IPC 420

420.

Cheating and dishonestly inducing delivery of property.

420. Cheating and dishonestly inducing delivery of property.--

Whoever cheats and thereby dishonestly induces the person deceived to

deliver any property to any person, or to make, alter or destroy the

whole or any part of a valuable security, or anything which is signed

or sealed, and which is capable of being converted into a valuable

security, shall be punished with imprisonment of either description

for a term which may extend to seven years, and shall also be liable

to fine.

Of fraudulent deeds and dispositions of property

Criminal breach of trust by public servant, or by banker, merchant or agent.

409. Criminal breach of trust by public servant, or by banker,

merchant or agent.--Whoever, being in any manner entrusted with

property, or with any dominion over property in his capacity of a

public servant or in the way of his business as a banker, merchant,

factor, broker, attorney or agent, commits criminal breach of trust in

respect of that property, shall be punished with 1*[imprisonment

for life], or with imprisonment of either description for a term which

may extend to ten years, and shall also be liable to fine.

Criminal Mis-conduct Cases

This offence is analogous to the offence under Sec.409 IPC. However, whereas under Sec.409 IPC, a public servant is guilty only if he commits the criminal breach of trust himself, under this clause, he is guilty whether he himself misappropriates or allows any other person to misappropriate property entrusted to him in his official capacity. Another difference between the two offences is that while under Sec.409 IPC, the punishments may extend up to 10 years, under this clause the punishment extends up to 7 years alone and under the former provision no minimum sentence is prescribed but under the latter a minimum imprisonment of 1 year is stipulated. Yet another difference is that for prosecution for an offence under this clause, sanction of the competent authority is required, but not under sec.409 IPC.

In cases, which fall both under sec.409 IPC and under this clause, the public servant may be proceeded against under the I.P.C. or the P.C.Act as considered appropriate in each case or under both the provisions. The gravity of the offence and other relevant matters will have to be taken into consideration in exercising the discretion. In such cases, where the public servant is prosecuted under the P.C.Act alone, a question arises whether on his acquittal of that charge, the public servant can be tried under Sec.409 IPC. The Supreme Court held that there can be no bar to a trial and conviction under Sec.409 IPC after the acquittal of the accused or an offence under this clause.

Under this clause, it is an offence of criminal misconduct if a public servant: I) obtains for himself or for any other person any valuable thing or pecuniary advantage by corrupt or illegal means; ii) Obtains for himself or for any other person any valuable thing or pecuniary advantage by abusing his official position; or iii) obtains for any person any valuable thing or pecuniary advantage without any public interest while holding office as public servant.

On receipt of a complaint from the administrative department, the Anti-Corruption Bureau takes up a "Discreet Enquiry". If a prima facie case is established during the "Discreet Enquiry" either in whole or in respect of a few of the allegations, the Anti-Corruption Bureau will convert the discreet enquiry into a "Regular Enquiry" under intimation to the department concerned without having to complete the enquiry on all the allegations. If a cognizable offence is made out during the Discreet or Regular Enquiry, the Anti-Corruption Bureau registers the case under section 154 of the Criminal Procedure Code as a "Registered Case" under intimation to the department concerned and takes up formal investigation.

In a "Discreet Enquiry", preliminary enquiries are made to find out the truth or otherwise of the allegations maintaining secrecy. In the Regular Enquiry, detailed open enquiries are conducted. Statements of witnesses are recorded and the suspect Government servant is given an opportunity to explain the circumstances appearing against him. In a Registered case, formal investigation is conducted as per the provisions of law.

Information about corruption, misconduct or malpractices on the part of Government servants comes to light from various sources such as: I) Complaints received by an administrative authority; ii) Complaints received by the Vigilance Commission; iii) Complaints received and intelligence gathered by the Anti-Corruption Bureau; iv) Departmental inspection and stock verification reports: v) Scrutiny of annual property statements; vi) Scrutiny of transactions reported under the conduct Rules; vii) Irregularities in accounts revealed in the routine audit of accounts, such as tampering with records, over-payments, misappropriation of money, materials etc., viii) Audit reports on Government accounts and on the accounts of public undertakings, corporate bodies etc; ix) Reports of Estimates Committee, Public Accounts Committee and Committee on Public Undertakings; x) Proceedings of the State Legislature; xi) Complaints and allegations appearing in the Press: xii) Income Tax raids etc., The manner in which complaints should be dealt with has been elaborately explained in Chapter II. Information gathered from reports, returns, newspapers etc., may be considered as if they are complaints and dealt with in the same way as letters of complaint. Apart from information gathered from outside sources, the Chief Vigilance Officer should devise and adopt such other methods as he may consider appropriate and fruitful in the context of the nature of work handled in his organization for collecting information about any possible malpractices and misconduct among the employees of his organization. Information gathered in such a manner should also be reduced to writing and registered in the Vigilance Complaints Register at a suitable stage. The matters in which the Vigilance Commission should be consulted during the course of inquiry and investigation has been elaborately dealt with in the relevant paragraphs of this Manual. The Anti-Corruption Bureau has full powers of collecting source information against all categories of officers at all levels (Memo No.163/SC.E/83-2 G.A(SC.D)Dept. dt.30-3-83.) Securing of source information’s should receive utmost importance and top priority as it depends on in no small measure the success of the anti-corruption drive of the Bureau. Officers of the Bureau, Investigating Officers in particular, should develop effective intelligence system and set up sources and collect fruitful information of corruption in high places in notoriously corrupt departments and public sector undertakings. Particular attention should be paid in securing information for laying of traps and registration of cases of disproportionate assets. They should take prompt notice of allegations of corruption published in the local press and pamphlets, besides information from other sources mentioned above. Great care should be taken to see that they do not become instruments in the hands of unscrupulous elements out to malign honest public servants and bring them to trouble. Utmost secrecy should be maintained and at no time should the name of the informant be disclosed.

Disproportionate Assets Cases

Information secured of possession of disproportionate assets should be developed by means of secret verification without taking up a formal enquiry in a Discreet Enquiry or a Regular Enquiry, to maintain utmost secrecy up to the point of conducting searches. When tangible data, required material and information are available, a Registered case should be taken up straight and simultaneous searches conducted of all places on the same day or immediately thereafter as the first step in the investigation. A case may arise as an outcome of search conducted in the course of a trap, in which event the necessary verification can be done in the trap case itself, before a separate case of disproportionate assets is registered.

The public servant commits the offence, if at any time during the period of his office he is in possession of pecuniary resources and property (assets) disproportionate to his known sources of income. A suitable date, any day during the period of service, is chosen, the date of searches being most convenient for this purpose. The public servant commits the offence, if it is established that as on this date, the assets in his possession are disproportionate to his known sources of income. It is called the "date of check". The period immediately preceding the date of check is the "period of check". It could be the entire period of service or even a part of it. The value of assets in possession of the public servant as on the "date of commencement of the period of check" is worked out. The total” savings" during the period of check are arrived at by deducting the total expenditure from the total income. The assets of which the accused public servant is in possession on the date of check are held to be disproportionate if their value exceeds the savings (taking into account the assets in his possession as on the date of commencement of the period of check), the degree of disproportion depending on the extent to which the assets are in excess.

The total value of the "assets" of which the public servant is in possession as on the date of check is worked out. The total "income" from all sources earned by the public servant and the total "expenditure" incurred on all items during the period of check are worked out.

section 420

Section 420 IPC does not define Cheating it only provides punishment for cheating. Section 415 IPC defines cheating as >>>>
Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".

Explanation. A dishonest concealment of facts is deception within the meaning of this section.


Illustrations



(a) A, by falsely pretending to be in the Civil Service, intentionally deceives Z, and thus dishonestly induces Z to let him have on credit goods for which he does not mean to pay. A cheats.

(b) A, by putting a counterfeit make on an article, intentionally deceives Z into a belief that this article was made by a certain celebrated manufacturer, and thus dishonestly induces Z to buy and pay for the article. A cheats.

(c) A, by exhibiting to Z a false sample of an article, intentionally deceives Z into believer that the article corresponds with the sample, and thereby, dishonestly induces Z to buy and pay for the article. A cheats.

(d) A, by tendering in payment for an article a bill on a house with which A keeps on money, and by which A expects that the will be dishonored, intentionally deceives Z, and thereby dishonestly induces Z to deliver the article, intending not to pay for it. A cheats.

(e) A, by pledging as diamonds article which he knows are not diamonds, intentionally deceives Z, and thereby dishonestly induces Z to lend money. A cheats.

(f) A intentionally deceives Z into a belief that A means to repay any money that Z may led to him and thereby dishonestly induces Z to lend him money. A not intending to repay it A cheats.

(g) A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver and thereby dishonestly induces Z to advance money upon the faith of such deliver. A cheats; but if A, at the of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract.

(h) A intentionally deceives Z into a belief that A has performed A's part of a contract made with Z, which he has not performed, and thereby dishonestly induces Z to pay money. A cheats.

(i) A sells and coveys an estate to B.A, knowing that in consequence of such sale he has no right to the property, sells or mortgages the same to Z, without disclosing the fact of the previous sale and conveyance to B, and receives the purchase or mortgage money for Z. A cheats.


Section 420 IPC states punishment for cheating and dishonestly inducing delivery of property
>>>>>



Whoever cheats and thereby dishonestly induces the person deceived any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
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ANTICIPATORY BAIL

Anticipatory bail In simple terms "Anticipatory bail" means, "bail in anticipation of arrest". Section 438 of Criminal Procedure Code states as follows;

1. When any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence, he may apply to the High Court or the Court of Session for a direction under this section, and that Court may, if it thinks fit, direct that in the event of such arrest he shall be released on bail.

2. When the High Court or the Court of Sessions makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including-
(a) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(b) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(c) a condition that the person shall not leave India without the previous permission of the Court.
(d) such other condition as may be imposed.

If such person is thereafter arrested without warrant by an officer-in-charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail. If a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court.

It should be noted that where the High Court or Court of Sessions has not passed any interim order under this section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.

The anticipatory bail can not be granted after a Magistrate has issued warrant. The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.

Anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration the Court granting anticipatory bail should leave it to the regular Court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted.

Anticipatory bail can not be granted in all cases as a matter of course. The exercise of power has to be invoked in exceptional case only. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free and full investigation and there should be prevention of harassment and unjustified detention of the accused.

Anticipatory bail can not be granted as a matter of right. Applicant can approach High Court for grant of anticipatory bail even if his application is rejected by the Court of Sessions, but not vice versa. Where a matter of dowry death is under investigation it is not prudent for High Court to grant anticipatory bail. If the application for anticipatory bail is rejected the second application is not barred.

Books referred: Code of Criminal Procedure, 1973.

anticipatory bail

“Bail before Jail” – Then & Now
Shantimal Jain, Vice President [P], Rajasthan Textile Mills, Bhawanimandi,
Rajasthan.
“In a barbaric society you can hardly ask for bail, in a civilized society you can hardly refuse
it”. The bail is a rule and refusal is an exception.
The provisions of anticipatory bail incorporated the legislature’s intention to protect the
citizen from unscrupulous persons, who use the weapon of arrest either for getting civil
dispute settled or for black-mailing the so made accused by maneuvering matters. As the
Supreme Court observed in Kishore Chand v. State of H.P. (1991) I SCC 286 that a sincere and
honest investigation has to be made and to feel sure that the person suspected of the crime
alone was responsible to commit the offence. Indulging in free fabrication of the record is a
deplorable conduct on the part of the investigating officer, which undermines the public
confidence, reposed in the investigating agency. It is time that the investigating agencies
adopt new and scientific methods.
In the Code of Criminal Procedure, 1898, there existed no provision for anticipatory bail. The
judicial opinions were sharply divided whether courts possessed such a power in the absence
of express provision in that respect. The majority verdict maintained that there was no such
power. Wharton Law Lexicon explains “bail” as to set at liberty a person arrested or imprisoned,
on security being taken for his appearance. Thus bail is basically release from restraint, more
particularly from the custody of Police. The distinction between an ordinary order of bail and
an order under Section 438 of the Code is that whereas the former is granted after arrest, the
latter is granted in anticipation of arrest.
It was first brought into being under Section 438 of the Code of Criminal Procedure, 1973
which came into force on April 1, 1974. The Law Commission in its 41st report observed –
“The necessity of granting anticipatory bail arises mainly because sometimes influential
persons try to implicate their rivals in false cases for the purpose of disgracing them or for
other purposes by getting them detained in Jail for some days. In recent times, with the
accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from
false cases, where there are reasonable grounds for holding that a person accused of an offence
is not likely to abscond or otherwise misuse this liberty while on bail, there seems no
justification to require him first to submit to custody, remain in prison for some time and then
apply for bail”. The power was to be given to superior courts. It was felt to be entrusted to such
courts because they posses greater jurisprudential vision. Under Section 438 of the Code, the
High Courts and Courts of Session could grant anticipatory bail to any one who has reason to
believe that he may be arrested on accusation of having committed a non-bailable offence.
New dimensions were added to the provision of bail; and new horizons were opened. It
widened the powers of the superior courts. The provision for anticipatory bail was meant for
non-bailable offences. The provision of anticipatory bail was in that nature. It only originated
in Indian Judicial mind. It was in consonance with our commitment to individual liberty,
which implied scrutiny of every action of the investigating agency to provide effective check
against arbitrariness and abuse of such power.
In a landmark judgement of Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565 the Apex
Court has made very pertinent observations on the entire anatomy of this concept when it
held that “An anticipatory bail is a pre-arrest legal process which directs that if the person in
whose favour it is issued is thereafter arrested on the accusation in respect of which the
Anticipatory bail provisions
contained in the Code of
Criminal Procedure, 1973
have been amended in 2005,
diluting the rigour of the
provisions considerably. Why
such dilution is not justified,
or warranted, is what this
article seeks to explain.
Articles
direction is issued, he shall be released on bail. The distinction
between an ordinary order of bail and an order of anticipatory
bail is that whereas the former is granted after arrest and therefore
means release from the custody of the police, the latter is granted
in anticipation of arrest and is, therefore, effective at the very
moment of arrest. A direction under Section 438 is therefore
intended to confer conditional immunity from the ‘touch’ or
confinement contemplated by Section 46 of the Code.
In order to meet the challenge of Article 21 of the Constitution,
the procedure established by law for depriving a person of his
liberty must be fair, just and reasonable. Section 438 is a procedural
provision, which is concerned with the personal liberty of the
individual, who is entitled to the benefit of the presumption of
innocence since he is not, on the date of his application for
anticipatory bail, convicted of the offence in respect of which he
seeks bail.
Since denial of bail amounts to deprivation of personal liberty,
the court should lean against the imposition of unnecessary
restrictions on the scope of Section 438, especially when not
imposed by the legislature. An over-generous infusion of
constraints and conditions, which are not to be found in Section
438, can make its provisions constitutionally vulnerable since
the right to personal freedom cannot be made to depend on
compliance with unreasonable restrictions. The beneficent
provision contained in Section 438 must be saved, not
jettisoned.
Very recently the Apex Court in the case of Naresh Kumar Yadav v.
Ravindra Kumar & Ors. 2008 (1) RLW 899 (SC) has bended the law
on the anticipatory bail by defining certain parameters for the
grant of anticipatory bail. It has held that power to grant should
be exercised in exceptional cases and that anticipatory bail should
be granted for limited duration only otherwise provisions for
regular bail after arrest under section 439 would be rendered
redundant. The person applying for anticipatory bail must show
that he has reason to believe that he may be arrested in a nonbailable
offence.
This belief must be founded on reasonable grounds. Mere “fear”
is not “belief”. It is also correct that section 438 is a device to
secure the individual liberty but then it is neither a passport to
the commission of crimes nor a shield against any and all kind of
accusations likely or unlikely. The order for the continuance of
the bail order should fix some outer date so that the applicant
does not have a blanket order that whenever he is arrested for
whichever offence should be released on bail. The protective
umbrella of Section 438 should not be extended beyond and
without limit of time otherwise the result would be clear
bypassing of what is mandated in Section 438. In Naresh Kumar
Yadav’s case the court also referred to the cases of Salauddin
Abdulsamad Shaikh v. State of Maharashtra AIR 1996 SC 1042, Nirmal
Jeet Kaur v. State of MP (2004) 7 SCC 558, Sunita Devi v. State of Bihar
(Criminal Appeal arising out of SLP Cr. No. 4601 of 2003) and
Niranjan Singh v. Prabhakar Rajaram Kharote AIR 1980 SC 785.
It may be relevant to refer here the recent case of Som Mittal v.
State of Karnataka 2008 (65) AIC 187 (SC) wherein some aspects of
“bail” provisions have been highlighted. The matter related to
the State of UP where the provision of anticipatory bail did not
exist. In this case the Supreme Court liberalised the provisions
of Section 439 relating to regular bail. The Apex court referred
to the cases of Jogendra Kumar v. State of UP and others AIR 1964
SC 1349 and the case of Smt. Amravati & another v. State of UP 2005
Cr. LJ 755. This case contains the decision of the Seven Judges
Full Bench of Allahabad High Court. In these two cases it has
been held that Sessions Judge while considering a bail
application under Section 439 Cr. PC could grant interim bail
till final disposal of the bail application subsequently so that
innocent persons are enabled to avoid going to jail pending
consideration of their bail application. In Joginder Singh’s case,
it has been ruled that no arrest should be made because it is
lawful for the Police Officer to do so. The existence of power to
arrest is one thing and justification for the exercise of it is quite
another. The Police Officer must be able to justify the arrest
apart from its power to do so. The arrest and detention in Police
lock up of a person can cause an incalculable harm to his
reputation. No arrest should be made in a routine manner on a
mere allegation of commission of a cognizable offence made
against a person. The concept of interim bail has been
recognized and given effect to. It is a welcome sign so far liberty
of a person is concerned.
Inspite of the aforesaid enunciated cannons on the provisions of
anticipatory bail the same has been amended by the Code of
Criminal Procedure (Amendment) Act, 2005 which is reported to
have come into force on 23.6.2006. Accordingly amendment of
Section 438 sub-section (1) has been made and the following subsections
have been substituted namely –
“(1) Where any person has reason to believe that he may be
arrested on accusation of having committed a non-bailable
offence, he may apply to the High Court or the Court of Session
for a direction under this section that in the event of such
arrest he shall be released on bail; and that Court may, after
taking into consideration, inter alia, the following factors,
namely –
(i) the nature and gravity of the accusation;
(ii) The antecedents of the applicant including the fact as to
whether he has previously undergone imprisonment on
conviction by a Court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of
injuring or humiliating the applicant by having him so
arrested, either reject the application forthwith or issue
an interim order for the grant of anticipatory bail;
Provided that, where the High Court or, as the case may be,
the Court of Session, has not passed any interim order under
this sub-section or has rejected the application for grant of
“Bail before Jail” – Then & Now
Articles Articles
anticipatory bail, it shall be open to an officer in-charge of a
police station to arrest, without warrant, the applicant on the
basis of the accusation apprehended in such application.
(1-A) Where the Court grants an interim order under subsection
(1), it shall forthwith cause a notice being not less than
seven days notice, together with a copy of such order to be
served on the Public Prosecutor and the Superintendent of
Police, with a view to give the Public Prosecutor a reasonable
opportunity of being heard when the application shall be
finally heard by the Court.
(1-B) The presence of the applicant seeking anticipatory bail
shall be obligatory at the time of final hearing of the
application and passing of final order by the Court, if on an
application made to it by the Public Prosecutor, the Court
considers such presence necessary in the interest of justice”.
This Section has been amended to the effect that – (i) the power to
grant anticipatory bail should be exercised by the Court of Session
or High Court after taking into consideration certain circumstances;
(ii) if the Court does not reject the application for the grant of
anticipatory bail, and makes and interim order of bail, it should,
forthwith give notice to the Public Prosecutor and Superintendent
of Police and the question of bail would be re-examined in the
light of the respective contentions of the parties; and (iii) the
presence of the person seeking anticipatory bail in the Court should
be made mandatory at the time of hearing of the application for
the grant of anticipatory bail subject to certain exceptions.
A dispassionate examination of the salient features of the
amendment would reveal that the liberty of the citizen to be
freed under certain circumstances, is being curtailed considerably
i.e. in the first instance the anticipatory bail order is being split
up into two viz. interim and final. It has further been made
mandatory that in the event of the interim order being made on
the anticipatory bail application there shall forthwith be caused
a notice being not less than 7 days notice, together with a copy of
such order to be served on the Public Prosecutor and the
Superintendent of Police, with a view to give the Public Prosecutor
a reasonable opportunity of being heard when the application
would be heard by the court for final order. Earlier the granting
of anticipatory bail order was a complete umbrella against
arbitrary arrest except the legal conditions, which were there
attached with the bail order. Now if the interim bail order is
made it would only be a respite for 7 days or so. The interim
order would now be susceptible to being opposed, would afford
sufficient time to the Public Prosecutor and the Police to
maneuvering and fabricating things. It is now in essence an
antithesis of other concept of bail. Then again the presence of the
person seeking anticipatory bail in the court at the time of final
hearing would render the person vulnerable for immediate arrest
and the police would have a ready victim and such a person
would have no chance of avoiding indiscrimate arrest.
The entire metaphysics passes comprehension as to what were
the imperatives for incorporating these draconian conditions,
which would only encourage police atrocities because the police
would overawe the person who is required to be present in the
court. A person is entitled to the benefit of the presumption of
innocence, as he is not, on the date of his application for
anticipatory bail convicted of the offence in respect of which he
seeks bail and therefore there is no warrant for reading unto the
Section 438, the conditions and requirements subject to which
bail would be granted. In the circumstances the requirement of
interim and final order could not be envisaged in ordinary course.
It was earlier also there that notice was to be issued to Public
Prosecutor or the Government advocate and it could have been
re-examined in the light of respective contentions of the parties
so there was no specific need for incorporating these stringent
conditions and limiting the operation of the interim order in
relation to a period of time. It negates the entire purpose for
which this provision was originally brought on the statute book.
It is therefore felt that this amendment would generate much
resentment and would defeat the purpose of the section.
In the present vitiated, polluted and contaminated political
atmosphere, it has become a fashion to revenge the adversary by
implicating him into false and fabricated cases and involving
big-wigs in many a time unfounded rackets and these practices
are nearing flash point. It is therefore necessary that provisions
of anticipatory bail should be liberalized. 􀂉
“Bail before Jail” – Then & Now