Section 40 of the Indian Penal Code, 1860.
Except in the Chapters and sections mentioned in clauses 2 and 3 of this section, the word “offence” denotes a thing made punishable by this Code.
In Chapter IV, Chapter VA and in the following sections, namely, sections 64, 65, 66, 67, 71, 109, 110, 112, 114, 115, 116, 117, 118, 119 and 120, 261, 187, 194, 195, 203, 211, 213, 214, 221, 222, 223, 224, 225, 327, 328, 329, 330, 331, 347, 348, 388, 389 and 445, the words “offence” denotes a thing punishable under this Code, or under any special or local law as hereinafter defined.
And in sections 141, 176, 177, 201, 202, 212, 216 and 441, the word “offence” has the same meaning when the thing punishable under the special or local law is punishable under such law with imprisonment for a term of six months or upwards, whether with or without fine.
This section was substituted for the original s. 40 by the Indian Penal Code Amendment Act 1870 (Act XXVII of 1870) s. 2. The word, figure and letter “ Chapter VA ” were inserted by s. 2 of the Indian Criminal Law Amendment Act, 1913 (VIII of 1913). The figures 64, 65, 66 and 71 were inserted by the Indian Penal Code Amendment Act, 1832 (VIII of 1832) s. 1, and the figure 67 by the Indian Criminal Law Amendment Act, 1886 (X of 1886), s. 21 (1). For the word 'chapter' chapters have been substituted by s. 2 of Act VIII, 1930 (Repealing and Amending Act).
The effect of amendment of s. 40 was considered in Joti Prasad Guptas case as follows : “ The offence which was alleged to be the common object of the assembly being an offence under s. 188, I.P.C., came within the first clause of this section and as such fall under cl. (1) of s. 141 of the Code. ” In the case against Subhash Chandra Bose it was argued that the offence punishable under the special or local law being punishable with imprisonment for a term of less than six months, “offence” mentioned in the third clause of s. 141, I.P.C., did not come within the purview of s. 141, I.P.C., and although the learned Judges accepted that contention they proceeded upon cl. 2 to s. 141. The attention of the learned Judges was not drawn to the case of Bhalchandra Randive.
In para 2 of s 40, after the figures 117, new figures (118, 119 and 120) have been inserted by the Information Technology (Amendment) Act 2008 (10 of 2009) (w.e.f 27-10-2009).
West, J., explained as follows: “If verbal criticism is to have a preponderating influence, I may observe that there is an inaccuracy in s. 40. A 'thing' meaning an act or omission, if not susceptible of punishment. What is meant is a thing for which he who is guilty of it is punishable. ” But Holloway, J., held : “ The words made punishable were used according to a common idiom, for rendering a person liable to punishment ; for it is obvious that in the strict and primary usage of the word, no thing is punishable, and no person since Xerxes except a child with his doll has ever supposed otherwise. The expression therefore is incomplete. ” According to Innes, J., ' a thing made punishable ' means an act or omission, which, by this Code is constituted an offence to which a punishment is attached.
An attempt to commit an offence is itself an offence within the definition of 'offence' under s. 40, and where no express provision is made in any other part of the Code for the punishment of such offence, it is punishable under s. 511.
The abetment of an offence is itself an 'offence' within the meaning of this section. The Calcutta Municipal Act is a special and local law and the provisions of this section apply to abetment of an offence punishable by the bye-laws framed under that Act.
An order for payment of maintenance is not a conviction for an offence.
Section 79, IPC, comes within chapter IV and, therefore, an offence to which that section refers, includes an offence under a local or special law. Section 82 is in chapter IV of the IPC and under cl (2) of this section the word 'offence' denotes a thing punishable under this IPC or under any special or local law. So the exemption under s 82 in favour of a child under seven years of age is not confined to offences made punishable by this IPC.
The words 'punishment provided for the offence' in section 109 of the IPC, mean the punishment provided for the offence either in the IPC or in some special or local law.1) Where a local law declares a breach of the rules made under its authority to be punishable, a breach of such rules might constitute an offence within the meaning of this section. But a local law does not necessarily include a rule made under the provisions of a local law. The abetment of a breach of the byelaws framed by a district council under the authority of the Burma Rural Self-Government Act is not punishable under section 109 of the IPC as it is not an abetment of an offence within the meaning of that section.
No doubt section 216 is included in the sections mentioned in cl (3) of this section, but the definition of the word 'offence' in this section cannot affect the clear provision made in s 216 for the punishment of a person who harbours an offender. Section 216 very clearly provides for the punishment of harbourers only where the person harboured is wanted for an offence for which the minimum sentence of one year's imprisonment is provided. No provision whatever is made in s 216 for the punishment of a harbourer where the man harboured is wanted for an offence punishable with imprisonment of less than one year.
In Kantilal Gopalbhai Tandel v. State of Gujarat and Others2), the Hon'ble Gujrat High Court observed that: “ The general Rule is that it is only the act or omission, which is made punishable by the Indian Penal Code, that will be an offence for the purposes of the I.P.C. However, this general rule is subject to the exception as detailed in the section itself. Under the General Clauses Act, the word “offence” means any act or omission made punishable by any law for the time being in force. The word “punishable” means a “punishable offence” or an act or omission to which punishment is attached under the law. S.40 of the I.P.C. refers to not only an act or omission which is made punishable under the Code as an offence, but to that act or omission also which has been made punishable under any special or local law in cases as specified in paragraphs 2 and 3 of the section. Thus, with the exception of the provisions specified in paragraphs 2 and 3, no other act or omission made punishable under a special or local law will fall within the term “offence”, as used in the Code. In regard to the sections of the Code specified in para 3, the word “offence” used in such section will include acts made punishable under a special or local law only in those cases in which the prescribed punishment for such acts is imprisonment for six months or onwards. ”