimes assume new and broader scopes. Therefore, the definitions of

crimes depend on that situation and times. John Gillian has given a definition of

crime:

Crime is an act which harmful to society or that is to be socially harmful by a

group of people which has the power to enforce its beliefs, and that places such

act under the ban of positive penalties.”

In Soviet Russia crime has been defined in terms of socially dangerous acts.

“Commission or omission a socially dangerous act i.e. has provided by the

criminal law, which violates the state system or Soviet social, socialist property,

the social economics system, and the other rights of citizens, or any other

socially dangerous acts provided by the criminal law, which violates the

socialist legal order, shall be considered to be a crime.”

Roscoe Pound was the American Jurist submitted his theory of „Social Interest‟,

which is closely related to crime - oppression. His theory is on the postulation

of legal awareness of a living being is nothing but social awareness. His jurisprudence

is considered as „social engineering. Highlighting on the interest of life, liberty,

religion, security, general progress and social institutions with infringement and

dominance any others right is crimes. (5) As a procedural wrong

Crime is procedural wrong, John Austin defines crime in the nature of

proceeding “A wrong which is pursued by the Sovereign or his subordinate is a crime

(public wrong). A wrong which is pursued at the discretion of the injured party

and his representatives is a civil wrong (private wrong)”

The present definition is not good with regard to a number of offences alike

offences of Adultery and of Criminal Elopement 15 except the complaint

prepared by the husband or the wife in respect of cruelty by Husband and

relative of Husband, or cognizance can be taken on the complaint of the parents

of wife only.

On the definition of Austin, Prof. Kenny has modified and prefers his own

definition:

“Crimes are wrongs whose sanction is punitive, and is in no way remissible by

any private person, but is remissible by the crown alone, if remissible at all.”

The present definition is not complete also. The definition may be possible to

remission by the crown, in spite of there are number of compoundable offences

are remissible by some gratification from the accused Ss. 320(1), 302(2),

Criminal Procedure Code, 1973. This definition crime has not defined

satisfactorily, in this respect Russel says:

“Criminal offences are basically the creation of the criminal policy adopted

from time to time by those sections of the community who are powerful, or

astute enough to safeguard their own security and comfort by causing the

Sovereign power in the state to repress conduct, which they feel may endanger

their position.” 6. As a legal wrong:

Much harm is both crime and civil wrongs, as for example, libel. Crime

inevitably continues in the present day context, created by government policy,

it becomes more difficult to define crime. Nevertheless, it is a broadly accurate

description to say that nearly every instance of crime presents all of the three

following characteristics: (i) The Sovereign power in the State desires to prevent, that which is

harm, by human conduct, (ii) The measures of prevention selected for the threat of punishment;

and

(iii) The legal proceedings of a special kind are employed to decide,

whether the person accused did in fact causes the harm, and is, according

to law, to be held legally punishable for doing so. Jurists define crime as “the government deems, any wrong which injurious to

public and punishes in a judicial proceeding on its own name” The present

definition of crime be determined by the law circulated by the government

from time to time. Any act any time become sacrament, if it is declared by the

state, and going on by the same notion, as soon as the state deems so the same

act ceases to be a crime.


Tappan In discussing crime is a legal wrong, the definition forwarded by the Paul

Tappan, which needs to be dispensed with some measure of detail.

Tappan defined crime as:

"An intentional act or omission in violation of criminal law committed without

any defence or justification and penalised by the law as felony or

misdemeanour."


From the earlier definitions, it may be said that a crime is an immoral to society

involving the breach of a legal wrong which has criminal consequences

attached to it i.e. prosecution by the State in the criminal court and the

possibility of punishment being imposed on the wrongdoer.

Crime is an act which defined by the law in harmony for the legal approach. If

the elements of crime indicated by statutory or case law are not present and it is

proved beyond a reasonable doubt a person may be acquitted for that crime.

Sir James Stephen

"Crime is an act forbidden by law and revolting to the moral sentiments of the

society".

Every person has been living with his natural rights, nobody can infringement

of others rights. But in everywhere we can see, listen and take experience that

there are running some in convenience with everybody, about property, affair

and family matter, so on. There are some right of person which has obtained by

the law as well as society to maintain smooth and good relation with each other.

If any person used to do any act against the rules of law, against the society,

against the public policy, which applicable to every person, it will be crime.

There is any crime and essential to stop or control it, as early as possible to avoid further consequences. Otherwise government authority will engage to

maintain the crime other than development of country, his mind will divert to

control on it, so, it will effect on parson ,society and consequently on

government. In the definition of Sir James Stephen emphasis has defined the

meaning of crime which is such which is forbidden by law, and may be

possible to effect on morality of society. Kenny:-

"Crimes are wrongs whose sanction is punitive and in no way remissible by an

private person, but is remissible by the Crown alone, if remissible at all"

About the fundamental principles of criminal administration of justice system

the researcher has tried to do study of criminality of person what is reason to do

any criminal act. There are causes of social, economic, mental, geographical

and political reason to crime. After any criminal activity of person he should be

come before the authority or crown to conclude whether he was responsible for

that crime or not, and should be give punishment to him. If there is any wrong

by the side of person, essential to sanction to him punishment and if he is not

responsible that criminal act, his punishment will be obtaining remission, but

his crime should be remissible. This definition does not cover compoundable

offences in which remission is in the hands of private individuals. Victimless Crime

For the crime there should be some elements such as intention, Mens Rea, act

or omission and injury, without its are not punishable under the law, such

offences have known as victimless crime i.e. drunkenness and such related

offences, sale and use of prohibited substances, vagrancy and begging,

soliciting, bestiality etc. are not cause any harm to any other person so this

categorised crimes are known as victimless. Homosexuality is also the

victimless crime in India as well as United Kingdom and many other European

countries when not committed in a public place. Whether the stated legality or

illegality of crimes is depends upon the morality and economic interests of the

community. The justification advanced for decriminalisation of these offences

is that use of non-criminal methods such as social service programmes etc. to

control their behaviour to help drug addicts or drug-traffickers or homosexuals

would perhaps be more helpful. Meaning of Justice

Justice is theory of the legal or philosophical, by which administered

fairness.

In every culture the concept of justice is different. Plato an Ancient

Greek philosopher was starting out early theory of justice in his work „The

Republic‟. Theory of divine command has argued by Advocates those justice

issues from God. Theorists John Locke has argued in the 17th century, for the

theory of natural law. Thinkers have argued in the social contract tradition that

justice is derived from the mutual agreement of everyone concerned. John

Stuart Mill has argued in the 19th century, that justice is what has the best

consequences. Theories of distributive justice are concerned with what is

distributed, between whom to be distributed, and how is the

proper distribution. Egalitarians thinker has argued that justice can only exist

within the coordinates of equality. John Rawls has used to show that justice is

an argument social contract , and especially distributive justice , is a form of

fairness. Like Nozick‟ theorists has argued that property rights-based justice

maximize in general wealth of an economic system and Property rights take a

deontological view of distributive justice. The punishment has concerned for

wrong doing with theories of retributive justice. Restorative justice also

sometimes called "reparative justice" which is an approach to justice focuses on

the needs of victims and offenders restoring what is good, and necessarily. Fundamental Elements Of Crime: There are four elements which go to constitute a crime, these are:-

· Human being

· Mens rea or guilty intention

· Actus reus or illegal act or omission

· Injury to another human being


Human Being- The first element requires that the wrongful act must be committed by a human being. In ancient times, when criminal law was largely dominated by the idea of retribution, punishments were inflicted on animals also for the injury caused by them, for example, a pig was burnt in Paris for having devoured a child, a horse was killed for having kicked a man. But now, if an animal causes an injury we hold not the animal liable but its owner liable for such injury.


So the first element of crime is a human being who- must be under the legal obligation to act in a particular manner and should be a fit subject for awarding appropriate punishment.

Section 11 of the Indian Penal Code provides that word ‘person’ includes a company or association or body of persons whether incorporated or not. The word ‘person’ includes artificial or juridical persons.


Mens Rea- The second important essential element of a crime is mens rea or evil intent or guilty mind. There can be no crime of any nature without mens rea or an evil mind. Every crime requires a mental element and that is considered as the fundamental principle of criminal liability. The basic requirement of the principle mens rea is that the accused must have been aware of those elements in his act which make the crime with which he is charged.


There is a well known maxim in this regard, i.e. “actus non facit reum nisi mens sit rea” which means that, the guilty intention and guilty act together constitute a crime. It comes from the maxim that no person can be punished in a proceeding of criminal nature unless it can be showed that he had a guilty mind.


Actus Reus [Guilty Act Or Omission] - The third essential element of a crime is actus reus. In other words, some overt act or illegal omission must take place in pursuance of the guilty intention. Actus reus is the manifestation of mens rea in the external world. Prof. Kenny was the first writer to use the term ‘actus reus’. He has d