By Nisman Parpia-
We are familiar with the word ‘illegal’ in our day to day language, it means something which is not authorized by law, an act which goes against the law, breaks rules and is forbidden by a statute or a governing body, example- robbing a bank. There are different punishments enlisted in the IPC for these illegal activities.
As human beings, we do help each other in some way or the other, but can law punish us for not helping each other? The answer is no. An individual does have a legal bindingness or obligation to do certain acts, but omission of such acts does not make him or her a criminal.
Section 43 of the indian penal code, 1860 says that the word “illegal” applies to each and everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action; and a person is said to be “legally bound to do” whatever it is illegal in him to omit.
“Illegal”
The word ‘illegal’ has been given a very wide meaning under this section.
- Firstly, everything which is an offence is illegal. Offence here has the same meaning as given in section 40 of the Code which says offence denotes a thing punishable under this particular Code, or under any special or local law.
- Secondly, everything which is prohibited by law is illegal which includes that this prohibition should be under some law.
- Any other kind of prohibition does not make an act illegal within the meaning and scope of this section. Eg: Breach of a departmental order, is not considered as illegal as the same is not covered under the expression ‘prohibited by law’. Similarly, refusing to perform acts like charity or an act of mercy is not illegal if the same is not prohibited by law.
- Thirdly, everything which furnishes ground for a civil action is termed as illegal. Consequently, if someone does something for which an action can be brought in the Civil Court, his act is illegal under this section. Therefore, a breach of contract or a breach of trust is ‘illegal’ under this section since the same grants a ground for a civil action.
“Legally Bound To DO”
The expression ‘legally bound to do’ means whatever is illegal in one to miss out or omit. The word ‘illegal’ used in this sense has the same meaning as given above. Hence, any omission on the part of someone which would make it an illegal omission, is such an act which he is legally bound to do.
CASE LAW-
In Mailsami v. State[1] , the Madras High Court held that sexual intercourse between two unmarried persons with consent does not amount to an illegal act under section 43 of the Code.
The first law commission declared that there is no difference between illegal and unlawful. Although, in other laws, Illegal means something that is prohibited by law and can be punishable by law. An act can be called Unlawful when it is not supported by law but it may not be necessarily punishable by the law.
For instance, considering section 25 to 30 of the Indian Contract Act, 1872, the expression ‘legally bound to do’ in it means whatever it is illegal in one to omit[2]. Therefore, any omission on the part of someone which would make it an illegal omission is such an act which he is legally bound to do. For example, the person is said to legally bound to do when he has to perform a duty which has been imposed upon him by the law such as to provide food, clothing, shelter or medical aid to minor children, wife, and aged parents under section 125 of Criminal Procedure Code, 1973 if he fails to do so, then such an act would fall within the scope of being illegal. But if a person omits to do any duty which the law does not Impose upon him but he considers it as his moral duty then omission to do that act will not be illegal.
For instance, to give charity in the form of food or money to the poor and needy persons is not the legal duty but only the moral duty and if the person does not help the poor then in that case it cannot be termed as illegal.
The word illegal is prefixed before the word omission, since omission is not sufficient to prove criminal liability. Omission should be an illegal omission as the burden of proof lies on the prosecution.
In West Africa Kwaku Menah v. King, Lord Goddard mentioned that if on the whole of the evidence there stands a question whether or not the offence might be manslaughter only, on the ground of provocation as well as on any other ground, the judge must put that question to the jury. Thus critically analyzing the ingredients of the section.
In the case of Central Bureau of Investigation vs. Mulangi Krishnaswamy Ashok Kumar and Ors[3] , It was argued that the word “or” as used in section 43 clearly illustrates that each ingredient is a separate and independent ingredient, by itself. Thus it is not necessary that what must furnish ground for a civil action must also be an offence or must be prohibited by the law.
In that case, the opposing party argued that the Legislature need not have used the words “or” in between the three elements at all. It would have been simple for the Legislature to use the word “and” in order to provide words to the effect of furnishing ground for a civil action in cases resulting from acts which are an offence are forbidden by law. Also it is not mandatory that everything which is prohibited by law is an offence.
In the case of Zeenath vs Kadeeja[4] The learned Counsel for the petitioner states that though the expression “unlawful” is not defined in the Cr.P.C. or the IPC there is a definition mentioned of the expression “illegal” in Section 43 of the IPC.
The Counsel contended that the legal expression “illegal” and “unlawful” must be understood, assumed and reckoned as to convey an equivalent idea or concept and therefore the definition of the expression “illegal” in Section 43 of the IPC must be applied to understand the sweep and width of the expression “unlawful” in Section 98.
CONCLUSION
The main factor distinguishing illegal and legally bound to do is punishment and heinousness of the situation.
The expression “illegal” and “unlawful” are used synonymously and convey the same idea in language whether it is ordinary sense or legal. But when a statute employs an expression with purpose of conveying a special meaning and with the said purpose defines the expression in such statute as the expression “illegal” is defined in Section 43 of the IPC, such meaning is to be ascertained for that expression specially and specifically for such a statute and for the purpose of such statute.
Merely because two expressions mean the same ordinarily in language and law both , it cannot be held to possess the same meaning when one among them is specially and specifically defined, stated and explained in one statute.
Hence, the argument that the definition of the expression “illegal” in Section 43 of the IPC must straightaway be mechanically imported into Section 98 of the Cr.P.C. when we take into consideration, the depth, ambit and play of the expression “unlawful” in Section 98 of the Cr.P.C.
References-
- 1994 CriLJ 2238 ↑
- Bare Acts Indian Penal Code, 1860 ↑
- 1999 (3) BomCR 189 ↑
- 2007 CriLJ 600, 2006 (4) KLT 905 ↑