theoryofabrogation

Category: Criminal Law

Domestic Violence

History In the beginning of the 1800s, in English common law wife beating is considered as a men’s right. It is considered a  ritual amongst society but with time in the 16th century, this is considered as a crime not only against women but against society as a whole. It was termed as a breach of the peace in that society. So to curb this problem English common law introduced some laws i.e. to furnish a bond by the husband and to stake pledges from his associates for peaceful life and good behavior in the future. In terms of the sentences, it was only pity fines. A great change has been seen during the American Revolution, many of the American colonies made laws in favor of women and coined the domestic violence system a heinous crime against the liberty of women. Transfer of the local justices to the state courts. Taking a course of the same by the judicial system rather than the legislatures of the state. Setting up the precedent in domestic violence cases are some of the things that took place in that era. The major change took place when the political agitation of the feminist movement begin to take place in the 19th century. This forces the political system of that era into opinion and legislation. related to domestic violence within the US, UK, and other countries. • In the year 1850 Tennessee a state in the US become the first country to make wife beating illegal and penalized strong punishment for the same. Gradually this thing followed by other states also. — In the year 1878 UK matrimonial causes act was passed which gave a right to the wife to get separated from an abusive husband. • In the early 20th century a change was also seen amongst the court in these cases whenever these types of cases comes into the court. The Judge imposes a harsh punishment against the husband’s perpetrator. But when the situation is the opposite the same thing deals with leniency by the court. Even then in most of the legal systems around the world, the issue of domestic violence was highlighted from the 1990s onward. In most countries, there were no protection no laws for the security of women in cases of domestic violence. Keeping in view this thing in 1993 the UN published some strategies for confronting domestic violence: A resource manual. By this, they are urging the countries to treat domestic violence as an unlawful act. But the scenario was not as thought as many countries at that time so this was out of the scope of the law. Physical discipline of the children and chastisement of the wife is considered as one of the necessary things. As far as India is concerned there are various forms of domestic violence act has been seen i.e. honor killings, dowry deaths, and forced marriages. In the year 2005 efforts were being made to curb the issue of domestic violence and in response to this the protection of women from domestic violence act has been passed. TYPES OF DOMESTIC VIOLENCE There are various forms of domestic violence engraved in the laws some of these are:- Physical abuse One of the most prominent abuse is considered physical abuse where the victim is in constant fear of bodily pain, injury, other physical suffering, or bodily harm. Due to this the growth of her mental and physical state stuck. Another thing that took place is an acid attack in which the attempt is to damage the face and the body of the victim which also result in blindness and permanent scaring of the female. As far as India is considered most of the domestic violence cases come after the women get married and the husband or the family members of the husband are dissatisfied over the dowry demands that result in continuous physical abuse of the women and some cases the killing of the women. According to the National crime records bureau in the year 2011 around 8618 dowry deaths were reported in India but the official figure is far bigger than this amount. Sexual abuse It is defined as abuse that humiliates, degrades, or hampers the dignity of women in general. Majority of the sexual abuse is considered marital rape but this is not outlawed in many countries. Marital rape is only hit when the victim is under the age of  15. Besides this, in many cultures, the victim of rape is considered a shame and disgrace to the family. If the victim got pregnant then her life ended up by her family members. When it comes to marriage in some cultures there is an obligation that the woman is only to bear the children of the husband if it is found out that the woman is using birth control then she has to face the constant fear and threats in society this practice is mostly common among the people of Ghana. Verbal and Emotional Abuse In domestic violence cases, the first thing that a female has to face is verbal abuse by her spouse and in some cases by the family of the spouse. When it is intermixed with emotional abuse the situation got worse. The environment of this led to emotional and mental trauma to the female which ultimately hampers her mental strength. WHO termed it as the most common way of abuse in all the societies of the world. It includes minimizing threats, isolation, public humiliation, criticism among the masses, personal devaluation of the image, coercive control over one’s affairs, and stalking. This led to increasing chances of depression which can lead to suicide, drug and alcohol abuse, etc. Economic Abuse This is a form of financial abuse in which one intimate partner has overall control over the economic resources of the other partner. The assets are used as a means of control. Economic abuse includes limiting what victims may use or exploiting the resources used to support the daily…

Criminal Law

Capital punishment in India and its various forms

The “Death Penalty” or “Capital Punishment” is the harshest punishment a society or democracy can impose in order to uphold law and order. But murdering another human being in the name of justice is just as bad. We should focus on stopping the crime, not on the perpetrator. We should amend the law to ensure law and order so that everyone can live in harmony with one another because “Life is valuable, and death is final.” According to the UN, murdering a person for the sake of justice also results in the death of humanity. Nobody has a right to determine that who will live or who will dies, but God has the power to determine who lives and who dies. rather of putting someone to death by hanging, we ought to use a different tactic known as the reformative technique so that the offender can change for the better and continue to live in peace. Introduction ‘Execution of a death sentence is referred to as “execution,” while a death sentence itself is referred to as a “death sentence.””. It is the Criminals who must be punished by the state in order to keep society’s law and order. The capital punishment is the judicially ordered execution of a person who has broken a specific law. The legal term “death penalty,” which is recognised by the government, refers to a person being put to death by the state as punishment for the crime he committed Execution of a death sentence is referred to as “execution,” while a death sentence itself is referred to as a “death sentence” Every time a court imposes a sentence, it does it in accordance with a theory or a premise. These beliefs, which go by the name “Theories of Punishment typically fall into one of five categories: The deterrent theory Restructuring Theory Theoretical Precautions Theoretical Retribution The Expiation Theory In the United Nations (UN), where the death penalty is viewed as a violation of human rights, the phrase “Abolition of Death Penalty” is one of the most frequently discussed themes. The Reformative Theory of Punishment was given more weight by the UN than the Deterrent Theory of Punishment. In Rajendra Prasad v. State of Uttar Pradesh, Justice V.R. Krishna Iyer made This remark: “The specific cause must relate, not to the crime, but to the offender. Criminal not deserve the death penalty. Acc.to ABDUL KALAM :- “Avul Pakir Jainulabdeen Abdul Kalam said, ” We are all the products of God. I’m not convinced whether a human-made mechanism is capable of ending a life based on fabricated evidence. – The legality of the death penalty in India under Constitution The question of the death penalty has long been divisive everywhere in the world. The death sentence is applied in India for the most serious, heinous, and egregious offenses, such as murder, war against the government, etc., according to the Indian Penal Code. Article 21 of the Indian Constitution states that everyone has the “right to life,” which shall not be denied to anyone. The president has the power to exercise mercy when the death sentence is involved. The President of India has the power to commute, alleviate, postpone, or otherwise alter a conviction for the death penalty under Article 72 of the Indian Constitution. Once a person has been found guilty and sentenced to death, Article 72 of the Indian Constitution gives the President the authority to commute, relieve, postpone, or otherwise modify a death penalty conviction. Once a defendant has been found guilty and given a death sentence so the President has power to dismiss the death penalty Once a criminal has been convicted and sentenced to death, Case laws Jagmohan Singh VS State of Uttar Pradesh[1]– The Supreme Court in this case rejected the claim that the same violated Article 19 of the Indian Constitution, which protects the “right to life.” Rajendra Prasad VS State of U.P It was emphatically emphasised by Justice Krishna Iyer that the death sentence is against Articles 14, 19, and 21. Bachan Singh VS State of Punjab– One year after Rajendra Prasad v. State of U.P the same case set as a  The Supreme Court  reversed the ruling in the aforementioned case by vote of 4:1  by Justice Bhagwati. there was argued that the term is “public order” designed in Article-19(2) to Article-19(4) is different from “law and order” and also introduced the principle of award with  death penalty in “rarest  cases,” despite the facts that it violation Articles 14, 19, and 21. The Supreme Court acknowledged Article 21 as the State is authority to take someone’s life. The Delhi gangrape case, which requested the guilty be given the death penalty, Machchi Singh VS State of Punjab– The Supreme Court established guidelines for whether the death penalty may be applied, taking into account the crime’s gravity, victim’s type, and whether it was committed in social anti-social manner in Capital punishment. Kidnapping that does not result to death– “• Aggravated murder: According to Section 302 of the Indian Penal Code, 1860, this crime carries a death sentence.[5] Treason – A person who attempts to overthrow the government or aids members of the armed forces in doing so may get the death penalty. Offences related to terrorism that don’t result to death– Use of explosives that can cause explosion and threaten life/cause damage to property. For instance, Muhammad Afzal was hanged on February 9, 2013, in retaliation for the attack on the Indian parliament in December 2001, which saw five men carrying bombs kill nine people. Rape that does not result to death – Under the Criminal Law Act of 2013, a perpetrator who causes harm during a sexual assault that results in the victim’s death may be executed. As a result of the Delhi gangrape case, gang rapes are now also punishable by the death penalty. According to the 2018 Criminal Law Ordinance, anyone found guilty of raping a child younger than 12 years old faces a death sentence or a…

Criminal Law

Stage of crime under ipc 1860

ABSTRACT The Indian Penal Code is one of the most unique penal law codes entailing several crime, their scope, nature, and punishments. It is best-taken care of in the hands of the judiciary, law practitioners, students, and varied law learners. The Indian Penal Code indirectly owes its origin to jeremy bentham, who is a well-known jurist on the subject of law reforms. The Indian Penal Code was drafted by Macaulay. The Code was primarily aimed at bringing to an end the multiplicity of criminal law jurisdictions that prevailed in India at that time and introducing a  uniform law of crimes. The most striking feature of the IPC [1]  is that it continues to survive as the substantive law of the land for more than one and a half centuries despite the tremendous changes the Indian society has undergone over the years, leading toward a progressive social order. The criminal law as enshrined in the Penal Code seeks to safeguard the socio-moral principles of society and protect society’s historical roots based on values on values while leading it towards development and modernization. INTRODUCTION research of the law of crimes has always been one of the most attractive branches of jurisprudence since the early year of human civilization. The law of crime has been as old as civilization itself. In every organized society, certain acts are forbidden on the pain of punishment. Where one person injured another and the injury could adequately be compensated by money value, the wrong-doer was required to pay damages or compensation to the wrong individual. More than any other branch of law, criminal law is the mirror of public opinion. As we already know law reflects the public opinion of the time. More than any other branch of law, criminal law is the mirror of public opinion. To know the nature and the content of crime we must first of all know what is law because the questions of crime and law are so closely related to each other that it is very difficult to understand one without knowing the other. CRIME→ WRONGS → These are against norms. Definition of crime[2]: As per section.40 of IPC any act or omission made punishable by IPC is an offence. Acc. to Blackstone: An act committed or omitted in violation of a public law either forbidding or commanding it. Acc. to Russel: “Crime is the result of human conduct, which the state seeks to prevent”. >> A crime is an unlawful act punished by the state or any lawful authority. A crime or an offense is an act that is harmful not only to the person but also to the community, society, or state. Nature of Crime ➢ Public wrong – Dynamic nature ➢ Punishment is the remedy -because crimes such as rape, murder, kidnapping can not be Compensated. What is the stage of crime under the Indan Penal Code,1860? (1)Intention: derived from the famous (actus non-facit reum nisi rea). The intention is the first & Initial stage. This stage has not been penalized under the IPC. Ex: Kenny illustrates him with a very good example.’ A person picks up an umbrella to steal that umbrella from a club stand. But when he comes home and sees it the umbrella turns out to be his own’. In such a situation, criminal liability cannot be imposed on that person, although he intended to steal the umbrella. (2)Preparation: It is at this stage that the person prepares or does acts that will help him in committing the criminal act. therefore this stage is not punishable. Ex: ‘A’ thinks of killing a person, he buys a pistol, buys a railway ticket to go to the place where the murder is to be done. Since he did not cross the preparation stage to do all this, he will not be considered a criminal. (3)Attempt: An attempt is a direct movement towards an offense after the preparation has been made. Punishable under IPC under certain circumstances:- Section.307, S.309, S.398, S.308, S.393, S.511 (4)Commision: It is the last stage of the commission of a crime. This is the stage where the offender has crossed all the three initial stage. At this stage, the person completes the ACTUS REUS. The act would also include omission. If the accused become successful in his attempt to commit the crime, he will be guilty of the complete offense. BACKGROUND OF IPC,1860 Written by: ‘Thomas Babington Macaulay ’. Extent : Whole of India ( the word Jammu & Kashmir was omitted from 31st oct 2019) Enacted : 6th oct 1860 Commencement: 1st jan 1862 Total chapters: 23 Total sections: 511 Shortest chapter : chap no.23(1 sections) Longest chapter: chap no.17 (84 sections) Crime is a concurrent subject so both the centre and state can amend IPC.[3] HIGHEST CRIME RATE IN INDIA According to data from the NCRB of India, some of the states with the highest crime rates in India include Maharashtra, Gujrat, Tamil Nadu, and Madhya Pradesh. These states generally have large populations and high levels of urbanization, which can contribute to higher crime rates. According to the NCRB[4] report for 2019, the state with the highest crime rate in India was Assam, with a crime rate of 632.6 per 100,000 population. It was followed by Kerala (455.8)and Odisha (399.1). In terms of the number of crimes, Uttar Pradesh reported the highest number of crimes in 2019 with 3,42,954 cases, followed by Maharashtra(2,61,714 cases) and Kerala (1,41,375 cases).[5] TYPES OF CRIME Crimes against women Sexual assault against women in India is more and more. According to the NCRB, as of 2018, the majority of crimes against women were registered under ‘Cruelty by husband or his relatives followed by ‘Assault on women with intent to outrage her modesty’, ’Kidnapping & Abduction of women, and ‘Rape’. The crime rate per lakh women population was 58.8 in 2018, as compared to 57.9 in 2017.[6] RAPE: disturbing incidents of rape on senior citizens and infants are more and more. The incidence of rape…

Criminal Law

Socio-Economic Offences in Indian Constitutional Act

Mahatma Gandhi once said that God provided us with sufficient to fulfil our needs but not enough to satisfy our greed. Socio-economic offences are one step towards this greed. Socio-economic offence is spreading like a cancer in the nation which impacts the society from poor to the rich. As we all know everyone wants to become rich to richer by hook and crook in today’s modern world. These offences are not a part of traditional crimes which is very much clear from the characteristics itself in this blog. To overcome this problem Government of India takes many steps from time to time like appointing committees and law commissions to suggest legal as well as administrative measures. This does not end here government also trying to identify these offences by dividing them into categories. In virtue of this, we understand the need to include these offences in our legal system by a few amendments and enactments.  Introduction In The World, many socio-economic offences are rampant nowadays is one of the hidden crimes in the World which is evolving in different types in every country. There are fairly few new sets of Socio-Economic Offences coming into light in our country i.e., ‘INDIA’. With the advancement of technology and the changing needs of society, everyone become a part of one race to become richer to richest in days. These offences are classified under the non-conventional offences in which the mens rea is not an essential element of crime. These crimes have an impact on society socially as well as economically. It never pins point any individual rather it targets a large number of people at once.  In the words of Sutherland, it is a white-collar crime. This type of offence has spread in the world at a large scale as the gravity of these kinds of offences is severe in view of the fact that it harms society at large.   There is another type of crime termed ‘white collar crimes’ which overlaps the concept of socio-economic offences. But there is a difference between these two as in the case of white-collar crime it is a prerequisite that there must be a relation between offence and occupation moreover it is committed by people of the upper class, but these two conditions are not necessary for socio-economic offences in virtue of which we can say socio-economic offences and white collar crime both are not in the context of scope. White-collar crimes have a narrower scope than socio-economic offences. Growth of Socio-Economic Offence  Development of socio-economic offences was divided into three phases i.e. During the British period, after independence and during industrialisation. The first phase came into existence when the Britisher ruled after the Mughals which caused drastic changes in the economy of the nation along with westernisation. The second phase witnessed a period of partition which impacted the social and economic structure of the country which is well known to everyone. The third main phase deals with the main causes of socio-economic offences which are: –  Causes of Socio-Economic Offence Important To Include Socio-Economic Offence  The Indian Penal Code, of 1860 did not fulfil the needs of society to the extent of the present changing society as it changes too fast in connection with socio-economic offences. In addition to this Indian  Penal Code is not particularly satisfactory in matters of socio-economic offences in regard to the circumstances these crimes are committed. we need to add socio-economic offences and laws about it for the betterment of society as per the changing needs of society.   How To Determine Socio-Economic Offences  Government Repose After seeing this alarming increase in socio-economic offences there is a need to curb this  problem, for the government of India took steps as follows:  The Santhanam Committee Report,1964  In 1962, Lal Bahadur Sastri appointed Santhanam to preside over the committee on anti-corruption. Because of its thorough investigative work and recommendations, the  Committee earned a reputation as Santhanam’s Committee on Anti-Corruption. In his ‘Code of Conduct for persons in power, authority or positions of trust in our country’, he explicitly included ministers and members of Parliament and state legislatures. There should be no use of position for personal or family advantage; no actions motivated by considerations of party, religion, caste, or community; no unofficial dealings with businessmen or hospitality or gifts accepted from them or other private persons. Wanchoo Committee Report, 1970  In 1970, the government appointed this committee to analyse serious problems like black marketing, international smuggling and hoarding along with their impact on society. This committee in its report gave many suggestions which were implemented in the form of new laws example: the Foreign Exchange and Prevention of Smuggling Act, of 1974.  Malimath Committee  In 2003 this committee was appointed which suggests government that we need to add social stigma along with increasing punishment in the Indian Penal Code.   29th Law Commission Report  This report rejected the recommendations of the Santhanam Committee after considering them. In the opinion of this commission, the Indian Penal Code does not satisfactorily deal with socio-economic offences due to its dominating characteristics which become a strong part of society day by day.  So in virtue of this government need to add a new separate chapter in the Indian Penal Code which deals with these type of offences.  47th Law Commission Report  This Commission Report plays a vital role in identifying the Socio-Economic Offences as this committee divides them into categories.   Different Category of Socio-Economic Offences  According to the Law Commission Report, this is divided into eight categories which are as follows:  i. Evasion and avoidance of lawfully imposed taxes which is dealt with by the Income Tax Act, of 1961.  ii. Offence calculated to prevent or obstruct the economic development of the country and endanger its economic health.  iii. Delivery by individuals and industrial and commercial undertakings of goods not in accordance with contract which results in breach of contracts.  iv. Adulteration of food products and drugs.  v. Profiteering, Black Marketing and Hoardings.  vi. Corruption by misuse…

Criminal Law