Sections 44 Code Of Criminal Procedure

[Cites 129, Cited by 0]

Law Commission Report

Sections 44 Code Of Criminal Procedure

 

LAW COMMISSION OF INDIA

THIRTY-THIRD REPORT

REPORT ON SECTION 44, coma OF
CRIMINAL PROCEDURE, 1898

September, 1967

GOVERNMENT OF INDIA
MINISTRY OF LAW



CHAIRMAN,

LAW COMMISSION.

'5, jorbagh, -New Delhi-3.
December 15, I967.

. Shri P. Govinda Menon,

Minister of Law,
New Delhi.

MY DEAR Mmrsrsn,

I have greatpleasure in forwarding herewith 

33rd Report of the Law Commission on section 44 of

the Code of Criminal Procedure, I8g8-----Sugg'estior1 to

adda provision relating to reporting of, and disclosure
iI1ie¢"V?ldBélCB1 abC_}tl.]11I'., of1'ences_relatfint tcta: bn;t1r)el1'3£ The

ea 5 W1 a suggestion o e en a mean
of vcstigation. The circumstances in which the
subject was taken upiby the Commission are stated in
paragraph 2 of the eport.

2. After the suggestion for amendment was taken.
up for consideration, a Press Communique inviting
persons and bodies interested in the suhgect to send
their views on the suggested change to the Commis-
sion was issued. A letter was also forwarded to State
Governments, High Courts etc. for sending their com-
ments on the suigestion. In the meantime, a draft
Report on the su ject was also prepared for the
consideration of the.Commission.

":3. The draft Report was tentatively. approved,
wi certain verbal modiﬁcations, at the 86th meeting
of the Commission held on the 16th and 17th May,
1967, and it was decided that after the comments of
the State Governments etc. on the suggestion are
received, the draft Report be considered again.

. At the 87th meeting of the Commission held on
the th Au st, 19%, the draft Report was again con-
sidered in etail. he comments received from State
Governments, High Courts etc. on the suggestion for
amendment were discussed. Material regarding the
history of section 44 was also considered.



(ii)

5. The draft Report was ﬁnally approved at that
meeting and the View embodied therein that no change
be made in the law was conﬁrmed. It was also
decided that historical material may be added.

(As the suggestion for amendment had been
already circulated for comments to State Governments,
it was considered unnecessary to circulate the draft

Report again for comments to State Governments
etc.).

6. The Report was revised accordingly. Material
relating to recent alteration of the law in England as
to misprision of felony was added in the revised
Report. The Appendices were also revised, with
reference to provisions imposing obligations (about
Reporting of offences) on special classes of persons.

7. Mr. R. P. Mookerjee, Part-time Member has
signed the Report subject to a separate note.

8. I wish to express our appreciation of the help
given by Mr. P. M. Bakshi in the preparation of this
Report.

Yours sincerely,
J. L. KAPUR.



EXPLANATION OF ABBREVIATIONS USED

S. No.~----Serial Number in the Law Commission's File



CONTENTS

Pmmnrn Sumner-nenn ha:
1.

Subiecbmattee of lhe Repnrt I

1. Why auhie-at taken up I 3--4. Suggestion stated . . I

5. Points made In the suggestion enumernted 1

6. First pu1'11t---pr0pOnl to impose duty to '1-sport bribery 3

1. Analﬁsig .spcci|-ind in. sectien 44: of (.':ri.Ini-I 3 8-17. History of section 44 _ . . . 4 :8. Bribe whether analogous to offences in section 44, Co e of Criminal Procedure . . . . 9

19. Section 45 01' the Code considered . . . 9 :o--=aI. Provisions in special laws . . . . . . 9 :2. Dilelnmn before 11Ie person bound 1:» give iaiformltion 10 33-46. Qtnliﬁeni pririleﬁt I0 :7. English cases an to qualiﬁed privilege __ . . . 11 1!" r History of qualiﬁed privilege . . 13 :59. Indian decisions as to quniiﬂed privilege . , 13 3'0. Legal duty . . . . _ 13 3!. Indian caees u ttrlegli duly . . . I3

32. Information given to p-chine . . . . . :4

33. Statements in aid of iustice . . . . :4

34. Stltelnenle reguding euspeeted crime 14

35. Statements in to misconduct of public servant . :4

36. Diﬂiculty to be considered . . Is

37. Mr. Instfte Sladfn ﬂew . . . . . . 15

38. Partly true cases 15

39. Gunman Iietweetl duty to report and duty not to ma- 1ignone'eneigI1bou: . . - . . . . . :5 4o. Delicate choice not ta be forced on infomunt . . . :5 Pgelgnt 1;"! position ' . . I S 4:".

(ii) PARAGRAPH SUBIECT-MATTER

42. No p1'OteCtiOl'1 for wrong assumptions ;3--45. Privilege for first information _:-epo_1-t

46. Position at criminal law

47. Good faith under Indian Penal» code r- . ' 43-53-

53. More] duty . - . . .

Decisions under section 499, Indian Penal Oodeu ~.

54. Need for conﬁning-secti011" 44'. Code .of'Criminal Procedure' within certain limi1;s.---Observations of Criminal Law "C-0Il'tI1li5s10IlcIS.' - ~ ' ' ' * SS. ' Considor&tions'outl.il'1ed'above to be'borI1e in'n-iind'_ .-

56. Whether practical beneﬁt likely go accrue : - '

57. Second point--disclosure in investigation

38. Third poinp-disclosure in evidence .7 ',

59. Failure to state the whole truth 60-63. Disclosure of every minute detail whether to be required 64-74. Analysis of comments received ' 75, Conclusion .

76. Appendices APPENDICES A1-$p1:_\uJ1x 1. English Law as to' inisp:'i1siDn"oftreasOn"aind felony APPENDIX 2. List of provisions similar to section 44, Code of Criminal Procedure, 1898, and section 176, .Indian Penal-Code ;

A111'-'EN[)1X 3, List of provisions similar to section 45, Code of Crimipal Procedure, 1898 in some of t11e- laws relating to -pohce and forests.

PAGE 16 .15--.

I8 18 I9 20 20 2o 5:

21 21

1. 23'.

?5_ 26 26 34 33 REPORT ON SEICTIGN 44, QEDDE DF CREMHWAL PROCEDURE, £593

1. Section 4% at the 0341-3 of Crim-'znal P:-aceclure, 1898, S:.<bi€¢i- imposes an obligation on every person' who is aware uf mgﬁt the colnmisamn of, or of the intentional any othe; gierscm, "

to commit the speciﬁed cffences, to fortimrith 'Va 1I1ft>rIr1a- tion to the nearest Magistrate or Pelice 0 cer of such cmnmissim or in-tention {in the absence of reasonable ex~ cuse, the burden af proving which shall lie Upon the per- sm 30 aware).

Now, it has been suggested that a provision be inserted in the Code, as sectivon 442%, to require public servants to give 1'-nin-rxnatinn abmzt bribery', etc. It is this suggestion' which is the suhject--matter of this Repmrt.

2. We have taken up this suggestion" separately, in 133131 éﬁbiﬂt View of its urgency'. " 3'"

3. The suggestion' tﬁus expresses the change proposed Suggestion and reasons far it:---- 5'?%€'='9~-

"Fm-m time to time diiﬁculties have been ex- perienced in obtaining infazmaiion or in seeming stateznenis frcrm public servants about corrupt {1r3.-'.1- tices which are within their lmowledge. While a re- luctance on their part, to speak about matters which involve them personally can he understand, their apathy and indifference in helping the investigation or E'1'J£;11Ji1")7 in respect of matters in which they are not involvecl cannot be appreciated. It has been noticeﬁ that even when public servants have I-trmwiedge about Corrupt practices on the part af ether public: senrantﬁ they do not readily give information or evidence. Even when examined as witnesses the}; sometimes (16 not make -3 full anci frank statement but suppress can rain points. _ They may not directly tea lies but this suppression of material facts is equally damaging. In order to check this tendency it would be useful to have provisions in law and in rules to make it incum- bent on public servants to give full axgd true informa- tion and evidence about corrupt practices within their knowleiige, zﬁuggesti-qn of ("he Central Butviau (sf Ir.v\e:~dgaﬂ:7u, S. No. 1 in Law 'C:2mmiss'mn File Na. F. I {.z}!67~L.C.,. capiezi {win 8. No. 44:: in Fiﬁ: Nu. F. 3 {z}J55-LC. Ft. '.711.

2Fa:3gmpf'l :, supra.

3Le;cs:rs ad-iscssed to the Law Cnmmissioxt by th: Dzpartmenr comer» mad deszred early action.

4Tak.=.-rz from the original suggzzstixm dared 22nd 3513:, 1965 at" th: Dime- réojr, Cantra} Bur.-mu of I..2V:3tEgatian, ccmzaiaed in the Manistcy cf I-Esme égffairs E.

5. (S. 3-3:» 2 mi law Cx>mmi3ai::»n's 'Eiier No. F. I 1C27;67--1..E.':=, 2--111} M. of Law.

With a View to achieving this object it is suggested that a provision be made in the Criminal Procedure Code under' which a duty may be cast upon public servants to give assistance and information about the conunission of oﬁ'en~ ces under sections 161, 162, 1'33, 164, 1-6:'; and lﬁ'5--_.L I.P_C. and under sections 5(2) and 5(3) of Prevention of Corrup- tion Act {Act II of 194?) and also to make it their duty in the course of any eiiquiry, investigation or trial into any of the above offences to ansvr-_er truthfully and fully all questions relating to such cases other than questions the answer to which may expose him personally to a crirninal charge."

-1

4. The draft amendment proposed in the suggestionl is also quoted below:--_-

"Section 44A. Every public servant aware of the commission of offences under sections 161, 162, 153, I64, 165, 165A, 1.P..C., and sections 5(2) and 5(3) of Act 11 of 1947 shall, in the absence of reasonable excuse, the burden of proving which shai] lie upon the person so aware. forthwith give information to an authority competent in law to investigate such offences and shall while giving such information truly disclose all the facts and circumstances oi the case within his knowledge.

=1'-ind in the course of any en-:1uir3,'. investigation or trial into any of the above offences, it shall he the duty of every public servant to answer truly and fully all questions relating to such case put to him, other than questions, the answer to which shall have a tendency to -expose him to a criminal charge". ' Points made 5. Thus, three points have been made in the sugges- ;:S:J*§'h5"B" tion'=, pertaining respectively to------ Bnumersted. (i) duty to give information;

(ii) duty to disclose full facts in the. investiga-

tion; an-:1

(iii) duty to disclose full facts in evidence.

The question whether any change in the law is desir-r able may he considered, with reference to each of these points.

First point-- 6. The first point3 (proposal to make it incumbent on ignfgfgaégg every public servant to report offences relatin to bri~ To '='E1:Il:\rt 5' bery) related to section 44, Code of Criminal rocedure, bzil:-ay 1898. That the offence of bribery is a serious one need not be disputed. That the legislature has emphasised its I Taken fr»:-I31 rho original suggestion dated 22nd June, I965 of the Eehuai Bureau of Investigation contained in the Ministry of Home Affairs ﬁle [S. No. 2 of Law Cc-u1m|ss1on's file No. F. I {2}} ';'-LC}.

2 Paragraphs 3 and 4, supra.

3 Paragraph 5 (5), supra.

seriousness is evident from the fact that in recent times special and stringent provisionslhave been enacted for its prosecution and punishment. It, therefore, by an amend- ment: the offence can be inserted in section 44 (or in a pro- vision similar to section 44 to be put. immediately after section 44), and if such amendment is not open to any serious objection, then the proposal for amendment de- serves consideration. We, therefore, first proceed to exa- mineﬂwhether the proposal ﬁts in with the scheme of sec- tion .

T. The offences speciﬁed in section £4 of the [Code of Criminal Procedure, 1893, seem to lend toe-roeelves to a broad classiﬁcation as folloWs:----

Sections of the Indian_ Penal Code referred to in section 44:,' Code of Criminal Procedure.

Nature of the otfenoe.

Sections 121 to 126, and 130, Indian Offences against the State.

Penal Code. ' Sections 143 to 146, and 143, Indian Oﬁenccs I ' against " public Penal Code. tranquility.

Sections 392 to 394, Indian Penal Code, Serious offences against the per- son, causlng cleath.

Section 332, Indian Penal Code (Theft C-Hences against properly: €V511C"

after preparaﬁon made for causing jng a cletonriination to carry ieath}, sccri':1:ls 392 to 399 and 4:2, olit 0I1E'3 object by '-H2153' Jndian Penal Code: {Rocha}: and rnealis.

Dac:i'rY}.

Sections 435 and 436, Indian Penal Code (Mischief by ﬁre), stvvdons 449, 450 and 456 to 460, Indian Penal Code (House-

trespass to commit serious oﬂcnces or oﬁcnccs where death or grievous hurt caused)-

From this classiﬁcation, it would appear that the oﬁences in respect of which information is required to be given, are either Those which create a sense of insecurity or ShO'W a malignant heart bent upon mi;-3ch1'ef--«-oifences which, by their very nature,.are such that immediate arrest is neces- sary to restore the sense of security or to prevent the oﬁender from inflicting further harm. This is trueieven of the offence under section 382, Indian Penal Code which, though not constituting full-ﬂedged robbery, practically amounts to robbery"; Further, the overt acts which con- E.Ei'[Ui;E- most of the c-1'-Zences speciﬁed in section 4=1_- cf the Code of Criminal Procedure, 1893, are so obvious, that ordinarily it would not he difﬁcult for a layman to determine that an "oﬂ'ence"' of the speciﬁed category has been committed.

13% the Prevention of Corruption Act, 194-; (2 of 1947). -- 2,Ser:lion 392, Indian Penal Code.

39.: alysjs of

3. 44,_ Code of Cnmmﬂ Procedure.

History of 8. Some idea of the original object of the section can be 5*'-'H09 44- obtained from the corresponding section in the 1861 Code, which is quoted below1:_»~--

"I38. All persons to give information of offences. It shall be the duty of every person who is aware of the commission of any ofEence made punish- able under section 382, 392, 450, 456, 4:57, 458, 459, or 460, of the Indian Penal Code, to give information of the same to the nearest Police Oﬁicer, whenever he shall have reason to believe that if such information be -with.- held, the person who committed the offence may not be brought to justice, or may have his escape facilitated."

In the latter half of the section, the Words "if such in- formation be withheld the person may not be brought to justice or may have his escape facilitated" seem to show the dominant consideration.

9. This is borne out by the history of the offence in England. As was observed by Lord Denning9----

"Eversince the days of hue and cry, it has been the duty of a man who knows that a felony has been com- mitted to report it to the proper authority so that steps can be taken to apprehend the felon and bring him to justice". A

10. When the Code of 18'T2. was under consideration offences under sections 302, 303, 304, Indian Penal Code were discussed. The proposal to add these offences seems to have been made after suggestions were received by the Legislative Department. Offences under sections 121 to 126 and 130, Indian Penal Code were also added in 1872. The Select Committee, in its Report dated 12th March, 18723, stated:----

"We have added Murder and offences against the State to the list of offences which. it is the duty of the public to report . . . . . .".

11. Some of the important comments' made in 1872 may be quoted.

(i) Dﬁicioting Judicial Comm.i53éone-r, Oudh (Mr. C. Currie, S. No. 251 in the ﬁle, para. 31).

"it is suggested that sections 302, 304, 306, 308, 311, 317, 400 and 401 be added to the list in this section. Mr. Sparks observes that he is not aware on what principle the offences referred to in this reaction 138, Code of Criminal Procedure, 1861 (25 of 1861). zsykes, v. D. P. P. ([961) 3 W.L.R. 37):, 377 (I-LLJ.

3Rcport of the Select Comrnittce dated rzth March, 1872; _Proceeding of the Legislsﬁi-e Department regarding the 1372 Code, Appendix P, para- graph 22.

4Legisls.ti\'e Depamnent, Proceedings regarding the 1872 Code, No. 14! to 346 (National Archives).

section have been selected; but in his opinion mur- .der should be one of those offences regarding which any person acquainted with the fact would be bound to give information. I certainly think that sections 302, and 304 should be added; for I do not understand why a person is to be bound to give information of the commission of 21 than but not of a murder. The other sections could not in my opinion, be advantageously included".

(it) Dr. C. D. Field', ESq., LL.D. Barrister--at-Law, Ofiiciatinguludge of Chittagong, suggested as follows: -

"Section 69----l would add to this list sections 302 and 304 of the Penal Code. I would also incor- porate the old Bengal Regulations which make it incumbent on Zamindars, etc.__ to give information in certain cases. See Regulations VI of 1810, I of 1811, III of 1812'and VIII of 1814 . . . . ..".

(iii) Mr. Barkley" (Paragraph 20 of his letter, quot~ ed by the committee appointed by the Punjab Govern- ment to report on the Revised Bill, in its letter dated 25th May, 1871): "Section 69 appears unduly to limit the obligation of members of the general public. For example, "murder is not one of the offences enumerated".

12. Section 44, as it stood in 1882, was as follows: --

"44. Every person, whether within or without the Public Presidency towns, aware of the commission of, or of to give _ the intention of any other person to commit, any offence i11f0ﬂ1"E|°n 0fﬁCeIt'&!l1 0 CHCE5.

punishable under the following sections of the Indian Penal Code, namely, 121, 121A, 122, 123, 124, 124A, 125, 126, 130, 302, 303. 304, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 456, 457, 458, 459, and 460, shall, in the absence of reasonable excuse, the bur- den of proving which shall lie upon the person so aware, forthwith give information to the nearest Magis- trate or police-o-iﬁcer of such commission or intention."

13. By Act 3 of 18943, the following amendment was made in sections 44 and 45.

1872 Code.

d_ I21;-BEiS1atiV3 D?-Paﬂment Proceedings relating to the 1872 Code, Appe]-1- ix 'Code of Criminal Procedure, 1882-1. To section Addiu-mm 44 Of the Code Of Criminal Procedure, 1382, the follow- section 44 ing shall be added, namely:----

be punishable under any of the following sections of the Indian Penal Code, namely, 302, 304, 332, 393, 1No. 262 in the Legislative Department Proceedings relating to th;

e 3The Indian Criminal Law Amendment Act, 1894 (3 of 1894).

Codeof ,, , Criminal Any act committed at any place out of British Procedure, India Which. if committed in British India, would 1333- Addition to section 45 of same Code.

Amendment of section 4.4, Act X, 1882.

Amendment of section 45, Act X, 1882 and addition of a section thereafter.

Village-head:

men, ac-

countants, land-holders, and others bound to report CB1.' -

tain matters.

393, 394, 395, 396, 397, 393, 399, 402, 435, 436, 449, 450, 457, 458, 459 and 460, shall be deemed to be an offence for the purposes of this section.".'

2. In section 45 of the Code of Criminal Procedure-,xo§ 1882, the following shall be added after clause (d) I832 and substituted for the explanation, namely:--

" (e) the commission of, or intention to commit, at any place out of British India near such village any act, which, if committed in British India, would be an offence punishable under any of the following sections of the Indian Penal Code, namely, 302, 304, 382, 392, 393, 394, 395, 396, 397, XLV 0, 398, 399, 402, 435, 436, 449, 450, 457, 458, 459 and 1860

460.".' In this section-

(i) "village" includes village-lands; and

(ii) the expression "proclaimed oﬁender" includes any person proclaimed as an offender by any Court or authority established or continued by the Governor-

General in Council in any part of India in respect of any act, which, if committed in British India, would be punishable under any of the following sections of Indian Penal Code, namely, 302, 304, 382, 392, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449', 450, 457, 458, XLV ef 459 and 460.". '$50 By Act 10 of 18941 the following amendments were made to sections 44 and 45:-

"1. In section 44 of the said Code the_ ﬁgures "143, 144, 145, 147, 148" shall be inserted between the ﬁgure "130" and the ﬁgure "302".

2. (1) For the part of section 45 of the said Code beginning with the words "Every village-headman"

and ending with the ,Words "under suspicious circum- stances" the following shall be substituted, namely:---

"45. Every Village-headman, village-accountant, village.-watchman, village-police-officer, owner or occupier of land, and the agent of any such owner or occupier, and every ofﬁcer employed in the collection of revenue or rent of land on the part of Government or the Court of Wards, shall forth- with communicate to the nearest Magistrate or to the officer in charge of the nearest police--station, whichever is the nearer, any information which he may obtain respecting-

(a) the permanent or temporary residence of any notorious receiver or vendor of stolen 1The Code of Criminal Procedure, Amendment Act, 1394 (10 of 1894), 1 property in any village of which he is head-

man, accountant, watchman or police--oﬂicer, or in which he owns or occupies land, or is agent, or collects revenue or rent;

(2)) the resort to any place within, or the passage through, such village of any person "whom he knows or reasonably suspects, to be a thug, robber, escaped convict or proclaimed offender;

(c) the commission of, or intention to commit, in or near such village any non- bailable oifence or any oﬁence punishable XLV Of under section 143, 144, 145, 147, or 148 of the 135°- Indian Penal Code;

(ct) the occurrence in or near such, village of any sudden or unnatural death or of any death under suspicious circumstancesg".

(2) In the same section, after clause (9), added by section 2 of Act III of 1894, the following shall be inserted, name1y:--

"(]') any matter likely to aﬁect the mainte- nance of order or the prevention oi crime of the safety of person or property respecting which the District Magistrate, by general or special order made with the previous sanction of the Local Gov- ernment, has directed him to communicate infor- mation."

14. In the Bill of 1897 as introduced, the only change proposed in section 44 was the addition of Sub-clause (2), £13 f0llows:----

-"(2) For the purposes of this section, the term "offence" includes any act which would constitute an offence if committed in British India}.

In the statement of Objects and Reasons' under clause

-4.4, the following reasons were given:-----

"Clause 44-The new clause is necessary in regard to the giving of information of offences committed or intended to be committed in Native States, especially on the border land of British India".

15. In the Report of the Select Committee, on the 1897 Bill, this change was maintained (With Certain verbal alterations). Clause 4é(2) as approved by the Select Com- mittee _:Eor the 189'? Bill, stood as follows:----

(2) For the purposes of this section, the term "offence" includes any act committed at any place out I81:-aternent of Objects and Reasons, dated 14111 October, 1897.

of British India. which would constitute an oﬁence if in British India'.

In the Code as passed in 1898, section 44(2) was enacted in the form in which it was approved by the Select Com- mittee.

16. It may be of interest to note that clauses 7 and 8(1) and (iv) of the Amendment Billl of 1914 proposed the addi- tion of several offences to section 44 and section 45(1) (er) , including, (in both cases) section 489A to 4391}, Indian Penal Code and offences under Chapter 12, Indian Penal Code (Stamps and Coins), excludin sections 239, 240, 250, 251 and 254, Indian Penal Code. T e reasons were thus given:---

"Clause 7(sectéon 44) It is considered desirable to place upon the public obli- gation to give information regarding the more sew-town' offences relating to coin and government stamps and the counterfeiting, etc., of currency and bank notes."

"Clause 3 {section 45) The second and fourth amendments are similar to those covered by clause 7."

17. The Lowndes Committee (which scrutinised the 1914 Bill) retained these particular amendments2. But the Joint Committee which examined the 1921 Bill made these observations on clauses 9 and 10 of the 1921 Bill (pertain- ing to sections 44 and 45-) 3-

"Clauses 9 and 10 (sections 44 and 45) Some of our non-oﬂicial members deprecated any extension of the scope of section 44, and on the whoie, in View of the fact that prosecutions for contravention of the provisions of the section are rare, we thought that the matter was not one of great importance. We have, therefore, deleted clause 9'.

We are agreed, however, that the same considera- tions do not apply to section 45 where the obligation to give information to the police is laid on a restricted class of persons, and We have maintained the addi- tions made to clause (:3) of sub-section (1) . . . .".

1Clauses 7_and 8, Code of Criminal Procedure (s.n1endme11t)BiH, I914 " Gazette of.Ind1a", March 28, 1914, Part V, pages IOI-I02, 119 [Clauses 7 and S (I)(_l'?J)].

zRep0rt of the Lowndes Committee (23rd December, 1915): Appendix B, Notes on clauses 7 and 85 [Goyernmcnt of India, Legislative Depamnent, Assembly and Council-A Proceedings, October 1923, No. J--54, (National Archives of India)].

3Report of the Joint Committee (26th June, 1322), Government of India, Legislative Department, Assembly and _Couuc11-A, Proceedlngs, October, xgz-3,No. I-54, (National Archives of India).

18. Bribery, in our opinion, does not bear an analogy Bribery co the offences speciﬁedl in section 44. There is no ques- jvhtther t tion of a sense of insecurity" being created by bribery, or f%:1;'fE';"fn° of the public tranquility being disturbed or of violence m,,-,,,, 44, being employed. The harm, though serious, is not of the gose_of same category as that resulting from the oﬁences mcn- ';Hm*é*31 tioned in section 44. Moreover, it may be diﬂicult for a 1'°°*'= "W iayman to satisfy himself fully about the facts and decide whether the act of giving money or other gratiiication is accompanied by the various circumstances so as to iuliil all the ingredients of the oifence as deﬁned in section 161, Indian Penal Code and connected sections.

19. We have also considered the provisions of section 4'5 Section 45 of the Code of Criminal Procedure3, under which Vi1lage- 'if £2' headmen, accountants, landholders and others are bound cO':,s,dmd_ to report certain matters. Most of these matters relate to offences affecting the maintenance of order or security,- Offences under sections 460, 489A, 489B, 489C and 489D, Indian Penal Code are also reportable under section 45(1) and under section 45(l){f), the District Magistrates can require the persons mentioned in the opening sentence, of section 45(1) to communicate information respecting any matter likely to affect the maintenance of order or the prevention of crime or the safety of person or property, respecting which the District Magistrate, by general or special order made with the previous sanction of the State Government, has directed him to communicate information. Bribery and corruption do not seem to be analogous to the matters which are specifically mentioned in section 45 or regarding which an order can be made under section 45(1) (r).

As regards section 45» (1) (e), which mentions, -inter alia, section 489A, Indian Penal Code, etc. (offences relating to currency notes), it should be observed that it applies in respect of the commission of these acts at a place out of India near the village. The overt acts required in offences affecting currency notes would be obvious. A private person can hardly claim that an act of counterfeiting or possession of instruments of counterfeiting, etc., has a law- ful purpose.

20. We went through a number of special laws contain~ Provisions ing provisions.' analogous to section ~14 of the Code of 1'11 5P=€5a1 Criminal Procedure, 1898, or otherwise requiring infer» laws' mation to be furnished regarding speciﬁed matter5_ Most of these provisions come-_ into play on a demand made by a competent authority (he. no spontaneous reporting is required). Some are of a special character, and do not rPa1-agraph 7, supra. '--

2Cont1'ast paragraph '7, supra, as to murder, etc. 3Section 45, Code of Criminal Procedure, 1893, 48:22 list in Appendix 2. (The list is not intended to be exhaust',-ve)_ Dilemma before the person bound to give in-

forrllation.

Qualiﬁed privilege.

relate to information in relation to "otfences". This leaves us with very few enactments that contain provisions really analogous to section 44 of the Code of Criminal Procedure, and these pertain to arms or explosives.--in other words, to matters affecting security,

21. We also went through a number of laws1 which impose duties on the police--ofIicers, etc.

22. Another important aspect of the matter should also be borne in mind. When the person concerned is placed under an obligation to report a certain act alleged to be a crime, the law places him in a dilemmatic situation. If he fails to give information, he renders himself liable to punishrnenti'. If, on the other hand, he rushes to give the information and ultimately it turns out that the ingredients of the law deﬁning the offence are not fully satisﬁed, he may be sued for damages for defamationi', and it may then be a hard task for him to satisfy the court that the state- ment was protected as made on an occasion of "qualiﬁed privilege" (in a civil suit), or to take shelter under the eighth and ninth Exceptions to section 499, Indian Penal Code (in a criminal prosecution) 5.

23. A privileged occasion (in reference to qualified pri~ vilege) is an occasion "Where the person who makes the cornrnunication has an interest or a duty legal, social or moral, to make it to the person to whom it is made and the person to whom it is so made has a corresponding interest or duty to receive it''''.

24. The classic statement as to an occasion of qualiﬁed privilege is that of Parke B." according to whom the defen- dant is liable for a defamatory publication "unless it is fairly made by a person in the discharge of some public or "private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is con- cerned. In such cases the occasion prevents the inference of malice which the law draws from unauthorised corn- rnunications, and affords a qualiﬁed defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, 18:22 list in Appendix 3. (The list is not intended to be exhaustive). zSee sections 176 and 202, Indian Penal Code. 3For detailed discussion as to defamation see paragraph 23 et seq, infra. 48cc paragraph 23, infra.

5For criminal liability, see paragraph 46, infra- 6Sce Lord Atkinsorfs judgment in Adam V. Ward, (1917) A.C. 3o9, 334 ; (1916-17), All E.R. Reprint I57, 170. . ' . .&R.13tr L..Ex. -

149 1?"-,§{0.0gfg:4M; {iI§§.ii',I 1?./'KR. Rep. 735', 79333', awhjcli has described by Lord Shaw as holding " the leading place" in authority, in Adam V. Word, (mi) A11. 309; (1916-1917) A11 E-R Rep. 157, I75 (H.L.).

such communications are protected for the common con- venience and welfare of society; and the law has not res- tricted the right to make them Within any narrow liInits"1.

Discussion in a judgment of Scrutton L. J. may also be quoted":-----

"By the law of England there are occasions on which a person may make defamatory statements. These occasions are called privileged occasions. A reason frequently given for this privilege is that the allegation tha-t the speaker has "unlawfully and mali- ciously published" is displaced by proof that the speak- er had either a duty or an interest to publish, such duty or interest conferring the privilege. But communications made on these occasions may lose their privilege. (i) They may exceed the privilege of the occasion by going beyond the limits of the duty or interest, or (ii) they may be Published with express malice, so that the occasion is not being legitimately used, but abused".

The Defamation Committee state the legal position thus':---

'Speaking very broadly "qualiﬁed privilege" at common law exists wherever the person publishing the defamatory statement (Whether libel or slander) is under a duty to, or has an interest in, publishing it, and each person t.o whom it is published has a corres- ponding duty or interest in receiving it. In the course of the evidence submitted to us, little or no criticism has been directed towards this branch of the law of defamation---which is of vital importance to all mem- bers of the community and we do not recommend any change.'

27. We may refer to the judgment of Willes 3.4 in one English C-35¢ case. An action was brought against the Queen's printer as to for damages for publication of certain defamatory state- '1".i'1_11ﬁ"d ments contained in a minute prepared by the First Lord of 13"" eg''' the Admiralty for presentation to the Parliament during the ensuing session. printed by the defendant. The privilege relating to matters in which the speaker or writer and the person addressed have had a duty or interest in common was considered, andthe following examples cited:----

"Of this class are cases of characters given to servants, either in dismissing them,5~'3-7--or in advising [Generally as to qualiﬁed privilege, see Halsbury, 31-cl Edn., Vol. 24, pages 54, 56, paragraphs 97 to mo.

3 ztgatr v. Longsclon, (1930) I K.B. I30 ; (1929) All E.R. Reprint 284' 2 7-28 .

qivlepurt of the Committee on Defamation (Porter Committee) (1948):

Cmd. 7536, paragraph 96.

4Henwo.od v. Harrison, (1872) Law Reports 7 GP. 606, 620, 621', 622. 5Tayl'or V. Hawkins, I6 Q.B. 308 ; 20 L.]. (Q.B.) 313.

5Scrmerm'Ile v. Hawkins, IO CB. 583 ;2o L.I. (C.P.) 131.

7M.:mby v. Wm. 18 C.B. 544 ; 25 LJ. (C.P.).294.

others not to employ them, even though the advice be not asked for'-2; of advice given to another, as to the character of a person with whom marriage was contem- plated"; of information that a robbery had taken place; of a handbill offering a reward for the recovery of bills' of exchange, stating that they were suspected of being embezzled by the plaintiff, such handbill being pub-- lished for the protection of the person liable on the bills, or to secure the conviction of the offender'; of complaints to public oﬂice-rs of the conduct of persons in their employment"; of fair criticism of literary or other works"; of places of public resort"; or of the persons who perform there"; or of other proceedings of a character in which the p-ublic have an interest".

The principle upon which these cases are founded is a universal one, that the public convenience is to be preferred to private interests, and that communications which the interests of society require to be unfettered may freely be made by persons acting honestly without actual malice, not- withstanding that they involve relevant comments con- demnatory of individuals.

In a popular work on defamation" the position has been thus stated:----

"A person is not only entitled, but is under a duty, to report to the police what he knows, if he has reason to believe that a felony has been committed. Such a report would be protected by qualiﬁed privilege because the person making it had a duty to do so, and the persons to Whom it was made--I1a1nely the police ofiﬁcia1s--had an interest in receiving it. But the position would be quite different if, instead of making the report to the police, he made it to the local news- paper, which would have no interest which the law would recognize in receiving it."

rPam'san v. 30233:, 8 B. 8: C. 578 per Bayley J.

2Gardner v. Slade, 13 Q3. 796 ; 18 LJ. (Q.B.) 334. 3Todd v. Hawkins, 8 C. 8: P. 88 (per Alderson B.).

4Ki'ne v. Smell, 3 M. & W., 297.

5F1'nden v. Westlrziae, M. 81. M. 461, per Timlal C. ]. 6B1'ake v. Pilfold, I M. 5: Rob. :98, per Taunton J. 7W/oodward v. Lander, 6 C. & P. 548, per Alderson, B. 3Tabart v. Tipper, I Camp, 350, per Lord Ellenborough. 9Fryer v. Kirmersley, 15 C.N. {N.S.) 422533 L.J. (C.P.) 96. 10 Dibbin V. Swan, I Esp. 28, per Lord Kenyon.

1]-_Grggary v. Duke of Bumswick, I Car. & K. 24, per Tindal C.]'. 12Dmme v. Anderson, R. & M. 267 ; 3 Bing. 88, per Best, C.L. I3]-Iickson and Cartcr-Runk, Law of Libel and Slander, (1953), page :47- 13

23. The argument of Sir Valentine Holmes K. C, in History of a Privy Council case' gives an outline of the evolution of Cluftlfiled the defence of qualiﬁed privilege in English law. p""'°gc'

29. In 3 Privy Council case", the English decisions, Ind_ia_n including Toogood v. Spyw-mg", and Adam v. Wardi were referred to as laying down the correct rule.

privilege, The Indian decisions as to qualiﬁed Privilege and civil liability are reviewed in a Patna caseﬁ, which also refers to the English decisions". The position in India, as regards privileged occasions in relation to civil liability, is not substantially different from England.

It may be added, that a statement made to a police- oiﬁcer in the course of an investigation may not be absolute- ly privileged, in India.

30. We may now speciﬁcally discuss privilege under Legal dug' the head of legal duty'. The question of legal duty was considered in an English cases. Section 223 of the Mer- chant Shipping Act, 1894, imposes a statutory duty upon the master of a shit: to make certain entries in the log, and in any case where the master leaves a man behind, he must state in the log whether the cause of leaving him behind is desertion or inability to proceed to sea or disappearance. The master made an entry that the plaintiff had deserted the ship. The plaintiff sued the shipping company, inter cilia, for damages for libel. It was held, that the Words were written and published on a privileged occasion, and before the plaintiff could succeed, he must prove that the master was, in fact, acting maliciously.

31. As to examples of legal duty, the"--1°--"--"-1"-1"di""°°'3°3 undermentioned decisions may be seen. legal Reports made in pursuance of legal duty, although defamatory, are prime facie justifiable, and the duty of 1Pere:'ra v. Pe1'r:'s, (I949) A.C. 1, 9, Io ; A.I.R. 1949 P. C. ro6. zGoc€r:a' Dar v. Bt'sa'zczr:rl7ar- Dczs, (I917) I.L.R. 39 All. 561, 571 (P.C.) 3Taogoad v. Spyring, paragraph 24, supra.

4Ad-cm: V. Ward, paragraph 24, supra, (footnote).

5.S'uremz7ra Nat}: v. Bageslm-ari Prasad, A.I.R. 1961 Pat. I64.

6Cf. MaroIz't'. Godubaf, A.I.R. I959 Born. 4-43 {DatarI.) (Reviews case law).

7Paragraph 24, Supra.

8Moore v. Camdzkuz Paciﬁc Steamship ('10.. (1945). All England Re- ports :28, I33 CL_vnskey I.)DS.

gwarzmmmah v. Balzocmt (1903) I.L.R.27 Born. 58 5, 588 (Chandavarker

1.). (Duty of police oﬁ-leer).

§oGov:'ndan Nair v. Achurha Manon (ms) I.L.R 39 Mad. 433 corneas' duty 1rGom'nd Das v. Bishambhbar Das, (1917) 44 I.A. I92; I.L.R. 39 All .561 (P.C). (Duty) as Chairman of a community Panchayat 1221/Iegiza Deva v.Kcrcha:ri:t , A.I.R. I955 Saurashtra uo. 135!-rbedar v. Edge: (1924) I.L.R. 45 All 772.

r4Prem Narafn v. ﬁtgdamba Sakai', (I925) I.L.R. 47 All 859 (Public duty of member of municipal board) Information given to police.

Statements in aid of justice.

Statements regarding suspected crime.

Statements as to H115- conduct of pubﬁc SCIVBHT.

making them reverses the malice which the Law implies, and renders proof of actual malice, 2.9., of some wrong and improper motive", Iiecessary to the maintenance of an action'.

32. Information given to the police to check_ crime _is, no doubt, privileged'-'. (The privilege is a qualiﬁed oned).

33. The protection under the head of statetnents in aid of justice is also relevant. It is thus stated in Gatelyi: "It is the public duty of everyone who knows, or reasonably believes, that a crime has been committed to assist in the discovery of the wrongdoer. Any com- plaint made, or information given, for that purpose to the police, or to those interested in investigating the matter, will, in the interests of society, be privileged and the mere fact that the defendant volunteered the information will make no difference".

The statement must be made to the proper authorities", and with the honest desire of promoting investigation into the alleged crime".

"A man is but a poor citizen, to say nothing Worse of him, if he is deliberately silent when he sees the lives of the public likely to be imperilled or the pro- perty of another person in obvious danger of being stolen or destroyed by one whom he honestly believes- to be a drunkard or a thief".7

34. Provided the statement is made to the proper au- thority and bona fide, and not for an improper motive, a statement concerning a suspected crime enjoys privilege even though the suspicion turns out to be erroneous.3--9.

35. Generally also, a statement as to the misconduct ot a public servant made to the proper authority does enjoy qualiﬁed privi1ege.1°--"-1?.

_IHart V. Qunpach (1372) LR. 4 RC. 439, referred to by Tyabii I. in Govzarrdmz Naif v. Achutha Manon, (1915) I.L.R. 39 Med. 433, 445.

2Padn-nvre v. Lawrence, (1840) II Ad and E1 380 ; see Gatley on Libel and Slander (I960), page 212, f.n, 2.2. For'facts of the case, see ibfd, page 215,f_n. 46.

3.949 GatIE:Y. Page 213.

4Gat1ey, Libel and Slander, (rose), page 210, paragraph 36- 5Gat.le}=, Liblel and Slander, (1960), page 210, paragraph 363:

6Gate]y, Libel and Slander, 1960, page 212, paragraph 367.

7See Winﬁeld on Tort, (1963), page 638.

8Gatley on Libel and Slander, (1960), pages 210-211, paragraph 363 98¢-e cases in Gatley, Libel and Slander,(19ﬁo), pages 212-213, para- graph 369 ; footnotes 23 to 26.

1oG-arley on Libel and Slander, (1960), page 216, paragraph 374. iijimoure v. D. elmege, (1891) A.C. 73. Izjusab. Morrs1'sz'on (1912) 15 Born. L.R. 249.

36. The diﬂiculty, however, which we have in mind is Diﬁilcuty not, that the suit for defamation will ultimately succeed,---- 10 bsd d which perhaps it may not,---but that the suit will be ﬁled °°"'"' "E ""

and the informant will have to undergo the terror of that suit.

37. We may, in this connection, quote from Mr. Justice Iustirii Slade's view expressed exti-a--judiCia11y.1 ;?,,ij',,S"

"I doubt whether it would be an exaggeration to say that the risk of becoming involved in proceedings for defamation is almost as great that of becoming involved in an action for negligence following. a road accident.

38. It should be made clear, that we are not thinking of Partly H116' a totally false story" or of a totally true story. We are C33"- thinking of a case where some of the ingredients of bribery are established, but not all. This is a material considera-

tion, because it is not enough that the person reporting an "offence" bona fide thinks that he is discharging a dutyi'.

39. The practical difficulty' arises because two duties Cﬁnﬂici come into play,--the duty to report crime, and the duty E':'t'3",'°fé' not to malign one's neighbour. report and duty not to mahgn onc"s-

neighbour.

40. The point is, that the informant should not be forced Delicate .

to make the delicate choice of deciding (i) whether he §h°t')°'*f"°' d should take the risk of being sued in defamation (by re- 0?, ,§f,,'§,','§f ' porting a suspected case of bribery, in order to avoid a ant. prosecution under sections 176 and 202, Indian Penal Code), or (ii) whether he should take the risk of remain-

ing silent and incur the consequential risk of a prosecution (by not reporting in order to avoid a suit for damages for defamation) .

41. As to the present legal position, the following obser~ present vations of Creswell J .5 may be referred to in this context. legal "It may be said that it is very hard on a defendant posmm to be subject to heavy damages (for libel) where he has acted honestly, and where nothing more can be imputed to him than an error in judgment. It may be hard: but it is very hard, on the other hand, to be falsely accused. It is to be borne in mind that people are but too apt rashly to think ill of others; the propen- sity of tale-bearing and slander is so strong amongst 1F0rew0i-d by Mr. Justice Slade to Hickson and'Carter Ruck, Law of Libel and Slander. (I953).

2,Cf, Show-JLr1l V. Abdul Roof, I.I_..R. 57 A11. 935 ; A.I.R. 1935 All. 533, 541 tF.B-)-

J3Cf. Smart V. Bail (I891) 2 QB. 3414 349 (C.A.) (judgment of Lirldl-':3' L. .).

4Pm-zzgrapfz 35, supra.

5CuxF:ead v. Richards, (1846) .2 C,P_ 569, 501 ; :35 ER. 1059, ID 32.

No protec-

tion for wrong as-

sumption.

Privilege for ﬁrst information report.

mankind, and, when suspicions are infused, men are so apt to entertain them Without due examination, in cases where their interests are concerned, that it is necessary to hold the rule strictly as to any oﬁicious interrneddling by which the character of others is affected".

And, as was observed by Tindal C. J. in the same case', if the defendant took a course which was not justifiable in point of law although it proceeded from an error in judg- ment only, (and not an error of intention), still it is un- doubtedly he, and not the plaintiff, who must suffer for such error.

42. As was observed by the House of Lords2 no protec- tion can be afforded to a person who wrongly assumes the facts which constitute a privileged occasion.

43. There is, we note, a conflict of decisions on the ques- tion whether a statement made by way of First Informa- tion Report3 possesses qualiﬁed privilege", or whether the privilege is absolute on the ground that it is a step towards a judicial proceeding"-"'.

44. The position in England was thus stated by Blagden J. in a very exhaustive judgment5.

'A Wou1d--be institutor of criminal proceedings in England could, till the recent abolition of Grand Juries, take any one of at least three courses. If his charge was one of an indictable offence he could prefer a voluntary bill of indictment to the grand jury at the Assize or Quarter Sessions for his county, or borough (he must now prefer it to the presiding Judge or Recorder) ;, or whatever the oiience charged, he could lay information before a Magistrate; or he could com- plain to the police. Against proceedings for defama- tion either of the ﬁrst two courses afforded him com- plete and absolute protection but he was exposed to the risk of an action for malicious prosecution if the prosecution failed. The third course freed him from that risk, unless indeed he made the police his agents by saying, in effect, "I wish you to prosecute what- ever you think about it" instead of "I wish you to look into the matter and prosecute 'if you think ﬁt' ".

Icaxhead V. Richards, (1846); 2 CJ'. 569, 596 I35 ER. 1069, I080. 2Ba:'rd V. Wallace 7ames. (I916) 85 LJ. P.C. I93, 197. 3Section 154, Code of Criminal Procedure, 1898.

(Fé;1)1'I0,ifu V. Lachman Prasad, I.L.R. 46 All. 67r ;A.I.R. I924 AH. 435 5BalammaI v. Paraudi-Nafdu, A.I.R. 1938 Mad. I64 (D.B.j}.

63:':-an Gare:-i v. loulhin Samaria. A.I.R. 1962 Pat. 229, 223, paragraph 5 (Rarnaswami C. I. and Untswalia J. ,1.

7See also paragraphs 28-29, supra. 8Mayr v. Rioaz, I.L.R. (I943) I Cal. 250, 265, (Blagden ].._:.

I'?

It was, therefore, not unreasonable that, if he took the third course; he should be open to a suit for defama- tion. In any case, if he acted honestly, he had nothing to fear beyond the annoyance of a law--suit which he could successfully defend: But since the law from the earliest times permitted suits for malicious prosecution it has clearly never been its policy to stiﬁe enquiry into the motives of prosecutors as such, still less those of would-be prose'cutors.'.

45. We do not elaborate this point. Whichever View is correct, the difficulty which we have in mind1--the pros- pect of the institution of a suit----is not eliminated.

46. We have so far-9 dealt with civil liability for defama- P°.;11t_1§;'1 3' tion. The position is no better at criminal law. The offence 1°" ' of defamation, as deﬁned in section 499, Indian P'enal Code, is subject to certain exceptions, and the exception that appears to be the most relevant for the present purpose is ' the Eighth Exception, which runs as follows3:-- I "Eighth Exception: It is not defamation to pre- fer, in good faith, an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusa- tion". I aw.

The two ingredients are, first, accusation in good faith, and secondly, preferring it to a person having lawful authority.

If the imputation is true and its publication is for the public good, then, of course the First Exception to section 499, Indian Penal Code applies. In some cases, the General Exception as to legality' may app1y-----for example, if the offence of bribery has in fact been corrirnitted, and its re- porting is made obligatory as proposed.

- Trouble, however, is likely to arise where a person, believing that an oifence has been committed which falls under bribery, gives information to 'the authorities con- cerned, and it turns out that the offence had not been com- mitted, because of the non-satisfaction of some of the ingredients of the o-ﬁence. The belief of the informant in such cases may be honest; but it may not be without sufﬁcient cause. Since the Eighth Exception to section 499 requires, inter alia, "good faith", and since the deﬁnition of "good faith" in the Indian Penal Code5, requires due care and attention, it is obvious that there is no protection in the absence of a reasonable ground for the informant's "belief. ' The degree of care requisite will carry with the 1Paragv.-aph 36, supra.

2Paragrapl1s 23 to 43, supra.

3Scction 499, Eighth Exception, Indian Penal Code. 4Ssctio1'l 76, Indian Penal Code.

sseciion 52, Indian Penal Code.

3-110 M. of Law Good faith under Indian Penal Code.

Decisions under 3. 499, Indian Pen al Code.

degree of danger which may-result from the want of care;

"Where the peril is the greatest, the greatest caution 1S necessary."1 4'7. So for as the deﬁnition of "good faith" in the Gene« ral Clauses Act is concernedz, it suffices if a person has acted under an honest belief. But, section 52 of the Indian Penal Code places emphasis on due 'care and- attention."

48. The decisions speciﬁcally under section 499, Indian. Penal Code also make this amply clear''--''. The Eighth Exception, to that section at least, requires that, having regard to the facts and circumstances within the infor-- mant's knowledge, he might, as an ordinarily reasonable- and prudent man, have drawn the conclusion". The good name and reputation of a person are not placed at the mercy of the credulity or indifference hf a negligent reporteri. _ '

49. We cannot, in this connection, do better than quote ghee observations of Straight J. in Queen Empress v. Dimm- ingh". ' 'Under Exception an accusation preferred in good} faith to one person, who has authority over another, in respect of the subject-matter of that accusation. is not defamation. - It wil1_be observed that two ingre- dients are essential to the establishing of this protec- tion--(i) that the accusation must be made to apperson in authority over the party accused; and (ii) that the accusation must be preferred in good faith---that is to say, with such reasonable care and attention on the part of the person making it. in ﬁrst statisfying himself of the truth and justice of his charge, as an ordinary man should be expected to exercise. I am" not at liberty' to resort in the present case to the provisions of section 2".' of Act 18 18629, which enacts that "in proving the' existence of circumstances as a defence under the 2nd, 1Moi-gan and Macphc-1-son, cited in Ratan Lal, Law of Crimes, (1966-) page 88.

2Cf. Section 90, Bills of Exchange Act, 1882 founded on faxes v. Garden, (1877) 2 A.C. 616.

3Har-rbhaﬁm Singh V. State. A.I.R. 1966 S.C. 97,103, paragraph 19, 4See A1-noZd'v.K. E., I.L.R. 41: Cal. 1023 5 A.I.R. 1914 RC. 116, 119;, 5The decisions are collected in Ratan Lal, Law of Crimes (1966), page 13-43-

" scf. Abdulffakim v, Tej Chander, (I881), I.L._R. 3 All. 316, sis (Straight (45 and 46 Vict. c. 18)

7.S'ee case-law reviewed in R. Sankar v. State, I.L.R. I959 Ker. 19515- A.I.R. I959 Ker. I00.

3Qm=er: Empress V. Dhum Sing)», (I884) I.L.R. 6 All 220, 222 (per Straight L).

9'Ihe reference seems to be to the Act dealing with Criminal Procedure of the' Supreme Court (Act 13 of 1862;, repcaledjhy Act 10 of 1332, 19 3rd, 5th, 6th, 7th, 9th or 10th exceptions to section 499 of the Penal Code, good faith shall be presumed, unless the contrary appears", as that Act is not in operation here1.. On the contrary, I can only look to section 105 of the Evidence Act, which throws upon the appellant the burden of proving the existence of cir- cumstances bringing the case vvithin'Exception 8, and directs the Court prima facie to presume "the absence of such circumstances".'.

50. It is not possible for the court to engraft an excep-

tion derived from the common law of England or based H u-pon public policy. In a Calcutta case", Mookerjee, Acting Chief Justice, has discussed the case-law and history of section 499 and the various decisions thereunder, and em- phatically .stated that the court cannot engraft exceptions derived from the common law of England or based on pub- lic policy. In view of the plain language of the Eighth and Ninth Exceptions, it was pointed out that absolute pri- vilege could not be claimed under those Exceptions.

51. The proper point to be decided under the Eighth Exception to section 499, Indian Penal Code is not whether the allegations put forth by the accused (alleged to be defamatory) are, in substance, true, but whether he was informed and had good reason after due care and attention to believe that "such allegations were true.

52. Difﬁculties do arise in practice in determining whe- ther the accused had reasonable cause to believe".

"Due care and attention implies a genuine eifort to reach the truth and not the ready acceptance on ill- natured beli_ef."* An honest blunderer can never act in "good faith" within the meaning of the Indian Penal Code_ if he is negligent5-5.

53. If the reporting of the crime (in the absence of a legal duty) is to be justiﬁed on the basis of moral or social duty, the task is far more troublesome. The judge has "no evidence as to the view the community takes of moral or social duties", and he has to decide it as best as he can.

1As to the law in Presidency towns before 1882, see Shiba Pram? Panda}:

(1879), I.L.R. 4 Cal. 124, 130 (Prlﬂsep J.).

I92x2(S-'1-ctfsig (ggagdja v. Ram Doyal De, (I920) I.L.R. 43 Calcutta 333 ; A.I.R. a . . . . _ 3See for example, Romesh Roy yr. The King, A.I.R. I952. Cal. 228, 230, paragraph _6 (complaint Of prostitution made by the accused in a petition whlc he SlgTled on the strength of signatures on the peunon made by 49 gther persons held protected, reversing the Judgrnent of the lower r,-our-r)_ (Ra-¥1.I](:;"£;'I;f:££'l1;3hI]i:ﬂ)Pf1lat, in re, A.I.R. 1933 Mad. 936, 937, paragraph 5 5Ganapa;3u'-2 ﬁllet', in re, A.I.R. 1953,!)/lad. 936, 937, paragraph 5_ 6Super:'ntendent and Renzembrancer of.'-"Legal Aj_'fa:'r.s V. Puma Chandra, A.I.R. 1924 Cal. 611, 614 (Ninth Exception).

7See_Watt v. Longsdtm, (1930) 'I 31.13. 1'30, (1920) All. E.R. Rep, 2.34, 288 (Reviews case law).

Moral duty.

Need for conﬁning SeC't10ﬂ 44:

Code of Criminal Procedure wiI'.h.in certain limits.

Observations of Criminal Law Com-

missioners.

Considera-

tions out--

lined above to be borne in mind, Whether 1t)7ract'C21 one t likely to IICCTIIE.

54. Finally, the need for conﬁning provisions ~ in the nature of section 44, Code of Criminal Procedure, within certain limits should not be lost sight of. We cannot, in this connection, do better than to quote the observations of the Criminal Law Commissioners1:--

"To require everyone, without dstinction, as to the nature and degree of the offence, to become an accuser, would be productive of inconvenience in exposing num- bers to penal prosecutions, multiplying criminal charges, and encouraging private dissension. It may sometimes be more convenient that offences should be passed over, than that all should indiscriminately be made the subject of prosecution; and a law would be considered to be harshand impolitic, if not unjust, which compelled every party injured by a criminal act, and, still more so, totcompel everyone who happened to know that another had been so injured, to make a public disclosure of the circumstances. Here, there- fore, there is reason for limiting the law against mere rnisprisions to the concealment of such crimes as are of an aggravated complexion." -

A very wide provision would tend to become what was described by the Court of Appeal (though in a slightly different context) as "a mere charter for gossip'?

55. The proposition that the public interest must be safeguarded and a sense of urgency created in the minds of public servants to treat corruption as a social evil, need not be disputed. But, before giving legislative effect to this proposition in the manner suggested3, regard must be had to the various legal and practical considerations that we have outlined'.

56. Notwithstanding these objection-55, the proposal to add the oﬁence of bribery and corruption would still deserve consideration, if there were counterbalancing con- siderations, such as a substantial advantage to be gained in practice. We are not sure, however, whether the obli- gation pronosedto be imposed would actually be enforced in practice".

IFifrh Report of the Criminal _Lau} Commissioners (1840), Parliamen- tary Papers XX 36, cited in Glanville Williams, Criminal Law, the General part, (I961). page 423. paragraph 141.

asee Creenlands v. Wflmskursr, (I9I3), 3 KB. 507, 541 (C.A.) (per H-aimlton L.J.). _ 3Parngraphs 3 and 4, supra.

4Paragraphs 6-54, supra.

5Parasraph 55. supra.

6Cf. the observations in Ram Balak Sing]: v._the State, A.I.R. I964. Pag e 62, 65, paragraph 13 "' I Wonder why the police authorities do not take appropriate action against persons who fail to give information of a crime as_ required under section 44 of the Code of Criminal Procedure." (Anant Sing}: 1,).

21, 5?. The second point in the suggestion1 relates to the 393?"? P013' disclosure of facts in statements made in investigation iniififegfllgi respect of offences connected with bribery. This seems to gen relate to section 161 (2), Code of Criminal Procedure, 1898'.

We do not think that there is any need to amend section 161(2) specially for cases relating to corruption.

58. The third point made in the suggestionil relates to the Third poim stage of evidence in respect of offences connected with _"di5'§1°5"1"=' bribery. It is stated (in the suggestion) that the witnesses' " °"d'"":C' (is. the public servants who know of the act oi corruption) do not tell direct lies, but suppress material facts'. Now, once the case reaches the trial stage, and the necessary questions 'are put on behalf of the prosecution, the witness is bound to answer all questions to thebest of his infor- mation and belief (except questions relating to a privileged matter). Deliberate suppression of facts may or may not amount to "making a statement" within section 191, Indian Penal Code read with the first Explanation to that section". Occasionally, one comes across observations which sugges'. that it may amount to perjury".

59. Thus, the following observations occur' in a judg- Faﬂuge ment on a writ petition under article 226":----- state the whole truth.

"These facts were suppressed in the counter afﬁdavit filed by Sri Ram Yash Varma and the afﬁdavit ﬁled by him is thus a document with only half~truths. A witness perjm-es himself not only when he does not state the truth, but also when he states something which is not the whole truth".

It in: necossarv for the present rurpose tr; discuss in detail how for the existing law under section 191, Indian Penal Code, is accurately stated in the observations quoted IParagraph 3, supra.

23ection 161, Code of Criminal Procedure, 1398 reads as follows :--

" I61. Examination of witnesses by Po1z'ce.---{ i) Any police-ofﬁcer making an investigation under th's Chapxr or any pclice-oﬂicer now: below such rank as the State Government may, by general or special ord er, prescribe in this behalf, acting on the requisition of such ofﬁcgr, may examine orally any persoll supposed to be acquainted with the facts and circumstances of the case.

(2) Such person shall be bound to answer all questions relating to such case put to him by such oﬁicer, other than questions the answers to which would have a tendency to expose him to a .31-1..

rninal charge or.to a penalty or forfeiture.

(3) The police-ofﬁccr may rcciuceinto writing any statement made to him in the course of an examination under this section, and if he does so he shaﬂmakr: a separate record of the statement, of each such,pc1'sOl'1 whose statement he rccoré-5.".

3I>'aragraph' 5, supra.

4]E'aragxaph 3, supra.

5Secti0n Igr, Indian Penal 'Code, deals with perjury. a 6Na;-atmm Sing}; V, State of U..P._. (X963) 7 Factories and Labour Reports, 30, 38. (Allahabad) (SD. Srngh L).

Disclosure of every minute detail whe-

ther to he required.

above, which were not made with reference to any criminal trial. '

60. But, if it is intended that the witness must at his peril disclose every minute detail whether "a question was put to him or not, then we think that it would be placing too heavy a burden upon the witness. A witness cannot "be burdened with the responsibility of ooluntartIy-disclos-

ing all the facts in the evidence. The duty of eliciting facts from a witness for the prosecution lies on the counsel for the prosecution. If the "investigation has been carried out properly, the police records should Show what a parti- cular witness knows and what he is expected to depose in the court. And if the examination-in-"chief is done competently, it should not be very difficult to bring out the material facts.

61. We should also like to point out, that before a prose- cution under section 191, Indian Penal Code, can succeed, the false "statement" alleged to have been made must be set out with precision in the charge. Merely saying that the accused "gave false evidence" is not enough. The prosecution cannot go on such a vague charge'.

62. A Phear J. remarked in a caseﬁ; "Of all. criminal charges which can be made, perhaps the charge of perjury is that which the ends of justice require to be the most carefully ttnd accurately worded. The more general is the allegation of falsehood, the less is the risk in putting it forward, and the greater the diiiiculty of rebutting it. It is, therefore, the right of the person accused of perjury to have the statement which he is charged with having falsely made distinctly and separately pointed out to him, and I will Venture to say that no Court can safely and satisfac- torily arrive at a judicial conclusion relative to a charge of perjury, unless its investigation he directed singly to each alleged false statement, with the View to ascertaining first, whether it was made at all; secondly, whether, if made, it was true or untrue; and thirdly, whether, if un- true. its untruth was present to the mind of the person making it at the time he made it.".

63. In this connection, we might also refer to the decision under section 202. Indian Penal Code to the effect that the "omission" under section 202 must be intentional! 1Cf. I-Ijra Singh Ojha V. Em?" \I905) I0 C.W.N. I099: I100.

2Queen V. Kali Chum Lahoree (1368), WR. Cr. 549 (Phear L).

3Ua'ai-Chard Moakhopadhyaya 18W. R. (Criminal),-31 ; 9 Being L.R. (Appendix) 31, 33 (Kemp 1.).

I 23

64. We had circulated the proposal of the Central Bureau of Investigation for comments to State Governments and High Courts. We had also issued a Press Communique in--

-.viting any person or body interested to offer comments on the proposed amendment. The replies which we received may be classiﬁed under four heads:--

(a) Repliesstating that they had no comments; (ta) Replies in favour of the amendment;

(c) Replies favouring the amendment partially. or

-with some qualiﬁcation on modiﬁcation;

((1) Replies opposed to the amendment.

Analysis-

comments, received.

65. Several replies state that they have no comrnentsl. i It may be stated that many High Courts" fall under this category.

66. Some replies are in favour of the amendment'--"-5-5.

67. Some of the replies approve of the amendment only partially, or subject to certain qualiﬁcations or modi- ﬁcations. Thus, one High Court would like to exclude

-judicial ofﬁcers from the proposed provision as, in its view, 'judicial. officers should not be placed in the position of an informant.

The High Court has stated that this may result in a Judge becoming a witness in or even a party to a criminal prosecution. This is wholly undesirable from the point of view of the independence of the judiciary.

Further, that 'High-Co-urt7 has suggested that the provi- sion should make it clear that a public servant is said to be aware of the commission of an offence when he has per-

-sonal knowledge of the commission of an offence but not otherwise. In the reply of some of the Judges of another High Court", it 'has been emphasised that mere hearsay in- formation should not impose any such duty.

68. Two Judges of a High Court" are in favour of the amendment, provided the Government is able to ensure that the public 'officers will not be victimised for making disclosures against theiir superior officers.

IS. NO. 31 (A State.Governrnent).

2S. No. 7 ; S. No. 38 ; -S. No. 42; S. No. 44 (High Courts); S. No. .40 (Some Judges of a High Court).

33. No. 32 and 35 (High Courts) ; S. No. 40 (One Judge of a High 'r,CDurt) ; S. No. 55 (Some. Iuclges of a High Court).

48. 5S.

65.

75. SS.

.93.

Nos. 33, 36, 45 and 51 (Administrations of Union Territories). Nos. 41, 43 (State Governments). I No. 30 and so (Private bodies).

No. 52 (A High Court).-

No. 55 (Some Judges. of a High Court).

No. 39 {Two Judges of a High C. 24

69. Some replies statel-9 that every member of the public should be under the proposed obligation.

70. Some replies are totally opposed to the proposed amendment. Thus, the majority of the Judges of a High.

Court3 are opposed to it, as they think that it would serve no useful purpose. The Administration of a Union Ter- ritory' is opposed to the amendment.

One Judge of a High Courtﬁ, while not in favour of expressing any opinion until the proposed amendment is. actually put in the form of a draft, has stated that the impli- cation of this amendment is very serious.

71. The view of the Judge of a- High Court (shared by _ three other Judges of that High Court) maybe quoted'5:----

'The object of the proposed amendment is, no doubt, laudable, but it has been drafted in too wide terms. It will not be practicable for every public servant to report about every commission of the offences in question of which the public servant may become aware. For example, if the commission of such an offence by a Railway servant comes to the notice of a public servant in course of a Railway journey, he 'will have to incur a grave risk of being himself prosecuted for giving false information, if he makes a report about such offences and the other passengers or the persons who paid the illegal gratiﬁcation do not co--operate WlTl'J him for some reason or other.

I. therefore, suggest that the words "who in course of the discharge of his duties as public servant be- comes" should be added after the Words "every public servant" and before the word "aware" in the ﬁrst line of the draft of the proposed amendment'.

72. In the reply of a State Governmenﬁ, which is oppos- ed to the" proposal. the following points are made:--

"The proposed section 44A seeks to make it a legal duty of public servants to give information about offences of bribery and corruption committed by other public servants. Such a legislation is unnecessary and ineffective because mere enactments cannot induce a public servant to give information or evidence against his fellow employees. Generally, public servants are reluctant to give such information for various reasons. A public servant aware of an offence of bribery or

15. No. 34 (Three Judges of a High Court}.

25. No. 40 (Some Judges of a High Coui:t).l

38. No. 39 (Majority of the Judges of a High Court). ,;S_ No, 49 (Administration of a Union Territory). gs. No, 55 (One Judge of a High Court).

65, No, 55 (Some Judges of a High Court}.

73. No. 57 (A State Government).

corruption may himself have shared the beneﬁt deriv- ed from the offence. When he is not connected with that particular of'fence,'he may be involved in some other cases which may be known to other public ser- vants guilty in some particular cases. The result-will be that he will not dare to go against other public servants for fear of his own exposure by others. There are some other public servants who are honest but yet do not like to brand themselves as in- formers by giving information against their colleagues. Besides, a public servant will not be enthusiastic to give any information when the offender happens to be a public servant of some importance and position be- cause his experience has shown that such an offender ultimately manages to get the cases against him dropped". ' ' In the same replyl, it has been stated:----

"The proposed provision is not only unnecessary and ineffective; it will produce most undesirable con- sequences because the public servants will suspect one another as a- potential informer against them".

73. In the reply of another State Government", it has been stated---

"This Government also had occasion to examine the the. power regarding enquiries and investigations into cases of corruption atidifferent stages. There was no occasion to feel that the enquiry or the investigation was at any time hampered by the lack of co--operation from public servants. No instance of any unwilling- ness on the part of any public servant to co-operate with the investigating agencies by furnishing any information regarding any corrupt practices to the investigating agencies has come -to the notice of this Government. In View of this, in the opinion of this Government the proposed addition to section 44 of the Criminal Procedure Code may not be necessary as it is felt that such an amendment may cause embar- rassment to public servants and might give occasion for harassment". ' '74. The wide difference of opinion revealed in these comments3 would also seem to justify a cautious approach in the matter.

75. In View of what is stated in the preceding cliscus« Conclusi-_~:i, sion} we do_not recommend the adoption of the suggested change", ' ' ,__.4--

IS. No, 57 (A State Government).

2S. No. so (A State Government).

3Paragi-aphs 64 1:0 :3, supra.

4Paragra.phs 6 to 74, supra.

5Psragraph 3, supra.

:'$\PPe11dices. 76. The Appendices to this Report contain--

(1) a discussion of the English law as to misprision of treason or felony (corresponding to the offence under sections 1'76 and 202, Indian Penal Code, read with section 44.of the Code of Criminal Procedure, 1898);

(2) a list of provisions analogous to section 44, Code of Criminal Procedure; 1398, or section 176 of the Indian Penal Code, and (3) a list of provisions analogous to section 45 of the Code of Criminal Procedure, 1898, in some laws relating to police and forests.

1. J. L. KAPUR---Chairman.

Members.

2. K. G. DATAR

3. S. S. DULAT

4. T. K. TOPE .5. RAMA PRASAD MOOKERJEE1 P._M. BAKSHI Joint Secretary and Legvislative Counsel.

NEW DELHI,' 'The 30th September, 1967.

e APPENDIX 1 ENGLIsH LAW AS TO MISPRISION on TREASON AND FELDNY (a_) Position at common la,w.--Section 44 of the code gf "Criminal Procedure. 1898, corresponds to the offence of "misprision of treason" and "misprision of felony» known '50 E1'l:'§1iSh'law. The gist of the offence (at common law) is concealment of a treason or felony. . The former 13 punishable with imprisonment for life and forfeiture; the 'latter with 'imprisonment and ﬁne'-'. The offence Was dis- cussed in detail in a recent decision of the House of Lords".

At common law misprision of felony is now employed (in connection with treason and felony) to denote the posi- tion when a person who knows that a treason or felon has been committed and is in possession of information W ' 'leads to the apprehension of the offender, omits to co1nmu- ' 1Shri Mookerjee has signed the Report subject to the note appended, 2Kenny, Criminal Law (1962), pages 392-393, 3S;vIees V. D. 'P. P., (1961) .3 W_.L.R.371 ,-(1962) A.C. 528; (1961) 3 England Rep0rts_33, (H.iL.').aﬁ-irmmg (I95!) I All England Reports 702.

nicate that information to some appropriate police autho- rities, and thus to discharge the duty resting upon, all citizens to maintain the law of the landl.

It may be noted, that bribery is not a felony, but a misdemeanour, at common law?--3.

(b) History»-About the history of the offence', Stephen has stated as follows:---

"In concluding this account of our own law. I may just mention the practically obsolete oﬁence of mispri- sion which meant concealment of either treason or felony without otherwise taking part in it. On this I have only to refer to articles 156 and 157 of my Digest. I may add to what is there said that the commonest form of misprision of felony was forbearing to prosecute in consideration of the" return of stolen goods, which was anciently called theftbote."

For further details of the history of the offence, the undermentioned articles may be seen". a Before 1961, there was some authority in England for extending the scope of this offence to include the case of one who knew that a treason or a felony was planned, but not carried out7. In a House of Lord_s case decided in 19613, no ﬁnal opinion was expressed on this point.

In a case" decided after Sykes, the question Whether misprision might be committed by a passive concealment has been discussed". But the facts of the case were pecu- liar, as the matter was put in the trial court on the basis of "passive concealment", while it was argued in appeal on the basis of active concealment.

1Russe11 on Crime (1964), Vol. 1, page I67. 2Kenny, Criminal Law (1962), page 364, paragraph 37:. 3Russell on Crime (I964), Vol. 1, page 381.

4step11¢n, History of Criminal Law of England (1883), V01 z,pa,ge

238. 5Glazcbrook, " How long than is the arm of the Law to be" (1953) 25 Modern Law Review 30L ' 6G1aze'oxook, " Mispi-ision_ of felony--shadow or phantlom "(x954) ofArncrican Iournal of Legal History 283.

';!Russell on crime (1964), Vol. 1, page 168.

Bskyes v. D. P. P. (1961) 3 A.E.R. 33 (1961) 3 W.L.R, 371, 386;- (1962) A.C. 523 (I-I.L.).

9Reg V.K:'ng (ffaseplz), (1965) I W.L.R. 706, 709 (C.C.A.). to For comment (see I966 I311) 32 I-.Q.R. 24. I 28a

'This Eviiaw of the authorities shows that the essential ingredients of misprision of felony are ;..__ "1. Knowledge.-----The accused man must know thfﬂ 3 £91011? has been committed by someone else. His knowledge must be proved in the Way in which thff Prosecution have been accustomed in other Crimes when knowledge is an ingredient, such as recelvlng. accessory after the fact, compounding a felony, and so forth. That is to say, there must be evidence that a reasonable man in his place, with such facts and information before him as the accused had, would have known that a felony had been committed. From such evidence the jury may infer that the accused man himself had knowledge of it. He need not know the difference between felony and misdemeanouramany a lawyer has to look in the books for the purpose--but he ' must at least know that a serious offence has been committed; or, as the Commissioners of 1840 put it, an offence of an "aggravated complexion": for after all, that is still, broadly speaking, the difference between a felony and misdemeanour. Felonies are the serious offences. Misdemeanours are the less serious. .If he knows that a serious offence has been committed-----and a lawyer on turning up the books sees it is a felony---~that will sufﬁce. This requirement that it must be a serious offence disposes of many of the supposed absurdities, such as boys . . . . . . . . . . . stealing apples, which many laymen would rank as a misdemeanour and no one would think he was bound to report to the police. It means that misprision comprehends an offence which is of so serious a character that an ordinary law-abiding citizen would realise he ought to report it to the police. '

2. Concealment.---The accused man must have "coricealed" or "kept secret" his knowledge. I-le need not have done anything active: but it is his duty by law to disclose to proper authority all material facts known to him, relative to the offence. It is not suﬁicient to tell the police that a felony has been committed. He must tell the name of the man who did it, if he knows it; and so forth. All material facts known to him, see Reg. V. Crimmins". If he fails or refuses to perform this duty when there is a reasonable opportunity avail able to him to do so, then he is guilty of misprision ISyIzes v. D. P. P. (1951), 3 W.L.R. 371. 385 to 387; (I96IJ 3 A11 Eng. Rep. 33, 41, 42 5 (1962) A.C. 523 (H-Ll . 2Reg. V. Crimmins (1,959), V.l_..R. 27o.

He can P'?1"f°1'm this duty by reporting to the police 01" 3 maglstrate or anyone else in lawful authority-. Failure to do so is a misprision of felony.

M1SPI"1s_1on of felony is itself a rnisdemeanour and 13 P'~1D1S_h3_b1e_ by ﬁne and imprisonment. Whatever limitations may have existed in olden days on the period or imprisonment that might be imposed. the '"11? limitation now is that it must not be an inordinately heavy sentence.

My Lords, it was said that this offence is out of date. I do not think so. The arm of the law would be too short if it was powerless to reach those who are '_'contact" men for thieves or assist them_ to gather In the fruits of their crime; or those who indulge in gang warfare and refuse to help in its s11PPI'ession. There is no other offence of which such persons are guilty save that of misprision of felony. I amnot dismayed by the suggestion that the offence of misprision is impossibly wide; for I think it is subject to just limitations. Non-dis~ closure may be due to a claim or right made in good faith. For instance. if a lawyer is told by'his client that he has committed a felony, it would be no misprision in the lawyer not to report it to the police, for he might in good faith claim that he was under a duty to keep it conﬁdential. Likewise with doctor and patient, and clergyman and parishioner. There are other relationships which may give rise to a claim in good faith that it is in the public interest not to disclose it. For instance, if an employer discovers that his servant has been steal- ing from the till, he might well be justiﬁed in giving him another chance rather than reporting him to the police. Likewise with the master of .3 college and a student. But close family or perso- nalities will not suffice where the offence is of so serious 21 character that it ought to be reported. In

-1315 it was held that it was the duty of a brother to raise hue and cry against his own brother and he was ﬁned for not doing sol, and in 1938. a mistress was found guilty of misprision for shielding her loverz. The judges have not been called upon further to deﬁnethe just limitations to misprision. but I do not-doubt their ability to do so, if called upon. "My Lords, there was some discussion before us whether a man was bound to disclose a contemm plated felony which comes to his knowledge, such as a planned raid on a bank. There is a striking passage in Lambard's Eirenarcha~", which says that failure to do so is misprision of felony. So does 1See 24 Sclden Society, pages 144, 145. 2Mrs. Casserleyk case, The Times, May 28, I933- 3Lamhard's Eirenarcha (I614), Page 239- ' 30 Dalton's Country Justicel, and Hawkins' Pleas of the Crown2, which are weighty authorities and tlie commissioners who reported on the Criminal Law in 1943 were clearly in favour of it. They said: The necessity for "making such disclosures extends. perhaps, with greater force, to the knowledge of a meditated crime the perpetration of which may, by means of such a disclosure, be prevented. than it does to the knowledge of one already committed". This is good sense and may well be good law. I would therefore reserve 'this point which does not arise in the present case_'''.

(ti) Criminal Law Revision Committee.--The Criminal Law Revision Committee made this recommendation'*:---

"37. Misprision of felony consists of concealing or procuring the concealment of a felony known to have- heen committed. The offence was of doubtful exist- ence before Aberg", where a woman who harboured an escaped prisoner was successfully prosecuted for mis- prision of his felony in escaping from rison as well as for being accessory after the fact to t at felony. The Court of Criminal Appeal suggested in that case that the law as to misprision might require further conside- ration. In Sykes v. D.P.P.5, the House of Lords reject- ed a submission that the oﬁence no longer existed. In King", the Court of Criminal Appeal held that, although the offence did not extend to a mere failure by a person who had himself committed felony to disclose the felony when being questioned by the police: active concealment, as by telling a lie in order to put the police off the track, could amount to misprision. From the speeches in Sylces's case it appears that there may be some limitations as regards offences committetlby relatives, but the matter is not clear. The offence is a- common law misdemeanour punishable with imprison- ment. Although ordinarily there is no limit to the term of imprisonment which may be imposed for a common- law misdemeanour, the Court of Criminal Appeal said in Sykes' case', that it would be impossible to pass a sentence of more than two years' imprisonment for misprision of larceny because, that was the maximum

-for the more serious offence of being accessory after l_»h€ fact and because under section 29(1) of the Sherltfs Act, 1887 (c.55) the maximum punishment for a sheriff 1Dalton's Country Iustice (16193. Page 211- ' 2Howk1'ns' Pleas of the Crown, Sth 6611., V012, Chalk 19. 5¢C1l°n 33, P33 444- .

3Extract from the Seventh Report of the Criminal Law R€ViS10I1 C0111- _ mittee (May 1965). Cmd. 2659, pages II-I2, Paragraphs 37-43- 4/lberg, (1943) 2 KB. 173 s 32 Cr. App. R. 114.

_-gsyim v. D. P. P., (1962) A.C. 528 ; 45 Cr.App R. 230.

6I<.'z'ng, (1965) I W.L.R. 706- 7Sykes v. n, P. P.,(rg6I] 2 (13.9, I6--~I6 5 45 Cr-Ann R-23°. 233- 31 or she:-iP£'s officer for concealing a felon was one year's imprisonment. There is no offence of misprlsion of misdemeanour.

38. The offence of compounding a felony is an agreement not to prosecute a felon in consideration of the return of the goods or other reward; it is a common law rnisdemeanour. Whether compounding a mis- demeanour is anpoffence is doubtful.

' 39. With the abolition of felony it is desirable that the law on these matters should be reconsidered. There are obvious objections to making a person crim1'na11y liable-'for not reporting to the police any minor offence of. which he may happen to know. The present law of misprision is also open to objection in that it does not- require that the omission to give information of the felony should be dishonest, and that it contains no clear lnnitations as regards offences committed even by near relatives.

_ 40. On the whole we think that the only case need- ing to be provided for is one in which a person accepts or agrees to accept a bribe not to disclose information to the police. An offence of this character should re- place the present law of misprision of felony and compounding offences. In speciﬁc terms we propose that it should be an offence to accept or agree to accept any consideration for not disclosing information about an arrestabie offence other than consideration amount- ing only to the making good of, or reasonable compen-- sation for, any loss or injury caused by the offence. As in the case of an offence of impeding under clause 4, the offence -of Withholding information would apply only to information about an arrestable offence which has in fact been committed. We would also iimit the offence to where the person concerned knows or believes that his information might be of material assistance in securing the prosecution or conviction of an offender for the arrestable offence. We recommend that the maximum penalty should be two years' impri- sonment. The necessary provisions are in clause 5(1). We propose that, as with the offence under clause 4, a prosecution for the offence under clause 5(1) should require the consent of the Director of Public Prosecu- tions [clause 5(3)] and that the offence should be triable summarily with the consent of the accused provided that the arrestable offence is so triable [clause 5(4)]. Clause 5(5) speciﬁcally abolishes the offence of com- pounding hecause of the possibility that it applies to misdemeanour.

41._ As a result of the limitations proposed above the offence will not apply to a person who refrains 32 from giving information because he does not think it right that the offender should be prosecuted or because 01 a,P1'01'I11Se of reparation by the offender. It would be difficult to justify making the offence apply 1:o those cases. »

42. A more questionable limitation is that the offence would not apply to withholding information from the police, even in response to a question, out of mere unwillingness to assist them or to active conceal- ment by positively misleading them, as in King's case referred to in para. 37 above. There is an argument for covering such cases and thus providing a penal sanction in support of the principle stated in the preamble to the Judges' Rules that citizens have a duty to.help a police officer to discover and apprehend offenders. But public opinion would be unlikely to agree to an offence consisting of refusing to answer questions by the police about the commission of offences. This would Confer a power on the police, covering a wide range of offences and backed by a substantial oenal'V, sirnilrir to that conferred by section 6 of the Oﬂicial Secrets Act, 1920 (c. 75), under which it is an offence to refuse to answer questions put by an authorised senior oiﬁcer of police for the purpose of obtaining information about the commission of the most serious offences under the Official Secrets Acts:

and even there permission has to be obtained from the Secretary of State before the information can be a demanded. in any event the offence would have to be subject to the right of the person being questioned not to give information about an offence to which he was himself a party, which right exists as regards the present offence of misprision, as mentioned in Kinds case. An offence of actively misleading the police might be easier to justify than an offence of refusing to give them information: but we do not think that there is a sufficient need to create it, and it would be diiﬁcult to distinguish between active misleading and more withholding of information".

(e) Criminal_Law- Act, 1967.--The Criminal Law Act re- CEY111)' passed in England has implemented the recommens dation of the Criminal Law Revision Committee. The pro- visions of that Act--sections 1, 2 (1), 5 and 12 (6)-----which are relevant to misprision, are quoted below: 1 PART I FELONY AND MISDEMEANOUR Abolition of 1. (1) All distinctions betweexrfelony and misdemea-

gflffecefioﬁ nour are hereby abolished. feibny and (2) Subject to the provisions of this Act, on all -matters misderne£lI'- on which a distinction has previously been made between gut' ,_,__4_.._.;...

1The Crirnina!-_l_::rvv Act, 1967 ?éIhapter 58) (zlst I111)', I967}.

felony and misdemeanour, including mode of trial, the law and Practice in relation to all oﬁences cognis-able under the law of England and Wales (including piracy) shall be the law and practice applicable at the commencement of this Act in relation to rnisdemeanour.

2. (_1) The powers of summary arrest conferred by the following 5ub'.SeCtlOnS shall apply to offences for which the viously convicted) may under or by virtue of any enactment be sentenced to imprisonment for a term of five years, and to attempts to commit any such offence; and in this Act, including any amendment made by this Act in any other enactment, "arrestable offence" means any such offence or attempt.

Arrest without , sentence is ﬁxed by law or for which a person (not pre- warrant

5. (1) Where a person has committed an arrestable Pcnalticsfor offence, any other person who, knowing or believing that oonccalins the offence or some other arresftable offence has been com~ rnitted, and that he has information which might be of mate- rial assistance in securing the prosecution or conviction of an offender for it, accept or agrees to accept for not dis- closing that information any consideration other than the making good of loss or injury caused by the oﬁence, or the making of reasonable compensation for that loss or injury, shall be liable on conviction on indictment to imprisonment for not more than two years.

(2) Where a person causes any wasteful employment of the police by knowingly making to any person a false rc- port-tending to show that an offence has been committed, or to give rise to apprehension for the safety of any per- sons or property, or tending to show that he has information material to any police inquiry, he shall be liable on sum- mary conviction to imprisonment for not more than six months or to a ﬁne 01 not more than two hundred pounds or to both.

(3) No proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions.

(4) Offences under subsection (1) above, and incite- ment to commit them, shall be included in Schedule 1 to the Magistrates' Courts Act, 1952 (indictable offences tri- able summarily with the consent of the accused) where that Schedule includes, or is under any enactment to be treated as including the arrestable offence to which they relate.

(5) The compounding of an offence other than treason

-shall not be an olfence otherwise than under this section.

12. (6) In this 'part - of this Act references to felony shall not be taken as including treason; but the procedure on trials for treason or misprision of treason Shall be the same as the procedure as altered by this Act on trials for murder. -~ -

4-~110 Mo£La_w oﬁences or giving false information.

I 952 c. 1955 34 APPENDIX 2 List or PROVISIONS APPAREMLY Amtocous To Section 44, Conn OF CRIMINAL PROCEDURE, 03 SECTION 176, INDIAN PBNAL CODE.

(Acts arearranged alphabetically) Pur1ishrnent---Impris0n-

Act Section ment or ﬁne, if given in the SCCt.'|0l'L t - 1 3 Arms Act, 1959 (54 of 1959) Section 36 read 'with sec- tion 30.

Atomic Energy Act, 1962 (33 Sections 7 and 24(2) of 1962).

read With Central Estcises and Salt Act, Section 9 (c) section 37(2) (X).

1944 (r of 1944).

Central Silk Board Act, 1948 Section 14(1) (a) read with (5: of 1948). section r3(I}(xviiiJ (fur-

nishing false information) 3 months or R3. 500 or both.

1 year or ﬁne or both.

6 months or Rs. 2',c=oo or both.

1 year or Rs. 1,000 or both Census Act, 1943 (37 of I948) Section II (I) (g) read with Rs. 1,000.

SECIIDII I0.

Coroners Act, 1871 (4 'of Section 17, second para-

IS7I). graph (disobeying a sulmnon issued by a Coroner').

Cotton Ginning and Pressing Section 5 and section 5A. Factories Act, 1925 (12 of 1921).

Cotton Textiles Ccss Section 8 (a) read with 1949 (7 of 194%)-

section 9(1) (furnishing false information).

Act, / Dramatic Performances, etc. , Section 7 (obligation to Act, 137609 of 1876).

furnish information cal-

led by State Govern-

ments,' etc., regarding an intended public dramatic performance). .

Employment Exchanges (Compulsory Notiﬁcation of Vacancies) Act, 1959 (3 of I959)-

Any persons disobeying such summons shall be deemed to have committed an oifcucc under sections I'M. 175, 176, Indian Penal Code as the case may be.

Fine upto Rs. 50.

6 months or 2,000 rupees or both.

Whoever contravenes the section tshall be deemed to have committed an offence under section 176, Indian Penal Code. ' Section 7 (I) and section 7 (2) Elaborate provisions as 1o tie.

Indian Explosives Act, 1884 Section 8 (1) and section B (2) lfinc up to Rs. 500. But (4 of I334).

if the accident is attended by loss of human life, then imprisonment up ' to 3 months or fine or both.

Punishment---Impris0n_-

Act Section men: or ﬁne, if given In the section.

1 2. 3 Indian Forest Act, 19271516 of 1927}.

Factories Act, 1948 (63 of 1948).

Foreigners Act, 1946 (31 of T945)-

Fozeign Exchange Act, 1947 (7 0f 1947}-

z Lmd Acquisition Act, ' (89.4 (1 of 1894).

Medical and Tbiiet Prepara-I tions (Excise Duties) Act 1955 (I6 of 1955).

Mines Act, 1952 (35 of 1952) Sections 23, 70, 35A (Giv-

Motor Vehicles Act, [939 (4 of 1:939).

Multi:unitCoaperatiVe So--

cieues Act, 1942 (6 of 1942).

Pe nolcum Act, 1934 (go of 1934)-

Pimtations Labour Act, 1951 Section 33 (69 of 195:).

Sections 88, 89(b). 113 (2) One .month or zoo Section 79 (1) and section 79(2) ' } rupees or both.

(a Szctions 38, 39 and 92.(Re- 3 months or Rs. 590 (Plus parting of accidents, and Rs. -,_v5,:'- per day if oifeuec diseases contracted by eonnnues after oonv1ct:-on).

work»: rs).

Sections 5 and 7 read with 5 years, and also ﬁne.

section 14 (Obligation of nnsters of vessel or air-

craft, etc. . passengers and hotel keepers, to give required information re-

garding foreigners).

Section 19(1) and secdon Varying penaitiea.

23(IA) Section 9(1) and section 10 Sections 175 and 176, Indian (1) and 10(2). Penal Code applied.

Section 7 Cc} read with 6 months or Rs. 2,000.

section 19 (I) (ix) _ Section 70(1)-3 month mg notice of accidents, or _s.5oo or both. etc.). Scctlon 35A applies the proyisions of section 176, Indian Penal Code. -

_ ' 1 month or Rs. zoo Or 133:1] {Reporting Of accidents, eta).

Section 5. Rs. 50.

Section 23 (J) read with Rs. 500, section 27 (Reporting of accidents).

3 monkha or Rs. 500 or 36 '-

Punishmcntmimprison -

Act Section ment or fine if given in l the section I 2 3 The Railway Property (Unlaw- Section 4.--This section Imprisonment for ﬁve ;fJt:_lI1'9o':';6s)cssion) Act, 1966 (29 Th: Railway Property (Unlaw-

ful Possession) Act, 1966 (29 of 1986).

punished a person wil-

fully conniving at an oil'-

ence according to the provision of this Act.

It applies only to the owner of a land, or occu-

pier of land, or his agent.

Section 6.---According to this section an oﬂicer of the Railway Protection Force who has arrested a person for an Offence against the provisions of the 'Act, is empowered to conduct an "enquiry".

Further, the olﬁcer is empowered to exercise powets under the Code of Criminal Procedure, like any ofﬁccr-in-charge of a Policc Station.

(There are further provi-

sions as to producing the accused before a Magis-

trate, ct<:.).

The Railway Property (Uulaw- Section 9.--Accot-ding Ln ful Possession) Act, I965 (29 of 1966).

this suction, an ofﬁccr of the Railway Protec-

tion Force is empowered to sumrnon persons to give "evidence", and to produce documents for the purposes of enquiry.

Such power inclutlos the authority to sumrnon speciﬁed documents or things relating to the matters in enquiry.

This power is subject to the exemption under sections 132 and 13 of the Code of Civil ro-

ccdure (1908). regarding attendance.

years or _finc or both.

Punishment ---im13r'1son-

Act Section ment or fine, if given in ' the section.

1 2 3 Every such enquiry is deemed to be a "iud.ic'tal proceeding" within sec-

tions - 193 and 22.8 of the Indian Penal Code.

The Railway Property (Unlaw- -- Section Iz.--This section ful Possession) Act, 1966 (29 requires all oﬁiccrs of of 1966). the Government and village oﬂicers to assist the superior oﬂ-icers and members of the Railway Protection Force in the enforcement of the Act.

(Indian) Railways Act, 1890 Q9 of 1890). _ section 96 {Reporting of accidents, etc.).

(Indian) Registration Act, 1903 Section 82 and 84(2).-

(16 of 1908).

(Every person legally bound to furnish infor-

mation required by re-

gistering Oﬂicer).

Treasure Trove Act, 1878 (6 Section 20 of 1878).

Wakfnct, 1954 (29 of 1954) . Section 41 .

Sarais Act, I357' (22 of 1867) Sections 7 and 8 (Duties of u keepers of Sarais) read with section I4.

(Indian) Succession Act, 1925 Section 317(3) (Failure by (39 of 1925). ' executor or administrator to ﬁle inventory when required by Gmrt}. E' (Indian) Works of Defence Act, Section II read with sec-

I9o3 (7 of I903).

tions 9(2) and I0 (obliga-

tion to make a statement in response to a notice proposing restrictions to be imposed on the use of the land).

No punishment in the Act .

Sections'83-84 read with The Railway Company shall forfeit to the Central Government Rs. too for every day , during which Omission continues.

I year or ﬁne 01 both, Fine up to Rs. I,Ooo_ Rs. 20, and further penalty 0"3e- 1 Per d€}Y during vghtch omission con.

tinues.

Section 176, Indian Penal Code applied.

Sections 175, 176, Indian Penal Code applied.

- 35 APPENDIX 2 LIST OF PROVISIONS ANALOGOUS To SECTION 45 or THE Coos on CRIMINAL Pnoceounr. IN some LAWS RELATING TO POLICE AND FOREST.-s.

(THE LIST IS ILLUSTRATIVE ONLY;

s_ Act,' Section No. Gist of section 1 . 2 3 Section 39 prescribes the duties of Chawkidars.

He is required to give immediate information to the police about all oﬁences committed or likely to be com-

mitted. He is also given the power to arrest.

1. Bengal Village Chawkiclari Act, 1370 (6 of 1370), sections 39 and 40.

2. Bombay Village Police Act, I867 (3 of 1867), sections 6 to 13.

Information to oﬂiocr in charge of District Police Station when criminal in village has escaped or is not known.

Persons who have a right or interest in the forest property or in the cm-

ploy of Government are required to give information about am' forest offence (commit-

ted or likely to be committed) to the police, etc. and assist them.

Zamindars, Talukdars, etc., responsible for immediate communi-

cation to the police of intended sacriﬁce.

-5. The Forest Act, 1327 (16 of I92 7), section E'9)lI) and section 79 2 .

4. Madras Sati Regulation (to of 1330) section 3.

Under section Remarks 40, the panchayat is given the power_ to control the chawlndar.

These sections impose duties on the Police Patel. Section 10 is im-

portaﬂt, and is quoted, below :--

" 10. If a crime shall have been committed within the limits of the village and the perpetrator of the crime has escaped or is not known, the Police-]_;:atel "shall for-

ward Immediate in-

formation to the Police-

ofﬁccr in charge of the District Police Station wihin the limits of which his village is situated, and shall him-

self proceed to inV'esll-

gate the matter, ob-

taining all procurable evidence relating to it which he shall forward to the said oﬁir:er."

For failure to do so, there are two provisions :---

(1) Burden of proof lie-

on such person ;

(2.) Punishable with imprisonment for one month or ﬁne _up to Rs. zoo or both. \ Punishment foi neglect of duty is ﬁne not exceed-

ing Rs. 200 or,-in dc-

fault, imprisonment not exceeding six months.

1%') Act!Section Gist of Section Remarks. I 2 3 4

5. Madras Regulation (11 of These sections are in- No punishlaent laid down

-1 ,-.

18:6). sections 8, 9, It and I8.

1882). aection 23.

tended to establish a general system of police throughout the State. Heads of vil-

lages -are required to communicate with each other about Rob-

bers and other gangs who commit offences.

They are also required to report about arrival of suspicious persons into the village.

interest in forest pro-

perty or in the em-

ploy of Government are required to give information to the police of any offence committed or likely to"

be committed, and to assist the police or forest officer in his duties.

The Criminal Tribes Act, The Act is repealed.

I924 (6 of 1924), see-

[1011 26. (Repealed).

8. The Oudh Laws Act (18 This secti9n_refers to

9. of I376). section 39.

Puniab Laws Act (Act 4 of 1372), section 39A.

the duties of Village and Head policeman.

He has it duty to in-

form police of the offences that take place in his area and make a proper report. He is given the P0'-7i_'er to arrest proclaimed offenders.

The State Government is given the power to establish a system 'of Village watchmen or municipal watchmen.

Rules are to be made under this section. He is given some police powers also.

In. Puniab Laws Act (4 of i A duty is imposed on 1372), section 39B.

every person to assist a village watchman or headman.

in the Regulation.

6. Madras Forest Act (5 of _Persons having right or No punishment in the Act.

Punishment for not dis---

charging his duties is rescribed in sectio 3 .

enalty is three months pay or three months imprisonment or both.

Punishment is provided for those who withhold assistance to the watch-

man or for those who connive with the offen-

der.

Regarding the watchman, if he fails. to do his duty,ﬁ.ne up to Rs. 500 can be imposed.

' LAW COMMISSION THIRTY-THIRD REPORT _ on PROPOSED NEW SECTION 44A of ' THE CODE OF CRIMINAL PROCEDURE, 1398 MINUTE OF DISSENT . By Sam RAMA PRASAD Mooxsnms, Member, Law Commission

1. In View of the fact that I am not in agreement with the conclusion reached by the majority of the Commis- sion it becomes necessary to indicate here, in short, the grounds why in my opinion, appropriate additional pro- vision, though not exactly in the form as roposeda should be made in the Code of Criminal Proce ure for the de-- tection of and investigation about bribery as an offence.

I may indicate immediately that in paragraph 6 of the Majority Report of the Commission it is accepted that "the offence of bribery is a serious one need not be disputed. . . . . . ..; if therefore by an amendment the offence can be inserted in section 44 (or in a provision similar to section 44 to be put immediately after section 44) and such amendment is not open to any serious objection then the proposal for amendment deserves consideration".

2. The question referred to the Law Commission ori- ginated on a proposal made by the Central Bureau of In- vestigation that every public servant on being aware of the commission of an offence of bribery should be requir- ed to give information toian authority competent in law to investigate such offence and to assist in its investiga-

tion. A new section 44A was accordingly proposed to be added in the Code of Criminal Procedure. The Central Bureau had also sent up for consideration their draft of the proposed new section.

3. The ﬁrst question that arises in this connection is whether a person, becoming aware of the commission of or the intention of any other person to Commit Offences punishable under some or other of the provisions of the penal law of the land, should be legally bound to furnish information about it to a magistrate or a police oﬁicer. Had the soundness and efficacy of such principle been accepted in India and elsewhere?

If the answer' be in the afﬁrmative, is there any policy to be followed, for including or excluding particular off- ences for attracting the said principle'? What are the draw--bncks or objections, if any, which need considera-

tion?

The next question for consideration will be whether"

bribery as a crime has become so widespread and has assumed such a magnitude as would justify inclusion of a special provision in the Code of Criminal Procedure for its detection and punishment.

Fourthly_ whether such legal duty should be imposed on the public in general or only on the public seizvants.

If the answer to the questions above mentioned be in the affirmative, what would be the appropriate provisions.

which should be made in the,Code of Criminal Procedure?

4- A5 rﬁgards the first of the above issues there is -no doubt that the principle is well established that the responsibﬂity, for the detection of or in the investigation about certain crimes, particularly' which may be a social menace or has become a public necessity, is cast not only upon the police but on others as,wel1----in some cases on citizens in general and in certain other cases on particular sections thereof---thus to discharge the duty resting upon all citizens to maintain the law of the land.

5. That such responsibility in some form or other had been_ cast not only on persons holding public ofﬁces but in some cases on the public also from early times and in other parts of the world will be apparent if reference be made to the two following as illustrative Ones only:-

(i) As pointed out recently by Lord Denning in the . House of Lords [Sykes v. D.P-P. (1961) 3 All-England Re--

ports 33 (H.L.)].

"Ever since the days of hue and cry, it has been the duty of a man who knows that a felony has been committed to report it to the proper authority so that steps can be taken to apprehend the felon and bring' him to justice". _ At Common Law concealment of a treason or felony was an offence of "misprision of treason" and "rnisprision of felony". No doubt bribery is not a felony, but a mis- demeanour, at common law.

In the recent Criminal Law Act 1917 of England, how- ever, all distinCtions"betWeen felony and misclemeanour have been abolished. "Section 5(1) of that Act provides penalties for concealing arrestable offences or giving false information under certain limited circumstances.

"5(1} When a person has committed an arrestable offence, any other person who, knowing or believing that the offence or some other arrestable offence has been committed, and that he has information which might be of material assistance in securing the pro- secution orconviction of an offender for it, accepts or agrees to accept for not disclosing that information any consideration other than the making good of loss.

-or injury caused by the offence, or the making of reasonable compensation for the loss or injury, shall be liable on conviction on indictment to imprlsonrnent for more than-two years." ' The present provisions, therefore, are wider in respect of all "arrestable offences" but limited in the application.

(ii) Under section 104- of the New York Criminal Proce-

dure a person refusing to aid public officers 1s guilty of ,m1_S-' demeanour.

6. So far as India is concerned, legal d1-1W_ W515 imP0S9d from an early period, under the Anglo Indian Law, on Zamindars, Village Headmen, Accountants, owners 'of lands in the village and others to give information or assist the po1ic_e in certain cases. Reference may in this connec- tion be made among others to the followmg Regulations:

Bengal Regui,ations---VI of 1810, 1 of 1811, 111 of 1812,

- VIII of 1814.

Madras Regulations--XI of 1811, 1 of 1830.

7. Ifreference is made to the provisions as now found "in the Code of Criminal Procedure (Act V of 1898) it will appear that in Part 3 of the Code, Chapter IV is headed "Of Aid and Information to the Magistrates, the Police and Persons making Arrests."

Sections 42 and 44 make provisions whereunder public in general are required to assist Magistrates and the Police and to give information of certain specified offences.

Under section 43'when a warrant is directed to a person

-other than a Police Officer my other person _may be requir- ed to aid in the execution of such warrant. ' Section 45, on the other hand, imposes on only certain speciﬁed groups of persons amongst the public the legal

-duty of reporting of certain matters to a Magistrate" or officer in charge of the nearest P'olice Station. These speci- ﬁed categories of persons were regarded from the days of the Regulations to be public servants or quasi-public servants and some were even particular-ised sections -or

-even members of the general public.

Section 187 of the Indian Penal Code makes punishable an omission to assist a public servant when bound by law to 1 give such assistance.

- 8. It need be mentioned, at this stage, that the number or nature of offences included in the successive Codes of Criminal Procedure of 1861, 187-2, 1882 and 1898 and_ various Amending Acts, so far as the above sections were concern- ed, had varied from time to time. The circumstances under which new offences Were being added in these sec- tions from after the early sixties will be considered later in this note.

9. The same principle has been accepted in a large number of legislative enactments in India---both Central and State, creating new oﬂ"ences---and imposing at the same time on public servants or quasi-public officers or some- times on members of the public the legal duty not only to assist, on_ requisition made by a competent legal autho- rity, but, also in a number of cases, to make voluntary and spontaneous reporting to the proper authority as soon as a person becomes aware of such an offence having been com- mitted or likely to be committed or of an occurrence neces- sitating police or oiﬁcial action.

Reference may be made to the following as merely illus- trative cases and it is by no means an exhaustive list: -

(1) Madras Regulation XI of 1816 (Sections 8, 9, .11 and 18).

(2) Madras Sati Regulation 1 of 1830 (Section 3). (3) Bombay Village Police Act VIII of 1867 (Sections '6 to 13).

:39) (4) Sarais Act XXII of 1867 (Sections '1', 8, 14). (5) Bengal Village 'Chaukidari Act VI of 1870 (Section (6) Punjab Laws Act IV of 1872 (Section 39A).

(7) N.W.F.P. Village and Road Police Act XVI of 1875. (8) Oudh Laws Act XVIII of 1876 (Section 39).

(9) Treasure Trove Act VI of 1878 (Section 20).

(10) Madras Forest Act V of 1882 (Section 23).

(11) Criminal Tribes Act VI of 1924 (Section 25') now repealed.

' (12) The F0-rest Act Xvi of 1927 (Section 79). (13) Foreigners Act XXXI of 1946 (Sections 6, 7). (14) Mines Act xxxv of 1952 (Sections 23, 70, 85A).

(15) The Railways Property (Unlawful Possession) Act XXIX of 1966.

10. Thus there is no escape from the conclusion that im- position of a legal duty in apropriate cases either on the public in general or on particular public ofﬁcers or groups of persons to assist in the detection or investigation of offences is based on sound principles and has already been accepted and given effect to in different systems of law in-

cluding the Penal Laws in India.

On this general question, the other members of the

-Commission do not appear to hold a different view.

11. The second question for consideration will be; is there any policy followed for including or excluding parti- cular offences for attracting the application of this prin- ciple, and also what are the draw--backs or objections, if any, to be taken into account?

12. The Central Bureau of Investigation had, no doubt, proposed to introduce a new section 44A and that after sec- tion 44 of the Code of Criminal Procedure but to determine the policy to be followed for theinclusion of particular offences or for deciding whether any other new class of offences may be added in Chapter IV of the Code it will not by itself, be helpful, far less conclusive, to categorise the list of offences as now found to be listed in section 44 of the Code. As will be noticed later there is a fundamental differ- ence between the scope of section 44 and that of the pro- posed new section.

Moreover, reference to the frame and contents of sec- tions 44 and 45 as they stood in the earlier Codes (from 1861) and the attempts made by the Amending Acts from time to time will show that new offences were being added or the provisions were being made more stringent or scope was being extended according to the exigencies of the social or administrative requirements and sometimes on political considerations at the particular period.

13. I would ﬁrst proceed to consider the changes made» in the successive Codes and by some of the Amending Acts:

and see how the contents of the present section 44 were- arrived at.

In 1861 all persons were required to give information about only crimes relating to theft, robbery, dacoity mis- chief by ﬁre and house trespass to commit serious oﬁences (Vide Section 138 of Act XXV of 1861).

It is signiﬁcant that while grave offences were not in- cluded----some only of the more common and the then pre- valent crimes in the rural areas were included--po1ice ser- vice also was so inadequate at that period.

In 1872 some-"of the offences against the State (Viz. as under sections 121 to 126 and 130 of the Indian Penal Code and murder and culpable homicide not amounting to- murder (sections 302 and 304) were added to the list.

Reference to the then political condition in the country and the administrative needs as felt by the British rulers- will explain why these offences against the State were in- cluded and the opinion expressed by distinguished members of the Executive Service about the omission of Murder in thelaegiilier Code are signiﬁcant. (Vide section 89 of Act XI of 7 .

One of such remarks was that one was "not aware on what principle the offences referred to in this section have-

been selected: . . . . . .I do not understand why' a person is to be bound to. give information of the commission of "theft but not of murder".

In 1882 though no new offences were added to the list I the language was made more emphatic and the provisions made stringent (Vide section 44 of Act X of 1882}. ' In 1894 the scope of the' section was first widened by Amending Act III of 1894 for including some only of the oﬁences even when committed outside British Indiamto in- clude for administrative reasons oﬂfences committed in the Native States. ' One would not overlook the fact that some only of. the offences listed were mentioned---the contemporary papers explain the reason.

In 1894, by another Amending Act (Act VIII of 1894} certain offences against public tranquility (Sections 143, 1443145, 146, 147, 143 of the Indian Penal Code) were in- clu ed. ' Political agitation and manifestations of the political consciousness of the people led the then rulers to introduce these provisions.

In the Code of 1898 (Act V of 1398} section 44 was re- tained substantially in the same form as in 1894.

In Act III of 1914 various provisions of the Penal Code about offences relating to coin, stamps, and currency notes were added. Proceedings of the Legislature explain the grounds for this important innovation from the policy pre- viously followed.

Reference to the respective Objects and Reasons, Re- ports of Select Committees when appointed and parti- cularly the discussions in the Legislative Council are ins- trugtive and explain the topical reasons for the changes Ina e.

14. It should not also be lost sight of that there is a material point of difference between the scope and appli- cation of section 44 of the Code of Criminal Procedure and the proposal as made by the Bureau.

In section 44 the duty of giving information is on the public in general, while the proposal under consider- ation is to impose the legal duty on only public servants.

As already noticed by me,_sections 44 and.45 of the Code also differ in the same way-----the former ﬁxes the duty on the public, the latter on certain ascertained groups or cate- gories. ' ' If, therefore, alcomparison is to be made, reference to section 45 will be more apposite than to section 44.

Re1ianc_-e may in this'connection_he placed on the obser- vations of the Joint Select' Committee which considered the 1921 Bill (Vida paragraph 17 ante of the Majority Re- port).

It is from this stand point that my View is that it is not very relevant or helpful to categorise the offences included in section 44 and compare the same with bribery as an offence for determining whether public servants should be under a legal duty to report cases of bribery.

15-. I would now proceed to examine the provision of section 45. --

So far as section 45- is concerned it should be noticed that in Act XXV of 1861 there was no provision corres- ponding to the present section 45.

In 1872 (in Act X of 1872) section 90 modelled on the principle as in the old Regulations was introduced impos- ing onerous duties and responsibilities on some speciﬁed public and quasi-public servants and certain classes of owners or occupiers of lands in villages, etc., to report to the nearest Magistrate or the officer in charge oi the near- est police station any information which such person may have about various offences or certain matters so as to enable the police to start prompt investigation.

Reference has already been made to the views---ex- pressed among others by experienced District 'Ofﬁcia1s--- (as preserved in the Legislative Department Proceedings re- lating to the 1872 Code) about the absence of any avowed policy in including or excluding certain offences in sec- tions 69 and 70 (Which were the precursors of the pre- sent sections 44 and 45 of the Code of Criminal Proce- dure). I respectfully agree with the views so expressed that there could possibly be no logic or policy for includ- ing theft and excluding murder in section 138 in Act XXV' of 1861 and of including in section 90 of Act X of 1872 tri- vial as well as serious cases and imposing an onerous duty, not only on village officers but even on owners or occupiers of lands in the villages and even their agents to report to the police commission or intention to 'commit any non-bailable offence at or near the village.

In 1882 no substantial alterations were made except. that information about the commission of Sati was not re- quired to be reported as under the 1872 Act (Vide section 45 of Act X of 1882). ' In 1894 a new clause was added making it incumbent on the persons speciﬁed to report-

"any matter likely to affect the maintenance of order or the prevention, of crime for the safety of per. sons or property respecting which the District Magis- trate by general or special order with the pre-

vious sanction of the Local Government has directed him to communicate information."

It would be noticed how wide the scope of this sec- M tion had been made as under section 2 of Act III of 1894.

Provision was also made for information being given when the commission of or the intention to commit, at any place outside British India near such village, offences. under sections 302. 304, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 457, 453, 459 and 460 became known to a person.

It will be noticed that under section [£5 a larger number of offences were required to be reported by the speciﬁed. persons than under section 44 of the Act. This is principal- ly because section 44 requires every member of the public to make the report whereas under section 45 the responsi- bility is imposed only on certain speciﬁed groups of per- sons.

Under Act V of 1898 the scope of this section was further extended. . ' Under Act III of 1914 various offences relating to coins, stamps, Bank Notes etc. were brought within the scope of section 45 as was being done in section 44 also noticed earlier.

In 1955 by Act XXV of 1955 after the establishment of Pancha-yats the category of persons required to give in- formation was widened by including-----

"every member of a Village Panchayet, other than a judicial p-anchay_et."

16. It may be noticed in passing that section 45 had"

been introduced in other areas also and keeping in view the special requirements of the area and the particular period, additional crimes or restricted provisions have- been made. To illustrate the policy followed, reference may be made to one of such cases when the rovisions of the Code of Criminal Procedure were exten ed to Upper Burma, then under British Rule.

In Upper Burma the following had been substituted for sectrion 45 by Upper Burma Village Regulation XIV of 188 ~-

"A headman appointed under the Upper Burma Village Regulation, XIV of 1887, shall forthwith com- municate to the nearest Magistrate or to the ofﬁcer in charge of the nearest Police sta.tion or military post, whichever is the nearer, any information which he may obtainurespecting---' - - .

(3) the permanerit or temporary residence of any notorious receiver or vendor of stolen property in his village; - . _ _ _

(b) the resort to any place within, or the passage through his village. 0i N 9%" '""'°"' "'° ""°'""

or reasonably suspects to be, a dacoit, robber, escap- ed convict or proclaimed offender;

(c) the commission of, or attempt or intention to commit, within his village any of the following offen- ces,' namely (i) murder, (ii) culpable homicide not amounting to murder, (iii) dacoity, (iv) robbery,

(v) offence against the Indian Arms Act XI of 1878, and (vi) any other offence respecting which the Deputy, Commissioner, by general or special order, made with the previous sanction of thecoinmissioner, directs him to communicate information;

(d) the occurrence in his village of any sudden or unnatural death or of any death under suspicious circumstances.

E:c',Ula.1tation.----In this section, village has the meaning assigned to the word in the Upper -- Burma Village Regulation, 1887".

17. As noticed by the Joint Committee which consider- ed the Amending Bill of 1921-

"when the obligation to give information to the police is laid on a restricted class of persons"

the same considerations as in the case of section 44 are not attracted. -

In my View therefore, unless there be any over-riding consideration we need examine less strictly the desirabi- lity of imposing on particular groups oi' persons in respect of any particular crime, the responsibility of informing the police on the happening or the possibility of occur- rence of such a crime.

The principle or policy to be followed in deciding whether a particular oﬁence should or need be included under any of the sections in Chapter IV in Part 3 of the Code of Criminal Procedure is whether that offence has assumed that magnitude or character that to detect it and to bring the offender to trial the Police or the Magistrate requires the assistance of the public. This is in conformity with the imposition of a duty----

"resting upon all citizens to maintain the law of the land". [Russell on Crime (1964) Vol. I--page 167].

18. The next branch of the enquiry is whether there are any serious Objections or obstacles in imposing such an obligation even on a restricted group of persons.

The principal diiﬁculty, according to the majority view-

of the Commission, is that on such a provision. being made the persons concerned will be faced with the problem of resolving a conflict between the duty to report and not to ma1ign'one's neighbour---"a delicate choice which should not be forced on the informant". C 49 I do not think a public servant should ﬁnd it difficult or even embarrassing to make the proper choice discharging a public duty and rise above all other considerations. Public servants need and should have the proper sense of public duty and it will be a sad commentary on, and estimate of, the morale and standard of our public ser- vants if one thinks otherwise.

The next difﬁculty referred to by the majority is the risk which a person will have to face when a wrong as- sumption is made by the informant and he is subsequent- ly proceeded against by the person maligned.

This argument also, if accepted, will cut at the root of all the provisions contained in Chapter IV of the Code of Criminal Procedure and the principle and policy under which not only particular groups of persons but even the public in general are enjoined to assist the Police in the detection of certain crimes.

Once we accept that principle and policy_, an examina- tion of or reference to the general question about the risk which an information runs is, in my view, with great res- pect, not pertinent for arriving at the ﬁnal decision on this occasion.

It is neither suggested nor is it the general policy that in respect of the commission of every offence every member of the public should be fixed with the legal duty of informing the police. As pointed out already various considerations come into play before the Legislature can or should impose a legal duty on the public or particular sections thereof to assist the police.

I would not, in that view, enter into a discussionahout the legal aspect as discussed in the main report or what is or should be the test or safeguards which need be introduced.

I need only refer to the fact that the case law discussed with reference to the liability or risk which ensues when a report made to the Police turns out to be erroneous or false may not all be attracted in the present case. Suﬁ-1- cient safeguards may be provided to avoid harassment of bona fide information being given. The responsibility is to be cast on the Police for proper enquiry and investiga- tion after the Police is alerted. The object of the section will be deemed to he fulﬁlled after information has reached the Police. If the difficulties envisaged" were to be accepted as a general principle over-riding the policy and principles underlying the sections in Chapter IV, the only logical con- clusion will be to omit altogether the responsibility of the public or sections thereof. irrespective of the question who- ther the offence committed is serious or of a particular category. "

is-pW_i1ether.thoreAmay ;be._-any special diiiiculty or objection for 'in'ciuding bribery, if itis decided. to be included at all, will be considered later.

19. The next question for consideration 'is whether bribery has become so widespread and has assumed such magnitude-as to warrant inclusion of a special provision re- quiring assistance of the public, or a particular section thereof, inthe detection thereof.

It -is not necessary tor me to discuss this in great detail as in paragraph 6 of the Majority Report it has been accept- ed, as pointed out in the opening paragraph of this Minute. It is conceded that the legislature also has in recent times emphasised the seriousness of the position and introduced special and stringent provisions as in the Prevention of Corruption Act 1947. Since then the proposals for the appointment of Vigilance Officers and of Lokpals have gain- ed acceptance by all sections.

20. It is therefore next for consideration whether the responsibility should be cast on the public in general or on public servants as proposed. At this stage the imposition of the duty may be on the public servants. If this can assist to control this widespread crime in the public admin- istration that will be an example in other spheres. It is not necessary at the initial stage to include all members of the public.

21. _We may now consider whether apart from the gene- ral objections adverted. to already there are any special objections or cliiﬁculties in introducing bribery in the list.

It has-been pointed out by the Majority that bribery is not analogous to tho ottences included under section 44, I have already noticed that in View of the material difference between section 44 and the present proposal such differen- tiﬂﬁon is not Very apposite. If, however. the scope of the present proposal be compared with the offences included in section 45 of the Code, it will appear to be more relevant andfurther the offences included in section 45 are much wider and some of those are more trivial than the offence of bribery of the magnitude it has now assumed. Refer- ences to analogous nrovisions in other laws demonstrate the position that such duty is not limited to the maintenance of order or security. ' It is next noticed that it will be di-Fticult for a layman to determine whether the offence of bribery has been com- i-r11_tted«--as a "host of ingredients" are required to prove bribery.

If the various sections of' the Penal Code. dealing with each of the offences included in section 45 of the 'Code of Criminal Procedure', are analysed, it will be diﬁicult to differentiate between the ingredients of bribery with those others. To a public servant; in my view, it is not difficult 51 to rltnow when bribes are being offered or being taken»- it is the majority of cases so obvious.

22. When this proposal was before the Commission, re- ferences had been made to the different High Courts and Governments for expression of opinion on the draft as for- warded by the Bureau.

It is signiﬁcant that most of them (twelve, including two High Courts, some of the Judges of two other High Courts, tour Union Territories, two State Governments and two Public bodies) are in favour of some provision being made.

Three of the High Courts, some er the Judges of another Court, and one of the State Governments intimated that they had no comments to make.

Two other High Courts and some Judges of a High Court agree to the proposal subject to certain modiﬁcations in the form.

Two Judges of 'a High Court are in favour of the propo- sal provided public officers are not victimised for making disclosures against their superior ofﬁcers.

Some of the Judges of two High Courts even propose that every member of the public should be brought under the proposed obligation.

If reference is made to the detailed opinions as indicated above it will appear that those in favour outweigh the objec- tions raised by the majority of the Judges of only one High Court, or by the Administration of only one Union Terri- tory, and only by two State Governments and the minority opinion expressed by one or more Judges in only two of the High Courts.

23. I am fortiﬁed in my view by the overwhelming majo-

_ rity of the opinions received by the Commission.

24. As I had indicated in the beginning, decision has to be made to include "bribery" in the category 'of one or other of the Sections in Chapter IV.

The scope of our enquiry is not limited to the draft of the new section as proposed by the Bureau.

25. I should further point out that in the Majority Report also, safeguarding of the public interest and the urgency created in the mind of public servant to treat cor- ruption as a social evil it has not been disputed and lost sight 'of. But it is held that regard must be had to the vari- ous difﬁculties referred to in the earlier part of that report.

It is further, however, observed (paragraph 56 in the Main Report)'.-

."Notwithstanding this objection the proposal to add the offence of bribery and corruption would still deserve 52 consideration, if there were counter-balancing conside- rations, such as a substantial advantage to be gained in practice. We are not sure, however, whether the obliga- tion proposed to be imposed would actually be enforced in practice". ' ' Reliance is laced on certain observations in Ram Balak: ' Singh vs. The tate (.A.I.R. 1964 Patna 62, at page 65).

To put it in other words it is held that the introduction of a provision as proposed was not likely to be of any prac- tical beneﬁt or serve the purpose as anticipated.

It should be pointed out that the relevant facts i.n the decision referred to were that a person had been merciless- ly killed on a public_ road and two persons who subsequently deposed during the trial had not discharged the legal obli- gation cast on them under section 44 of the Code of Crimi-

p nal Procedure and given information to the nearest Magis-

trate or Police Officer (the Police Office was very near) although they on their own admission had appeared imme- diately after the murder had taken place.

The learned Judges had criticised the inaction of the Police in not proceeding against the said two persons under section 202 of the Indian Penal Code. The Court further observed with reference to section 44 of the Code of Criminal Procedure.

"The provisions have been designedly made so that crimes are brought to book and not suppressed by per- sons knowing about them. The authority should make some use of the aforesaid provisions so that the object of the Legislature in enacting the provisions, is not lost completely". a The learned Judges did not question the necessity and the appropriateness of the provisions contained in section 44 of the Code. On the other hand the police was called upon to make use of the provisions made.

The inaction or the failure of the Police to make use of the provisions which were not only considered by the Legis- lature to be useful and beneﬁcial but were considered to be sound from the juristic point of view did not justify the deletion of such a provision from the Code. Such failure or omission by the defaulting party should, be avoided, I do notshare the view that the obligation proposed to be imposed on Government servants would not be enforced in practice in spite of the fact that there is a public demand for eradication of the evil of widespread bribery.

As I have indicated already, the proposal is not "a very wide provision" but a restricted one for making an attempt to check a public menace now admitted to be pre- valent. Accordingly the limited provisions will not attract the criticism by the Court of Appeal in England (made in a different context) relied upon in paragraph 54 ante.

on analogous grounds the observations of the 'Criminal Law Commissioners in 1940 (also referred to in paragraph 54 write) are not wholly apposite. The present proposal does not "require every one, without distinction, as to the nature and degree of the offences to become an accused".

As it has been noticed already the objections to and criticism based on the provisions as in the wide provision of section 44 of the Code should not by themselves be applied to negative the restricted and limited scope of the proposal as before the Commission. As I have pointed out already the provision in section 45 oi the Code would sup- port the acceptance 0f_the proposal now made to include bribery within the limited scope of provision similar to section 45.

26. In addition to the proposal as discussed above a fur-- -

their suggestion has been made about the disclosure of facts in statements made in the course of investigations in respect of offences connected with bribery.

Whether section 161(2) needs any amendment may have to be considered only after the first part of the suggestion is accepted. I do not think that it is necessary to deal with that part of the suggestion at this stage.

27. To summarise the conclusion reached by me' it may be stated tnat----

(i) bribery as a crime has become so-widespread and has assumed such a magnitude that it would be proper to include a special provision in Chapter IV of the Cocleiof Criminal Procedure for its detection and punishment;

(.i) the legal duty oi informing the occurrence of such an offence should not at this stage be imposed on the public in general but only on the public servants;

(iii) awareness of the commission of offence should be the personal knowledge of the informant in course of his duties as a public servant; ' (to) from the category of public servants, Judicial "Officers should be excludedias has been provided by the 1925 Amendment in the case of a Judicial Pancho- yat); and

(iv) a modiﬁed draft should be circulated for elicit- ing public opinion before the present proposal can be rejected.

23..Beiore I conclude this Minute I would refer to the following observations by Vanderbilt C. J . (in The Chal- lenge of Law Reform, page 169).

"The reworking of our law must be based on pre- sent economic, political, soccol conditions and apparent trends into the future. To the analytical and historical 5.4 study of the -law must . be added the Sociological approach and because experiments are not as available in the Law as they are in the natural sciences, we must resort to the comparative study of the law".

To meet the local or tropical social requirements the Law-Makers need not be circumscribed by-

"old modes of trial" or to have in mind so much the reliance in the early centuries'.

While considering the necessity of reconsidering certain old rules of evidence, the observations by Lord Chief Justice

- Coleridge may also not be forgotten when modiﬁcations in or reform of law is being considered---

"Truth was investigated by rules of evidence so carefully framed to exclude falsehood, that very often truth was quite unable to force its way through the barriers erected against its opposite, Non-suits were constant, not because there was no cause of action, but because the law refused the evidence of the only persons who could prove it".

(37 Contemporary Review, 798).

RiiMA PRASAD MOOKERJEE.

GMGIPNTD--T.S.'W.-no M. of Law--29-7-:969----z,8oo.

Legal Document View

Unlock Advanced Research with PRISMAI

Law Commission Report

Sections 44 Code Of Criminal Procedure