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"Illegal" and "Legally bound to do"

Section 43 of the Indian Penal Code 1860.

The word “illegal” is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action; and a person is said to be “legally bound to do” whatever it is illegal in him to omit.

The word ‘illegal’ has been given a wide meaning, for it is applicable not only to everything which is an offence, or which is prohibited by law, but also to that which furnishes ground for civil action. In dealing with this expression the Law Commissioners remarked thus : “ These appear to be wide words, but we think it would be difficult to restrict them without the risk of excluding something which ought to be included. Generally we apprehend, it will be found unobjectionable to designate as illegal anything done or omitted to be done by a man for which he is liable to a civil action. ” The word ‘illegal’ has an extensive meaning, including anything and everything which is prohibited by law which constitutes an offence and which furnishes the basis for a civil suit, ending in damages.

Distinction between Unlawful and Illegal

The word unlawful has not been defined in the Code, so the earlier view was that it may be taken to correspond with the word ‘illegal’, which is defined in this section. Definition of the word 'Illegal' cannot be termed as equivalent to the expression 'unlawful'.1)

A contention was raised that the expression “unlawful” appearing in Section 23 of the IPC must be understood as equivalent to the expression “illegal” as explained in S.43 of the IPC. The Division Bench of the Bombay High Court took the view that this cannot be. The relevant observations read thus: 'illegal' in S.43 of the Code includes anything which is an offence or which is prohibited by law, or which furnishes ground for a civil action, and it is argued that the word 'unlawful' in the definition of 'wrongful loss' must have the same meaning as the word 'illegal'. Generally speaking I should say that there is no difference in meaning between the word 'unlawful' and the word ' illegal', but it does not follow that if one of those words is specially defined in a statute, and the other is not the two words must necessarily have the meaning given to the one word by the definition. Prima facie I should have thought that the word 'unlawful' or the word 'illegal' used in a Penal Code would not cover anything which gives rise to a civil suit. The word 'illegal' has been defined as covering everything which gives rise to a civil suit, but I am not prepared to say that in the Penal Code the word 'unlawful', which has not been so defined, must be taken throughout as having that very wide meaning.

Which Furnishes Ground for a Civil Action

The section covers a breach of contract, and not merely a tort. The breach of contract, however, must be one which furnishes a ground for a civil action, that is to say, in respect of which damages could be obtained under section 73, Contract Act, or which could be enforced specifically. The act of publishing a defamatory pamphlet would be illegal within the meaning of this section as it would furnish grounds for a civil action to the persons defamed.

If any ground for civil action can be found on the basis of any act or omission or commission on the part of a person, his act may be held to be illegal or it may be held that he was legally bound to do an act which he had omitted to do.2)

Legally bound

A witness is not legally bound to sign his deposition in a civil case. But an accused is bound to sign the record of his statement under s. 281(5) of Criminal Procedure Code, and his refusal to sign it amounts to an offence within the meaning of s. 188. A refusal to sign a summons is not an offence.

Where the accused, a deputy tahsildar, submitted to his official superior a false nil return of lands in his enjoyment, and also made a false statement to the same effect in a revenue inquiry before the principal Assistant-Collector, it was held by the Madras High Court that the accused was not “legally bound” to furnish such information within the definition given in s. 43 but was doubtless guilty of breach of a departmental order.

The publication of a pamphlet written in a provocative and defamatory style, furnishing the persons defamed a ground for civil action is illegal under this section; the distribution of such a pamphlet renders the person concerned liable under section 153.

2007 CriLJ 600
2009 KHC 4889

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