Section 32 of the Indian Penal Code, 1860.
In every part of this Code, except where a contrary intention appears from the context, words which refer to acts done extend also to illegal omissions.
This section puts an illegal omission on the same footing as a positive act.
An ‘act’ generally means something voluntarily done by a person. ‘Act’ is a determination of the will, producing an effect in the sensible world. This word includes writing and speaking, or, in short, any external manifestation. In the Code it is not confined to its ordinary meaning of positive conduct of doing something, but includes also illegal omissions.
This word is used in the sense of intentional non-doing. Thus, according to this section, ‘act’ includes intentional doing as well as intentional non-doing. The omission or neglect must, no doubt, be such as to have an active effect conducing to the result, as a link in the chain of facts from which an intention to bring about the result may be inferred. The Code makes punishable omissions which have caused, which have been intended to cause, or which have been known to be likely to cause a certain evil effect in the same manner as it punishes acts, provided they were illegal. And when the law imposes a duty to act on a person, his illegal omission to act renders him liable to punishment.
Not only must the non-action be intentional, but it must be illegal as well. Criminal law fastens liability on persons who omit to perform the duty required by law such as to provide food, clothing, shelter, or medical aid to another, but a refusal to perform acts of mere charity or mercy, not coupled with a legal duty, does not entail legal punishment even if death ensues from such refusal or neglect. Thus where the wife is in a helpless state and unable to appeal elsewhere for aid, and the husband who has the means to provide necessaries for existence, deliberately withholds them with the intention to kill her, he commits murder.
A, a stranger, sees B, a small child, struggling face downwards in a pool of water. A does not interfere. B is drowned. A is not liable for B's death as there is no legal duty on A to protect B.
A, a policeman, stands by and acquiesces in an assault on a prisoner committed by B, another policeman, for the purpose of extorting a confession. The law requires A to prevent B using torture but he did not even expostulate. The law, therefore, punishes his failure to act.1)
Section 36 of the Indian Penal Code, 1860.
Wherever the causing of a certain effect, or an attempt to cause that effect, by an act or by an omission, is an offence, it is to be understood that the causing of that effect partly by an act and partly by an omission is the same offence.
Illustration: A intentionally causes Z's death, partly by illegally omitting to give Z food, and partly by beating Z. A has committed murder.
This section follows as a corollary from section 32. The legal consequences of an ‘act’ and of an ‘omission’ being the same, if an offence is committed partly by an act and partly by an omission the consequences will be the same as if the offence was committed by an ‘act’ or by an ‘omission’ alone.