Crucial point on Limitation S.138 N.I.A.

Date on which Cause of Action Arose to be Excluded from Limitation in ‘Cheque Bounce’ cases : Supreme Court holds

Justice Ranjana P. Desai
Supreme Court of India
A 3 Judge Bench of the Supreme Court in Econ Antri Ltd. Vs. Rom Industries Ltd. & Anr. has recently answered a reference whether for calculating the period of one month which is prescribed under Section 142(b) of the Negotiable Instruments Act, the period has to be reckoned by excluding the date on which the cause of action arose?. While answering the reference, the Supreme Court held as under:
On 13/10/2006, while granting leave in Special Leave Petition (Criminal) No.211 of 2005, this Court passed the following order:

“In our view, the judgment relied upon by the counsel for the appellant in the case of Saketh India Ltd. & Ors. v. India Securities Ltd. (1999) 3 SCC 1 requires reconsideration. Orders of the Hon’ble the Chief Justice may be obtained for placing this matter before a larger Bench.” 

Pursuant to the above order, this appeal is placed before us.
2. Since the referral order states that the judgment of this Court in Saketh India Ltd. & Ors. v. India Securities Ltd. (1999) 3 SCC 1 (“Saketh”) requires reconsideration, we must first refer to the said judgment. In that case, this Court identified the question of law involved in the appeal before it as under:

“Whether the complaint filed under Section 138 of the NI Act is within or beyond time as it was contended that it was not filed within one month from the date on which the cause of action arose under clause (c) of the proviso to Section 138 of the NI Act?” 

The same question was reframed in simpler language as under:

“Whether for calculating the period of one month which is prescribed under Section 142(b), the period has to be reckoned by excluding the date on which the cause of action arose?” 

3. It is pointed out to us that there is a variance between the view expressed by this Court on the above question in Saketh and in SIL Import, USA v. Exim Aides Silk Exporters, Bangalore (1999) 4 SCC 567. We will have to therefore re-examine it for the purpose of answering the reference. The basic provisions of law involved in this reference are proviso (c) to Section 138 and Section 142(b) of the Negotiable Instruments Act, 1881 (“the NI Act”).
4. Facts of Saketh need to be stated to understand how the above question of law arose. But, before we turn to the facts, we must quote Section 138 and Section 142 of the N.I. Act. We must also quote Section 12(1) and (2) of the Limitation Act, 1963 and Section 9 of the General Clauses Act, 1897, on which reliance is placed in Saketh. Section 138 of the N.I. Act reads as under:
138. Dishonour of cheque for insufficiency, etc., of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid. either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless-
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the Cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.”
Section 142 of the N.I. Act reads as under:
142. Cognizance of offences: Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974 ),-
(a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;
(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138;
[Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.]
(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.”
Sections 12(1) and (2) of the Limitation Act, 1963 reads as under: “12. Exclusion of time in legal proceedings.-
(1) In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded.
(2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded.”
Section 9 of the General Clauses Act, 1897 reads as under:
9. Commencement and termination of time.- 
(1) In any [Central Act] or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word “from”, and, for the purpose of including the last in a series of days or any other period of time, to use the word “to”.
(2) This section applies also to all [Central Acts] made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887.”
5. In Saketh cheques dated 15/3/1995 and 16/3/1995 issued by the accused therein bounced when presented for encashment. Notices were served on the accused on 29/9/1995. As per proviso (c) to Section 138 of the NI Act, the accused were required to make the payment of the said amount within 15 days of the receipt of the notice i.e. on or before 14/10/1995. The accused failed to pay the amount. The cause of action, therefore, arose on 15/10/1995. According to the complainant for calculating one month’s period contemplated under Section 142(b), the date ‘15/10/1995’ has to be excluded. The complaint filed on 15/11/1995 was, therefore, within time. According to the accused, however, the date on which the cause of action arose i.e. ‘15/10/1995’ has to be included in the period of limitation and thus the complaint was barred by time. The accused, therefore, filed petition under Section 482 of the Code of Criminal Procedure, 1973 (“the Code”) for quashing the process issued by the learned Magistrate. That petition was rejected by the High Court. Hence, the accused approached this Court. This Court referred to its judgment in Haru Das Gupta v. State of West Bengal. (1972) 1 SCC 639 wherein it was held that the rule is well established that where a particular time is given from a certain date within which an act is to be done, the day on that date is to be excluded; the effect of defining the period from such a day until such a day within which an act is to be done is to exclude the first day and to include the last day. Referring to several English decisions on the point, this Court observed that the principle of excluding the day from which the period is to be reckoned is incorporated in Section 12(1) and (2) of the Limitation Act, 1963. This Court observed that this principle is also incorporated in Section 9 of the General Clauses Act, 1897. This Court further observed that there is no reason for not adopting the rule enunciated in Haru Das Gupta, which is consistently followed and which is adopted in the General Clauses Act and the Limitation Act. This Court went on to observe that ordinarily in computing the time, the rule observed is to exclude the first day and to include the last. Following the said rule in the facts before it, this Court excluded the date ‘15/10/1995’ on which the cause of action had arisen for counting the period of one month. Saketh has been followed by this Court in Jindal Steel and Power Ltd. & Anr. v. Ashoka Alloy Steel Ltd. & Ors. (2006) 9 SCC 340 In Subodh S. Salaskar v. Jayprakash M. Shah & Anr., (2008)13 SCC 689 there is a reference to Jindal Steel & Power Ltd.
6. We have heard learned counsel for the parties at some length. We have also carefully perused their written submissions. Ms. Prerna Mehta, learned counsel for the appellant submitted that Saketh lays down the correct law. She submitted that as held by this Court in Saketh while computing the period of one month as provided under Section 142(b) of the N.I. Act, the first day on which the cause of action has arisen has to be excluded. The same principle is applicable in computing the period of 15 days under Section 138(c) of the N.I. Act. Counsel submitted that Saketh has been followed by this Court inJindal Steel and Power Ltd. and Subodh S. Salaskar. Counsel also relied on Section 12(1) of the Limitation Act, 1961 which provides that the first day on which cause of action arises is to be excluded. In this connection counsel relied on State of Himachal Pradesh & Anr. v. Himachal Techno Engineers & Anr., (2010) 12 SCC 210 where it is held that Section 12 of the Limitation Act is applicable to the Arbitration and Conciliation Act, 1996 (for short, “the Arbitration Act”), which is a statute providing for its own period of limitation. Counsel submitted that the N.I. Act is a special statute and it does not expressly bar the applicability of the Limitation Act. Counsel submitted that if this Court reaches a conclusion that the provisions of the Limitation Act are not applicable to the N.I. Act, it should hold that Section 9 of the General Clauses Act, 1897 covers this case. Counsel submitted in Tarun Prasad Chatterjee v. Dinanath Sharma(2000) 8 SCC 649 Section 12 of the Limitation Act is held to be in pari materia with Section 9 of the General Clauses Act. Counsel submitted that in the same judgment this Court has held that use of words ‘from’ and ‘within’ does not reflect any contrary intention and the first day on which the cause of action arises has to be excluded. Counsel submitted that in the circumstances this Court should hold that Saketh lays down correct proposition of law.
7. Shri Sunil Gupta, learned senior counsel for the respondents, on the other hand, submitted that the provisions of the N.I. Act provide for a criminal offence and punishment and, therefore, must be strictly construed. Counsel submitted that it is well settled that when two different words are used in the same provision or statute, they convey different meaning. [The Member, Board of Revenue v. Arthur Paul Benthall AIR 1956 SC 35, The Labour Commissioner, Madhya Pradesh v. Burhanpur Tapti Mills Ltd. and others AIR 1964 SC 1687, B.R. Enterprises etc. V. State of U.P. & Ors. etc. (1999) 9 SCC 700, Kailash Nath Agarwal and ors. v. Pradeshiya Industrial & Investment Corporation of U.P. Ltd. and another(2003) 4 SCC 305, DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana and others(2003) 5 SCC 622]. Counsel pointed out that Section 138(a) provides a period of 6 months from the date on which the Cheque is drawn, as the period within which the Cheque is to be presented to the bank. Section 138(b) provides that the payee must make a demand of the amount due to him within 30 days of the receipt of information from the bank. Section 138(c) uses the words ‘within 15 days of the receipt of notice’. Using two different words ‘from’ and ‘of’ in the same Section at different places clarifies the intention of the legislature to convey different meanings by the said words. According to counsel, seen in this light, the word ‘of’ occurring in Section 138(c) and Section 142(b) is to be interpreted differently as against the word ‘from’ occurring in Section 138(a). The word ‘from’ may be taken as implying exclusion of the date in question and may well be governed by the General Clauses Act, 1897. However, the word ‘of’ is different and needs to be interpreted to include the starting day of the commencement of the prescribed period. It is not governed by Section 9 of the General Clauses Act, 1897. Thus, for the purposes of Section 142(b), which prescribes that the complaint is to be filed within 30 days of the date on which the cause of action arises, the starting date on which the cause of action arises should be included for computing the period of 30 days. Counsel further submitted that Section 138(c) and Section 142(b) prescribe the period within which certain acts are required to be done. Section 12(1) of the Limitation Act cannot be resorted to so as to extend that period even by one day. If the starting point is excluded, that will render the word ‘within’ of Section 142(b) of the N.I. Act otiose. Counsel submitted that the word ‘within’ has been held by this Court to mean ‘on or before’. [Danial Latifi and Another v. U.O.I. (2001) 7 SCC 740] Therefore, the complaint under Section 142(b) should be filed on or before or within, 30 days of the date on which the cause of action under Section 138(c) arises. Counsel submitted that there is no justification to exclude the 16th day of the 15 day period under Section 138(c) or the first day of the 30 days period under Section 142(b) as has been wrongly decided in Saketh. This would amount to exclusion of the starting date of the period. Such exclusion has been held to be against the law in SIL Import USA. Counsel further submitted that the provisions of the Limitation Act are not applicable to the N.I. Act as held by this Court in Subodh S. Salaskar. Counsel pointed out that by Amending Act 55 of 2002, a proviso was added to Section 142(b) of the N.I. Act. It bestows discretion upon the court to accept a complaint after the period of 30 days and to condone the delay. This amendment signifies that prior to this amendment the courts had no discretion to condone the delay or exclude time by resorting to Section 5 of the Limitation Act. The statement of objects and reasons of the Amending Act 55 of 2002 confirms the legal position that the N.I. Act being a special statute, the Limitation Act is not applicable to it. Counsel submitted that the judgment of this Court on the Arbitration Act is not applicable to this case because Section 43 of the Arbitration Act specifically makes the Limitation Act applicable to arbitrations. Counsel submitted that in view of the above, it is evident that Saketh does not lay down the correct law. It is SIL Import USA which correctly analyses the provisions of law and lays down the law. Counsel urged that the reference be answered in light of his submissions.
8. It is necessary to first refer to SIL Import USA on which heavy reliance is placed by the respondents as it takes a view contrary to the view taken in Saketh. In SIL Import USA, the complainant- Company’s case was that the accused owed a sum of US $ 72,075 (equivalent to more than 26 lakhs of rupees) to it towards the sale consideration of certain materials. The accused gave some post-dated Cheques in repayment thereof. Two of the said Cheques when presented on 3/5/1996 for encashment were dishonoured with the remark “no sufficient funds”. The complainant sent a notice to the accused by fax on 11/6/1996. On the next day i.e. 12/6/1996 the complainant also sent the same notice by registered post which was served on the accused on 25/6/1996. On 8/8/1996 the complainant filed a complaint under Section 138 of the N.I. Act. Cognizance of the offence was taken and process was issued. Process was quashed by the Magistrate on the grounds urged by the accused. The complainant moved the High Court. The High Court set aside the Magistrate’s order and restored the complaint. That order was challenged in this Court. The only point which was urged before this Court was that the Magistrate could not have taken cognizance of the offence after the expiry of 30 days from the date of cause of action. This contention was upheld by this Court. This Court held that the notice envisaged in clause (b) of the proviso to Section 138 transmitted by fax would be in compliance with the legal requirement. There was no dispute about the fact that notice sent by fax was received by the complainant on the same date i.e. 11/6/1996. This Court observed that as per clause (c) of Section 138, starting point of period for making payment is the date of receipt of the notice. Once it starts, the offence is completed on failure to pay the amount within 15 days therefrom. Cause of action would arise if the offence is committed. Thus, it was held that since the fax was received on 11/6/1996, the period of 15 days for making payment expired on 26/6/1996. Since amount was not paid, offence was committed and, therefore, cause of action arose from 26/6/1996 and the period of limitation for filing complaint expired on 26/7/1996 i.e. the date on which period of one month expired as contemplated under Section 142(b). The complaint filed on 8/8/1996 was, therefore, beyond the period of limitation. The relevant observations of this Court could be quoted hereunder:

“19. The High Court’s view is that the sender of the notice must know the date when it was received by the sendee, for otherwise he would not be in a position to count the period in order to ascertain the date when cause of action has arisen. The fallacy of the above reasoning is that it erases the starting date of the period of 15 days envisaged in clause (c). As per the said clause the starting date is the date of “the receipt of the said notice”. Once it starts, the offence is completed on the failure to pay the amount within 15 days therefrom. Cause of action would arise if the offence is committed.

20. If a different interpretation is given the absolute interdict incorporated in Section 142 of the Act that no court shall take cognizance of any offence unless the complaint is made within one month of the date on which the cause of action arises, would become otiose.”

9. Undoubtedly, the view taken in SIL Import USA runs counter to the view taken in Saketh. What persuaded this Court in Saketh to take the view that in computing time, the rule is to exclude the first day and include the last can be understood if we have a look at the English cases which have been referred to in the passage quoted therein from Haru Das Gupta.
10. We must first refer to The Goldsmiths’ Company v. The West Metropolitan Railway Company. (1904) 1 K.B, at p. 1, 5 In that case, under a special Act, a railway company was empowered to take lands compulsorily for the purpose of its undertaking, and the powers of the company for this purpose were to cease after the expiration of three years from the passing of the Act. The Act received the Royal assent on 9/8/1899. On 9/8/1902 the railway company gave notice to the plaintiffs to treat for the purchase of lands belonging to them which were scheduled in the special Act. The question was whether the notice was served on the plaintiffs within three years. It was held that the notice was served within the prescribed time because the day of the passing of the Act i.e. 9/8/1899 had to be excluded. The relevant observations of the Court may be quoted as under: “The true principle that governs this case is that indicated in the report of Lester v. Garland15 Ves. 248; 10 R. R. 68, where Sir William Grant broke away from the line of cases supporting the view that there was a general rule that in cases where time is to run from the doing of an act or the happening of an event the first day is always to be included in the computation of the time. The view expressed by Sir William Grant was repeated by Parke B. in Russell v. Ledsam14 M. & W. 574, and by other judges in subsequent cases. The rule is now well established that where a particular time is given, from a certain date, within which an act is to be done, the day of the date is to be excluded.”
11. The second case referred to is Cartwright v. MacCormack [1963] 1 All E.R. 11. In that case, the plaintiffs met with an accident at 5.45 p.m. on 17/12/1959. He was run into by the defendant driving a motor car. He issued his writ in this action claiming damages for personal injuries. The defendant initiated third party proceedings against the respondent insurance company, alleging the company’s liability to indemnify him under an instrument called a temporary cover note admittedly issued by the insurance company on 2/12/1959. The insurance company inter alia contended that the policy had expired before the accident happened. The insurance company succeeded on this point. On appeal the insurance company reiterated that the cover note issued by the insurance company contained the expression ‘fifteen days from the date of commencement of policy’. On the same note date and time were noted as 2/12/1959 and 11.45 a.m. It was argued that the fifteen days started at 11.45 a.m. on 2/12/1959 and expired at the same time on 17/12/1959. The accident occurred at 5.45 p.m. on 17/12/1959 and, therefore, it was not covered by the insurance policy. The Court of Appeal treated the expression ‘fifteen days from the commencement of the policy’ as excluding the first date and the cover note was held to commence at midnight of that date. It was observed that the policy expired fifteen days from 2/12/1959 and these words on the ordinary rules of construction exclude the first date and begin at midnight on that day, therefore, the policy would cover the accident which had occurred at 5.45 p.m. on 17/12/1959.
12. The third case referred to is Marren v. Dawson Bentley & Co. Ltd. (1961) 2Q.B. 135. In that case on 8/11/1954 an accident occurred whereby the plaintiff was injured in the course of his employment with the defendants. On 8/11/1957, he issued a writ claiming damages for the injuries which he alleged were caused by the defendants’ negligence. The defendants pleaded, inter alia, that the plaintiff’s cause of action, if any, accrued on 8/11/1954 and the proceedings had not been commenced within the period of three years thereof contrary to Section 2(1) of the Limitation Act, 1939. It was held that the day of the accident was to be excluded from the computation of the period within which the action should be brought and, therefore, the defendants’ plea must fail. While coming to this conclusion reliance was placed on passages from Halsbury’s laws of England 2nd ed., vol. 32 p. 142. It is necessary to quote those passages:
“207. The general rule in cases in which a period is fixed within which a person must act or take the consequences is that the day of the act or event from which the period runs should not be counted against him. This rule is especially reasonable in the case in which that person is not necessarily cognisant of the act or event; and further in support of it there is the consideration that in case the period allowed was one day only, the consequence of including that day would be to reduce to a few hours or minutes the time within which the person affected should take action.
208. In view of these considerations the general rule is that, as well in cases where the limitation of time is imposed by the act of a party as in those where it is imposed by statute, the day from which the time begins to run is excluded; thus, where a period is fixed within which a criminal prosecution or a civil action may be commenced, the day on which the offence is committed or the cause of action arises is excluded in the computation.”
Reliance was also placed in this judgment on Radcliffe v. Bartholomew(1892) 1 Q.B.161. In that case on June 30 an information was laid against the appellant therein in respect of an act of cruelty alleged to have been committed by him on May 30. An objection was taken on the ground that the complaint had not been made within one calendar month after the cause of the complaint had arisen. It was held that the day on which the alleged offence was committed was to be excluded from the computation of the calendar month within which the complaint was to be made; that the complaint was, therefore, made in time.
13. The fourth case referred to is Stewart v. Chapman(1951) 2 KB 792. In that case, an information was preferred by a police constable that Mr. Chapman had on 11/1/1951 driven a motor car along a road without due care and attention contrary to Section 12 of the Road Traffic Act, 1930. At hearing, a preliminary objection was taken that the notice of intended prosecution had not been served on the defendant within fourteen days of commission of offence in accordance with Section 21 of the Road Traffic Act, 1930, inasmuch as although the alleged offence was committed at 7.15 a.m. on 11/1/1951, the prosecutor did not send the notice of intended prosecution by registered post; until 1.00 p.m. on 11/1/1951 and it was not delivered to the defendant until 25/1/1951 at about 8.00 a.m. This submission was rejected observing that in calculating the period of fourteen days within which the notice of an intended prosecution must be served under Section 21 of the Road Traffic Act, 1930, the date of commission of the offence is to be excluded.
14. In re. North. Ex parte Hasluck(1895) 2 Q.B. 264, the execution creditor obtained judgment on 19/5/1893. An order was made authorizing sale of the bankrupt’s goods. The purchase money there under was paid to the sheriff on July 18. The sheriff retained the money for fourteen days in compliance with Section 11 of the Bankruptcy Act, 1890. In August, the solicitor of the execution creditor paid over the said money to the execution creditor. Application was filed by the trustee in bankruptcy for an order calling upon the execution creditor and his solicitor to pay over to the trustee, the proceeds of an execution against the bankruptcy goods on the ground that at the time of the sale they had notice of prior act of bankruptcy on the part of the bankrupt. Under Section 1 of the Bankruptcy Act, 1890, a debtor commits an act of bankruptcy if execution against him has been levied by seizure of his goods, and the goods have been held by the sheriff for twenty one days. The time limit of twenty one days was an allowance of time to the debtor within which to redeem if he can. It was under these circumstances it became necessary to ascertain whether there was, in fact, a holding by the sheriff for twenty one days prior to the sale. If there was, then neither the execution creditor, nor his solicitor could be heard to say that they had no notice of such possession and the act of bankruptcy thereby constituted. Vaughan Williams, J. held that if the goods were seized on June 27 and sold on July 18, if June 27 is excluded, there was no holding by the sheriff for 21 days and consequently there was no act of bankruptcy and therefore execution creditor is not bound to hand over the money on the ground that he received it with notice of an act of bankruptcy. On appeal the same view was reiterated. Rigby L.J referred to Lester v. Garland15 Ves. 248 where Sir W. Grant expressed that if there were to be a general rule, it ought to be one of exclusion, as being more reasonable than one to the opposite effect. 15. We shall now turn to Haru Das Gupta, where this Court has followed the law laid down in the above judgments. In that case, the petitioner therein was arrested and detained on 5/2/1971 by order of District Magistrate passed on that day. The order of confirmation and continuation, which has to be passed within three months from the date of detention, was passed on 5/5/1971. The question for decision was as to when the period of three months can be said to have expired. It was contended by the petitioner that the period of three months expired on the midnight of 4/5/1971, and any confirmation and continuation of detention thereafter would not be valid. This Court referred to several English decisions on the point apart from the above decisions and rejected this submission holding that the day of commencement of detention namely 5/2/1971 has to be excluded. Relevant observations of this could read as under:
“These decisions show that courts have drawn a distinction between a term created within which an act may be done and a time limited for the doing of an act. The rule is well-established that where a particular time is given from a certain date within which an act is to be done, the day on that date is to be excluded. (See Goldsmiths Company v. the West Metropolitan Railway Company). This rule was followed in Cartwright v. Maccormack where the expression “fifteen days from the date of commencement of the policy” in a cover note issued by an insurance company was construed as excluding the first date and the cover note to commence at midnight of that day, and also in Marren v. Damson Bentley & Co. Ltd. a case for compensation for injuries received in the course of employment, where for purposes of computing the period of limitation the date of the accident, being the date of the cause of action, was excluded. (See also Stewart v. Chadman and In re North, Ex parte Wasluck). Thus, as a general rule the effect of defining a period from such a day until such a day within which an act is to be done is to exclude the first day and to include the last day. [See Halsbury’s Laws of England, (3rd Edn.). Vol. 37, pp. 92 and 95.] There is no reason why the aforesaid rule of construction followed consistently and for so long should not also be applied here.”
16. We have extensively referred to Saketh. The reasoning of this Court in Saketh based on the above English decisions and decision of this Court in Haru Das Gupta which aptly lay down and explain the principle that where a particular time is given from a certain date within which an act has to be done, the day of the date is to be excluded, commends itself to us as against the reasoning of this Court in SIL Import USA where there is no reference to the said decisions.
17. It was submitted that in Saketh this Court has erroneously placed reliance on Section 12(1) and (2) of the Limitation Act, 1963. Section 12 (1) states that in computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded. In Section 12(2) the same principle is extended to computing period of limitation for an application for leave to appeal or for revision or for review of a judgment. Our attention was drawn to Subodh S. Salaskar wherein this Court has held that the Limitation Act, 1963 is not applicable to the N.I. Act. It is true that in Subodh S. Salaskar, this Court has held that the Limitation Act, 1963 is not applicable to the N.I. Act. However even if the Limitation Act, 1963 is held not applicable to the N.I. Act, the conclusion reached in Saketh could still be reached with the aid of Section 9 of the General Clauses Act, 1897. Section 9 of the General Clauses Act, 1897 states that in any Central Act or Regulation made after the commencement of the General Clauses Act, 1897, it shall be sufficient to use the word ‘from’ for the purpose of excluding the first in a series of days or any other period of time and to use the word ‘to’ for the purpose of including the last in a series of days or any other period of time. Sub-Section (2) of Section 9 of the General Clauses Act, 1897 states that this Section applies to all Central Acts made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887. This Section would, therefore, be applicable to the N.I. Act.
18. Counsel, however, submitted that using two different words ‘from’ and ‘of’ in Section 138 at different places clarifies the intention of the legislature to convey different meanings by the said words. He submitted that the word ‘of’ occurring in Sections 138(c) and 142(b) of the N.I. Act is to be interpreted differently as against the word ‘from’ occurring in Section 138(a) of the N.I. Act. The word ‘from’ may be taken as implying exclusion of the date in question and that may well be governed by the General Clauses Act, 1897. However, the word ‘of’ is different and needs to be interpreted to include the starting day of the commencement of the prescribed period. It is not governed by Section 9 of the General Clauses Act 1897. Thus, according to learned counsel, for the purposes of Section 142(b), which prescribes that the complaint is to be filed within 30 days of the date on which the cause of action arises, the starting date on which the cause of action arises should be included for computing the period of 30 days.
19. We are not impressed by his submission. In this connection, we may refer to Tarun Prasad Chatterjee. Though, this case relates to the provisions of the Representation of the People Act, 1951 (for short ‘the RP Act, 1951’), the principle laid down therein would have a bearing on the present case. What is important to bear in mind is that the Limitation Act is not applicable to it. In that case the short question involved was whether in computing the period of limitation as provided in Section 81(1) of the RP Act, 1951, the date of election of the returned candidate should be excluded or not. The appellant was declared elected on 28/11/1998. On 12/1/1999, the respondent filed an election petition under Section 81(1) of the RP Act, 1951 challenging the election of the appellant. The appellant filed an application under Order VII Rule 11 of the CPC read with Section 81 of the RP Act, 1951 praying that the election petition was liable to be dismissed at the threshold as not maintainable as the same had not been filed within 45 days from the date of election of the returned candidate. While dealing with this issue, this Court referred to Section 67-A of the RP Act, 1951 which states that for the purpose of the RP Act, 1951 the date on which a candidate is declared by the returning officer under Section 53 or Section 66 to be elected shall be the date of election of the candidate. As stated earlier, the appellant was declared elected as per this provision by the returning officer on 28/11/1998. Section 81 of the RP Act, 1951 which relates to presentation of petition reads thus:
“81. Presentation of petitions. — (1) An election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of Section 100 and Section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates.
Explanation.—In this sub-section, ‘elector’ means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not. * * *
(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.”
Before analyzing this provision, this Court made it clear that it was an accepted position that the Limitation Act had no application to the RP Act, 1951. This Court then referred to sub-clause (1) of Section 9 of the General Clauses Act, 1897, which states that it shall be sufficient for the purpose of excluding the first in a series of days or any other period of time to use the words ‘from’ and for the purpose of including last in a series of days or any other period of time to use the word ‘to’. This Court observed that Section 9 gives statutory recognition to the well established principle applicable to the construction of statute that ordinarily in computing the period of time prescribed, the rule observed is to exclude the first and include the last day. This Court quoted the relevant provisions of Halsbury’s Laws of England, 37th Edn., Vol.3, p. 92. We deem it appropriate to quote the same.
“Days included or excluded — When a period of time running from a given day or even to another day or event is prescribed by law or fixed as contract, and the question arises whether the computation is to be made inclusively or exclusively of the first-mentioned or of the last- mentioned day, regard must be had to the context and to the purposes for which the computation has to be made. Where there is room for doubt, the enactment or instrument ought to be so construed as to effectuate and not to defeat the intention of Parliament or of the parties, as the case may be. Expressions such as ‘from such a day’ or ‘until such a day’ are equivocal, since they do not make it clear whether the inclusion or the exclusion of the day named may be intended. As a general rule, however, the effect of defining a period in such a manner is to exclude the first day and to include the last day.”
The further observations made by this Court are pertinent and need to be quoted:
“12. Section 9 says that in any Central Act or regulation made after the commencement of the General Clauses Act, 1897, it shall be sufficient for the purpose of excluding the first in a series of days or any other period of time, to use the word “from”, and, for the purpose of including the last in a series of days or any period of time, to use the word “to”. The principle is that when a period is delimited by statute or rule, which has both a beginning and an end and the word “from” is used indicating the beginning, the opening day is to be excluded and if the last day is to be included the word “to” is to be used. In order to exclude the first day of the period, the crucial thing to be noted is whether the period of limitation is delimited by a series of days or by any fixed period. This is intended to obviate the difficulties or inconvenience that may be caused to some parties. For instance, if a policy of insurance has to be good for one day from 1st January, it might be valid only for a few hours after its execution and the party or the beneficiary in the insurance policy would not get reasonable time to lay claim, unless 1st January is excluded from the period of computation.”
It was argued in that case that the language used in Section 81(1) that “within forty-five days from, but not earlier than the date of election of the returned candidate” expresses a different intention and Section 9 of the General Clauses Act has no application. While rejecting this submission, this Court observed that:
“We do not find any force in this contention. In order to apply Section 9, the first condition to be fulfilled is whether a prescribed period is fixed “from” a particular point. When the period is marked by terminus a quo and terminus ad quem, the canon of interpretation envisaged in Section 9 of the General Clauses Act, 1897 require to exclude the first day. The words “from” and “within” used in Section 81(1) of the RP Act, 1951 do not express any contrary intention.” This Court concluded that a conjoint reading of Section 81(1) of the RP Act, 1951 and Section 9 of the General Clauses Act, 1897 leads to the conclusion that the first day of the period of limitation is required to be excluded for the convenience of the parties. This Court observed that if the declaration of the result is done late in the night, the candidate or elector would hardly get any time for presentation of election petition. Law comes to the rescue of such parties to give full forty-five days period for filing the election petition. In the facts before it since the date of election of the returned candidate was 28/11/1998, the election petition filed on 12/1/1999 on exclusion of the first day from computing the period of limitation, was held to be in time.
20. As the Limitation Act is held to be not applicable to N.I. Act, drawing parallel from Tarun Prasad Chatterjee where the Limitation Act was held not applicable, we are of the opinion that with the aid of Section 9 of the General Clauses Act, 1897 it can be safely concluded in the present case that while calculating the period of one month which is prescribed under Section 142(b) of the N.I. Act, the period has to be reckoned by excluding the date on which the cause of action arose. It is not possible to agree with the counsel for the respondents that the use of the two different words ‘from’ and ‘of’ in Section 138 at different places indicates the intention of the legislature to convey different meanings by the said words.
21. In this connection we may also usefully refer to the judgment of the Division Bench of the Bombay High Court in Vasantlal Ranchhoddas Patel & Ors. v. Union of India & Ors. AIR 1967 Bombay 138 which is approved by this Court in Gopaldas Udhavdas Ahuja and another v. Union of India and others(2004) 7 SCC 33, though in different context. In that case the premises of the appellants were searched by the officers of the Enforcement Directorate. Several packets containing diamonds were seized. The appellants made an application, for return of the diamonds, to the learned Magistrate, which was rejected. Similar prayer made to the Single Judge of the Bombay High Court was also rejected. An appeal was carried by the appellants to the Division Bench of the Bombay High Court. It was pointed out that under Section 124 of the Customs Act, 1962, no order confiscating any goods or imposing any penalty on any person shall be made unless the owner of the goods or such person is given a notice in writing with the prior approval of the officer of customs not below the rank of an Assistant Commissioner of Police, informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty. Under Section 110(1) of the Customs Act, 1962 a proper officer, who has reason to believe that any goods are liable to confiscation may seize such goods. Under sub- Section(2) of Section 110 of the Customs Act, 1962, where any goods are seized under sub-Section (1) and no notice in respect thereof is given under clause (a) of Section 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized. Under proviso to Section 110, sub-section (2), however, the Collector could extend the period of six months on sufficient cause being shown. It was argued that the Customs Officers had seized the goods within the meaning of Section 110 of the Customs Act, 1962 on 4/9/1964. The notice contemplated under Section 124(a) was given after 3/3/1965, that is after the period of six months had expired. As per Section 110(2), notice contemplated under Section 124(a) of the Customs Act, 1962 had to be given within six months of the seizure of the goods, and, therefore, notice issued after the expiry of six months was bad in law and, hence, the Collector of Customs was not competent to extend the period of six months under the proviso to sub-section (2) of Section 110 as he had done. Therefore, no order confiscating the goods or imposing penalty could have been made and the goods had to be returned to the appellants. It was argued that Section 9 of the General Clauses Act, 1897 has no application because the words ‘from’ and ‘to’ found in Section 9 of the General Clauses Act, 1897 are not used in sub-Section 2 of Section 110 of the Customs Act, 1962. This submission was rejected and Section 9 of the General Clauses Act, 1897 was held applicable. Speaking for the Bench Chainani, C.J. observed as under:
“… … …The principle underlying section 9 has been applied even in the cases of judicial orders passed by Courts, even though in terms the section is not applicable, See. Ramchandra Govind v. Laxman Savleram, AIR 1938 Bom 447, Dharamraj v Addl. Deputy Commr., Akola, AIR 1957 Bom 154, Puranchand v. Mohd Din. AIR 1935 Lah 291, Marakanda Sahu v. Lal Sadananda, AIR 1952 Orissa 279, and Liquidator Union Bank, Mal, v. Padmanabha Menon, (1954) 2 Mad LJ 44.The material words in sub-s. (2) of section 110 are “within six months of the seizure of the goods”. In such provisions the word “of” has been held to be equivalent to “from”: see Willims v. Burgess and Walcot, (1840) 12 Ad and El 635. In that case section 1 of the relevant statute enacted that warrants of attorney shall be filed “within twenty-one days after the execution. Section 2 enacted that unless they were “filed as aforesaid within the said space of twenty-one days from the execution, “they and the judgment thereon shall be void subject to the conditions specified in the section. The warrant of attorney was executed on 9th December, 1839 and it was filed, and judgment entered up on the 30th December. It was held that in computing the period of 21 days the day of execution must be excluded, Reliance was placed on Ex parte Fallon, (1793) 5 Term Rep 283 in which the word used was “of” and not “from”. It was observed that “of”, “from” and “‘after” really meant the same thing and that no distinction could be suggested from the nature of the two provisions. In Stroud’s Judicial Dictionary, Vol. 3, 1953 Edition in Note (5) under the word “of”, it has been observed that “of” is sometimes the equivalent of “after” e.g., in the expression “within 21 days of the execution”. The principle underlying section 9 of the General Clauses Act cannot therefore, be held to be inapplicable, merely because the word used in sub- section (2) of section 110 is “of” and not “from”. Relevant extracts from Halsbury’s laws of England3rd Edn., vol. 37 p. 95 were quoted. They read as under:
“The general rule in cases in which a period is fixed within which a person must act or take the consequences is that the day of the act or event from which the period runs should not be counted against him.
This general rule applies irrespective of whether the limitation of time is imposed by the act of a party or by statute; thus, where a period is fixed within which a criminal prosecution or a civil action may be commenced, the day on which the offence is committed or the cause of action arises is excluded in the computation.”
In the circumstances, it was held that the day on which the goods were seized has to be excluded in computing the period of limitation contemplated under sub-section (2) of Section 110 and therefore the notice was issued within the period of limitation. It is pertinent to note that under Section 110 (2) of the Customs Act, notice had to be given within six months of the seizure of the goods. Similarly, under Section 142(b) of the N.I. Act, the complaint has to be made within one month of the date of which cause of action arose. The view taken in Vasantlal Ranchhoddas Patel meets with our approval.
22. In view of the above, it is not possible to hold that the word ‘of’ occurring in Section 138(c) and 142(b) of the N.I. Act is to be interpreted differently as against the word ‘from’ occurring in Section 138(a) of the N.I. Act; and that for the purposes of Section 142(b), which prescribes that the complaint is to be filed within 30 days of the date on which the cause of action arises, the starting day on which the cause of action arises should be included for computing the period of 30 days. As held in Ex parte Fallon(1793) 5 Term Rep 283 the words ‘of’, ‘from’ and ‘after’ may, in a given case, mean really the same thing. As stated in Stroud’s Judicial Dictionary, Vol. 3 1953 Edition, Note (5), the word ‘of’ is sometimes equivalent of ‘after’.
23. Reliance placed on Danial Latifi is totally misplaced. In that case the Court was concerned with Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986. Section 3(1)(a) provides that a divorced woman shall be entitled to a reasonable and fair provision and maintenance to be made and paid to her within the Iddat period by her former husband. This provision is entirely different from Section 142(b) of the N.I. Act, which provides that the complaint is to be made ‘within one month of the date on which the cause of action arises’. (emphasis supplied).
24. We may, at this stage, note that learned counsel for the appellant relied on State of Himachal Pradesh where, while considering the question of computation of three months’ limitation period and further 30 days within which the challenge to the award is to be filed, as provided in Section 34(3) and proviso thereto of the Arbitration Act, this Court held that having regard to Section 12(1) of the Limitation Act, 1963 and Section 9 of the General Clauses Act, 1897, day from which such period is to be reckoned is to be excluded for calculating limitation. It was pointed out by counsel for the respondents that Section 43 of the Arbitration Act makes the Limitation Act, 1963 applicable to the Arbitration Act whereas it is held to be not applicable to the N.I. Act and, therefore, this judgment would not be applicable to the present case. We have noted that in this case reliance is not merely placed on Section 12(1) of the Limitation Act. Reliance is also placed on Section 9 of the General Clauses Act. However, since, in the instant case we have reached a conclusion on the basis of Section 9 of the General Clauses Act, 1897 and on the basis of a long line of English decisions that where a particular time is given, from a certain date, within which an act is to be done, the day of the date is to be excluded, it is not necessary to discuss whether State of Himachal Pradesh is applicable to this case or not because Section 12(1) of the Limitation Act is relied upon therein.
25. Having considered the question of law involved in this case in proper perspective, in light of relevant judgments, we are of the opinion that Saketh lays down the correct proposition of law. We hold that for the purpose of calculating the period of one month, which is prescribed under Section 142(b) of the N.I. Act, the period has to be reckoned by excluding the date on which the cause of action arose. We hold that SIL Import USA does not lay down the correct law. Needless to say that any decision of this Court which takes a view contrary to the view taken in Saketh by this Court, which is confirmed by us, do not lay down the correct law on the question involved in this reference. The reference is answered accordingly. 

-Thanks to: http://www.legalblog.in

Indian Evidence Act-1

Indian evidence Act

Secn.3

Fact in Issue

it is a fact which directly or indirectly in connection with other facts,——Determines

### the existence,

###the non existence

####nature

##### extent of any right or liability that is asserted or denied in any suit or proceeding

 

In other words—–

Facts in contention in a case are Facts in issue

in other words—these are the facts which need to be proved

 

aka factum probandum

 

So .there are two important attributes to factum probandum–

—this fact must be in dispute b/w. the parties

—-this fact must touch the question of right or liability of the parties

n criminal law—-fact in issue is mentioned in the charge sheet while in civil law it is a part of the substantive law

 

Shoot comments to-advosidharthaurora@gmail.com

Evidence

What is the Difference between Murder and Culpable Homicide not amounting to murder?

dagger

Reams of paper and tons of neurotransmitters of the best legal minds around the world has been spent pondering over this legal dilemma. When is a death caused by the accused to be classified as a Murder as described per S.300 IPC and when must the courts handle it as a Culpable Homicide not amounting to murder within the meaning of S.299 IPC?

Let’s find out…..

Plain reading of Bombay High Court Judgement in Reg. v. Govinda ,some interesting and fine legal principles emerge which will help in appreciating the difference between the two offences as mentioned above.

In the words of HIS LORDSHIP  the offence is culpable homicide, if the bodily injury intended to be inflicted is likely to cause death; it is murder, if such injury is sufficient in the ordinary course of nature to cause death.

Let’s see the above statement with an illustration.

A fist blow on the face or chest is likely to cause death while an attack with a sword or dagger is sufficient in the ordinary course of nature to cause death.The former comes within the ambit of Culpable Homicide not amounting to murder while the latter may be dealt as an offence of murder.

Let’s carry it further…….

A fist blow on the face of a small child,infirm/old person or any person known to be in a state of health fragility to the accused attacker is sufficient in the ordinary course of nature to cause death………and as a result fall within the classification of murder contrary to observation in the above example.

In all such cases the principle of Mens rea is of paramount importance.So if it is established that the Accused has intention of killing the victim here is no doubt that the offence will be treated as a murder.

Murder is therefore a Genus within which a species is Culpable Homicide not amounting to murder.So all murders are culpable homicides but all homicides may not be dealt as murders.

Applying the above observations to the case HIS LORDSHIP came to the conclusion that when there was no intention to cause death, nor was the bodily injury sufficient in the ordinary course of nature to cause death.

In the courts in ordinary states this question is mostly answered by the nature of weapon used.So a dagger,sword used as weapon easily tilts the balance towards murder and likewise.

It is in some cases where such legal dilemmas erupt strongly like in the example above wherein …..

In Reg. v. Govinda the accused who was a boy of 18 years was married to a girl of 15. The boy appeared to have been habitually ill- treating the girl. On the fateful day the accused knocked his wife down, put one knee on her chest, and struck her two or three violent blows on the face with closed fist, producing extravasations of blood on the brain, and she had died in consequence either on the spot, or very shortly afterwards.

The accused was held guilty of the offence of murder by the Sessions Judge. The case came up before a Bench of two Judges of the Bombay High Court for confirmation of the death sentence.

His lordship compared the provisions of Sections 299 and 300, I.P.C., viz., cul­pable homicide and murder thus:

The differences have been marked in italics .

Nos. (a) and (1) show that where there is an intention to kill there is always murder.

Nos. (c) And (4) are intended to apply to cases where there is no intention to cause death or bodily injury, e.g., furious driving, firing at a mark near a public road. Whether the offence is culpable homicide or murder depends upon the degree of risk to human life. If death is a likely result, it is culpable homicide; if it is the most probable result, it is murder.

No. (2) Denotes that the offence is murder, if the offender knows that the particular person injured is likely, either from peculiarity of constitution, or immature age, or other special circumstances, to be killed by an injury which would not ordinarily cause death.

As regards (b) and (3) the offence is culpable homicide, if the bodily injury intended to be inflicted is likely to cause death; it is murder, if such injury is sufficient in the ordinary course of nature to cause death.

At this stage it is essential to read the EXACT WORDS of S.300 IPC

Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-

2ndly.-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. or-

3rdly.-If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-

4thly.-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Illustrations

(a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder.

(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury. Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death, or such bodily injury as in the ordinary course of nature would cause death.

(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here A is guilty of murder, although he may not have intended to cause Z’s death.

(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual.

Exception 1.-When culpable homicide is not murder.-Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

The above exception is subject to the following provisos:-

First.-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly.-That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

Thirdly.-That the provocation is not given by anything done in the lawful exercise of the right of private defence.

Explanation.-Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

Illustrations

(a) A, under the influence of passion excited by a provocation given by Z, intentionally kills Y, Z’s child. This is murder, inasmuch as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doing an act caused by the provocation.

(b) Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed murder, but merely culpable homicide.

(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and kills Z. This is murder, inasmuch as the provocation was given by a thing done by a public servant in the exercise of his powers.

(d) A appears as a witness before Z, a Magistrate. Z says that he does not believe a word of A’s deposition, and that A has perjured himself. A is moved to sudden passion by these words, and kills Z. This is murder.

(e) A attempts to pull Z’s nose. Z, in the exercise of the right of private defence, lays hold of A to prevent him from doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is murder, inasmuch as the provocation was giving by a thing done in the exercise of the right of private defence.

(f) Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take advantage of B’s rage, and to cause him to kill Z, puts a knife into B’s hand for that purpose. B kills Z with the knife. Here B may have committed only culpable homicide, but A is guilty of murder.

Exception 2.-Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence or person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.

Illustration

Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped, shoots Z dead. A has not committed murder, but only culpable homicide.

Exception 3.-Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.

Exception 4.-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner.

Explanation.-It is immaterial in such cases which party offers the provocation or commits the first assault.

Exception 5.-Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.

Illustration

A, by instigation, voluntarily causes Z, a person under eighteen years of age, to commit suicide. Here, on account of Z’s youth, he was incapable of giving consent to his own death; A has therefore abetted murder.

In the light of the given exceptions try and deal with the following problem set:

Problems:

A. X, a juggler, specialises in dagger tricks and tells his audi­ence that he is immune from injury even if stabbed, and offers his dagger to the people present to stab him if they chose to do so. He then stabs himself in his stomach and is found to be uninjured. Y who watches the show with interest takes his own knife and stabs X in the same place. X dies immediately. For what offence if any is Y liable?

Give reasons for your answer:

Ordinarily Y would have been guilty of murder. But in the circum­stances of the case, Y cannot be said to have committed the offence of murder. The reason is that he never intended by his act, to kill the deceased juggler nor did he intend to cause him any bodily injury, nor did he know that his act would, in all probability, cause death, be­cause the juggler himself had demonstrated by his own act that he could not die or be injured by showing a trick with his own dagger.

But it cannot be said that the act of Y was not likely to cause death and Y could not be presumed to have knowledge that by stabbing him in the stomach it was not likely to cause death. Since the act was likely to cause death and Y could be presumed to have knowledge that the act was likely to cause death, Y has committed the offence of culpable homicide under Section 299, I.P.C.

B. A husband, who was himself unfaithful to his wife, had for sometime suspected her of infidelity to him. During a quarrel between them the wife confessed that she was unfaithful to her husband, whereupon he struck upon her head with a hammer used for breaking coal which was close to his hand, and then proceeded to strangle her. She had many bruises on her body, but the Final cause of death was manual strangulation. For what offence can the husband be punished? Decide.

Confession of infidelity on the part of the wife has been held to be a sufficient cause for grave and sudden provocation. On account of this the husband was deprived of self-control and, in the heat of the moment, committed the act which cannot be attributed to his consi­dered judgment or well formed criminal intention. An ordinary hus­band would, therefore, be guilty of culpable homicide not amounting to murder and the case would fall under Exception 1 to S. 300 I.P.C.

But the husband here is a peculiar husband. He himself is unfaith­ful to his wife and had also suspected her of infidelity.

Therefore, on discovering the infidelity he could not have been shocked; because it could not be said to have been unexpected.

Further, the character of the husband himself was such as would not and could not give a shock on account of his wife’s infidelity.

Taking into consideration these circumstances it could be said that there was no justification for the hammer-blow and, even conceding that, there was absolutely no justi­fication for subsequently and deliberately strangulating her. The of­fence committed, therefore, by the husband in this case is murder and he can be punished for it.

C. State the offence, if any, which A or B is guilty of in each of the three cases given below:

(i) A is lawfully arrested by B, a bailiff. A is excited to sudden violent passion by the arrest and kills B.

(ii) B attempts to horsewhip A in such a manner as to cause grievous hurt to A. A, draws out a pistol. B, however, persists in assault. A, believing in good faith, he can by no means prevent himself from being horsewhipped, shoots B dead.

(iii) A under the influence of passion caused by provocation given by B, kills C, son of B, intentionally.

Problems:

(i) A is guilty of murder:

Being a bailiff B was a public servant. He was acting in the lawful exercise of his powers in trying to arrest A. If the arrest by B gave A, provocation it cannot make the offence one of culpable homicide.

Proviso I to Exception 1 of Section 300 lies down that where provo­cation is given by anything done in obedience to the law or by a public servant in the lawful exercise of his powers, such a provocation cannot convert an offence of murder into culpable homicide.

(ii) A is not guilty of any offence.

B horsewhips him in such a manner as to cause grievous hurt. A believes in good faith that there is no way out for his escape except by shooting at B.

In these circumstances he must be said to be exercising his right of private defence provided to him by Section 99 of the Indian Penal Code. It cannot be said that he inflicted more harm than was necessary to inflict for the purpose of defence.

The reason is that there was absolutely no way out for A to save himself from being horsewhipped except by shooting at B. The fact that B did not stop horsewhipping even when A had taken out his pistol shows that the former (B) was adamant in his act and A was justified in shooting for his defence.

(iii) A is guilty of murder.

The provocation was given to him by B and not by his (B’s) son C whom A killed. Exception I to S. 300 applies only where the provoca­tion is given by the person who is killed and not where it is given by a third person. There could be absolutely no excuse for A in killing C and the offence committed by him cannot be said to be culpable homicide not amounting to murder.

D. Is a guilty of any offence on the following facts?

A who has been suspecting illicit relations between his wife and B surprises B under compromising circumstances with her?

(i) He thereupon kills B.

(ii) Thinking that killing B outright a mercy to the scoundrel, he determines not to kill him but to cut off his leg so that A may have the satisfaction to see B limp all his lifetime. A cut off his leg at the knee. This produces B’s death.

(iii) A kill’s wife two days later.

(i) A is guilty of culpable homicide not amounting to murder in this case. The case clearly falls under Exception I to Section 300, I.P.C. because the killing of B is due to A’s being deprived of the power of self-control on account of grave and sudden provocation, given to him by discovering his wife under compromising circum­stances with B. The provocation was not sought voluntarily by him.

If, however, it could be found that A voluntarily sought the provocation, which on account of his suspicion of the illicit relations, could be avoided by him or at least he could have avoided surprising B under compromising circumstances, it would nonetheless be an offence. A, therefore, cannot escape unscathed—he is guilty of culpable homicide amounting to murder or murder itself, according to the finding arrived at.

(ii) This is clearly an offence of culpable homicide. That A had no intention of causing the death of B is clear. He had caused such bodily injury as was not sufficient in the ordinary course of nature to bring about death and so the case does not fall under Section 300, I.P.C.

The death of B was caused not with the intention to cause death, nor was the injury such as would ordinarily result in death. So A’s offence falls under Section 299, I.P.C., the injury being such as is likely to cause death.

(iii) A is guilty of murder under Section 300, I.P.C. The killing having been committed two days later, it cannot be said that it was due to grave and sudden provocation and that he was deprived of the power of self-control. The act of A must be deemed to be a premedi­tated one with intent to cause death and after mature consideration after the first excitement had passed away.

In 1938 All 789 where death was caused after the first excitement had passed away, it was held that the case fell under Exception I to Section 300 and was not murder but only culpable homicide not amounting to murder, notwithstanding the interval of time between seeing the act of adultery and killing by the accused, but the facts of that case do not apply to the present case which must be held to be a murder, and not culpable homicide not amounting to murder.

E. Discuss which offences, if any; have been committed in the following cases:

(a) A without any excuse fires loaded cannon into a crowd of persons and kills one of them.

(b) A gives grave and sudden provocation to B. B on this provocation fires a pistol at Y neither intending nor knowing him to be likely to kill Z which is near Y but out of sight. Z is killed by the pistol shot.

(c) A gave three lathi blows to B who was a strong and healthy young man. Two blows fell on the arms and one fell on the head, causing fracture of the skull which caused B’s death.

Problems:

(a) A is guilty of murder.

Where it is clear that the act by which the death is caused is so imminently dangerous that the accused must be presumed to have known that it would in all probability cause death, or such bodily injury as is likely to cause death, then the accused must be held guilty of the offence of murder. In the present case.

A may not have had premeditated design to kill any particular individual but he is pre­sumed to know the natural consequences of his act of shooting. There­fore, A must be held guilty of murder.

(b) A is guilty of murder, as he has fired a pistol at Y at the provocation given by B. Hence he does not come under the Exception to S. 300, I.P.C., for he has not caused the death of the person who gave the provocation but he intended to kill a third person Y and the shot killed Z.

(c) A is guilty of murder as B’s death was only due to the lathi blows of his. The accused must be presumed to have known that death would be the result of his imminently dangerous act.

F. What offence has been committed to the following case?

A enquired of B and C about his missing crop. B and C unrea­sonably thinking that they were being suspected for theft, abused A in return and shouted that A should be beaten; B and C at once attacked A with lathis which resulted in the fracture at the skull and death of A.

In consideration of the present case one has to focus his attention on the following points:

(i) Whether the enquiry made by A, amounted to sudden provoca­tion?

(ii) Whether B and C acted as a prudent and ordinary man would do in that circumstances?

(iii) Did the act of B and C amount to murder or not?

The verbal enquiry of A did not amount to sudden provocation. It was not an act on the part of A so as to provoke B and C.

The Cuttack High Court in the case of Vila Mahapatra, (1950) Cuttack 293 had held: “Mere verbal provocation even if it be by threats or gestures or by the use of abusive and insulting language cannot induce a reasonable person, to commit an act of violence.”

In this case the act of B and C was cruel and unusual one. No ordinary prudent man would ever commit such a heinous crime on any enquiry made by a person. It was beyond human reason.

“Where on an exchange of abuse between the deceased and the accused the latter picked up a rice pounder with such force as to cause fracture of his skull and he died a few hours later, it was held that the accused was guilty of murder as he had acted in a cruel and unusual manner.

[See Muni and Sarvai (1944) Madras 818], the act of B and C was that of murder. Both the provocation caused by A was so offensive to lead to murder and the act of B and C could be considered to be acts of any ordinary reasonable and prudent man. It was a clear case of murder.

G. What offence, if any, has A committed in the following case?

There was a fight between P and A. The deceased had no hand in it. He did not even try to separate the assailants. All he did was to ask P to stop fighting and said that he would settle their dispute. A thereupon stabbed the deceased causing injury resulting in death.

On similar facts it has been held in Naryanan Nair Raghavan Nair v. The State of Travancore Cochin, (1966 Cri. Law Journal, 278) by the Supreme Court that A was guilty of an offence under S. 302 Indian Penal Code.

In the present case Exception 5 to S. 300 did not apply, inasmuch as the exception requires that no undue advantage be taken of the other side. It was impossible to say that there was no undue advantage when the accused a stabbed the unarmed person who made no threat­ening gesture and merely asked the accuser’s opponent to stop fight­ing. Then also, the fight must be with the person who was killed. Here the fight was between P and the accused. The exception therefore, did not apply.

H. A kills B his concubine, at her own request and instance:

They were on affectionate terms but due to social ostracism in the village they could not find a place to live. In his confession which was believed, A stated that B produced a knife and requested A to kill and go back to his own village. Does this constitute a valid defence to a charge of murder?

B, the concubine, was killed by A at her own request and instance. She produced a knife and requested A to kill her. As such the case should fall under Exception 5 of Section 300 I.P.C. which reads as follows:

“Culpable homicide is not murder when the person whose death is caused being above the age of 18 years, suffers, death or takes the risk of death with his own consent.”

It is, therefore, clear that A has not committed murder but only culpable homicide not amounting to murder. The confession of A, therefore, does not absolve him altogether from the liability of having committed an offence, but it does constitute a valid defence to the specific charge of murder with which obviously he cannot be charged. Thus, he is liable only for the lesser offence and not for graver offence of murder. The defence is valid.

I hope a degree of clarity must have emerged after this prolonged discussion.

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