The article is written by Ansruta Debnath, a law student of National Law University Odisha. This article is an attempt to define the legal nitty-gritty of Section 326, 326-A and 326-B of the Indian Penal Code.
Section 326 of the Indian Penal Code, 1860 is all about grievous hurt caused by weapons. Further, Section 326-A and 326-B is the law against acid attacks. But grievous hurt is quite a narrow term as defined by Indian law. Thus, in many cases, the courts must determine whether a certain hurt is simple or grievous on a case-to-case basis. This article explores the language used in Sections 326, 326-A and 326-B, the type of offences they are, certain case laws and the amendments to these sections, to get a holistic understanding of what exactly these sections criminalize.
Decoding Section 326 IPC
Section 326 of the Indian Penal Code criminalises the act that involves voluntarily causing grievous hurt by dangerous weapons or means. Using any instrument or weapon for shooting, stabbing, cutting or doing anything else which is likely to cause death will be considered as part of the section. Further, grievous hurt by fire or any heated substance, poison or corrosive substance or any explosive which the victim is made to inhale, swallow or is transferred directly into the victim’s blood or by any kind of animal also comes under this section.
The punishment prescribed under Section 326 of the Penal Code is imprisonment for life or imprisonment for a term which might extend up to ten years as well as liability for fine. Up till 1955, in place of “imprisonment for life” the terms “transportation for life” was present. However, by Act 26 of 1955 i.e., Code of Criminal Procedure (Amendment) Act, 1955, the words were substituted.
Transportation for life was a form of punishment that involved exile or banishment of the convict to a pre-determined locality for the duration of their natural life. This was a type of penalty that was often imposed in the Indian colonial era to deport Indian nationalists. After independence, by the 1955 Amendment Act, this method of punishment was removed by insertion of Section 53A in the Penal Code, which stated that “transportation for life” would henceforth mean “imprisonment for life”.
Having talked about what this Section says, this author would like to analyse the wordings of the same through the following observations-
- Section 326 starts by “Whoever, except in the case provided for by Section 335…”. Section 335, thus, is the only exception to Section 326. The former reduces the punishment for grievous hurt if the following conditions are fulfilled-
Voluntarily causing grievous hurt on provocation
Thus, any person causing grievous hurt voluntarily but on provocation comes under Section 335. Herein, the punishment for voluntarily causing grievous hurt, which is still a crime, is somewhat mitigated as the fact that the accused was provoked is taken into account. In the case of Dalip Singh and Ors. v. State of Haryana (2008), the facts involved a petty altercation between the parties on an issue, but there was no prior enmity between them. The accused later asked the victim to come to a panchayat meeting the next day to resolve the issue and had no intention to hurt the victim. But, during the meeting, the offence was committed during a heated exchange of words. The Punjab and Haryana High Court opined that there was no sudden provocation by the victim and thus, the accused could not come under Section 335.
Without the knowledge or intention that such an action is likely to cause grievous hurt
An important element of Section 326 is that the grievous hurt caused must be done to cause hurt and with the knowledge of the consequences of the hurt. But, in certain instances, in a fit of rage, people might end up hurting someone to an extent they did not mean to. For those cases, to protect and mitigate the punishment of the accused, this provision is important. In Ahmed Ali v. State of Tripura (2009), the Supreme Court reduced the punishment of the accused to three months’ rigorous imprisonment from four years, while keeping the fine intact. It was held that because the accused was of a “tender age” during the commission of the offence and the accused was ignorant of the repercussions of his actions, the reduction of sentence was justified.
- The next thing that must be understood is ‘grievous hurt’. The same is defined in Section 320 of the Penal Code of 1860. The ambit of Section 320 is quite narrow and in Mathai v. State of Kerala (2005), the Supreme Court held that the clauses of this Section must be strictly constructed and interpreted. The following kinds of hurt are considered to be ‘grievous’ in nature:
- Emasculation, or castration which involves injury to or removal of male genitalia
- Permanent loss of eyesight of either eye
- Permanent loss of hearing of either ear
- Loss of a limb or joint
- Destruction or permanent impairing of the powers of any limb or joint
- Permanent disfiguration of the head or face
- Fracture or dislocation of a bone or tooth
- Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
- In the case of State of Karnataka v. Siddegowda and Anr. (1995), the injury caused by a sharp-edged instrument to muscle nerves was said to be a simple hurt and not a grievous one. On the other hand, injury to the forehead with an axe was considered to be within Section 326 in A.C. Gangadhar v. State of Karnataka, (1998) and the punishment prescribed for one year of rigorous imprisonment was held to be justified.
- In the case of Omanakuttan v. State of Kerala (2019), the Supreme Court was hearing a Special Leave Petition with regards to this issue. The accused had, in the year 1997, poured acid over the victim who the former hated. Apart from the pain and the scars, the victim also was unable to perform any everyday function. The Court held that the punishment awarded to him, being of simple imprisonment for a term of one year and a fine of Rs. 5,000/- with default stipulation, was rather inadequate than excessive. It upheld the punishment but refrained from increasing the sentence.
- Section 326 is often used with the conjunction of Section 322 and 325. Section 322 talks about voluntarily causing grievous hurt while 325 prescribes the punishment for the same. The difference between these two sections and Section 326 is that the latter punishes voluntarily causing grievous hurt by dangerous weapons or means. The punishment for causing grievous hurt is lesser than when the same is done using dangerous weapons or means.
State amendment by Madhya Pradesh
Criminal laws and procedural laws are part of the Concurrent List of the Seventh Schedule and thus states can also amend the Indian Penal Code, provided their amendment is not contradictory to the Centre, which will lead to the prevalence of the Central law.
Section 326 has been slightly amended by only one state, i.e., Madhya Pradesh. The amendment was done by Section 4 of the Madhya Pradesh Act 2 of 2008, which substituted “Magistrate of the First Class” with “Court of Session”. A Sessions Court judge is the highest court of trial for any criminal case within a district.
Classification of the offence
The offence under this section is cognizable, non-bailable, non-compoundable and triable by a Magistrate of first-class, the meaning of which is explained below.
- Cognizable offences: They are generally serious offences. The police or any other investigating officer can arrest the person accused of such an offence without acquiring a warrant from a Magistrate.
- Non-bailable offences: In non-bailable offences, bail is not a matter of right as is in the case of bailable offences. Thus, the grant of bail to the accused in cases of non-bailable offences depends completely on the discretion of the judge who is trying the relevant case.
- Non-compoundable offences: In cases of certain offences, generally minor ones, the judicial system of India allows compromises to be drawn between the accused and the victim to reach a conclusion without going through the hassle of a full-fledged criminal trial. Hence, in those cases, the offence is said to be compounded. But Section 326 is a non-compoundable offence, i.e., there must be a trial if a convincing case can be established against the accused.
- Triable by a First Class Magistrate: Magistrates in Group-A Category by status with judicial powers are called Magistrate of the First Class. The Magistrate of First Class is the second-lowest judicial authority in a district for trying criminal cases.
Acid attacks and insertion of 326-A and 326-B
Sections 326-A and 326-B were inserted after Section 326 with the passing of Act 13 of 2013 i.e., the Criminal Law (Amendment) Act, 2013. By way of Section 5 of the Amendment Act, Section 326-A and Section 326-B were inserted within the Indian Penal Code.
Section 326-A and 326-B were specifically inserted by the 2013 Amendment Act to control and prevent acid-attacks, a type of gender-based crime against women. A report conducted by Cornell University of Indian news reports determined that 72% of cases reported from January 2002 to October 2010 included at least one female victim. Further, the report stated that in India, a primary reason for these attacks was the rejection of sexual or marital proposals. Acid attack perpetrators do not usually intend to kill their victims, but to cause long-lasting physical damage and emotional trauma. Such attackers commonly aim at the face, neck, and upper body. In some cases, perpetrators throw acid at sexual and reproductive areas of the body. Even if the perpetrator does not intend to cause death, the injuries sustained by the victim may still result in death. Indeed, even if the attacker intends to disfigure the victim, for example, as retaliation for rejecting a marriage proposal or to create an unexpected burden for the victim’s family as revenge against the family, the victim may nonetheless die due to severe wounds inflicted during the acid attack. On the other hand, there are also cases in which the perpetrator has forced the victim to drink acid, suggesting that the perpetrator intended to kill the victim.
The changes in Indian laws came about when Lakshmi, an acid-attack victim filed a PIL in 2006 to the Supreme Court of India asking for stricter laws for the sale of acids and proper provisions in the Penal Code for the protection of the victims of acid attacks. During the pendency of the case, Lakshmi v Union of India and Ors (2015), the Penal Code was amended and the appropriate sections were inserted. To avoid acid assaults, the Supreme Court outlawed the counter-sale of the chemical unless the vendor kept a record of the buyer’s information. Dealers could only sell the chemical provided the buyer presented a government-issued picture ID card and stated the reason for the purchase. The Supreme Court also ruled that victims would receive full medical aid, and ordered both public and private hospitals to provide free medical treatment to such victims. A certificate would be supplied to the victims verifying their identity, and no hospital should break these regulations without first informing the police. It was also decided that the State will pay the victim a minimum of 3 lakhs in compensation for aftercare and rehabilitation expenditures.
In the State of Maharastra v. Ankur Narayanlal Panwar (2019), the accused was originally given a death sentence by the Sessions Court of Mumbai in 2016 for hurling acid at a woman who had rejected his marriage proposal. But in 2019, the Bombay High Court commuted the death sentence to life imprisonment.
The State of Karnataka by Jalahalli Police Station v. Joseph Rodrigues (2006) was another famous acid-attack case. This was a time when 326-A and 326-B had not yet been inserted into the Penal Code. The accused was convicted under Section 326 but on appeal by the State, he was given life imprisonment after being convicted under Section 307 for attempting to murder the victim.
Section 326-A IPC
While Section 326 mentions grievous hurt by poison or any corrosive substance, Section 326-A elaborates on this issue. It says that voluntarily throwing and administering acids with the knowledge that it will cause hurt and with the intention to cause hurt is within the purview of this section. Acids include any substance which has ‘acidic’ or ‘corrosive’ properties and can cause bodily injury, either through scars or disfigurement, or temporary or permanent disability. Further, for this Section to take effect, damage, either permanent or partial, must be caused to the victim of the acid attack. It is irrelevant if the damage caused is made reversible by medical treatment.
The punishment prescribed is minimum imprisonment of ten years which can extend to imprisonment for life as well as a fine. The fine should be just and reasonable to meet the medical expenses for the treatment of the victim. Further, the fine should be paid directly to the victim. In an acid attack case called State of Himachal Pradesh v. Vijay Kumar (2019), the two accused were initially directed by the Himachal Pradesh High Court to pay Rs. 25,000 in fine along with the punishment of five years rigorous imprisonment. The Supreme Court however held that no leniency could be shown towards the accused because the victim had suffered emotional distress as well as pain that could not be compensated by sentencing the accused or by any more compensation. Yet, it held that both the accused had to pay the victim Rs 1,50,000 additionally within six months.
Classification of the offence
The offence under this Section is cognizable, non-bailable, and triable by a Court of Session. As is clear by the harsher punishment prescribed by Section 326-A, this offence is considered graver in nature than Section 326. Thus, with a higher level of scrutiny being required, the case must be tried by the highest criminal court of a district, i.e., the Court of Session.
Section 326-B IPC
Section 326 requires that bodily injury be caused to the victim. However, in cases when the attempt to injure someone is foiled and no damage occurs to the intended victim, the person attempting to commit the crime can also be punished by law. Section 326-B criminalises the act of voluntarily throwing or attempting to throw acid with the intention of causing permanent or partial damage, deformity, disability etc. to a person.
It is important to note that both Section 326-A and 326-B are gender-neutral sections; they aim to prevent acid-attack crimes against everyone on the gender spectrum.
The punishment prescribed for an attempt to commit an acid attack is minimum imprisonment of five years which might extend up to seven years as well as liability for a fine.
Classification of the offence
The offence under Section 326-B, like in 326-A is cognizable, non-bailable, and triable by a Court of Session.
Filing a case of an offence under 326, 326-A and 326-B
As mentioned above, the offences under these sections are all cognizable offences. As per Section 154 of the Code of Criminal Procedure (CrPC) of 1973, any information regarding the commission of a cognizable offence can be reported to the Police by a witness or victim or a person who has knowledge about the act. The said information will be recorded as the First Information Report or FIR. Further, a cognizable offence implies that there is no need for an arrest warrant from a magistrate, and the Police can arrest the accused if they have an adequate reason to believe that the crime has been committed (Section 41, CrPC). After the arrest, the accused is produced before the appropriate Magistrate for the trial.
A case can also be filed by filing a written or verbal complaint to a Magistrate of First Class with relation to an offence committed under Section 326 and to the Session Court Magistrate in relation to Section 326-A and 326-B. If a complaint is not made to the appropriate authority, then it is the duty of the Magistrate to direct the complainant to the right authority if the complaint is verbal or send the complaint, if written to the appropriate authority along with an endorsement to that effect (Section 201, CrPC). Under Section 202, the Magistrate can then direct the Police to conduct an investigation. If the Magistrate, after perusal of the Police investigation, statements of complainant and witnesses, is convinced that there is sufficient ground for proceeding further, a summons or warrant for arrest will be issued to the accused.
In conclusion, Section 326 penalises the offence of grievous hurt when it is caused by certain dangerous weapons or means. Further, Section 326-A and 326-B, specifically criminalize acid attacks as well as attempts to commit acid attacks. But not all types of hurt are grievous hurt and courts decide whether something is a dangerous weapon depending on the facts of the case. Section 326-A and 326-B, as mentioned above, was specifically inserted within the Penal Code to ensure that acid attack victims were adequately protected by law. Thus, while Section 326 is an adequate display of the importance of judicial interpretation to ensure that the conviction of perpetrators of acid-attack is not made uncertain because of different interpretations of Section 326, the other two sections were inserted.
- Section 326, Indian Penal Code, 1860
- Section 326-A, Indian Penal Code, 1860
- Section 326-B, Indian Penal Code, 1860
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