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Section-397 IPC is not a Substantive Offence:- How & When to Invoke the Provision: by akesh !u"ar Sin#h
It is not uncommon to come across judgments passed in district courts in which accused is convicted and sentenced separately for offences under Section-392 and 397 of IPC Similarly! even charges under "oth the provisions are framed against an accused in a given case #ven further! one may find that for more accused persons! the courts have invo$ed the concept of common intention prescri"ed in Section-3% IPC with Section-397 IPC 2
Pre Present sent pape paperr is hum" hum"le le atte attemp mptt to unde unders rsta tand nd the the natur naturee and scop scopee of Sect Sectio ionn-39 397 7 IPC IPC
&efore proceeding any further! it would "e appropriate to note the Section-397 which reads as under' ()o""ery! or dacoity! with attempt to cause death or grievous hurt- If! at the time of committing ro""ery or dacoity! the offender uses any deadly weapon! or causes grievous hurt to any person! or attempts to cause death or griev grievous ous hurt hurt to any person! person! the impris imprisonm onment ent with with which which such such offender shall "e punished shall not "e less than seven years* 3
It is eas easil ily y seen seen that that the the e+pr e+pres essi sion on (at (at the the time time of comm commit ittin ting g ro""e ro""ery ry or or dacoi dacoity ty** has has two
commas commas ,! which are placed prior to and after the e+pressio e+pression n .his clearly indicates indicates that the said e+pression is a super-imposition and even without it! entire sentence could have "een made and properly written /e /e will therefore classify the aforesaid provision in following manner' •
If the offender
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0ses any deadly weapon! or
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Causes grievous hurt to any person! or
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1ttempts to cause death or grievous hurt to any person!
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.he imprisonment with which such offender shall "e punished shall not "e less than seven years!
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.he aforesaid aforesaid activities activities shall "e conditioned conditioned "y the timing that is to say (at the time of committing ro""ery or dacoity*
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It is cle clear ar fro from m the the afor afores esai aid d that that if if the offe offend nder er doe doess any any of the the act activ ivit itie iess ie ie uses uses any any
deadly weapon! 2 causes grievous hurt! 3 attempts to cause grievous hurt! % attempts to cause death! he will fall under the trappings of Section-397 IPC owever! his activities ,any of the
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aforesaid must have "een done during a particular time period ie at the time of committing ro""ery or dacoity
In$ivi$ua%istic character of the rovision: 4
Sign Signif ific ican antl tly y! the the sect sectio ion n has has used used a clea clearr e+pr e+pres essi sion on (the (the offe offend nder er* * .his .his is clea clearl rly y a
singular indication towards a particular culprit .he latter part of the provision provides a"out minimum sentencing and has used an e+pression (such offender* &oth the e+pressions ie (the offender* and (such offender* have to "e read simultaneously .herefore! it "ecomes clear that he who had done the particular activity will "ecome lia"le for minimum punishment and none else 5
on6"le Su Supreme Co Court in in Phoo% !u"ar vs 'e%hi ($"inistration dated 33974 has
o"served- (The ( The term 'offender' in that section, as rightly held by several High Courts, is confined to the offender who uses any deadly weapon. The use of a deadly weapon by one offender at the, time of committing robbery cannot attract section 397 for the imposition of the minimum punishment on another offender who had not used any deadly weapon *
)se of co""on intention: 7
1s seen seen afor aforesa esaid! id! the provis provision ion is indi individ vidual ualisti isticc in in natur naturee and and refer referss to a partic particula ularr culpri culprit t
In such circumstances! it would "e difficult to invo$e the concept of common intention 8
on6"le Supreme Court in (shfa* vs State ,ovt :f ;ct :f
o"served- ( or that reason, reason, no doubt the provision provision postulates only only the individual act of the accused to be relevant to attract !ection 397 "#C and thereby inevitably negates the use of the principle of constructive or vicarious liability engrafted in !ection 3$ "#C * "#C * 9
It woul would d howe howeve verr "e inte intere resti sting ng to to note note the the mani manife fest stat atio ion n of the the caus causin ing g of grie grievo vous us hur hurtt or
attempting to cause death or grievous hurt It can "e discussed in following manner'
(tte"t to cause $eath:
.he .he prov provis isio ion n inte intere rest stin ingl gly y nowh nowher eree tal$ tal$ss a"ou a"outt the the conc concep eptt of murd murder er /hen /hen it uses uses
(attempt to cause death* it does not contemplate a confined description of (attempt to cause murder*
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37 ,ie attempt to murder! he may still fall within the contemplation of (attempt to cause death* availa"le in Section-397 IPC
.he legi legisla slativ tivee inten intention tion "eco "ecomes mes very very clea clearr once once we go thro through ugh the the Secti Sectionon-395 395 IPC IPC .his .his
section punishes aggravated form of dacoity and has specifically used the e+pression (murder* =eaning there"y that all persons involved in the dacoity shall "e lia"le f or punishment u>s-395 once any one commits murder while committing dacoity In addition! the person who commits the murder shall also "e lia"le for punishment u>s-32 IPC Ingredients of offence of murder as defined in Section-3 IPC have to "e esta"lished if a charge under Section-395 is to "e sustained 2 2
owe oweve verr! the same same is not not the case case with with Sect Sectio ionn-39 397 7 IPC as it has not not used used the e+pr e+pres essi sion on
(murder* in contradiction with Section-395 .he legislative intention is very clear 1s such! any type of attempt to death will "e sufficient to attract Section-397 IPC 1ttempt to death tal$ed a"out in Section-397 will cover in its fold every attempt to murder! attempt to culpa"le homicide or any other attempt which might have resulted in death death of the person concerned concerned
+rievous hurt or its atte"t:
3
/e $now $now that that the the term term grievo grievous us hurt hurt is defi defined ned in in Sectio Section-3 n-32 2 IPC IPC and and provid provides es for for 8 items items
which may "e descri"ed as a grievous hurt Since once defined a term has to have the same meaning throughout the IPC! we have to read the same definition in Section-397 also .herefore! we will have no concern with the gravity of injury or its dangerous conse?uence as normally indicated in the medical reports :nly if the injury falls within the am"it of defined 8 items that the situation will attract the Section-397 %
/hat /hat is howev however er intere interesti sting ng is that that the the term term griev grievous ous hurt hurt should should not not "e confu confuse sed d with with the
punishing provision availa"le in Section-324 IPC .his is an species of grievous hurt as it is restricted and punishes only the grievous hurt which was caused voluntarily Section-397 however nowhere uses the term voluntarily causing grievous hurt It is therefore clear that in a given situation Section-324 may or not get attracted "ut still Section-397 may get attracted on account of the injury falling within any of the 8 descriptions provided in Section-32 4
/e may may unde underst rstand and the the diff differe erence nce once once we go go throug through h the foll followi owing ng provi provisio sions' ns' 32 @oluntarily causing hurt- /hoever does any act with the intention of there"y causing hurt to any person! or with the $nowledge that he is
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li$ely there"y to cause hurt to any person! and does there"y cause hurt to any person! is said (voluntarily to cause hurt* 322 @oluntarily @oluntarily causing grievous hurt- /hoever voluntarily causes hurt! if the hurt which he intends to cause or $nows himself to "e li$ely to cause is grievous hurt! and if the hurt which he causes is grievous hurt! is said (voluntarily to cause grievous hurt* #+planation- 1 person is not said voluntarily to cause grievous hurt e+cept when he "oth causes grievous hurt and intends or $nows himself to "e li$ely to cause grievous hurt &ut he is said voluntarily to cause grievous hurt! if intending or $nowing himself to "e li$ely to cause grievous hurt of one $ind! he actually causes grievous hurt of another $ind 324 Punishment for voluntarily causing grievous hurt- /hoever! e+cept in the case provided provided for "y section 334! voluntarily voluntarily causes grievous grievous hurt! shall "e punished with imprisonment of either description for a term which may e+tend to seven years! and shall also "e lia"le to fine 5 5
It is seen seen that firs firstl tly y a hurt hurt "ecom "ecomes es volu volunt ntar aril ily y caus caused ed hurt hurt .hen .hen it "eco "ecome mess volunt voluntar aril ily y
caused grievous hurt .he e+planation further puts stringent condition that the person should not only cause "ut his intention>$nowledge should also "e clearly esta"lished a"out the grievous hurt It is only then that he will "e punisha"le under Section-324 In contrast however Section-397 does not use (voluntarily* It simply uses causing grievous hurt or attempting to cause grievous hurt .he legislative intention further "ecomes clear when we read Section-39% IPC .his section specifically uses (voluntarily causes hurt*
)se of $ea$%y weaon: 7 7
/hat /hat is the the mean meanin ing g of (use (use** and and what what type type of weapo weapons ns can can "e "e treat treated ed as dea deadl dly y for the the
Section-397 is a very significant ?uestion 8
on6"le Su Supreme Co Court in in Phoo% !u"ar vs 'e%hi ($"inistration dated 33974 has
o"served o"served-- ( !o far as he is concerned he is said to be armed with a %nife which is also a deadly weapon. To be more precise from the evidence of #.&. ( )#hool *umar had a %nife in his hand).
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He was therefore therefore carrying a deadly weapon open to the view of the victims sufficient to frighten or terrori+e them. ny other overt act, such as, brandishing of the %nife or causing of grievous hurt with it was not necessary to bring the offender within the ambit of section 397 of the #enal Code. section 39- uses the epression )armed with any deadly weapon) and the minimum punishment provided provided therein therein is also 7 years if at the time of attempting to commit robbery the offender is armed armed with any deadly weapon. This has created an anomaly. "t is unreasonable to thin% that if the offender who merely attempted to commit robbery but did not succeed in committing it attracts the minimum punishment of 7 years under section 39- if he is merely armed with any deadly weapon, while an offender so armed will not incur the liability of the minimum punishment under section 397 if he succeeded in committing the robbery. robbery. /ut then, what was the purport behind the use of the different words by the 0egislature in the two sections, vi+., )uses) in section 397 and )is armed) in section 39-. "n our 1udgment the anomaly is resolved if the two terms are given the identical meaning There seems to be a reasonable eplanation for the use of the two different epressions in the sections. &hen the offence of robbery is committed by an offender being armed with a deadly weapon which was within the vision of the victim so, as to be capable of creating a terror in his mind, the offender must be deemed to have used that deadly weapon in the commission of the robbery. 2n the other hand, if an offender was armed with a deadly weapon at the time of attempting to commit a robbery, then the weapon was not put to any fruitful use because it would have been of use only when the offender succeeded in committing the robbery. "f the deadly weapon is actually used by the offender in the commission of the robbery such as in causing grievous hurt, death or the li%e then it is clearly used* used * 9
/hat /hat is there therefor foree essen essentia tiall to satis satisfy fy the the word word A0ses A0sesAA for the the purp purpose osess of secti section on 397 397 IPC is is
the ro""ery "eing committed "y an offender who was armed with a deadly weapon which was within the vision of the victim so as to "e capa"le of creating a terror in the mind of victim and not that it should "e further shown to have "een actually used for cutting! sta""ing! shooting! as the case may "e 2
/e may may now see see the the actua actuall meanin meaning g of the the word word (deadl (deadly y weapo weapon* n* used used in the the secti section on IPC IPC
does not define this e+pression /e /e may therefore give it its general meaning 2
Baw
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used, is calculated or li%ely to produce death. "n some states, the definition encompasses the li%elihood of causing either death or serious physical in1ury * 22
on6"le on6"le Suprem Supremee Court Court in =atha =athaii vs State State date dated d 2 22 24 4 in a slig slightly htly differ different ent cont conte+t e+t
has o"served as ( The epression )any instrument which used as a weapon of offence is li%ely to cause death) has to be gauged ta%ing note of the heading of the !ection. &hat would constitute a 'dangerous weapon' would depend upon the facts of each case and no generali+ation can be made....................... t this 1uncture, it would be relevant to note that in some provisions e.g. !ections 35$ and 35( epression epression )dangerous weapon) is used. "n some other more serious offences the epression used is )deadly weapon) e.g. !ections 397 and 39-4. The facts involved in a particular case, depending upon various factors li%e si+e, sharpness, would throw throw light on the 6uestion whether the weapon was a dangerous or deadly weapon or not. That would determine whether in the case !ection 35 or !ection 35( would be applicable * 23
.heref .herefore ore wha whatt can "e "e a deadl deadly y weapon weapon has has to "e "e decide decided d in accor accordan dance ce with with the the o"tai o"tainin ning g
factual situation of a given case owever! owever! it is clear that deadly weapon should "e something more than than a dange dangerou rouss weapon weapon .hese .hese two e+pre e+pressi ssions ons have have "een "een used used in differ different ent provis provision ionss and therefore it can hardly "e accepted that they shall "e of same or one meaning
Substantive offence: 2% 2%
1 "ar "aree loo$ loo$ at the pro provi visi sion on show showss that that it only only curta curtail ilss the disc discre reti tion on of the the court court in the the
matter of sentencing "y providing that the imprisonment shall not "e less than 7 years owever! it nowh nowher eree prov provid ides es as to what what shal shalll "e the the impr impris ison onme ment nt It has has used used the the e+pr e+pres essi sion on (the (the imprisonment with which such offender shall "e punished* It clearly shows that there has already "een an (imprisonment* with which the offender shall "e punished &ut the entire te+t of Section397 nowhe nowhere re tal$s tal$s a"out a"out the said said impris imprisonm onment ent /e have have theref therefore ore to accep acceptt that that the said said imprisonment has "een provided somewhere else to which the section is referring 24 24
Sect Sectio ionn-39 397 7 has has used used certa certain in term terms s ;ow! ;ow! deat death! h! griev grievou ouss hurt hurt or its atte attemp mptt are are not not
punisha"le it their literal sense under any of the provisions of IPC .heir species though are punisha"le in the form of murder! culpa"le homicide or attempt! voluntarily or negligently>rashly causing grievous hurt :ut of several terms used in Section-397 only committing of ro""ery or dacoit dacoity y is punish punisha"l a"lee as offen offence ce under under IPC in the strict sense sense It is therefo therefore re clear clear that that the (imprisonment* already referred in the Section-397 to which the offender shall "e punished is only
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to "e found in reference to the commission of ro""ery or dacoity dacoity Punishment of these activities are provided in Section-392! 39%! 394 IPC 25
Punish Punishme ment nt will will theref therefore ore alwa always ys "e in terms terms of of Sectio Section-3 n-392! 92! 39%! 39%! 394 IPC IPC acco accordi rding ng to the the
situation of a particular case &ut whenever Section-397 is invo$ed in respect of any of the accused! he only shall have the minimum prescription It is not unusual .here are several offences for which the legislature has provided minimum prescription either in the main provision itself or through a proviso or through an e+planation Section-397 apparently apparently acts as a proviso and nothing else 27 27
:ne :ne may as$ as$ as to to why the the relev relevan antt secti section onss thems themsel elve vess did not not provi provide de for for a mini minimu mum m
prescription 1nswers may "e multiple #+act intention of the Begislature may not "e ascertained in precise manner owever! it is clear that since the minimum prescription was to govern several sections! the legislature might have thought to provide it in one separate provision instead of enacting same thing in each section 28
.his .his is not not the soli solitar tary y instan instance ce /e /e $now $now that that Sectio Section-2 n-27 7 of #vide #vidence nce 1ct is is enacte enacted d as a
separate section "ut in reality it wor$s only as a proviso to Section-24 25 #ven further! Section8 though enacted as a separate section! actually wor$s as a proviso to Section-7 #vidence 1ct It would "e of some interest that initially the word (provided* was not in Section-8 "ut latteron it was inserted through an amendment .his certainly could have "een done with a view to avoid any confusion a"out the nature of Section-8 29
/e have have seen seen that that Secti Sectionon-397 397 wor$ wor$ss only only as a provi proviso so to Sec Sectio tion-3 n-392! 92! 39%! 39%! 394 394 IPC IPC though though
enacte enacted d as a separa separate te sectio section n 1s such! such! we can can say that Secti Sectionon-397 397 does not provid providee for a su"stantive offence 3 3
It is not not as if the pres presen entt paper paper is the the first first in time for for ta$in ta$ing g such such a view view Const Constit ituti ution onal al
courts have also ta$en the same view view Some of the instances may "e noted as under' 3
on6"le Su Supreme Co Court in in (shfa* vs State ,+ovt Of .ct Of 'e%hi/ dated 223 has
o"served- (The ( The provisions of !ection 397, does not create any new substantive offence as such but merely serves as complementary to !ection 395 and !ection 39 by regulating the punishment alread alreadyy provi provided ded for dacoit dacoityy by fiing fiing a minimu minimum m term term of impris imprison onmen mentt when when the dacoit dacoityy committed was found attendant upon certain aggravating circumstances vi+., use of a deadly weapon, or causing of grievous hurt or attempting to cause death or grievous hurt * hurt *
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32 32
on6" on6"le le igh igh Court ourt of
su"stantive offence vide 0ai Prakash vs State dated 9398 o"serving as ( /efore " proposed to determine that 6uestion " may ma%e it clear that !ection 397 ".#.8. does not ma%e any act an offence. "t only provides minimum punishment for some offences under certain circumstances i.e. when deadly weapon is used or grievous hurt is caused or attempt to cause death or grievous hurt is made. The learned dditional !essions udge was under a wrong impression that !ection 397 independ independently ently ma%es any act an offence. offence. !ubstantiv !ubstantivee offence offence for which !ection 397 provid provides es minimum punishment are robbery and dacoity when deadly weapon is used or grievous hurt is caused etc* etc * and also 1iro2 vs the State dated 2242% o"serving as ( The provisions of !ection 397 "#C do not create any new substantive offence as such. !ection 397 "#C simply prescribes prescribes a minimum sentence for the offence of robbery : dacoity under the aggravating circumstances. "t regulates regulates only the substantive sentence which cannot be less than seven years * 33
In view view of the the afore aforesai said! d! it "ecom "ecomes es clea clearr that that Sectio Section-3 n-397 97 is neit neither her a su"s su"stan tantiv tivee offenc offencee
nor provides for any independent punishment in itself 1s such! there cannot "e a separate charge for this section and even there cannot "e a separate conviction>sentence for this section .he ?uestion then is to how one may invo$e this provision in a given fact situation In my opinion! since this would attract a detailed discussion on how to frame charges and how to sentence an accused! the issue should "e dealt with in a separate paper specially devoted for charge and sentencing Presently! the discussion stands concluded
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