S.

43: Definition of illegal

The definition of illegal under S. 43 is divided into parts:
1. Definition of illegal
2. Definition of legally bound to do

Illegal Everything, i.e.

- Act
- Omission

Which results into

1. Offence under IPC

- (eg. theft, grevious hurt etc.)
- Provided it is not hit be the general exceptions in the IPC
(Chap. IV)
2. Prohibited by any law
(Dowry Prohibition Act, Food Adulteration Act, FEMA)
3. Civil Suit
(tort, breach of contract)

Legally Omission of an ACT

bound to do
Which results into

Corollary 1. Offence
Provided it is not hit be the general exceptions in the IPC (Chap.
Illegal IV)
omission 2. Prohibited by any law
illegal
3. Civil Suit

1. Thus the omission = illegal omission

2. A person is legally bound to do such an ACT

Thus, though S.43 expressly defines legally bound to do

The definition of illegal omission is implicit in the defn. of
legally bound to do

(Why is it necessary to take out implied definition of illegal

omission? Because the word act under S. 32 includes the term
illegal omission.)
S. 32: In the IPC
Definition of The term act also includes illegal omission
Act includes unless
an illegal A contrary intention appears
omission

Examples of 1. A is standing in the middle of the road. There is a truck heading

illegality in his direction at a very high speed. B sensing that A will be hit
under S.43 pushes A towards the other side of the road. As head crashes
on the road and he is hurt. Will Bs act be illegal?
1. An offence under IPC
B can be held liable for grevious hurt under S. 320.
But in the instant case B will have the defence of
necessity (S. 81) in his favour.
Thus, Bs act is not an offence.
2. Prohibited by any law
No.
3. Civil Suit
B cannot be held liable under the law of tort because
again the defence of necessity will be available to him.
Thus, Bs act will not be illegal.

2. An omission by a police officer to prevent a crime. Is this

illegal?
We have to check if omission by police officer to prevent crime
is:
1. An offence under IPC
No. There is no specific provision in the IPC that mandates
a police officer to prevent crime.
2. Prohibited by any law
No. There is no special enactment that makes it
mandatory for a police officer to prevent a crime.
3. Civil Suit
Yes. There is a contract between the government and the
police officer to prevent crime. An omission by the police
officer to do so is a breach of this contract.
Thus, omission by a police officer to prevent a crime = illegal
omission
The police officer was legally bound to prevent the crime

3. An omission by a life guard to save a man from

drowning?
We have to check if omission by life guard to save a man from
drowning is:
 An offence under IPC
No. There is no specific provision in the IPC that mandates
a person to save a drowning man.
Prohibited by any law
No. There is no special enactment that makes it
mandatory for a person to save a drowning man.
Civil Suit
Yes. There is a contract between the owner of the
swimming pool and the life guard that he will save people
from drowning. An omission by the life guard to do so is a
breach of this contract.
Thus, omission by a life guard to save man from drowning =
illegal omission
The life guard was legally bound to save the drowning
man.

Application Can the omission of the life guard to save the life of the
of illegality drowning man amount to culpable homicide?
under S.43 The answer is yes.

Now an obvious question that came to my mind was:

- If the omission by the lifeguard to save the drowning man
amounts to culpable homicide (which is an offence under the
IPC)
then
Why was the omission by the lifeguard not classified as an
offence, (but rather a civil wrong) when we were examining if his
conduct is illegal or not.

Q1) Why was the omission by the lifeguard not classified as

an offence, (but rather a civil wrong) when we were
examining if his conduct is illegal or not?
- The omission by a lifeguard to save a drowning man is not a
specific offence under the IPC.
- Thus, his omission was illegal because of the breach of
contract with the owners of the swimming pool.

Q 2) If the omission by the lifeguard is not an offence, then

how does the omission
amount to culpable homicide?
An offence of culpable homicide (S. 299) requires the following
elements to be proved:
1. There should be an act
(Which includes an illegal omission as per S. 32)
2. Mens rea
 a. Intention of causing death/
b. Intention of causing such bodily injury as is likely to
cause death/
c. Knowledge that the act (which includes illegal omission
as per S. 32) is likely to cause death.

An examination under S. 299 will be as follows:

1. Mens rea
Knowledge of likelihood of death of person is present.

2. The term act used in section 299.

According to S.32, the term act also includes illegal
omission.

3. Now the examination has to be whether the omission

by the lifeguard to
save the drowning man amounts to an illegal omission
under S. 43:
Offence under IPC
No. There is no specific provision in the IPC that mandates
a person to save a drowning man.
Prohibited by any law
No. There is no special enactment that makes it
mandatory for a person to save a drowning man.
Civil Suit
Yes. There is a contract between the owner of the
swimming pool and the life guard that he will save people
from drowning. An omission by the life guard to do so is a
breach of this contract.
Thus, omission by a life guard to save a man from drowning
= illegal
Since the omission is illegal, it falls within the word act
under S. 32.

4. In a nutshell, all the conditions for the application of S. 299

have been fulfilled in the instant case. It is a case of
culpable homicide not amounting to murder.
 Application of illegal (S.43) in cases of criminal conspiracy
under S. 120 A.

Elements under S. 120A:

2 or more persons do
a. Illegal act
or
b. Act is not illegal but means are illegal

As per S. 32 the word act will also include illegal omission.

Thus, the act or omission should not be:
- Offence under the IPC
- Prohibited by law
- Civil wrong

Eg. A and B conspire to murder C

Examination under S. 120A will be:

1. 2 or more persons fulfilled
2. Examination whether act = Illegal act under S. 43:
a. Offence under the IPC:
Yes. Murder is an offence under the IPC.
b. Prohibited by some law:
No.
c. Civil wrong
Yes. Void Agreementunlawful object
Thus, the act = illegal omission.

All the conditions of S. 120A are fulfilled.

The act of A and B amounts to the offence of conspiracy.

Why is the word illegal prefixed with omission and not so in the case of an
act?

- Look at S. 299.
It states that there should be an act.
 It does not state there should be an illegal act.

- Now see S. 32
It defines act to include illegal omission.
It does not state that act will include only an omission.

Thus, the word act has 2 aspects:

- Doing of a positive act
- Omission

1. The doing of positive act is not pre-fixed by the word illegal. (As is explicit
form S. 299)
- The illegality is implicit in the fact that the positive act has resulted into a
consequence.
- Thus, in cases of a positive act, there is no burden of proof on the prosecution
to prove the illegality of the positive act.

Please Note:
This does not mean that every positive act will result into criminal liability,
irrespective of its illegality.
The illegality of the positive act will be examined.
It is just that the prosecution will not have the burden of proof of proving the
same as the illegality of the positive act will be implicit in the consequence
that it produces.

Eg.
If you commit theft, murder someone, poison someones food etc.the
illegality of these positive acts will be implicit in the consequences that they
produce.
Therefore, there will be no burden of proof on the prosecution to prove the
illegality.

2. But for the application of the word act in cases of omission

As per S. 32 there has to be an illegal omission
- Every omission will not result into criminal liability
In other words, if the omission is not illegal it will not result into criminal
liability.
For example:
Legal omission Illegal omission
A and B are swimming. A is a lifeguard.
B is drowning. A sees B drowning.
A omits to save B from drowning. A omits to save B from drowning.
But this is not illegal omission. This is illegal omission.
A is not legally bound to do so. A is legally bound to do so.

No criminal liability of A Criminal liability of A

 - This example proves that in the cases of omission, the illegality is not implicit
in the fact that the omission has resulted into a consequence.
- Therefore, in the cases of omission an additional burden of proof lies on the
prosecution to prove the illegality of the omission.
- To prove the illegal omission, the prosecution will have to prove that the
omission was
o An offence/
o Prohibited by law/
o Civil wrong
i.e. the accused was legally bound to do the act.

Burden of proof on the prosecution under S. 299 for:

- Positive Act:
Act + Mens rea
- Omission:
Omission + illegality of omission + mens rea

Difference between illegal and unlawful for the purposes of IPC

1st Law Commission:

- No difference between illegal and unlawful under the IPC
- Meaning of unlawful will be the same as the meaning of illegal under S. 43

Difference between illegal and unlawful for the purposes of civil law

Illegal Unlawful
Something which is forbidden by law Something which is not
- supported by law
- enforceable by law

Agreements which are under S. 26 to 30

ICA are unlawful.

Examples under the ICA to distinguish illegal and unlawful:

1. Agreements under S. 26 to 30 ICA are unlawful because they are not enforceable
by law.
They are not illegal because they are not forbidden by law

2. S. 23 ICA: Against public policy

A is already married to B
A contracts with C to marry her.
Contract is against public policy.
Agreement is void.
 It is an unlawful agreement because it is not supported by law (S. 23 ICA)
It is an illegal agreement because it is forbidden by law (bigamous
marriage under IPC)

3. S.30: Wagering Agreement

A and B contract to gamble. Horse trade
Agreement is void.
It is an unlawful agreement because it is not supported by law (S. 30 ICA)
It is an illegal agreement because it is forbidden by law (gambling, horse
trading are punishable offences under the IPC)

A and B enter into agreement that tomorrow if the sunrises before 5:30 A will
pay to B or else vice-versa.
It is a void agreement.
It is an unlawful agreement because it is not supported by law (S. 30 ICA)
It is not an illegal agreement because it not is forbidden by law

4. S. 29 ICA: Something which is uncertain

Eg.
A promises to sell a house for either 5000 or 6000.
Consideration is not fixed.
Agreement is void
It is an unlawful agreement because it is not supported by law (S. 29 ICA)
It is not an illegal agreement because it not is forbidden by law

5. S. 56 para 1: Something which is impossible

A and B agree to make 2 parallel lines meet.
Agreement is void due to impossibility of performance.
It is an illegal agreement because it is not supported by law (S. 56 para 1
ICA)
It is not an illegal agreement because it not is forbidden by law