Month: October 2012

Liability for Criminal Omission

 Scope of liability of Criminal Omission:

Failure to act when required by law, is an act of criminal omission. It is a strict liability if specifically punishable by a law. However no omission can be presumed as criminal omission, especially if the relevant statute did not provide for the consequences of such criminal omission.

Indian Penal code 1860 vide Sections 32 and 35 provide for criminal liability in respect of certain Omissions:

The section 32 and 35 of Penal Code are as under:

32. Words referring to acts include illegal omissions.: In every part of this Code, except where a contrary intention appears from the context, words which refer to acts done extend also to illegal omissions.

35. When such an act is criminal by reason of its being done with a criminal knowledge or intention.: Whenever an act, which is criminal only by reason of its being done with a criminal knowledge or intention, is done by several persons, each of such persons who joins in the act with such knowledge or intention is liable for the act in the same manner as if the act were done by him alone with that knowledge or intention.

Legal compulsion required to constitute criminal omission:

The law in India as regards illegal omissions has been explained in Ambika Prasad v. Emperor and Anna v. State of Hyderabad AIR 1956 Hyd 99. There must be a legal compulsion to do an act and the failure to perform such an act would result in illegal omission. Not any and every omission to perform an act would result in a criminal liability. A reference may be made to the decisions in Queen v. Anthony Udyan (1883) ILR 6 Mad 280 and Basharat v. Emperor AIR 1934 Lahore 813. These provisions will have to be strictly construed. Otherwise each and every omission can attract criminal liability.
[Source: Delhi High Court  speaking through S Muralidhar, J. in on 29 May, 2008 in Avnish Bajaj v State.]
Thus every omission to act is not criminal omission.

Right of accused to receive legal aid

Legal aid to a Terrorist:

Mumbai Terror Attack:

A sinister conspiracy was hatched in Pakistan and in furtherance of that conspiracy a savage attack was unleashed on Mumbai by a team of ten terrorists, including Kasab, who landed on the city’s shores via the Arabian Sea. The attack began on November 26, 2008 at about 9.15 PM and it ended when the last of the attackers, who was holed up in Hotel Taj Mahal Palace, was killed by Indian security forces at about 9.00 AM on November 29. The brutal assault left Mumbai scarred and traumatized and the entire country shocked. The terrorists killed one hundred and sixty-six (166) people and injured, often grievously, two hundred and thirty-eight (238) people.[1] The loss to property resulting from the terrorist attack was assessed at over Rupees one hundred and fifty crores (Rs. 150 Cr.). The dead included eighteen (18) policemen and other security personnel and twenty-six (26) foreign nationals. The injured included thirty-seven (37) policemen and other security personnel and twenty-one (21) foreign nationals. Of those dead, at least seven (7) were killed by the appellant personally, seventy-two (72) were killed by him in furtherance of the common intention he shared with one Abu Ismail (deceased accused no.1) and the rest were victims of the conspiracy to which he was a party along with the nine (9) dead accused and thirty-five (35) other accused who remain to be apprehended and brought to court.

To deal with one terrorist, we cannot take away the right given to the indigent and under-privileged people of this country:

We, therefore, have no hesitation in holding that the right to access to legal aid, to consult and to be defended by a legal practitioner, arises when a person arrested in connection with a cognizable offence is first produced before a magistrate. We, accordingly, hold that it is the duty and obligation of the magistrate before whom a person accused of committing a cognizable offence is first produced to make him fully aware that it is his right to consult and be defended by a legal practitioner and, in case he has no means to engage a lawyer of his choice, that one would be provided to him from legal aid at the expense of the State. Continue reading “Right of accused to receive legal aid” →