SECTION 504 IPC - Indian Penal Code - Intentional insult with intent to provoke breach of the peace

WHAT IS SECTION 504, IPC?

Section 504 of the Indian Penal Code, 1860 (“IPC”) prescribes punishment for the offence of ‘intentional insult with intent to provoke breach of the peace’.

The purpose of this section is to stop people from using abusive, insulting language intentionally, which leads to provocation and causes the person being rebuked to break the peace. It's not necessary for there to have been an actual disturbance of peace for commission of an offence under Section 504, IPC.

The essential ingredients that go into the making of an offence under Section 504, IPC are:

1. That the accused has intentionally insulted some person; and

2. That the insult is such as to give provocation to the person insulted; and

3. That the accused has either intended or known that such provocation would cause the person insulted to break the public peace or to commit an offence.

In order to understand Section 504, IPC better, let us imagine the following –

• X intentionally abuses Y involving the chastity of his mother and sister. He does so with the knowledge that such an insult is likely to provoke him to cause breach in public peace. X has committed an offence under Section 504, IPC even if Y does not act upon such provocation.

WHEN CAN A PERSON BE HELD GUILTY FOR COMMITTING AN OFFENCE UNDER IPC?

Generally, for any criminal liability to arise under IPC i.e., for a person to be held guilty for having committed an offence under IPC, it is important that he/she fulfils the essential criminal ingredients or criteria stipulated under the IPC for that particular offence.

Broadly, IPC defines offences by laying down two of its essential components –

a. Actus Reus i.e., the criminal act which the accused must have compulsorily performed.

AND

b. Mens Rea i.e., the criminal mind which the accused must have compulsorily entertained while performing the above-stated criminal act.

It is when an accused performs a criminal act under the influence of a criminal mind (as per the essential criminal ingredients for a particular offence), that he can be said to have committed that offence, in the eyes of law.

In other words, a criminal act must co-exist with a criminal mind in order for an act to be an offence under IPC and for criminal liability to arise thereunder.

WHEN CAN A PERSON BE HELD GUILTY UNDER SECTION 504, IPC?

For a person to be held guilty for the offence of ‘intentional insult with the intent to provoke breach of peace’ under Section 504, IPC it is important for the prosecution to compulsorily prove the following:

1. Nature of the criminal act under Section 504, IPC:

a. The accused must have ‘insulted’ the victim.

The term ‘insult’ means that the words used by the accused must be of such a nature that poses disrespect to the dignity of the victim or which causes in him a sense of humiliation or deep social embarrassment. ‘Insult’ includes the use of abuses or expletives that people routinely make part of their speech, such as - bastard, foolish and so on.

b. Such an insult should have provoked the victim; and

c. Such provocation should have been made either with the intention or with the knowledge that it is likely to cause the victim to break public peace or to commit an offence.

It is not important that the person provoked i.e., the victim necessarily follows it up with causing breach in peace or committing an offence. It is enough that the act of the accused provoked the victim to such an extent as will likely to cause him to breach peace or commit an offence.

The punishable act under Section 504, IPC is ‘an insult causing provocation in the victim’ and not ‘an insult causing provocation leading to an offence by the victim’.

2. Nature of the criminal mind under Section 504, IPC:

The accused must have committed the above criminal act (of provocative insult) with the ‘intention’ to do so i.e., intention to insult the victim so as to provoke him.

A person cannot be held liable under Section 504, IPC unless such an insult was intentional in nature.

Hence, it is important to know when an insult is intentional and when it’s not.

And, for that the determining test is whether, by reason of the choice of the insult, keeping in mind - the background, atmosphere, and the circumstances in which it is used, there was every likelihood of a breach of peace or commission of an offence by the victim.

Further, for classifying a particular abusive language as an intentional insult, the court also keeps in mind what in ordinary circumstances would be the effect of the abusive language used, and not what the complainant actually did as a result of his cool temperament or sense of discipline.

An intention to insult is a matter of fact and circumstances which differs from case to case and situation to situation.

Nature of insult is more of a question of fact and not of law. Insult caused should give provocation to cause a breach of public peace.

Further, it must be understood that every insult could not be classified as intentional. For instance, a mere lack of good manners and casual-talks between friends does not constitute an offence under this Section. In the same way, use of abusive language not supported by intention also does not attract the offence under this Section.

However, the insult that attracts the offence under this Section is the one that is accompanied with an intention to provoke a person to cause breach in public peace, or commit an offence.

3. Performance of the criminal act accompanied by the criminal mind i.e., execution of the offence:

While entertaining the above-stated criminal mind (intention) the accused must have committed the above-stated criminal act (provocative insult). This would constitute the offence of ‘intentional insult with intent to provoke breach of the peace’ under Section 504, IPC.

The co-existence of the criminal mind and the criminal act should be proved by the prosecution in order to establish guilt under Section 504, IPC.

WHAT IS THE PROCEDURE FOR TRIAL UNDER SECTION 504, IPC?

In India, the mechanism for criminal justice delivery assumes shape of a criminal trial which is governed by the Code of Criminal Procedure, 1973 (‘CrPC’).

The trial under Section 504, IPC takes a journey similar to the trials conducted for other criminal offences. Broadly, the procedure for a trial takes the steps - as have been enumerated below, beginning from the filing of an FIR to the final verdict by the court:

1. Investigation - FIR, Arrest, Remand and Bail

i) First Information Report (FIR) - Criminal procedure is set into motion with the filing of an FIR or First Information Report by the victim or an aggrieved person. This marks the beginning of investigation by police into the case.

ii) Arrest - FIR is soon followed by the arrest of the accused person (person who has allegedly committed the offence) by the police and his subsequent production before the Magistrate. Such production must be made within 24 hours of the arrest of the accused person.

iii) Remand/ Custody - At the time of such production if the investigating officer believes that the investigation cannot be completed within 24 hours i.e., the police need more time with the accused for the purpose of interrogation etc., the officer will file an application before the same Magistrate seeking an extension in custody of the accused. Now, depending on the discretion of the Magistrate, such detention may be authorised in police custody (lock-up) or in judicial custody (jail).

However, it is to be noted that a Magistrate cannot authorise detention of an accused in police custody for a period exceeding the initial 15 days (from the date of the production of the accused before the Magistrate).

On the other hand, a Magistrate under Section 167 (2)(a), CrPC may authorize the detention of the accused in judicial custody beyond the period of initial fifteen days, if he is satisfied that adequate grounds exist for doing so. However, no magistrate shall authorize custody for more than -

• Ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term not less than ten years;

• Sixty days, where the investigation relates to any other offence.

iv) Bail - If upon the expiry of 60 or 90 days, as the case may be, the police is unable to complete the investigation and file a chargesheet (as corresponds to the offence) with the Magistrate, the accused is entitled to default bail i.e., such bail is compulsorily granted to the accused provided he applies for and furnishes bail.

However, during the 60- or 90-day period, as the case may be, while the accused is still under custody of the police or otherwise, he may keep pushing for the grant of regular bail under Section 437 or 439, CrPC by the Magistrate or the High Court/Court of Sessions, respectively.

2. Filing of Final Report by the Police

The police after completing the investigation have to file a final report under Section 173, CrPC. This marks the conclusion of the investigation which is aimed at collecting evidence surrounding the commission of the offence.

The final report may take one of the following forms:

i. Closure Report
ii. Charge Sheet

Closure Report

If the evidence collected against the accused is found to be deficit i.e., there is not enough evidence to support prosecution of the accused before a Court of law justifying his further detention in the custody, then the police will file a closure report under Section 169, CrPC and release the accused on his executing a bond/ signing an undertaking for his appearance, if and when so required, before a Magistrate.

In other words, a closure report is filed when the police have little or no evidence in support of the fact that the offence has been committed by the concerned accused.

The police officer is bound to notify the informant (who gets an FIR lodged) the fact that a final report relating to his case has been submitted to the Magistrate.

Upon presentation of the closure report to the Magistrate, he is open to proceed with any of the following four options:

1) He may accept the closure report and refuse to take cognizance of the offence. Result, the case doesn’t proceed further.

2) He may reject the closure report and instead take cognizance of the offence under Section 190, CrPC.

Result, the case proceeds to the next stage.

3) Without rejecting the closure report he may direct the investigating agency to conduct further investigation into the matter, if he thinks that there is some gap that needs filling-up.

4) If an informant challenges such closure report by filing a protest petition, the Magistrate shall proceed to adjudicate upon the same following which he may take or refuse to take cognizance of the offence.

If the Magistrate takes cognizance of the offence under Section 190, CrPC he would issue summons to the accused, under Section 204, CrPC thereby directing his appearance before himself.

Charge Sheet

If the evidence collected against the accused is found to be sufficient i.e., there is enough evidence to support prosecution of the accused before a Court of law and that justifies his continued detention in the custody, then the police will file a charge sheet under Section 173, CrPC and will forward the accused under custody to the Magistrate under Section 170, CrPC.

A charge sheet is a formal police record which is drawn out in a format prescribed by the State, stipulating the various particulars relating to the case, like names of the parties involved; nature of the accusations levelled; list of witnesses, statements of witnesses recorded during their examination under Section 161, CrPC; whether any offence appears to have been committed and, if so, by whom; whether the accused has been arrested and
whether he has been forwarded in custody under Section 170, CrPC or whether he has been released on his bond; list of objects seized and other documentary evidences that the prosecution seeks to rely on.

Once the Magistrate takes cognizance on the charge sheet, he shall issue summons or warrant (depending on the nature of the offence committed) to the accused thereby securing his attendance before himself on a given date.

The Magistrate on the date fixed will conduct a hearing on charges and may consequently either discharge the accused and close the case or he may frame the charges against the accused and post the case for trial.

3. Plea of Guilty or Not Guilty by the Accused

After the charges have been formally framed, they will be read over and explained to the accused by the Magistrate. Thereafter, the accused would be asked whether he pleads guilty to such charge or not.

If the accused pleads guilty, the Magistrate shall record such plea and may convict him thereupon. However, it is to be noted that the responsibility lies with the Magistrate to ensure that the plea of guilt is made voluntarily by the accused and that is why he reserves the discretion to convict the accused on such plea.

If the accused does not plead guilty i.e., if he claims trial, the Magistrate shall post the case for trial.

4. Evidence for Prosecution

On the day fixed for the prosecution evidence, the Magistrate invites the prosecution to lead the evidence and prove the guilt of the accused beyond reasonable doubt. The prosecution may establish the guilt with the help of oral or documentary evidence.

The prosecution witnesses are summoned and examined or are asked to produce any document or thing in support of their version of events.

These witnesses may be subject to cross-examination if the defence counsel so desires.

5. Statement of the Accused

After the prosecution concludes its evidence, the same is put to the accused i.e., he is given an opportunity to explain the circumstances appearing in evidence against him and to say in his defence what he wants to, in his own words. This mandate is captured under Section 313, CrPC. The purpose of such statement is to establish a direct dialogue between the Court and the accused so as to enable him to give his explanation.

This statement is not taken on oath and anything recorded as part of it can be used against the accused at a later stage.

6. Evidence for Defence

After recording the statement of the accused, the Court invites the defence to present evidence, if any. However, the accused is not required to mandatorily enter upon his defence as the burden of proof lies on the prosecution to prove the charge against the accused beyond reasonable doubt.

If the accused has any evidence (oral or documentary) it is presented before the Court at this stage. This is an opportunity for him to punch holes in the prosecution story for which it can call upon and examine witnesses.

7. Final Arguments

As per Section 314, CrPC, after the close of the evidence both parties take turns - first, the prosecution and then the defence - to make final oral arguments in front of the judge. Final arguments are presented by the Public Prosecutor and the Defence counsel.

8. Judgment

After studying the facts and circumstances of the case, analysing the evidence produced by both the parties in support of their versions and hearing the arguments advanced by each of them, the judge decides, based on strong reasons, whether to convict or acquit the accused. This is known as the judgment.

If the accused is pronounced ‘guilty’ upon trial, he is convicted of the charge and if pronounced ‘not-guilty’, he is acquitted of the charge in the judgement.

If the accused is convicted, then both sides are heard on quantum of sentence i.e., what punishment should he be given. This is usually done if the punishment prescribed is that of life imprisonment or death.

After hearing the arguments on the sentence, the court finally decides what punishment should the accused be sentenced to. Various theories of punishment are considered like the reformative theory and the deterrent theory of punishment etc. Also, considerations like age, background, and history of the accused are given due thought before arriving at a decision on the punishment.

WHAT IS THE PROCEDURE FOR APPEAL UNDER SECTION 504, IPC?

The fundamental principles of appeal under CrPC are as follows:

• An appeal is a creature of statute.

• No inherent right to file an appeal.

• No appeal only against conviction.

• No appeal in petty cases.

• Generally, there is no appeal on conviction on a plea of guilt.

It needs to be pointed out that except for the statutory provisions laid down under the CrPC or any other law for the time being in force, an appeal cannot lie from any judgment or an order of a criminal court. Thus, there is no vested right to appeal as such as even the first appeal will be subjected to statutory limitations. The justification behind this principle is that the courts which try a case are competent enough with the presumption that the trial has been conducted fairly. However, as per the Section 372, CrPC the victim has a right to appeal against any order passed by the Court under special circumstances comprising of a judgment of acquittal, conviction for lesser offence or inadequate compensation.

Generally, same sets of rules and procedures are employed to govern the appeals in the Sessions Courts and High Courts (highest court of appeal in a state and enjoys more powers in matters where appeal is permissible). The highest court of appeal in the country is the Supreme Court and hence, it enjoys the most extensive discretionary and plenary powers in the cases of appeals. Its powers are largely governed by the provisions laid down in CrPC, Indian Constitution, and the Supreme Court (Enlargement of Criminal Appellate Jurisdiction), 1970.

The law provides a person who has been convicted of a crime to appeal to the Supreme Court or the High Court or the Sessions Court as per the circumstances.

The accused has been given the right to appeal to the Supreme Court against the judgment of the High Court if the High Court has reversed an order of his acquittal on appeal by convicting him, thereby, sentencing him to imprisonment for life or for ten years or more, or to death.

A similar right to appeal has been granted to one or all accused persons if more than one person has been convicted in a trial and such order has been passed by the court.

However, there are certain circumstances under which no appeal shall lie. These provisions have been laid down under Section 265G, Section 375 and Section 376 of the CrPC.