This article is written by Abanti Bose, studying at Amity University Kolkata, India. The article provides an analysis of the essential requirements, objectives and judicial pronouncements concerning Sections 409 and 447 of the Indian Penal Code, 1860.
Table of Contents
Introduction
In India, the Indian Penal Code, 1860 specifies the gravity of various crimes and states the quantum of punishment. The Code defines various activities that are considered to be a crime, their scope, nature, penalties and punishments levied in case of commission of such offences. It is a comprehensive Code that covers the crucial elements of criminal law. The Code extends to the whole of India and it consists of 511 Sections divided into 23 Chapters. The significance of the Indian Penal Code, 1860 is to govern criminal justice all over the country without any inconsistencies.
Section 409 and 447 of the Code entails a criminal breach of trust by a public servant, banker, merchant or agent and the punishment for criminal trespass respectively. The legislature in both Sections has meticulously laid down the ingredients necessary for the commission of such offences, the categories of individuals who will be held responsible, the specified amount of punishment that will be granted by the judiciary. The main goal of the legislature behind laying down these sections was to protect the possession of a property.
What is a criminal breach of trust
Section 405
Criminal breach of trust is defined under Section 405 falls under Chapter 17 of the Indian Penal Code, 1860 dealing with offences against property. It lays down that any person who entrusted with a property of another person;
- dishonestly misappropriates,
- converts to his own use of the property, or
- dishonestly uses or disposes of the said property violating any direction of the law prescribing the mode in which such property is to be discharged.
Then he shall be guilty of committing the offence of criminal breach of trust.
There are two distinct parts involved in the offence of criminal breach of trust. The first comprises the creation of an obligation in relation to the property over which dominion or control is acquired by the accused. The second is misappropriation or dealing with the property dishonestly and contrary to the terms of the obligation created.
Section 409
However, Section 409 of the Code talks about the criminal breach of trust by a public servant, banker, merchant or agent. It states that any person who is at their capacity as a public servant, or as a banker, merchant, broker, agent, etc. entrusted with property or any dominion over a property commits criminal breach of trust concerning that property shall be punished with imprisonment for life or a term which may extend to a period of ten years and they shall also be liable to fine.
This Section is attracted when an offence regarding property is committed by a public servant, banker, merchant, agent, etc. As it is expected from the above categories of individuals to discharge their duties honestly and without negligence and whenever they fail to do so they shall be liable to punishment.
The offence mentioned under this section is cognizable, non-bailable, non-compoundable and triable by a Magistrate of first class.
What is known as criminal trespass under the code
Section 441
Criminal trespass is defined under Section 441 of the Code. Criminal trespass is committed when any person enters the property in possession of another person with the intent to commit an offence or to insult, intimidate or annoy the person who is in possession of such property. The offence of criminal trespass is directed towards the protection of possession of the property.
Section 447
Section 447 of the Indian Penal Code, 1860 also falls under the Chapter that deals with offences against property. This Section entails the punishment for criminal trespass. Now, Section 447 states that whoever commits the offence of criminal trespass shall be punished with imprisonment for a term that may extend to three months or a fine of five hundred rupees or with both. However, in order to attract this section, an actual personal entry by the accused must take place.
Ingredients necessary to prove charges under Section 409 and Section 447
Ingredients necessary to attract offences under Section 409
In order to bring an action under this Section, it is essential to establish the following facts:
- This Section states that the offence must be committed by a public servant, broker, attorney or agent.
- The accused was entrusted with the property.
- The word “dishonestly” in the Section portrays the presence of mens rea.
- And lastly, the accused must commit a criminal breach of trust in respect of the property entrusted.
Ingredients necessary to attract offences under Section 447
In order to bring an action under this Section, it is essential to establish the following facts:
- There must be an unauthorised entry into another person’s property against the will of the person who is in possession of such property.
- Such entry must be with an intention to commit an offence or to insult, intimidate or annoy the person who is in possession of the property.
- The person must enter the property lawfully but stay in the property of another person unlawfully.
Views of the judiciary
Section 409
S.P. Verma vs. State of Bihar, 1972
In this case, the accused had access to the keys of a safe, thus it is his duty to account for the contents of the safe including the cash as he was the only one who had access to the safe and all the duplicate keys were kept inside the safe. Unless the accused could provide evidence that he parted with the keys of the safe he was under a duty to account for the contents of the safe. Hence, the Court found the accused guilty under Section 409 of the Code.
Sardar Singh vs. State of Haryana, 1976
However, in Sardar Singh vs. State of Haryana, it was stated that mere failure or omission to return the property does not constitute an offence under this Section. The accused was entrusted with the receipt book, however, there was no evidence to establish that he dishonestly misappropriated the receipt book or converted it to his own use or dishonestly used or disposed of the receipt book. Therefore, it was held by the Supreme Court that the accused must have lost or misplaced the receipt book and hence was unable to return it to the superior authorities. It was further stated by the court that Section 409 of the Code requires more than mere failure or omission to return the receipt book by the accused. The prosecution has to go beyond reasonable doubt and show that the accused dishonestly misappropriated or converted the receipt book to his own use or dishonestly used or disposed of it.
State of Gujarat vs. Jaswantlal Nathalal, 1967
In State of Gujarat vs. Jaswantlal Nathalal, it was contended before the Court that the government sold cement to the accused on the condition that the cement will be used for construction work. However, a certain amount of the cement was diverted to a godown. Therefore, the accused was prosecuted under the offence of criminal breach of trust. The Supreme Court held, that the term ‘entrustment’ carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner.
Furthermore, it is important to note that a person handling the property must have confidence in the person entrusted with the property so as to create a fiduciary relationship between them. Thus, the court stated that no offence of criminal breach of trust was committed as a mere transaction of sale cannot amount to an entrustment.
Jaswant Rai Manilal Akhaney vs. State of Bombay, 1956
In this case, the accused was charged under Section 409 of the Code for committing the offence of criminal breach of trust. It was held that in order to attract an offence under Section 409 of the IPC it is necessary to pledge the securities with the bank for a certain purpose which would amount to entrustment.
Section 447
Kanwal Sood vs. Nawal Kishore, 1982
In the case, Kanwal Sood v. Nawal Kishore, the premises “Aranaya Kutir” was owned by Shri R.C. Sood. He executed a gift deed in favour of Shree Anand Mayee Sangh, Dehradun, with a stipulation that the benefactor shall remain in possession of the premises during his lifetime and after his death, his widow if alive would remain in possession. Shri Sood invited the appellant the widow of his brother and since then she has been residing peacefully at his house but after his death, Shri Nawal Kishore as secretary of the Anand Mayee Sangh, threatened her to vacate the premises or else he would file a case against her constituting the offence of criminal trespass.
However, it was held by the Supreme Court that an essential ingredient of the offence of criminal trespass is the intention to commit an offence. The appellant must enter the property in possession of another person with the intention to commit an offence to be held guilty under Section 447. A mere occupation, even illegal, cannot amount to criminal trespass as there is no intention of the appellant to commit any offence or to intimidate, insult or annoy any person in possession.
Trilochan Singh vs. Director, Small Industries Service Institute, 1962
In this case, it was held by the Madras High Court, that writing love letters and delivering such letters to an innocent girl. That annoys her, then the person committing an act would be guilty of the offence of criminal trespass under Section 447 of the Indian Penal Code, 1860.
Conclusion
Hence in order to constitute an offence under these Sections, it is necessary to fulfil all the essential criteria as in the case of Section 409 the offence must be committed by a person who has dominion over the property like a public servant, broker, attorney or agent. The person handing over such property must have confidence in the person so as to create a fiduciary relationship. And finally, dishonest intention to misappropriate is a crucial fact that must be proved to hold a person liable under Section 409. And for Section 447, the required criteria for the commission of the said offence are unauthorised entry into another person’s property and the entry must be with an intention to commit an offence or to insult, intimidate or annoy the person who is in possession of the said property.
Therefore, it can be stated that the provisions laid down in the Code concerning these sections are elaborately mentioned and the punishment for committing such offence is quite grave so as to cope with the problem of criminal breach of trust and criminal trespass. The judiciary has also taken adequate steps to prevent such offences as can be seen from the above-mentioned judgements. Thus, the existing provisions penalising these offences are sufficient and need no amendment but the only concern is the effective implementation, as well as application of the law since a lot of cases go reported and with a thorough investigation, such cases will be accounted for.
References
- https://www.latestlaws.com/bare-acts/central-acts-rules/ipc-chapter-17-of-offences-against-property/
- https://www.lawctopus.com/academike/criminal-breach-trust/
- https://www.myadvo.in/bare-acts/indian-penal-code-1860/ipc-section-409/
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