Law Commission Report
The Indian Penal Code-Vol Ii
LAW COMMISSION OF INDIA ONE HUNDRED FIFTY - SIXTH REPORT ON THE INDIAN PENAL CODE ( VOLUME II ) AUGUST, 1997. AN N EXURES -: 395 :~ ANNEXURE-I QUESTIONNAIRE ON THE INDIAN PENAL CODE, 1860 Chapter I ~ Genera1 Exp1anations 1.
Omission of definition of words "Genderf; "NumberT and "Person" under Sections 8, 9 and 11 Do you agree with the recommendations of the Law Commission in its 42nd Report on Indian Penai Code and C1ause 5 of the Indian Pena] Code (Amendment) B111, 1978 that Sections 8, 9 and 11 which define the terms 'Gender', 'Number', 'Person' be omitted in view of identical definitions in the Genera1 C1auses Act, 1897?
l'\) Incorporation of new definition of "E1ection" under 1 CI) §9.9_1; 319114.
Do you agree that the word 'e1ection' be defined to mean an e1ection by whatever means he1d under any Iaw for the purpose of choosing members of any Legis1ature, iocai authority or other pub1ic authority as provided in C1ause 6 of the Indian Pena? Code (Amendment) Bi11, 1378?
-: 396 :*
3. Omission of the definition of "Servant of Government"
under Section 14 Do you agree that the definition of the words "Servant of Government" occurring under Section 14 be omitted in view of the fact that such expression does not occur in any other section of the Indian Penai Code, 1860?
4. Omission of definition of "Government" under Section 17 Do you agree that the definition of the word "Government "as defined in Section 17(b) be omitted in view of the definition of the word "Government" in Section 3(23) of the Generai Ciauses Act?
5. Amendment of definition of "India" under Section 18 Do you agree with the suggestion that the definition of the word "India" as defined in Section 18 of the Indian Pena1 Code be amended as fo11ows:
"The word 'India' wherever it occurs in this Code, means the territories to which this Code extends."
in order to make it ciear that the Code extends to the territoriai waters of India as it extends to Iand territory and internai waters of India, as provided in C1ause 9 of the Indian Penai Code (Amendment Bi11) 1978?
6. Amendment of the definition of the word "Judge" under Section 19 Do you agree that the word "Judge" under Section 19 -: 397 :- be amended in view of the difficu1ty in interpretation of the words "any 1ega1 proceedings" and "definitive judgment", if yes, then who are a1} the persons/authorities to be inc1uded in the said definition?
7. Amendment of the definition of the expression "court of Justice" under Section 20 Do you agree that the definition of the words "Court of Justice" as defined in Section 20 of the Indian Pena1 Code be amended in view of the fact that the word "judge" has comprehensive1y been defined and there is no need for repeating the same in Section 20? It is fe1t that it is sufficient to indicate in the definition that it is on1y when the Judge or body of Judges is acting judicia11y that he or it is to be regarded as Court of Justice for the purpose of the Court. Thus, an Executive Magistrate, while functioning judicia11y under the Code of Crimina1 Procedure, wi11 be a Court of Justice but not when he is performing an executive or administrative function under the Code or some other Iaw.
Do you suggest the "Court of Justice" be a1so amended as fo11ows:
"Court of Justice means a Judge or body of Judges when acting judicia11y"
as recommended by the Law Commission of India in its 42nd Report on Indian Pena1 Code and as provided in C1ause 9 of the Indian Pena1 Code (Amendment) Bi11 1978?
-: 398 :-8. Amendment of the definition of pub1ic servant under Sectionfigl.
Do you agree that Section 21 be amended in view of considerab1e over1apping, particu1ar1y after the recasting of ciause tweifth by the amending Acts of 1958 and 1964 and a1so in view of the fact that some c1auses require drastic revision in the fo11owing manner:
"Pub1ic servant" means,----
(i) any person in the service or pay of the Government, or remunerated by the Government by fees or commission for the performance of any pub1ic duty;
(ii) any person in the service or pay of a 1oca1 authority;
(iii) any person in the service or pay of a corporation owned or contro11ed by the Government;
(iv) any Judge, inciuding any person empowered by iaw to discharge, whether by himse1f or as a member of a body of persons, any adjudicatory functions;
(v) any person specia11y authorised by a Court of Justice to perform any duty in connection with the administration of justice, inciuding a 1iquidator, receiver or commissioner appointed by such Court;
(vi) any arbitrator or other person to whom any cause or matter has been referred for decision or report by a Court of Justice or by a competent authority;
(vii) any person emp1oyed or engaged as an examiner or as an invigi1ator by any public body in connection with any examination recognised or approved by or -: 399 :- under any iaw.
Exp1anation,---The expression "pubiic body", inc1udes----
(a) a University, Board of Education or other body or institution, either estab1ished by or under a Centra1, State or Provincia1 Act or constituted by the Government;
(b) a 1oca1 authority;
(viii) any person who ho1ds an office by virtue of which he is empowered to prepare, pub1ish, maintain or revise an e1ectora1 r011 or to conduct an e1ection or part of an e1ection; or
(ix) any person who ho1ds an office by virtue of which he is authorised or required by 1aw to perform any pubiic duty.
Exp1anation 1.---Persons fa1)ing under any of the above c1auses are pub1ic servants whether appointed by the Government or not, Explanation 2.----A person fa11ing under any of the above clauses by virtue of any office or situation he is actua11y ho1ding is a pub1ic servant, whatever 1ega1 defect there may be in his right to ho1d that office or situation as provided in c1ause 9 of the Indian Pena) Code (Amendment) Bi11,1978?
--: 400 :-9. Insertion of new definition of "State" under section _LA Do you agree that the word "State" be defined to mean "as State in India and inciudes a Union Territory" as provided in c1ause 9 of the Indian Pena1 Code (Amendment) Biii 1978?
10. Amendment of the definition of "fradu1ent1y" under Section 25 Do you agree that the definition of the word "fraudu1ent1y" is very unsatisfactory, if at a11 it can be ca11ed a definition at a11 by one which wi11 atieast state the essentiai requirements as pointed out by the Supreme Court in Dr. Vim1a v. De1hi Administration (1963 Suppi. 2 S.C.R. 585 and Dr. S. Dutt V State of UP (1966) 1 SCR 493, 502 and furnish a guideiine in doubtfui cases? It is feit that in such a definition, it wouid obvious1y be not sufficient to reiate the second eiement to the deceiver's intention to obtain an undue benefit or advantage to himseif by means of the deceit. To constitute cuipable fraud there shouid either be an intention to cause by the deception injury in the wide sense to someone or, at any rate, an intention to induce the person deceived to act to his disadvantage. In view of this do you agree that Section 25 be amended in the fo11owing manner as provided in clause 10 of the Indian Penai Code (Amendment) Bi11 1978?
A person is said to do a thing "fraudu1ent1y" if he does that thing with intent to deceive another and, -: 401 :- by such deceit, either to cause injury or damage to body, mind, reputation or property of any person or to induce any person to act to his disadvantage.
11. Amendment of the definition of Document under Section 22;
Do you agree with the suggestion of the Law Commission of India in its 42nd Report on the Indian Penai Code that in view of the ho1ding of the Supreme Court in Pratap Singh Kairon (1964) 4 SCR 733; AIR 1964 SC 72, 86, para 15 that a conversation recorded on a tape is good evidence, and obviousiy, if a person forges a tape record, he ought to be punishab1e the same way as a person preparing a faise document, there shou1d be an insertion in the form of i11ustration to Section 29 and de1etion of some i11ustrations given in Section 29?
12. Omission of definitions of words "A wi11". "i11ega1 omission". "Act/Omission" under Sections 31, 32 and §§ Do you agree with the recommendations of the Law Commission in its 42nd Report on Indian Penai Code and C1ause 12 of the Indian Pena1 Code (Amendment) Bi11, 1978 that Section 31 which defines the term 'wi11', Section 32 which --: 402 :- mereiy says that 'act' inc1udes i11ega1 omissions and section 33 which defines the words "act/omission" be omitted in view of identicai definition in the Genera1 C1auses Act, 1897?
13.(i) Amendment of Sections 34 and 149: Common intention:
common object whether Sections 34 and 149 be amended to make a sing1e accused a1so be constructive1y 1iab1e u1timateIy of an offence, when even though such an accused was charged a1ong with other accused, but who are acquitted, if the court finds that such singie accused aiong with one or more accused conjoint1y committed the offence in view of the fact that where accused are tried constructive1y by app1ication of section 34 or 149 and where some of them are acquitted on some ground or the other, the remaining whose participation conjoint1y though estab1ished, are a1so being acquitted on the simp1e ground that requisite number of such accused is Iess than two or five?
(ii). Amendment of Sections 34. 35 and 38;Provisions re1ated to Acts done by severa1 persons in furtherance of common intention.
Do you agree that in view of the ho1ding of the Apex Court in the case of B.N.Srikantiah v. State of Mysore, AIR 1958 SC 672 and the recommendations of the Law Commission in its 42nd Report on Indian Pena1 Code and C1ause 13 of Indian -: 403 :- Pena1 Code (Amendment) Bi11, 1978 for the words "severai persons" wherever they occur in sections 34, 35 and 38, the words "two or more persons" be substituted?
14. Substitution of new section for the definition of "offence" in Section 40 Do you agree that the definition of the word 'offence' as defined in Section 40 be omitted in view of the definition given in the Genera1 C1auses Act,1897 and further that the Section be substituted with the definition of the word "capita1 offence", name1y --
"40. "Capita1 offence" means an offence for which death is one of the punishments provided by 1aw"; as recommended by Law Commission in its 42nd Report on Indian Pena} Code and C1ause 14 of the Indian Pena) Code (Amendment) Bi11, 1978"?
15. Substitution of new Section for the definition of words "I11ega1"/1eQa1y bound to do in Section 43 Do you agree with the recommendations of the Law Commission in its 42nd Report on Indian Pena1 code and C1ause 15 of the Indian Pena1 Code (Amendment) Bi11, 1978 and a1so keeping in mind the substitution of the definition of 'offence' in Section 40 of the Pena] Code, that for Section 43 of the Penal Code the fo11owing Section be substituted:-
--: 404 :-"43(1) A thing is i11ega1 if it is an offence, or is prohibited by iaw, or furnishes ground for a civi1 action.
(2) A person is "1ega11y bound to do a thing when he is bound by 1aw to do that thing or when it is i11ega1 in him to omit to do that thing"?
16. Omission of the definition of words 'vesse1', 'year'/'month' and 'Section' under Sections 48, 49 and 50 Do you agree that the words "vesse1", 'year'/"month" and "Section" as defined under Sections 48, 49 and 50 respectiveiy be omitted in view of the definition of the same words in Section 3, c1auses (63), (66), (35) and section 4 respectiveiy of the Genera] Ciauses Act, 1897?
17. Substitution of the definition of words "Good faith"
and "Harbour" under Sections 52 and 52A Do you agree with the recommendations of the Law Commission in its 42nd Report on Indian Penal Code and Ciause 17 of the Indian Penai Code (Amendment) Bi11, 1978 that for Sections 52 and 52A of the Pena1 Code, the foiiowing Sections be substituted, nameiy --
"52. A thing is said to be done or beiieved in 'good faith' when it is done or beiieved honestiy and with due care and attention.
-: 405 :- 52A. Harboring means giving sheiter to a person, and inciudes supplying a person food, drink, money, ciothes, arms, ammunition or means of conveyance, or assisting a person in any manner to evade apprehension."?
18. Amendment of Section 53: Punishments Do you agree that as emphasised by the Supreme Court in a number of cases that whi1e awarding punishment to a convict, the court shouid adopt the reformative approach instead of awarding deterrent punishment wherever possibie? so it is feit that the fo11owing new forms of punishment be introduced in the Pena} Code in addition to or as a1ternative to imprisonment:--
(a) community service;
(b) disquaiification from ho1ding office;
(c) order for payment of compensation;
(d) pub1ic censure;
If you agree with the aforesaid view; (a) in your opinion, what shou1d be the reievant factors which wouid aiso be required to be considered;
(b) what are the kinds of offences for which these punishments shouid be made app1icab1e?;
(c) whether, whi1e awarding the punishment of community service, reievant factors such as age of the convict, nature of work, duration of work, remuneration, if any, payabie to the convict, be a1so considered?;
--: 406 :-(d) whether the amount of compensation shou1d take any iimitation; and
(e) Shou1d the victim be compensated by the same court instead of compe11ing him to resort to civil proceedings for recovery of the same?
19. Omission of Sections 54. 55 and 55A: Commutation of sentence of death and of imprisonment for iife, definition of "Appropriate Government"
Do you agree with the recommendations of the Law Commission in its 41st Report on Code of Crimina1 Procedure, 1898, 42nd Report on Indian Pena1 Code and C1ause 19 of the Indian Penai code (Amendment) Bi11, 1978 that Sections 54, 55 and 55A which deai with the provisions of" commutation of sentence of death", "imprisonment for 1ife" and "definition of appropriate government" respectiveiy be omitted in View of identica1 provisions in Sections 432 to 435 of Code of Crimina1 Procedure, 1973?
20. Amendment of Section 57 : Fractions of terms of punishment Do you agree with the recommendations of the Law Commission in its 42nd Report on Indian Pena1 Code and C1ause 20 of the Indian Penai Code (Amendment) Bi11, 1978 that in --: 407 :- Section 57 of the Pena1 Code for the words "imprisonment for 20 years", the words "rigorous imprisonment for 20 years" be substituted?
21. Substitution of new Section for sections 64 and 65 Sentence of imprisonment for non-payment of fine and iimit to imprisonment Do you agree with the recommendations of the Law Commission in its 42nd Report on Indian Penai Code and Ciause 21 of Indian Pena] Code (Amendment) Bi11, 1978 that for Sections 64 and 65 of the Penai Code, the fo11owing Sections be substituted:--
"64. In every case in which an offender is sentenced to a fine, it sha11 be competent to the court to direct by the sentence that, in defau1t of payment of the fine, the offender sha11 undergo imprisonment for a certain term.
"65. In every case in which the offence is punishabie with imprisonment or fine, or with imprisonment and fine-
(a) the imprisonment in defau1t of payment of the fine may be of any description to which the offender might have been sentenced for the offence;
(b) the term of such imprisonment sha11 not exceed one--fourth of the maximum
-2 408 :-
term of imprisonment provided for the offence;
(c) such imprisonment sha11 be in addition to the imprisonment, if any to which he may have been sentenced for the offence or to which he may be 1iab1e under a commutation of a sentence."?
22. Omission of Section 66 : Description of imprisonment for non-payment of fine Do you agree that in view of the recommendation of C1ause 22 of the Indian Pena1 Code (Amendment) B111, 1978 that Section 66 of the Pena1 Code be omitted though the Law Commission in its 42nd Report on Indian Pena1 Code has not recommended for omission but on1y for amendment of said Section 66 ?
23. Substitution of new Sections for Sections 67 and 68 Imprisonment to terminate on payment of fine and imprisonment for non--payment of fine, when offence punishab1e with fine on1y Do you agree that (a) the word "1evied" in both the Sections do not give c1ear meaning? Therefore, these words be rep1aced by the word "rea1ised"; (b) as recommended by the Law Commission in its 42nd Report on Indian Pena1 Code and C1ause 23 of Indian Pena1 Code (Amendment) B111, 1978 that ~: 409 :-
the amount of fine given under section 67 of the Code be increased; (c) the provisions regarding imprisonment to terminate on payment of fine required to be made more ciear under section 68; further the provisions of section 69 of the Penai Code also be inciuded under Section 68?
24. Omission of Section 69 : Termination of imprisonment on payment of proportionai part of fine Do you agree that in view of the amendment in section 68 of the Penal Code and the recommendations of the Law Commission in its 42nd Report on Indian Penai Code and Ciause 24 of Indian Penal Code (Amendment) Bi11, 1978 that Section 69 of the Penai Code be omitted?
25. Substitution of Section 70L 71 and 72 : Fine ieviabie within six years, or during imprisonment/death not to discharge property from liabiiity; iimit of punishment of offence made up of severai offences and punishment of person guiity of severai offences etc. Do you agree that in view of the decisions/views of various High Courts and of the Supreme Court on Sections 70 to 72 which deai the provisions "Fine 1evied within six years or during imprisonment--Death not to discharge property from iiabiiity", "Limit of punishment of offence made up of severai offences" and "Punishment of person guilty of one of
--: 410 :~ severa1 offences, the Judgment stating that it is doubtfui of which" that the wording of these sections is not unambiguous and needs amendment as recommended by Law Commission in its 42nd Report and CIause 25 of Indian Penai Code (Amendment) Bi11 1978 to make the provisions simp1e and c1ear?
26. Substitution of Sections 73 and 74 : Soiitary confinement and its 1imit Do you agree that punishment of soiitary confinement is out of tune with modern thinking, therefore, it be de1eted from the Pena1 Code?
27. Amendment of Section 75: Enhanced punishment for certain offences under Chapter XII or Chapter XVII after previous conviction Do you think that Section 75 shou1d be extended to cover a11 offences under the Code which are punishab1e with imprisonment upto three years or more?
28. Amendment of Section 94 : Act to which a person is compe11ed by threats Do you think it is necessary to redraft Section 94 to inc1ude harm to near re1atives 1ike parents, spouse, son or daughter and that a person threatened with such harm be permitted to piead duress as an excuse in the same way as a person threatened with death?
29. Constructive Liabi1ity_ of Companies : Insertion of section 94A and 948:
Do you think that the Company and the Board of Directors or the persons responsib1e for the conduct of the affairs of the company shouid be constructiveiy be made 1iab1e for offences committed in furtherance of the affairs of the company by an emp1oyee thereof by adding new Sections 94A, 94B as provided in the Bil}?
30. Amendment[Modification/Deietion of Section 99 : Acts against which there is no right of private defence etc;
Do you think that the third paragraph in Section 99 debarring the right of private defence in cases in which there is a time to have recourse to the pub1ic authorities shouid be removed or shouid be modified and if so, how?
31. Amendment of Section 100 : when the right of private defence of the body extends to causing death whether it is necessary to 1imit the 5th paragraph, under section 100 of the Pena1 Code oniy to cases where the abduction is punishabie under the Code as proposed in the Bi11 or the present 5th paragraph as such is to be retained?
32. Amendment of Section 101 Shouid Section 101 be amended by adding the words "or the invo1untary causing death to the assai1ant" in the end, so that those cases where the death is caused, but not vo1untari1y, iike rash and neg1igent act couid a1so bey inc1uded.
33. Amendment of Section 103: when the right of private defence of property extends to causing death.
whether it is necessary to substitute the words "criminai trespass" for 'house trespass' so as to inc1ude hijacking of aircraft or sabotage under ciause 4 of Section 103 and whether c1ause 2, name1y, 'house breaking by night' can be omitted?
34. Amendment of Section 105: Commencement and continuance of the right of private defence of property.
In the 1ight of the proposed amendments to Sections 99 and 103, do you suggest any changes in Section 105?
-: 413 :-35. Amendment of Section 108 & 108A: Abettor and Abetment in India of offences outside India.
It is proposed in the Indian Pena1 Code (Amendment) Bi11, 1978 that for Sections 108 and 108A, the fo11owing Sections sha11 be substituted, name1y:~ "108(1). A person abets an offence, who abets the doing of a thing which is that offence or which wou1d be an offence if done by a person capab1e by iaw of committing that offence with the same intention or know1edge as that of the abetor (See C1ause 38 of the Bi11)".
What are your views?
36. Amendment of Sections 115 and 116:Punishment for abetment.
Do you think that the punishment under Sections 115 and 116 for unsuccessfu1 abetment of offences shou1d be more rigorous?
37. Insertion of Section 117A for abetment by a chi1d under 15 years of age.
whether a new Section 117A shou1d be inserted to cover the abetment of commission of offence by a chi1d under 15 years of age?
~: 414 :--
38. Amendment of Section 119: Public servant conceaiing design to commit offence which it is his duty to prevent etc. punishment.
Do you think that it is necessary that the 3rd, 4th and 5th paragraphs in Section 119 shou1d be substituted by providing a severe punishment in cases where capital offences are being committed and aiso in cases where capitai offences are not committed, but where there was a fai1ure on the part of the pubiic servant to prevent or where there was a faciiitation by him?
39. Insertion of new chapter VB. 'Attempts' & 'Punishment':
Do you agree that the word "Attempt" be defined and Punishment for it shou1d be prescribed in view of the ho1ding of the Supreme Court in Abhayanand v. State of Bihar (1962) 2 S.C.R. 241, the recommendation of the Law Commission in its 42nd Report on Indian Penal Code and C1ause 45 of Indian Pena1 Code (Amendment Bi11), 1978 that after Chapter VA of the Pena1 Code, the fo11owing Chapter VB be incorporated?
"Chapter V B ATTEMPTS
40.
41.
42. -: 415 :- 120C A person attempts to commit an offence, when --
(a) he, with the intention or know1edge requisite for committing it, does any act towards its commission;
(b) the act so done is c1ose1y connected with, and proximate to, the commission of the offence; and
(c) that act faiis in its object because of facts not known to him or because of circumstances beyond his contro1.
120D. whoever is gui1ty of an attempt to commit an offence punishable with imprisonment for Wife or with imprisonment for specified term, shaii, where no express provision is made for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one ha1f of the imprisonment for 1ife or, as the case maybe, one--ha1f of the iongest term of imprisonment provided for that offence, or with such fine as is provided for the offence or with both."
Amendment of Sections 122 and 123: Coilecting arms etc. with intention of waging war against government of India and concea1ing with intent to faci1itate design to wage war.
Do you agree with the recommendation of the Law --: 416 :- Commission in its 42nd Report on Indian Penai Code and Ciause 46 of the Indian Penai Code (Amendment) Biii, 1978 that in view of grave nature of offence affecting the security of the State for the words "imprisonment of either description" the words 'rigorous imprisonment' be substituted under Sections 122 and 123 of the Indian Penai Code?
43. Insertion of new section 123A: To assist an enemy etc. Do you agree with the recommendation of the Law Commission in its 42nd report on Indian Penai Code and Ciause 47 of the Indian Penai Code (Amendment) Biii, 1978 that after Section 123 of the Penai Code the foiiowing section be inserted name1y?-
"123A. Whoever assists in any manner an enemy at war with India, or the armed forces of any country against whom the armed forces of India are engaged in hostiiities, whether or not a state of war exists between that country and India, shaii be punished with rigorous imprisonment for a term which may extend to ten years, and shaii aiso be iiabie to fine."
44. Substitution of new section for section 124:
Do you agree that in view of the hoiding of the Supreme Court in Kedar Nath Singh v. (1962) Suppi.
nameiy --
417State of Bihar, S.C.R. P.808, the foiiowing sections be substituted, "124A whoever by words, either spoken or written, or signs, or by visibie representations, or otherwise.
excites, or attempts to excite, disaffection towards the Constitution, or the Government or Par1iament of India, or the Government or Legisiature of any State, or the administration of justice, as by 1aw estabiished, intending or knowing it to be 1ike1y thereby to endanger the integrity or security of India, or of any State, or to cause pubiic disorder, shaii be punished with imprisonment for 1ife or with rigorous imprisonment for a term which may extend to three years, and sha11 aiso be 1iab1e to fine.
124B. whoever de1iberate1y insults the Constitution of India or any part thereof, the nationa1 fiag, the nationai emb1em or the nationai anthem, by burning, desecration or otherwise, sha11 be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."; as recommended by Law Commission in its 42nd Report on Indian Pena1 Code and Ciause 48 of the Indian Penai Code (Amendment) Bi11, 1978?
-: 418 :-45. Amendment of Section 125 and 126: waging war etc and committing degradation on territories of Powerggt geace with the Government of India.
Do you agree with the recommendation of the Law Commission in its 42nd Report on Indian Pena1 Code and C1auses 49 and 50 of the Indian Penai Code (Amendment) Bi11, 1978 that under Sections 125 and 126 of the Pena1 Code, for the words "any Asiatic Power in aiiiance or at peace with the Government of India" being irreievant, the words "any foreign state at peace with India" be substituted?
46. Amendment of Sections 128. 129 and 130: Offences committed by Pub1ic Servants etc. Do you agree that since "the State Prisoners Regu1ations" of three Presidencies made ear1y in the Iast century have been repea1ed in 1952 and in view of the recommendation of Law Commission, 42nd Report, and C1ause 51 of Indian Penai Code(Amendment)Bi11, 1978 that under Sections 128, 129 and 130 of the Penai Code, the words "state Prisoner or" wherever they occur, be omitted?
47. Amendment of Section 161:Pub1ic servant. Do you agree that the words "pubiic servant" shou1d be specifica11y defined within the ambit of section 161 IPC?
Are the words "pub1ic servant" to be made app1icab1e to 1oca1 authorities or corporations, owned or contro11ed by the Government?
48. Insertion of new Section 153C: Statement intending to cause offences against pubiic tranqui1ity. whether a new section 153C be inserted in the Indian Pena1 Code in order to curb a recent increase in the activity of promoting enmity, hatred or i11-wi11 between different groups on grounds of re1igion, race, Tanguage, caste or community which requires to be dealt with in a stern manner and whether such step wi11 he1p in curbing vio1ence on the aforesaid grounds?
49. Amendment of Section 171G: E1ections etc. The commission/omission of corrupt practices in the e1ections are punishab1e under the Representation of Peop1e's Act. Do you suggest for the same offences being made punishab1e simu1taneous1y under provisions of the IPC, particu1ar1y with reference to section 171G of the IPC?
50. Insertion of new Section 166--A There appears to be a generai tendency on the part of the Po1ice Officers to direct the witnesses of the crime to attend at p1aces in vio1ation of Section 160 of the Code of Crimina1 Procedure, 1973. The Law Commission of India in its 135the Report on "Women in Custody" recommended for insertion --: 420 :- of new Section 166A in the Indian Penai Code, 1860 for punishing the vio1ation of Section 160 of the Cr.P.C., and making the proposed offence cognizabie, bai1ab1e and triab1e by any Magistrate. Shou1d such a provision be inserted in the Indian Penai Code for curbing the tendency to vioiate the provisions of Section 160 of Cr.P.C.?
51. Insertion of new Section 167A: Pub1ic servants ma1icious1y authorising payment in respect of contracts where the goods suppiied or work done is not in accordance with the contract.
whether a new section 167A be inserted in IPC to punish a pubiic servant who authorises payment on beha1f of Government or other pubiic authority for goods supp1ied or work done under any contract when he knows that the goods or works are not in accordance with the contract in view of the fact that pub1ic servants ma1icious1y authorise payment in respect of contracts where the goods suppiied or work done is not in accordance with the contract?
52. Insertion of new Section 167--B Compiaints against Poiice Officers not to record the First Information Report at the poiice station, even though there is prima facie evidence of the commission of the cognizab1e offence have often1y been made. Under the existing Iaw, there is no provision for taking penai action against the po1ice officers for their refusa1 to record information as contemp1ated by Section 154(1) of the Cr.P.C.
--: 421 :-The Law Commission in its 84th Report on "Rape and A11ied Offences", and in its 152nd Report on "Custodia1 Crimes" a1so observed that the remedy avai1ab1e under sub-section (3) of Section 154 of the Cr.P.C. is not effective and adequate. It, therefore, recommended for enactment of a new Section 1678 in the Indian Penai Code, making the fai1ure to record the FIR by officer in-charge of a po1ice station, punishab1e with imprisonment for a term which may extend to one year or with fine or with both. In order to discourage or prevent the maipractice of refusing to register information re1ating to commission of oognizabie offences, it needs to be de1iberated, besides the aforesaid measures, of insertion of a new Section 167B on the aforesaid Iines, what other suitabIe measures can be taken up for curbing the aforesaid maipractice?
53. Omission of Section 228:
Since the jury system has been abo1ished in our country, do you suggest for de1etion of section 228 IPC?
54. Omission of Sections 246 & 254: Coins etc. In the yore, the meta1 used in the coins was very va1uab1e. Therefore, peop1e were trying to a1ter the composition and shape of the coin. Of late the meta1 being used in coins is not that much va1uab1e. Therefore, do you suggest for the de1etion of sections 246 and 254 of the IPC?
-: 422 :-55. Insertion of new Section 198~A: Issuing or signing fa1se medicai certificate.
whether it shou1d be provided in the Indian Penai Code that any medicai practitioner who knowingiy issues any faise medicai certificate or certificate of fitness and any person who corrupt1y uses it as a true certificate shouid be punishab1e in order to check the growing maipractice of issuing and using faise medicai certificate, (e.g.Doctors seen outside M.V. authorises to give certificates to new app1icants). If so, whether there shouid be different punishments for a certificate used in judicia1 proceedings and for other purposes?
56. Amendment of Section 270:Ma1ignment act 1ike1y to spread infection of disease dangerous to Iife.
Do you agree with the recommendation of Law Commission in its 42nd Report on Indian Penai Code and c1ause 114 of the Indian Pena] Code (Amendment) Bi11, 1978 that in Section 270 of the Penai Code (a) for the word 'ma1ignant1y' the word 'wi1fu11y' be substituted, and (b) for the words 'two years', the words 'three years' be substituted?
57. Amendment of Sections 272 to 276:Offences of aduiteration.
Do you agree that the sentence provided in Sections 272 to 276 of the Penai Code deaiing with the anti-sociai and reprehensibie offences of aduiteration of food, drinks and drugs, be enhanced in view of recommendations of Law -: 423 :- Commission in its 42nd Report and c1ause 115 of the Indian Pena1 Code (Amendment) Bi11, 1978 and of the provisions of Section 16 of the Food Adu1teration Act, 1954 and a1so of U.P. Act No.47 of 1975 and west Benga1 Act No.42 of 1973 and if so, what shou1d be the quantum of punishment?
58. Amendment of Section 277 Do you agree with the recommendation of Law Commission in its 42nd Report on the Indian Pena1 Code and c1ause 116 of the Indian Pena1 Code (Amendment) B111, 1978 that in Section 277 of the Pena1 Code for the words -- (a) "or reservoir", the words "we11, reservoir or any other source of supp1y of water" be substituted; and (b) for the words "three months or with fine which may extend to five hundred rupees", the words "one year or with fine" be substituted?
59. Insertion of new Section 279A Do you agree with the recommendation of Law Commission in its 42nd Report on Indian Pena1 Code and c1ause 119 of the Indian Pena1 Code (Amendment) Bi11, 1978 that a new section 179A for "driving unsafe or over1oaded vehic1e on a pub1ic way" be inserted as under:-
"279A. Whoever knowing1y or neg1igent1y drives or permits any person to drive any vehic1e on a pub1ic way when that vehic1e is in such a state or so 1oaded as to endanger 1ife, sha11 be punished with imprisonment of either description for a term which -: 424 :- may extend to six months, or with fine, or with both. Exp1anation. -- In this section --
(a) "vehic1e" inc1udes any vesse1; and
(b) "pub1ic way" inc1udes any pub1ic water--way.
or in view of the provisions of Sections 184, 190 and 194 of Motor Vehic1es Act, 1988, there is no requirement of inserting the above mentioned section in the Penai Code?
60. Amendment of Section 292 Do you agree that in Section 292 of the Pena1 Code, which deais with sa1e etc., of obscene books etc., a new sub--section (3) be added for admission of expert evidence in the foiiowing words, name1y, -
"(3) Where, in any prosecution under this section, the question is whether the pub1ication of any book, pamphiet, paper, writing, drawing, painting, representation or figure is in the interest of science, iiterature, art or iearning or other object of genera1 concern, the opinion of experts as to its scientific, 1iterary, artistic, academic or other merit may be admitted in evidence.";
as recommended by Law Commission in its 42nd Report on Indian Pena1 Code and ciause 122 of the Indian Pena1 Code (Amendment) Bi11, 1978 ?
--: 425 :-61. Insertion of new Section 292A: Printing etc. of grossly indecent or scurrilous matter or matters intended for blackmail, In order to check the menace of blackmail by publication of scurrilous or grossly indecent matter in the media whether it is necessary to insert a new Section 292A to cover printing, exhibition, distribution, circulation of any picture or any printed or written document which is grossly indecent or scurrilous or intended to blackmail, etc. or sale or conveyance or doing business in printing or circulation, etc. or advertise or attempt to do any such act also being punishable? .
62. Insertion of new sections 294A and 2948: Offence related to lotteries.
Whether new sections 294A and 2948 should be expanded so as to cover all lotteries promoted or proposed to be promoted in India or elsewhere and to cover the acts of printing, sale, distribution, advertisement, etc.?
63. Amendment in sections 299 and 300: Culpable homicide and murder.
Do you suggest any changes in sections 299 and 300 to have a clearer definition of culpable homicide and murder?
64. Amendment of section 302B -: 426 :- whether section 302B shouid be made more expianatory mentioning in what cases death sentences shouid be awarded or whether it is better to 1eave it to the discretion of the court on the concept of 'rarest of rare cases'?
65. Insertion of new section 304B Whether a new section 304B has to be inserted to make the drivers who drive or runaway without informing any poiice station within a reasonabie time?
66. Amendment of sections 307 and 308:Attempt to murder etc. attempt to commit cuipabie homicide.
Do you suggest any changes in sections 307 and 308?
Shouid there be severe punishment if hurt is caused?
67. Omission of section 309:Attempt to commit suicide Do you agree that section 309 be omitted?
68. Amendment of section 320: Grievous hurt.
Do you suggest any changes in section 320? whether in para 8, the period of 20 days can be reduced to 15 days?
69. Insertion of new Section 354A: Assau1t on a minor. Do you agree with the ho1ding of Supreme Court in a case of State of Punjab Vs. Major Singh, AIR, 1967, Supreme --: 427 :- Court, pp.63, 65, 67, that indecent assauit on chiidren be an offence? Therefore, in view of the above hoiding and recommendation of Law Commission in its 42nd Report on Indian Penai Code and c1ause 146 of the Indian Pena1 Code (Amendment) Bi11, 1978, a new Section 354A for the "indecent assauit on a minor" be inserted in the foiiowing words:--
"354A. whoever assauits or uses criminai force to any minor under sixteen years of age in an indecent Iascivious or obscene manner, sha11 be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
70. Amendment of Section 356: Assau1t on crimina1 force.
Do you agree with the recommendation of Law Commission in its 42nd Report on Indian Pena) Code and ciause 147 of the Indian Pena) Code (Amendment) Bi11, 1978 that in Section 356 of the Pena1 Code for the words on any property", the words "of any property" be substituted.
71. Amendment of Section 361:Kidnapping from 1awfu1 guardianship.
Do you agree with the recommendation of Law Commission in its 42nd Report on Indian Pena1 Code and c1ause 148 of the Indian Penal Code (Amendment) B111, 1978 that in Section 361 of the Pena) Code (a) for the exp1anation the fo11owing expianation be substituted, nameiy, -
"Exp1anation. -- In this Section, the expression --: 428 :- 'lawful guardian' includes 'any person who has lawful custody of a minor or of a person of unsound mind';
(b) In the exception, for the word "unlawful", the word "illegal" be substituted.
72. Amendment of Section 362: Abduction.
Do you agree that the definition of the word 'abduction' given under Section 362 is not clear and wide enough to cover the definition of the said offence and the cases of "hijacking of aircraft and vehicles" in recent past have been increasing in parts of our country ridden with terrorism, should be made punishable under the Penal Code? In your opinion should there be uniform punishment for both the offences or should it vary according to the gravity of the offence and be deterrent punishment in case of hijacking of an aircraft on board, or in flight? Please comment.
73. Insertion of new Section 364A: Kidnapping on abduction for ransom.
Do you agree that the quantum of punishment for "kidnapping or abduction for ransom should be more than the offences given under Section 364 of the Indian Penal Code? If yes, then a new section as recommended by Law Commission in its 42nd Report on Indian Penal Code and clause 151 of the Indian Penal Code (Amendment) Bill, 1978, be inserted in the following words:-
"364A. Whoever kidnaps or abducts any person in order that such person may be held to ransom shall be
-: 429 :~ punished with rigorous imprisonment for a term which may extend to fourteen years, and sha11 aiso be 1iab1e to fine."
74. Substitution of new Section for Section 362:
Abduction
(a) Do you agree that the definition of abduction be expanded to inciude taking any persons away from any piace without the consent of that person or some persons 1ega11y authorised to consent on behaif of that person as provided in ciause 149 of the IPC Amendment Bi11, 1978?
(b) Do you agree that abduction per se irrespective of the motive for such abduction be made punishab1e under the IPC?
75. Insertion of new Section 364A:Abduction for ransom IPC does not inc1ude abduction for ransom as an offence. Nationa1 Crimes Record Bureau has reported that abduction inciuding those for ransom has recorded a rise of 43.3% between 1983 and 1993. In view of this do you agree that abduction for ransom be incorporated as an offence as provided in ciause 151 (S.364A) of the IPC Amendment Bi11, 1978?
~: 430 :-
76. Substitution of new Section for Section 368:
wrongfu1 concea1ing of kidnapped or abducted person. Do you agree that a specific punishment for the above offence be provided as provided in C1ause 155 of IPC Amendment Bill, 1978; 'rigorous imprisonment upto 7 years and fine'.
77. Amendment of Section 369: Kidnapping or abduction of a chiid to stea1 from its person.
Do you agree that for the above offence, a minimum punishment be prescribed ? If so, what shou1d be the quantum ? In ciause 156 of IPC Amendment Bi11, 1978 minimum punishment of two years is prescribed.
78. Amendment of Section 373:'Buying, hiring, or obtaining possession of a minor for prostitution or i11icit intercourse or for any un1awfu1 or immoral QUFQOSGS .
Do you agree for insertion of Expianation III to Section 373 in view of confiict of opinion between different High Courts and as suggested by the Law Commission in its 42nd Report and as mentioned under clause 158 of the IPC Amendment B111, 1978 which reads as under --: 431 :-
Exp1anation III : For the purposes of this Section, it is not necessary that the possession of the minor shou1d have been obtained from a third person.
79. Amendment of Section 375: Rape.
Do you agree that in para 'sixth1y', for the words 'sixteen years', the words 'eighteen years' be substituted, and in Exception for the words 'fifteen years', the words 'seventeen years' shou1d be substituted. In view of the fact that whi1e the minimum age for giris was raised to eighteen years by amending the ChiId Marriage Restraint Act, 1929, age of consent for sexua1 intercourse under the existing Iaw has remained fixed at sixteen, and in case of wife, fifteen years.
80. Substitution of new Sections for Section 376:
Punishment for rape.
(a) Do you agree that in subsection (1) of Section 376 punishment for rape be increased from two years to five years and in subsection (2) of section 376 from a minimum punishment of ten years to punishment of rigorous imprisonment for Iife.
(b) Do you agree for substitution in subsection (2) of section 376 for the portion beginning with the words "sha11 be punished" and ending with the words "1iab1e to fine" the foI1owing :-
-: 432 :-"shaii be punished with rigorous imprisonment for iife and shaii aiso be iiabie to fine."
(c) Do you agree that for the proviso to Section 376, foiiowing proviso be substituted, name1y, "provided that in the cases covered by ciauses (a) to
(g), the Court may, for adequate and speciai reasons to be mentioned in the judgement, impose a sentence of imprisonment of either description for a term not iess than two years.
(d) Do you agree that owing to the increase in the incidence of chiid rape a new section on chiid rape in the Indian Penal Code nameiy, subsection (3) be inserted in section 376 which reads as foiiows "(3) Whoever commits rape on a woman when she is under tweive years of age,g sha11 be punished with rigorous imprisonment for a term which sha11 not be iess than ten years and sha11 aiso be iiabie to fine : Provided that the Court may, for adequate and speciai reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of 1ess than ten years."
81. --: 433 :- Insertion of new Section 376E after Section 376A to 376D offences against chiidren. --
(a) Do you agree to the incorporation of Section 376E which reads as fo11ows :-
offence "376E-- whoever commits an offence under sections 376A to 376D (both inc1usive) sha11 if the woman is under eighteen years of age, be punished with imprisonment of either description for a term which may extend to ten years and shaii aiso be 1iab1e to fine." It is proposed to incorporate a new section on the of the eve-teasing and its punishment
(b) Do you agree that the foiiowing sections be incorporated ?
82. 376F. Offence of eve-teasing.
whoever intending to annoy any woman utters any word or makes any sound or gesture or exhibits any object or does any other act in any pub1ic piace intending that such word or sound shaii be heard or that such gesture or object sha11 be seen or that such act sha11 be noticed or feit by such woman, commits the offence of eve-teasing.
Insertion of new Section 376G: Punishment for eve-teasing.
whoever commits the offence of eve-teasing sha11 be punished with imprisonment of either description for a term which may extend to five years and sha11 aiso be 1iab1e to fine.
~: 434 :-
83. Insertion of new Section 376H: Sexua1 harassment of women at work p1ace.
(a)Do you agree that a new section on "Sexua1 harassment of women at work p1ace", name1y, section 376H be incorporated in the Indian Pena1 Code in the fo11owing manner:
"whoever sexua11y harasses a woman at work piace sha11 be punished with imprisonment of either description for a term which may extend to three years and sha11 a1so be 1iab1e to fine.
(b)what shou1d be the meaning of "sexua1 harassment"
for the purposes of this section for an Exp1anation to be added 7
84. Section 377:Unnatura1 offences.
(a) Do you agree that the fo11owing C1ause 160 of the Amendment Bi11 be substituted for section 377 as suggested by the Law Commission in its 42nd Report
377. whoever vo1untari1y has carnai intercourse against the order of nature with any man or woman sha11 be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; and where such offence is committed by a person over eighteen years of age with a person under that age the imprisonment may extend ---: 435 :- to seven years.
Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
(b) Do you agree that a minimum punishment of imprisonment not less than ten years be prescribed where the offence is committed by an adult on minors ?
(c) Should consensual adult homo--sexuality remain as an offence under IPC?
85. Amendment of section 380:Theft in dwelling house etc. "whether any change is necessary in section 380 to cover the theft of public property in a public place of worship, etc?
86. Insertion of new section 380A Whether a new section 380A can be inserted to make the theft from the possession of a person who was a victim of calamity like fire, accident, earthquake, etc. and whether such a theft should be treated as an aggravated one?
-: 436 :-87. Amendment of section 381:Theft by c1erk or servant of property in possession of Master.
Whether section 381 should be amended to cover the thefts committed by a11 empioyees not necessariiy by cierks and servants, as you find in the present section?
88. Insertion of new section 381A whether section 381A can be inserted to cover cases where the cuiprit puts any person in a state of intoxication or unconscious by means of a drink or drug in order to commit theft of any property in possession of such a person?
89. Insertion of new section 385A:Extortion by putting dishonestiy threatens by b1ackmai1 whether a new section 385A can be inserted to cover cases where the cu1prit dishonest1y threatens by b1ackmai1 to commit extortion?
90. Amendment of section 396:Decoity with murder whether section 396 requires amendments to make everyone of the persons conjoint1y committing dacoity 1iab1e and if one of them commits murder, everyone of such persons shou1d be made 1iab1e and be punished with death or imprisonment for 1ife or rigorous imprisonment may be extended upto ten years in the circumstances specified in the
-2 437 :-
ciauses of the new proposed section 302? Or, whether section 396 in its present form is enough to meet the situation?
91. Insertion of new section 399A:Making preparation to commit robbery whether a new section 399A can be inserted to make preparation for committing robbery a1so punishabie?
92. Amendment of section 410:Sto1en Property Whether section 410 shou1d be amended or to be substituted so that property obtained by cheating or misappropriation is a1so covered and whether the scope of the words 'sto1en property' shouid be expiained by way of an exp1anation?
93. Amendment of sections 411 and 414 whether to sections 411 and 414 a further ciause is to be added to make the offence in respect of the stoien property of the government or 1oca1 authority or of a corporation, an aggravated one?
-: 438 :-To make the definition of cheating ciearer whether the words 'harm to any person' shouid be substituted by the words "harm to that person" as suggested in ciause 177 of the B111.
94. Insertion of new section 420A The Law Commission in its 29th Report on "Proposa1 to inciude certain socia1 and economic offences in the Indian Penai Code" considered how to tackie the prob1em of cheating government, corporation, 1oca1 authority on a 1arge scaie by dishonest contractors. To combat this maiady, it is recommended to insert a new section 420A. Whether any further changes are necessary in this context?
95. Insertion of new section 42OB:Emp1oyees taking bribe in respect of affairs or business of empioyer or of person who engaged him In order to curb the aforesaid act whether there shou1d be a separate provision in the Penai Code providing for punishment for such an act. On the mode1 of an Eng1ish Statute, the Law Commission recommended a new Section 4208 to cover the cases of taking bribe by private persons also in respect of emp1oyer's affairs or business. Your suggestions in this respect wou1d be of great assistance?
-: 439 :-96. Substitution of new Sections for sections 426 to 432:Mi§§hi§f Do you agree with the recommendation of the Law Commission in its 42nd report on Indian Penai Code and Ciause 179 of the Indian Pena1 Code (Amendment) Bi11, 1978 that for Sections 426 to 432 of the Pena1 Code, new Sections be substituted to make the offences of mischief more detaiied and comprehensive and to increase the quantum of punishment?
If so how?
97. Substitution of new sections for section 434 to 4§1;Mischief Do you agree with the recommendation of Law Commission in its 42nd Report on Indian Pena1 Code ;and Ciause 180 of the Indian Pena1 Code, (Amendment) Bi11, 1978 that for sections 434 to 438 of the Penai Code, new sections be substituted, to make the provisions of offence 'Mischief' more c1ear and comprehensive and to enhance the quantum of punishment? If yes, what shou1d be the quantum of punishment under different sections and what are a11 the provisions to be amended?
98. Substitution of new section for section 441:Crimina1 trespass Do you agree that the definition of the word "Trespass" occurring under Section 441 of the Indian Penai Code be substituted by the fo11owing definitions in view of
--: 440 :--
the recommendation of the Law Commission in its 42nd Report on Indian penai code and Ciause 181 of the Indian Penai Code (Amendment) Bi11, 1978, name1y --
"441. Whoever-
(a) enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insu1t or annoy any person in possession of such property, or
(b) having entered into or upon such property without such intent, un1awfu11y remains there with such intent, is said to commit criminai trespass".
99. Substitution of new sections for section 443 to:450:Of crimina1 trespass Do you agree that for sections for section 443 to 450 of the Penai Code, the fo11owing sections be substituted to enhance the quantum of punishment and to define some offences to make them more ciear, as recommended by the Law Commission in its 42nd report on Indian Pena1 Code and ciause 182 of the Indian Penai Code (Amendment) Bi11, 1978, name1y--
"443. A person commits burg1ary, if-
(a) he commits house trespass in order to commit theft; or
(b) having committed house-trespass, he commits theft.
-: 441 :-
444. Whoever~
(a) commits house--trespass in order to commit any offence punishabie with imprisonment for a term of seven years or upwards; or
(b) having committed house--trespass, commits any such offence as aforesaid, sha11 be punished with rigorous imprisonment for a term which may extend to ten years, and sha11 a1so to 1iab1e to fine."
445. whoever commits criminal trespass, sha11 be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
446. whoever commits house--trespass, sha11 be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
447. whoever commits house trespass, having made preparation -
(a) for causing hurt to, or assau1ting or wrongfu11y restraining any person, or
(b) for putting any person in fear of hurt, assauit or wrongfu1 restraint, ~: 442 :--
sha11 be punished with imprisonment of either description for a term which may extend to seven years, and sha11 be 1iab1e to fine.
448. whoever commits burgiary, sha11 be punished with rigorous imprisonment for a term which may extend to ten years, and sha11 a1so be 1iab1e to fine.
449. whoever, whi1st committing burg1ary or an offence under section 444,-
(a) causes grievous hurt to any person, or
(b) attempts to cause death or grievous hurt to any person.
sha11 be punished with imprisonment for 1ife or with rigorous imprisonment for a term which may extend to ten years, and sha11 aiso be 1iab1e to fine.
450. If at the time of committing the offence of burg1ary or an offence under section 444, any person guiity of such offence sha11 vo1untari1y cause or attempt to cause death or grievous hurt to any person, every person jointiy concerned in committing such offence sha11 be punished with imprisonment for 1ife or with rigorous imprisonment for a term which may extend to ten years, and sha11 a1so be 1iab1e to fine."
--: 443 :-100. Amendment of Section 464:Making of fa1se document Do you agree with recommendation of Law Commission in its 42nd report on Indian Pena1 Code and c1ause 184 of the Indian Pena1 Code (Amendment) B111, 1978 that in Section 464 of the Pena1 Code (a) in paragraph, first, after the words "at a time", the words"or p1ace, when the time or p1ace is materia1" be inserted; (b) in paragraph second1y, after the words"by cance11ation", the words"addition, ob1iteration" be inserted?
101. Amendment of Section 465:Punishment for forgery Do you agree that having regard to the gravity of the offence "Forgery" the punishment, maximum period of imprisonment provided under Section 465 of the Pena1 Code "two years" be substituted by "three years" as a1so recommended by Law Commission in its 42nd report on Indian Pena1 Code and C1ause 185 of the Indian Pena1 Code (Amendment) Bi11 1978?
102. Amendment of Section 466:Forgery of record of court or of pub1ic register etc. Do you agree with the recommendation of Law Commission in its 42nd report on Indian Pena1 Code and C1ause 186 of the Indian Pena1 Code (Amendment) B111, 1978, that under Section 466 of the Pena1 Code (a) for the words "whoever forges a document, purporting to be", the words "whoever commits forgery in respect of a document which is, or purports to be", be substituted; (b) for the words"or --: 444 :- documents purporting to be made", the words "or document made" be substituted, (C) for the words "Seven Years", the words "Ten Years" be substituted.
103. Amendment of Section 467:Forgery of va1uab1e security, wi11 etc. Do you agree with the recommendations of the Law Commission's 42nd report on Indian Pena1 Code and the amendment suggested in 1978 Bi11 that under Section 467 of the Pena1 Code --(a) for the words "whoever forges a document which purports to be a va1uab1e security or a wi11, or an authority to adopt a son, or which purports to give authority to any person", the words"whoever commits forgery in respect of a document which is, or purports to be, a va1uab1e security or a wi11, or an authority to adopt a person or"
sha11 be substituted; (b) for the words "or any document purporting to be an acquittance" sha11 be substituted; (c) the words "with imprisonment for Iife, or" sha11 be omitted.
104. Substitution of sections 470 and 47i:Forged documents and using as genuine a forged document Do you agree that for sections 470 and 471 of the Pena1 Code, the fo11owing sections be substituted as proposed in the c1ause 187 of the Indian Pena1 Code (Amendment) Bi11, 1978 :-
"470. A document in respect of which, or any part of which, forgery has been committed is a forged document.
--: 445 :-
471. whoever fraudu1ent1y or dishonest1y uses as genuine any document which he knows or has reason to be1ieve to be a forged document-
(a) sha11, if the document is one of the description mentioned in section 467 be punished with rigorous imprisonment for a term which may extend to ten years, and sha11 a1so be 1iab1e to fine, and
(b) sha11, in any other case, be punished with imprisonment of either description for a term which may extend to three years, or with fine,or with both".
105. Amendment of Section 473 Do you agree with the recommendation of the Law Commission in its 42nd report on Indian Pena1 Code and C1ause 189 or the Indian Pena1 Code (Amendment) Bi11, 1978 that in Section 473 of the Indian Pena} Code, for the words "seven years",the words "ten years" be substituted?
106. Substituted of Section 474 Do you agree with the suggestion of Law Commission in its 42nd report on Indian Pena} Code and Clause 190 of the Indian Pena1 Code (Amendment) Bil} 1978 that for Section 474 of the Pena] Code, the fo11owing section be substituted, name1y--
"474 whoever has in his possession any document of the description mentioned in section 466 or section 467, knowing the same to be forged and intending that -: 446 :- the same sha11 frauduientiy or dishonest1y be used as genuine, sha11 be punished with rigorous imprisonment for a term which may extend to seven years, and sha11 aiso be 1iab1e to fine."
107. Amendment of Section 476 Do you agree with the recommendation of Law Commission in its 42nd report on Indian Pena1 Code and C1ause 191 of the Indian Pena1 Code (Amendment) Bi11, 1978 that in Section 476 of the Pena1 Code, for the words "Seven years",the words "ten years" be substituted?
108. Amendment of Section 477 Do you agree with the recommendation of Law Commission in its 42nd report on Indian Penai Code and C1ause 192 of the Indian Pena1 Code (Amendment) Bi11 1978,that in Section 477 of the Pena1 Code (a) for the words "or an authority to adopt a son" "or an authority to adopt a person"
be substituted, (b) the words "with imprisonment for Iife, or" be omitted; (c) for the words "seven years", the words "ten years" be substituted?
109. Amendment of Section 477 Do you agree with the suggestion of the C1ause 193 of Indian Penai Code (Amendment) Bi11, 1978, that in Section 477A of the Pena1 Code, for the words "being a c1erk, officer --: 447 :- or servant, or emp1oyed or acting in the capacity of a c1erk, officer or servant", the words "being emp1oyed in any capacity and acting in that capacity" be substituted?
110. Amendment of Section 489A Do you agree with the suggestion of Law Commission in its 42nd report on Indian Pena1 Code and C1ause 194 of the Indian Pena1 Code (Amendment) Bi11 1978, that in Section 489A of the Pena1 Code (a) the Exp1anation sha11 be numbered as Explanation I and in the Exp1anation as so numbered, the words "and inc1udes a trave11er's cheque" sha11 be inserted at the end; (b) the foI1owing sha11 be inserted as exp1anation II, name1y :"Exp1anation II. For the removal of doubt, it is hereby dec1ared that in this section and in Sections 489 B, 489C, 489D and 489E, the expression "currency note" inc1udes a foreign currency note.?
111. Insertion of new Section 489F Do you agree with the suggestion that a new provision to cover the offence of preparation for committing offences under Section 489A to 489E of the Pena} Code and as provided in c1ause 196 of the IPC (Amendment) Bi11, 1978, be inserted in the fo11owing manner_ "489F. whoever makes any preparation for committing any offence punishab1e under section 489A to section 489E sha11 be punished with imprisonment for a term -: 448 :- which may extend to one--ha1f of the imprisonment provided for that offence, or with fine, or with both."
112. Substitution of new Chapter for Chapter XIX:Offences against privacy Do you agree that the "offence against privacy" in view of ~peop1e's quest for privacy as iaid down by Supreme Court be substituted as new chapter for Chapter XIX (of the Criminai Branch of contracts of Service) being of no practicai utiiity as recommended by the Law Commission in its 42nd Report and ciause 197 of the IPC (Amendment) Bi11, 1978 in the fo11owing manner-
Chagter XIX Offences against Privacy
490.(1) Whoever, knowing that any artificia1 iistening or recording apparatus has been introduced into or in the vicinity of any premises without the know1edge or consent of the person in possession of the premises,1istens to any conversation with the aid of such apparatus or uses such apparatus for the purposes of recording any conversation, sha11 be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
--: 449 :-(2) whoever pubiishes any conversation or a record thereof, knowing that it was 1istened to or recorded with the aid of any artificia1 iistening or recording apparatus introduced into or in the vicinity of any premises without the know1edge or consent of the person in possession of the premises, sha11 be punished with imprisonment of either description for a term which may extend to one year, or with both.
491. (1) whoever, intending to cause, or knowing it to be 1ike1y that he wi11 cause, annoyance to any person,takes, e1sewhere than in a pubiic piace, a photograph of that person without his consent, shaii be punished with simpie imprisonment for a term which may extend to six months, or with fine,or with both.
(2) whoever, intending to cause, or knowing it to be iikeiy that he wi11 cause, annoyance to any person, pubiishes any photograph of that person taken in contravention of sub-section (1) shaii be punished with simpie imprisonment for a term which may extend to one year, or with fine, or with both.
(3) whoever,takes a photograph of a piace, buiiding or thing knowing that the taking of such photograph is prohibited by a written notice affixed in such piace, bui1ding or thing sha11, except when the taking of such photograph is specifica11y authorised ~: 450 :-
or permitted by the owner or occupant of such piace, buiiding or thing, be pubiished with simpie imprisonment which may extend to six months, or with fine, with both.
(4) whoever knowingiy pubiishes any photograph taken in contravention of sub--section (3) sha)) be punished with simp1e imprisonment for a term which may extend to six months, or with fine,or with both.
492. Nothing in section 490 or section 491 sha11 app1y-
(a) to a pub1ic servant acting in faith in the course of his duties connected with the security of State, the prevention, detention or, investigation of offences, the administration of justice, or the maintenance of pub1ic order; or
(b) to person acting under the directions of such pub1ic servant; or
(c) to the use by any person of any listening or recording apparatus for any purpose authorised or permitted under any iaw.
Substitution of new Section for Section 494 Bigamy.
-2 451 :-
(a) Do you agree that Exp1anation 1 be added to Section 494 in the Pena1 Code as a consequence of Supreme Court decision in Bhaurao v. State of Maharashtra (AIR 1965 SC 1964) in the foiiowing manner:-
Expianation 1 : For the purposes of this section, a person shaii be deemed to marry again whatever 1ega1 defect there may be in contracting, ce1ebrating or performing such iater marriage.
(b) Do you agree that Expianation 2 to Section 494 be added as a resuit of Law Commission's recommendations by which it is made c1ear that where the reievant divorce 1aw prohibits re--marriage of a party within a specified period after a decree of dissoiution, such re--marriage amounts to bigamy in the foiiowing manner:--
where a marriage has been dissoived by a decree of a competent court but the parties are, by virtue of a provision of the enactment under which their marriage is dissoived, prohibited from re-marrying within a specified period, then for the purposes of this section, marriage sha11, notwithstanding its disso1ution, be deemed to subsist during that period. Expianation 3 is proposed to be added to Section 494 incorporating the principie iaid down by the Supreme Court in Sar1a Mudga1's case reported in AIR 1995 SC 1531. Exp1anation 3 reads as fo11ows Exp1anation 3.-- The offence is committed when any -: 452 :- person converts himself or herse1f to another religion for the purpose of marrying again during the subsistence of the eariier marriage.
114. Substitution of new Section for Section 497 Aduitery Do you agree that the fo11owing be incorporated as provided in C1ause 199 of the I.P.C. (Amendment) B111, 1978 in order to bring in the concept of equa1ity between sexes in marriage vis--a--vis the offence of adu1tery.
Section 497.-- whoever has sexua1 intercourse with a person who is, and whom he or she knows, or has reason to beiieve, to be the wife or husband, as the case may be, of another person without the consent or connivance of that other person, such sexua1 intercourse by the man not amounting to the offence of rape, commits aduitery, and sha11 be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.
Do you agree to the amendment ?
115. Amendment of Section 501 and 502:Of Defamation Do you agree with the suggestion of Law Commission in its 42nd report on Indian Pena1 Code and Clause 202 of Indian Penai Code (Amendment) Bi11 1978 that in Section 501 and 502 of the Pena1 Code, for the words" Simp1e imprisonment", the words"imprisonment of either description" be substituted.
-: 453 :-116. Repeai and savingszlndian Pena] Code (Amendment) Act, 1978 and the Crimina1 Law (Amendment) Act, 1978 Do you agree as provided in c1ause 207 of the Indian Pena1 Code, (Amendment) Bi11, 1978, name1y--
(1) As from the commencement of the Indian Penal Code (Amendment) Act, 1978, the Crimina1 Law Amendment Act, 1938, sha11 stand repea1ed.
(2) The provisions of section 6 of the Genera1 C1auses Act, 1897, sha11, so far as may be, app1y in respect of any investigation, 1ega1 proceeding or remedy that may be instituted, continued or enforced after the repea1 of the enactment referred to in sub--section (1).
117. Insertion of new Section 507A :Causing damage to p1aces open to pub1ic view.
Do you agree that a new section, name1y, 8. 507A which refers to causing damage, etc. to p1aces open to pub1ic view be incorporated in the fo11owing words:--
507A. (1) Whoever -
(a) affixes to, or inscribes or exhibits on, any p1ace open to pub1ic view any objectionab1e matter, OF -: 454 :-
(b) damages, destroys or defaces any place open to pub1ic view, sha11 be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
(2) In this section --
(a) "piace open to pub1ic view" inc1udes any private p1ace or buiiding, monument, statue,post, wa11, fence, tree or other thing or contrivance visible to a person being in, or passing along, any pubiic piace;
(b) "objectionab1e matter" means any effigy or any biii, notice, document, paper, or other thing containing any words, signs or visibie representations which is -
(i) 1ike1y to incite any person to commit, murder, sabotage or any offence invo1ving vioience; or
(ii) 1ike1y to seduce any member of any of the armed forces of the Union or of the poiice forces from his aiiegiance or his duty, or prejudice the recruiting of persons to serve in any such force or prejudice the discip1ine of any such force; or
(iii) 1ike1y to incite any section of the pub1ic to sets of vio1ence against any other section thereof;
or
(iv) de1iberate1y intended to outrage the reiigious feeiings of any c1ass of citizens of India by -: 455 :- insuiting or biaspheming or profaning the reiigion or the re1igious be1iefs of that ciass; or
(v) grossly indecent or scurri1ous or obscene or intended for b1ackmai1.
Do you agree to incorporation of the section ?
118. Amendment of Section 510:Misconduct in pubiic by drunken person Do you agree that in Section 510 for an offence (misconduct) genera11y not noticeab1e, for the words"with Simpie imprisonment for a term which may extend to twenty--four hours, or with fine which may extend to ten rupees or with both", the words "with imprisonment ti11 rising of the court or with fine which may extend to one hundred rupees" be substituted as provided in ciause 205 of the Indian Pena) Code (Amendment) Bi11, 1978?
119. Omission of Chapter XXIII:of attempts to commit offences Do you agree thatchapter XXIII (Section 511), "of attempts to commit offences" of the Penal Code be omitted, in view of the fact that a new Chapter VB "Attempts" has been recommended for inciusion as recommended in Ciause 45 of the Indian Penal Code (Amendment) Bi11, 1978?
-: 456 :-ANNEXURE II WORKING PAPER ON THE INDIAN PENAL CODE VIDE DO LETTER NO.
6(3)(36)/95-LC(LS) DATED 26.12.95.
D.O. No. 5(3)(36)/95-LC(LS) Dr. S.C. Srivastava GOVERNMENT OF INDIA Joint Secretary & MINISTRY OF LAW, JUSTICE Law Officer & COMPANY AFFAIRS DEPARTMENT OF LEGAL AFFAIRS LAW COMMISSION SHASTRI BHAWAN, NEW DELHI--11O O01 Te1: 3385931 Dated 26-12-95 Dear Sir, The Government of India has made a reference to the Law Commission of India to undertake a Comprehensive revision of the Indian Penai Code, 1860 and to come up with the appropriate recommendations.
The Indian Penai Code, which is the basic penaT Taw of India, is more than 135 years oid. However, the Code was amended time and again in order to meet with different forms of crime deve1oped in the respective times.
The Law Commission of India in its 42nd Report of "Indian PenaT Code" submitted in June 1971 made comprehensive recommendations to amend the Indian Penai Code. In Order to ~: 457 :* imp1ement these recommendations, the Government of India introduced a comprehensive Bi11, name1y, the Indian Penai Code (Amendment) Bi11, 1978 which was passed in Rajya Sabha in Novermber, 1978. However, it cou1d not be passed by the Lok Sabha as it was dissoived in 1979.
The Nationai Commission for women has aiso made certain recommendations on the subject.
the Law Commission has undertaken the study of comprehensive revision of the Indian Penal Code so as to remove Iacunae and to update the Iaw to meet the current needs of the society.
Some of the main issues which have drawn the attention are as fo11ows:-
1. Common intention and common object- Section 34 and 149.
In cases where accused are tried constructiveiy by app1ication of Section 34 or 149 and where some of them are acquitted on some ground or the other, the remaining whose participation conjoint1y though estabiished, are aiso being acquitted on the simpie ground that requisite number of such accused is Iess than two or five.
It needs therefore a further examination whether Sections 34 and 149 be amended to make a singie accused aiso be constructiveiy 1iab1e u1timate1y of an offence, when even In view of above,i --: 458 :- though such an accused was charged aiong with other accused, but who are acquitted, if the Court finds that such singie accused aiong with one or more accused conjointiy committed the offence.
2. New forms of punishment:
The Supreme Court has emphasised in a number of cases that whi1e awarding punishment to a convict, the Court shou1d adopt the reformative approach instead of awarding deterrent punishment wherever possibie. In tune with the aforesaid judicia1 decisions, it is fe1t that the fo11owing new forms of punishment be introduced in the Indian Pena} Code in addition to or as aiternative to imprisonment:--
(a) Community service
(b) Disquaiification from ho1ding office
(c) order for payment of compensation: and
(d) Pub1ic censure.
If the aforesaid approach is adopted, other re1evant factors wou1d a1so be required to be considered as to the kinds of offences for which these punishments shou1d be made app1icab1e. Quite apart from this whi1e awarding the punishment of community service, other re1evant factors such as age of the convict name1y he shou1d be above eighteen years, nature of work, duration of work, remuneration, if any, payab1e to the convict, be considered.
--: 459 :-As regards compensation to the victim, it is prime facie felt that Court should take into consideration the relevant factors such as the nature of the offence, the motive therefor, the economic status of the offender and of the person in whose favour such order is made. The Court may also take into consideration other relevant factors in this regard. while making the monetary compensation to the victim of the crime or his dependents for any loss or damage arising from such offence, it needs a deeper examination as to whether the amount of compensation should have any limitation qua the amount of fine imposable under the nature of offence for which he is convicted. In order to avoid the multiplicity of proceedings, should the victim be compensated adquately by the same Court instead of compelling the victim to resort to civil proceedings for recovery of the compensation?
Under the punishment of disqualification from holding office, it is felt pertinent that where any person holding office as a Director or manager of a company or as a public servant is convicted of any offence committed in connection with the affairs of the company or with his office as public servant, the Court should be empowered to award in addition to imposing any other punishment authorised by law, declare the person so convicted to be disqualified from holding the same or similar office or exercising similar functions in the company or organisation where he was holding such office or
--: 460 :~ in any other company or organisation, for a period not exceeding five years. The Court may even direct for making pubiication of such an order in such newspaper in such other manner as it may deem fit.
3. Compuision by threats:
Due to increase in crime by the underworid dons there has become a constant threat to the security of Wife and property of innocent citizens. with the resuit many accused go scot free because of non avai1abi1ity of evidence of witnesses of the crime because of threat met out to such persons not to open up their mouth. Such witnesses are even compeiied to speak faiseiy under duress. The defence of duress is now iimited to threat of instant death to the person compeiied. But it is necessary to examine whether such defence or duress shou1d be extended to threat to instant death or grievous bodiiy harm to the person compe11ed or to his near reiatives. In view of this it needs consideration whether Section 94 shouid be redrafted to inciude harm to near re1atives 1ike parents, spouse, son or daughter and that a person threatened with such harm be permitted to piead duress as an excuse in the same way as a person threatened with death. Simiiariy the present restriction on the right of private defence in cases where there is time to have recourse to the protection of the pubiic authorities, shouid be considered for omission. -: 461 :-
4. Constructive Liabiiity of Companies:
It is fe1t that the company and the Board of Directors or the persons responsib1e for the conduct of affairs of the company shou1d be constructiveiy made iiabie for offences committed in furtherance of the affairs of the company by an empioyee thereof. Do you think that the onus shou1d be p1aced on a Director to estabiish that he was not associated with the nature of offence compiained of and was therefore not 1iab1e for such offence? Such provision can be inserted in new sections 94A, 94B.
5. Statement intending to cause offences against pubiic trangui1ity There is a recent increase in the activity of promoting enmity, hatred or i11-wi11 between different groups on grounds of re1igion, race, ianguage, caste or community which requires to be dea1t with in a stern manner. Such a tendency is a1so 1ike1y to cause terror in society or alarm to the pubiic. To curb it, a new Section 153C requires examination for insertion in the Indian Pena1 Code. whether such step wi11 he1p in curbing vio1ence on the aforesaid grounds.
--: 462 :--
6 Pubiic servants ma1icious1y authorising payment in respect of contracts where the goods supp1ied or work done is not in accordance with the contract.
In recent years, it has been found that pubiic servants maiiciousiy authorise payment in respect of contracts where the goods supp1ied or work done is not in accordance with the contract. This has caused a great ioss to the pub1ic excheduer. Therefore, a change can be considered to insert new section lglg to punish a pubiic servant who authorises payment on behaif of Government or other pubiic authority for goods supplied or work done under any contract when he knows that the goods or works are not in accordance with the contract.
7. Issuing or singing fa1se medical certificate:
In order to check the growing ma1practice of issuing and using faise medical certificate, (e.g, Doctors seen outside M.V. authorises to give certificates to new app1icant). It is to be considered whether it shou1d be provided in the Indian Pena] Code that any medicai practitioner who knowingiy issues any fa1se medica1 certificate or certificate or fitness and any person who corruptiy uses it as a true certificate shou1d be punishabie. If so, whether there shou1d be different punishments for a certificate used in judiciai proceedings and for other purposes.
-: 463 :-
8. Driving unsafe or overioaded vehicie on pubiic way There has been an aiarming rise in accidents due in unsafe or over1oaded vehic1es on a pubiic way. In order to check such threat to society, it is therefore fe1t that such an act shouid be made punishab1e. Shouid such a provision be inserted in the Code or left within the purview of Traffic authorities.
9. Printing etc. of grossiy indecent or scurri1ous matter or matters intended for b1ack mai1 In order to check the menace of b1ackmai1 by pubiication of scurri1ous or gross1y indecent matter in the media whether it is necessary to insert a new Section 292A to cover printing, exhibition, distribution, circu1ation of any picture or any printed or written document which is grossiy indecent or scurri1ous or intended to b1ackmai1 in printing or conveyance or doing business in printing or circuiation, etc. or advertisers or attempt to do any punishment shouid be prescribed for second or subsequent offences?
10. Cu1pab1e homicide and Murder:
Do you suggest any change in Sections 299 and 300 to have a c1earer definition of cu1pab1e homicide and murder?
--: 464 1* whether Section 3028 shouid be made more specific mentioning in what cases death sentences shou1d be awarded or whether it is better to 1eave it to the discretion of the Court to determine on the concept of "rarest of rare cases".
11. Causing death or injury by rash and negiigent driving in hit and run cases It has been found that many a time the accused who causes death or injury by rash and negiigent driving run away without informing any po1ice station within a reasonabie time. In order to curb this tendency, wou1d you suggest a change in Section 304A for making the running away without informing the po1ice station within a reasonab1e time, an offence punishabie under the Code.
12. Punishment for wrongfu1 restraint and wrongful confinement Because of 1ust to gain quick money, property or for other motives, gangs of hoodiums have been resorting to restraining or wrongfuiiy confining victims or his/her reiative. There is an apparent need to make such offences under Sections 431 to 344 of more aggravated nature, if committed by more than one person. There is need for exchange of views on it.
-: 465 :--
13. Hijacking of aircrafts or other vehicles The cases of hijacking of aircraft and vehicies in recent past have been gaiore in parts of our country ridden with terrorism. In view of this, it is feit that the hijacking of an aircraft or vehicie be made punishabie under the Indian Penai Code. Do you think that there shou1d be a uniform punishment for both the offences or it shou1d vary according to the gravity of the offence and be deterrent punishment in case of hijacking of an aircraft on board or in fiight.
14. Theft in buiiding, vehicie or temp1e, theft of property affected by accident, fire, flood etc., theft by employees, theft by putting person under state of intoxication or unconsciousness whether any change is necessary in Section 380 to cover the theft of pubiic property in a pub1ic piace of worship, etc. whether a new Section 380A can be inserted to make the theft from the possession of a person who was a victim of calamity iike fire, accident, earthquake, etc. and whether such a theft shou1d be treated as an aggravated one?
whether Section 381A shou1d be amended to cover the thefts committed by a11 emp1oyees not necessari1y by c1erks and servants, as you find in the present Section?
-: 466 :-whether Section 381A can be inserted to cover cases where the cu1prit puts any person in a state of intoxication of unconscious by means of a drink or drug in order to commit theft of any property in possession of such a person?
15. Biackmaii Cases of biack maii, in the sense of dishonestiy threatening one with pub1ishing an imputation, harmfui to his reputation or the reputation of near reiative of that person is taking a new dimension. In view of this, it is for consideration whether a new Section 385A can be inserted in the Indian Penai Code to cover cases where a cuiprit dishonestiy threatens to commit extortion by biackmaiiing.
16. Cheating The Law Commission in its 29th Report considered how to tackie the probiem of cheating Government, Corporation, Loca1 Authority on a large scaie by dishonest contractors. To combat this ma1ady, it is recommended to insert a new Section 420A. Whether any further changes are necessary in this context?
17. Empioyees taking bribe in respect of affairs or business of empioyer or of person who engaged him -: 467 :- In order to curb the aforesaid act whether there shou1d be a separate provision in the Penai Code providing for punishment for such an act. On the modei of an Engiish Statute, the Law Commission recommended a new Section 420B to cover the cases of taking bribe by private persons aiso in respect of emp1oyer's affairs or business. Your suggestions in this respect wou1d be of great assistance.
18. Offence against privacy The right of personai privacy has been construed by the Supreme Court to be covered under Artic1e 21 of the Constitution of India and in thus a fundamentai right. The ambit of the said 1ega1 position or in widened scope. Thus whether a new Chapter shouid be incorporated in the Indian Pena1 Code deaTing with vioiation of persona1 privacy, if so, nature of acts which shou1d be punishabie under the Code. Consequentia11y it is for consideration whether as a beginning, the use of artificiaT Tistening or recording apparatus to eavesdrop on private conversations, or unauthorised taking photographs of a person without his consent or against his wishes and the pub1ication of any information gathered by such method shouid be prohibited and made penai.
19. Insertion of new Section 166--A --: 468 :- There appears to be a generai tendency on the part of the Po1ice Officers to direct the witnesses of the crime to attend at p1aces in vioiation of Section 160 of the Code of Crimina1 Procedure, 1973. The Law Commission of India in its 135th Report on "women in Custody" recommended for insertion of new Section 166A in the Indian Penai Code, 1860 for punishing the vioiation of Section 160 of the Cr. P.C., and making the proposed offence cognizab1e, bai1ab1e and triabie by any Magistrate. Shou1d such a provision be inserted in the Indian Pena1 Code for curbing the tendency to violate the provision of Section 160 of Cr. P.C.?
20. Insertion of new Section 167-A Comp1aints against Po1ice Officer not to record the First Information Report at the po1ice station, even though there is grima facie evidence of the commission of the cognizab1e offence has often1y been made. Under the existing 1aw, there is no provision for taking penai action against the po1ice officers for their refusa1 to record information as contemp1ated by Section 154(1) of the Cr.P.C. The Law Commission in its 84th Report on "Rape and A11ied Offences", and in its 152nd Report on "Custodia1 Crimes" a1so observed that the remedy avaiiabie under sub--section (3) of Section 154 of the Cr.P.C. is not effective and adequate. It, therefore, recommended for enactment of a new Section 167A in the Indian Penai Code, making the faiiure to record the FIR -: 469 :- by officer in--charge of a po1ice station, punishabie with imprisonment for a term which may extend to one year or with fine or with both. In order to discourage or prevent the maipractice of refusing to register information re1ating to commission of oognizabie offences, it needs to be de1iberated besides the aforesaid measures of insertion of a new Section 167A on the aforesaid 1ines, what other suitabie measures can be taken up for curbing the aforesaid ma1practice.
I wouid, therefore, request you to kindiy spare some of your precious time in giving your va1ued opinion to the issues raised herein above at your eariiest convenience.
Looking forward to your co--operation.
with regards, Yours sincere1y, Sd/--
(S.C.SRIVASTAVA)
-: 470 :~ ANNEXURE III RESPONSES RECEIVED ON THE QUESTIONNAIARE ON THE INDIAN PENAL CODE, 1860 The Law Commission of India circu1ated a Comprehensive questionnaire (Annexure~I) on the Indian Penai Code, 1860 for e1iciting views from various quarters.
The questionnaire was sent to the Registrars of the High Courts, the Home Secretary of the State Government & Union Territories, the President of Supreme Court Bar Association and High Courts Bar Association, Nationai Commission for Human Rights, Nationa1 Commission for Minorities, Nationa1 Commission for SC & ST, Nationa1 women's Commission, State Law Commission, Police Officers, Advocates, Academicians and some sociai organisations, Institutions etc. Responses were received from three State Governments, seven Judges and one Additionai Registrar of High Courts, one Advocate, one Po1ice Officer, one State Law Commission, and one Organisation (Nirantar).
Question No.1 A11 the seven Judges who responded to the questionnaire, agreed with the suggestions of the Law ~: 471 :~ Commission of India. However, the AddT. Registrar of the M.P. High Court has responded in the negative. One Advocate also has agreed to the suggestion. The police officer has offered no comments for question No. 1 to 17. The Law Commission of the State of Himachai Pradesh agreed with the propose}. Nirantar, a woman Organisation has not responded to this issue.
Question No.2 Seven Judges and One Add1 Registrar of High Courts have responded in the affirmative. The Law Commission of the Himacha1 Pradesh has aiso supported the proposal.
Question No.3 Most of the Judges who responded to our questionnaire have agreed with the proposai. Law Commission of the State of Himacha1 Pradesh and one Advocate a1so agreed as proposed to omit the definition of 'Servant of government" under section 14, Indian Pena} Code, 1860.
Question No.4 Except Add1. Registrar and 'Nirantar', a11 the Judges, State Law Commission of Himachai Pradesh and One Advocate favoured the Omission of definition of "Government"
under section 17.
-: 472 :-Question No.5 Majority of the persons who responded to our questionnaire agreed with the suggestion of amendment of the definition of the word 'India' under section 18 of the Indian Pena1 Code.
Question No.6 Except One none of the Judges have agreed about the amendment of the definition of the word 'Judge' under section
19. One Judge is of the view that the word 'Judge' may be defined oniy as a Judge or Judiciai Officer presiding over a Civii Court or Criminal Court under the provisions of Code of Civi1 Procedure or Code of Crimina1 Procedure. State Law Commission of Himachai Pradesh suggested to inc1ude the member of the 'Gram Panchayat' inciuding its president(s) exercising Judicia1 Powers in respect of Civil matters.
Question No.7 Most of the persons who responded to our Questionnaire, have agreed with the suggestion.
--: 473 :-Question NQQQ Majority of the persons replied in the affirmative, however, Five Judges have further suggested that the members of the Pariiament and the iegisiatures shouid aiso be brought within the definition of the pubiic servant.
Question No.9 The proposai of insertion of new definition of the word 'State' under Section 21A has been supported by most of the persons who responded to the Questionnaire.
Question No.10 The suggestion for the amendment of the definition of the word "fraudu1ent1y" under section 25 has been endorsed by majority of Judges and aiso by the Law Commission of Himachai Pradesh.
Question No.11 A11 the Judges & Add1. Registrar, an Advocate, Law Commission of Himachai Pradesh who responded to the Questionnaire, have agreed with the suggestion.
-: 474 :-Question No.12 For the omission of definitions of the words "A wi11"
, i11ega1 omission", "Act/omission" under sections 31, 32 and 33 aii the Judges, an Advocate inciuding Law Commission of Himachai Pradesh responded in the affirmative. Question No.13 Two Judges and one Addi Registrar repiied in the affirmative but five judges are of the view that there is no need of amendment. The 1aw is we11 settied that even a singie person can be convicted if court comes to the conciusion that apart from him others have aiso conjointiy committed the offence. So far amendment of Sections 34,36 & 38 is concerned, the existing words shouid continue. Remaining persons are siient on the issue. Question No.14 Majority of the judges who responded to this question, are of the view that the definition of the word "offence" should remain as it is and the definition of the "Capita1 Offence" shouid be inserted as Section 40A: Law Commission of Himachai Pradesh agreed to the proposai. -: 475 :- Question NoL1§ Six Judges out of eight are of the view that the definition is comprehensive and there is no need of amendment or substitution of Section 43. The Law Commission of Himachai Pradesh and an Advocate agreed to the proposai. Question No.16 Most of the persons who responded to the Questionnaire do not support the omission of the definition of the words 'vesse1', 'year'/month' and 'Section' under Sections 48, 49 and 50. Law Commission of Himacha1 Pradesh agreed as proposed under this question. Question No.17 Majority of persons who responded to the questionnaire have disagreed with the proposai. The Law Commission of Himachai Pradesh suggested to inciude the words"means of Communication" after the words "means of conveyance"under proposed Section 52--A. Question No.18 Most of the peop1e who responded to our Questionnaire agreed with the recommendations with some exceptions and suggestions. Five judges are of the view that the new form of punishment proposed shouid not appiy to the economic and --: 476 :- sociai offences. The punishment of community service shouid be made appiicabie oniy to serious cases and the victim shou1d be compensated by the triai court itseif and maximum amount of compensation shouid be fixed. Some of them feei that "Community Service" may not be reievant and appiicabie to Indian condition and secondiy, the amount of compensation to victim of crimes shouid be Weft to the discretion of the court.
The Advocate has not favored the punishment of "Community Service".
The police officer suggested to prescribe the minimum and maximum punishment for each penal section.
State Law Commission of Himacha1 Pradesh aiso supported the view to introduce the new forms of punishment for a11 offences except the heinous ones iike murder, rape and offences invoiving mora1 turpitude.
Question Nos.19 to 29Majority of persons inciuding State Law Commission who responded to our Questionnaire, agreed with the proposa1s under above mentioned questions.
--: 477 :~ Question Nos.3O & 31 Most of the judges responded in the negative. Other persons either offered no comment or are siient on the question. The Law Commission of Himachai Pradesh agreed as suggested in question No. 30 but it is not in favour of any change under Section 100 of the Code.
Question Nos.32 to 35Majority of the persons responded in the affirmative.
Question No.36 Except one judge, a11 the Judges disagreed with the suggestion for the enhancement of the punishment under Sections 115 & 116. The Law Commission of Himacha1 Pradesh and one advocate responded in the affirmative.
Question No.37 Majority of judges favoured insertion of Section 117A but they further suggested to cover the abetment by a chi1d under 15 years of age but not Tess than 7 years of age. The Law Commission of Himachai Pradesh differs the proposai under this Question.
--: 478 Question Nos.38 to 49 Most of the judges inciuding Addi Registrar, an Advocate, State Law Commission who responded to the Questionnaire have agreed with recommendations. But the State Law Commission is not in favour of insertion of new Chapter V B (Under Question 39) in view of the existing provisions as contained in Section 511 I.P.C.
Question No.50 Six judges are of the view that there is no need of inserting of new provisions vide Section 166A. Remaining persons inciuding State Law Commission agreed with the proposai. The police officer feeis that the offence under Section 166 I.P.C. may be made congnizabie and no separate penal Section 166A is necessary.
Question Nos.51 to 53The majority of the persons who responded to the questionnaire, repiied in affirmative. State Law Commission aiso differs the suggestions except omission of Section 226 (Under Question 53).
Question No.54 Most of the judges inciuding State Law Commission and an Advocate are not in favour of omission of Sections 246 3
254. --: 479 :- Question Nos.55 to 62 Responses to these questions are in the affirmative. State Law Commission has highiighted the amendment in the Motor vehic1e Act in the year 1994 under Sections 113, 114 & 115, therefore, insertion of new Section 279 A may not be necessary .
Question No.63 Except one Judge who is siient on the issue, a11 of them do not want any change in the definitions of 'cu1pab1e homicide' and 'murder'. As per State Law Commission, the existing definitions do not require any change.
Question No.64 Majority of the persons inc1uding State Law Commission who responded to the questionnaire, are of the view that it shouid be ieft to the discretion of the court and there is no need of any addition in section 3028.
Question No.65 This question has been responded in the affirmative by the judges and the State Law Commission. But 1atter is of the opinion that the offence shouid be made non-bai1ab1e and cognizabie.
--: 480 :-Question No.66 The amendment of Sections 307 and 308 of the Indian Pena1 Code has not been favoured by majority of the Judges and by the State Law Commission. A poiice officer is of the view that both the Sections shou1d be ciubbed together and the maximum punishment may be made upto iife imprisonment.
Question No.67 Five judges agreed for the omission of Section 309 but two judges and Addi Registrar did not favour the same.
An Advocate is aiso of the view that the Section 309 of I.P.C. deserves to be deieted.
The Law Commission of the State of Himacha1 Pradesh has quoted the case of 'Gian Kanwar v. State of Punjab, AIR, 1996 So, 947 and suggested no change under this Section.
Question No.68 Most of the persons who responded to our Questionnaire have agreed with the Suggestions.
--: 481 :~ In case of amendment of Section 362: Abduction, majority of the persons feei that the offences of hijacking of aircraft and vehicie are increasing. As such a separate provision shouid be made under the code providing deterrent punishment. In case of kidnapping or abduction for ransom, minimum punishment of not 1ess than 7 years shouid be provided.
A Woman Organisation, (NIRANTAR) suggested under Section 354A as under:--
(a) change of age of minor from 16 to 18 years;
(b) term of imprisonment from 3 years to 5 years;
(c) making 'fine' mandatory;
(d) offence shouid be cognizabie and non--compoundab1e.
Question No.79 Amendment of Section 375 (Rape) as suggested vide our Questionnaire has been accepted by the majority of the persons but the State Law Commission is not in favour of any change under this Section.
The woman organisation suggested to delete the exception and expianation to the Section and expianation needs to be redrafted as under-
--: 482 :-Expianationz The fo11owing are sufficient to constitute the sexua1 intercourse necessary to offence of rape:
(a) the introduction (to any extent) by a man of his penis into the vagina, anus or mouth of a woman; or
(b) the introduction (of any extent) by a man of an object or a part of the body (other than the penis) into the vagina or the anus of a woman.
It has aiso suggested the insertion of a new Section 375 A for "forcibie sexuai intercourse with a person of the same sex".
Question No.80 Most of the responses are in the affirmative. However, the woman Organisation proposed that the punishment of rigorous imprisonment for Wife may be provided under Section 376(3) and to substitute the word 'chi1d' for the word'woman'. The proviso a1so needs to be deieted.
Question Nos.81 and 82Most of the judges, State Law Commission and other persons who responded to our Questionnaire have agreed with the suggestions. However, the woman organisation suggested -: 483 :- that the proposed Section 376 F is simiiar to the existing Section 509, therefore, it may be worded simiiariy and the term 'eve--teasing' shouid be de1eted.
Question No.83 Out of eight six judges 'disagreed with the suggestions and are of the view that the proposed provision wi11 be misused. Out of remaining two one judge is of the view that the provision shou1d be more cieariy worded. The State Law Commission has endorsed the view. However, the woman organisation agreed with the suggestion but further suggested a draft of Section 376H with four iiiustrations and four exp1anations.
Question No.84 Most of the persons inciuding the State Law Commission supported the proposai under this issue and added that the offence under section 377(0) shou1d continue. The po1ioe officer is of the view that the word "vo1untari1y" may be omitted and the insertion of hand or stick or other object--into the womb of a woman may aiso be brought under this Section. However, the woman organisation suggests that the term 'unnatura1' shou1d be deieted and the offence of bestiaiity be provided under Section 377.
-: 484 :- Question Nos.85 to 89These Questionnaires have been affirmativeiy responded by majority of the persons.
Question No.90 Six Judges and State Law Commission are of the view that Section 396 of the code is c1ear and it shouid be retained in the present form.
Question Nos.91 to 97Majority of persons inc1uding State Law Commission who responded our Questionnaire have agreed with the suggestions.
Question No.98 Five judges & Add1 Registrar do not favour the substitution of new Section for Section 441, crimina1 trespass. Two judges have not given their views, however, Law Commission of Himachai Pradesh fu11y endorses the view.
Question No.99 to 117Most of the persons inc1uding the State Law Commission who responded to the Questionnaire have agreed ~: 485 :-
with the suggestions, however, one judge suggested to make the exception more purposefui under the proposed new Section
492.
Question No.118 On1y five judges disagreed with the recommendations remaining persons have repiied in the affirmative and State Law Commission too.
Question No.119 Six judges & Addi Registrar agreed with the recommendations one judge has not expressed his opinion. The State Law Commission is not in favour of omission of Chapter XXIII of the code.
Qther Responses Question Nos.1, 7, 12 to 14 and 17- The Nationai Law Schooi of India University, Bangaiore ("the School") has not favoured the proposed omissions/amendments of the definitions.
Question Nos.2 to 6, 8 to 11 and 16- The Schooi has agreed to the suggestions subject to certain amendments.
Question No.28 has been responded in the negative by the Schooi. As regards question No.29, the Schooi has opined that there should be a separate Chapter to deai with corporate Tiabiiity.
Question Nos.3O to 34- The Schooi has suggested -: 486 :- certain amendments in sections 84, 85, 94 and 103.
Question Nos.39 to 41- The Schooi has endorsed the insertion of new Chapter VB on "Attempts".
Question Nos.42 to 45 have been responded in the affirmative by the Schooi. whiie responding to question Nos.57 and 60, the schooi has suggested amendments to sections 272, 273, 274, 275, 276, 292 and 293 regarding vicarious iiabiiity.
Question Nos.63 to 65- The Schooi has not favoured any amendments in sections 299 and 300, but has suggested insertion of a provisio in section 304B.
Question Nos.79 to 83- Whiie responding to these questions, the Schooi has suggested for insertion of new provisions regarding criminai sexua1 contact, sexua1 assauit and aggravated sexuai assauit.
Question No.114-- whiie responding to this question, the schooi has made a suggestion for amendment of the provisions deaiing with "Adu1tery".
List of persons whose responses have been received.
A. Judges/Registrar of High Courts
1. Chief Justice of Himachai Pradesh High Court.
2. Justice R.G. Vaidanatha, High Court of Bombay.
L») (J (.0 U1 Sri R.S.Tripathi, Additional Registrar, High Court of Madhya Pradesh, Jabaipur.
Justice Nagendra Rai Justice S.N.Jha, Patna High Court.
Justice Naresh kumar Sinha, Patna High Court.
Justice P.K. Sarin, Patna High Court.
Justice G.J.Chaube, Patna High Court.
Advocate Sri A.A.N. Sastri, Advocate, Hyderabad.
_F39_l-i_ce_O_ff_i_§:.e::
Mr. P.S.V. Prasad, Joint Director, Indian Poiice Academy, Hyderabad.
State Law Commission HimachaI Pradesh State Law Commission. Organisations/Institutions Smt Anuja Gupta, 'Nirantar', Centre of Women Education, New Deihi.
Dr.N.S.Gopa1akrishnan, Asst. Professor, Nationai Law Schooi of India University, Banga1ore. Smt.Jayanti Patnaik, Chairperson, Nationai Commission for women, New De1hi.
The Institute of Company Secretaries of India. Centre for Feminist Legal Research, New Deihi. *: 488 :-
ANNEXURE IV RESPONSES TO THE WORKING PAPER ON THE INDIAN PENAL CODE, 1860 The Law Commission of India circu1ated a letter dated 26.12.95 (Annexure--II) high1ighting the main issues invo1ved in the Pena} Code for e1iciting views from various quarters.
The letter was sent to Registrars of High Courts, the Home Secretary of the State Governments & Union Territories, the President of Supreme Court Bar Association and High Courts Bar Association, Nationa1 Commission for Human Rights, Nationa1 Commission for Minorities, Nationai Commission For SC & ST, Nationai Women's Commission, State Law Commissions, Poiice Officers, Advocates, Academicians and some sociai organisations, Institutions etc. Responses were received from three State Governments, Seven Judges and one Additiona1 Registrar of High Courts, Two Advocates, Six Po1ice Officers, One State Law Commission, One Academician and Two organisations (Nirantar and Federation Indian Chambers of Commerce and Industry).
Issue No.1 Five Judges are of the View that there is no need of amendment in Sections 34 & 149 of I.P.C.; even a singie
-: 489 :~ person can be convicted if court comes to the conciusion that apart from him others have aiso conjointiy committed the offence. Two Judges responded in the affirmative. The Addi. Registrar of M.P. High Court, JabaTpur, has a1so replied in the affirmative.
The Government of Gujarat agreed about the amendment of sections 34 & 149. But the Government of Bihar does not agree with the proposai of the Law Commission of India. The Government of Assam has sent its opinion about the amendment of on1y section 294-A of the Code.
Both the Advocates are siient on the issue.
One Poiice Officer is of the view that both the provisions can be put together in one section and provision may be made for punishment of even a singie person committing offence conjointiy. Four Po1ice officers do not support the issue.
Himachai Pradesh State Law Commission has not favoured any change under these sections.
Academician is siient on the issue.
Both the organisations are si1ent on this issue. women organisation (NIRANTAR) has responded to the issues which are re1ated to women except a few genera} Questions.
Issue No.2 Seven Judges agreed with the proposai with some suggestions. Further, five Judges are ofthe view that the
-2 490 :-
new forms of punishments proposed shouid not appiy to the economic and social offences. The Punishment of community service shouid be made app1icab1e only to the summons cases. The victim shouid be compensated by the triai court itseif and maximum amount of compensation shouid be fixed. Another Judge feeis that the 'community service' may not be reievant and appiicabie to Indian conditions and the amount of compensation to the victim of crimes shou1d be ieft at the discretion of the court which sha11 take into consideration whiie fixing compensation or damages in any civii suit arising out of he same cause of action and give an opportunity to both the victim and the accused. Government of Gujarat agreed regarding the form of punishment as suggested by the Supreme Court. One State Government is si1ent on the issue.
Four Po1ice Officers are of the view that as far as "Community Service" and "Pub1ic Censure" are concerned, it wi11 be extremeiy difficuit to administer in practice, however, they have agreed with the remaining proposals of the Law Commission.
One Poiice officer is of the view that "Community Service" needs to be defined. Compensation is neither a reward nor a punishment. Instead of making it as a farm of punishment the maximum (Rs.50,000/--) and minimum (Rs.iOOO/-) fine amount may be prescribed depending on the nature of the offence. The fine amount so rea1ised and aiso rea1ised from the sureties for forfeiture of baii bond may go to a fund wherefrom payment of compensation may be given.
-: 491 :~ One Advocate is of the view that punishment of "Community Service" may not be effective. Section 70(2) does not appear to be Justified. The other Advocate has not responded the issue.
H imacha1 Pradesh Sate Law Commission agreed with the proposai of Law Commission of India. The Academician a1so supported the issue. Both 'Nirantar' and 'Federation India Chambers of Commerce and Industry' have not touched upon the issue. Issue No.3 Eight Judges inciuding Additiona1 Registrar supported the proposaT to re--draft Secion 94 as suggested under this issue.
Two State Governments responded in the affirmative. One Advocate is si1ent on the issue. Four Po1ice Officers agreed with the proposed amendment of Section 94. One Po1ice Officer has forwarded his Artic1e.
"New Times, New Crimes and oid Laws'. Another Po1ice Officer offered no comments on'Compu1sion by threats.' State Law Commission fu11y supported the issue and
--: 492 :~ aiso suggested to include 'brother', 'sister', 'grand parents', 'Son-in--1aw' or 'daughter--in--1aws'. 'Nirantar' and 'FICCI' are si1ent on the issue. ;ssue No.4 Eight Judges inciuding Add1. Registrar agreed with the recommendations on constructive iiabiiity of Companies by inserting new sections 94.A and 94.8. One State Government agreed, however, another State Government does not agree with the proposa1. One Advocate responded in the affirmative. Another Advocate has quoted a case of Hindustan Stee1s Ltd. v. State of Orissa, 25.STC -211 and Section 100 of Factories Act aiongwith other detaiis and does not favour the proposai. Five po1ice officers do not support the proposed amendment and one of them has suggested that it can be done in a speciai statute iike the Company Act, but not in IPC. The State Law Commission agreed with the suggestion. 'Federation of Indian Chamers of Commerce and Industry' is of the view tht the said proposa1 is uncaiied for because the economic iegisiation aiready provide for vicarious iiabiiity of Directors in respect of offences committed by the Company. Further, it has not ta1ked about any other issue.
--: 493 :- Issue_flQ;§ A11 the Judges and Registrar who responded to our issue have agreed with the proposa1. Two State governments responded in the affirmative. One Advocate agreed but other one has not touched upon the issue.
Four Po1ice Officers are of the view that the present provisions are adequate but punishment prescribed in Sections 153, 153A and 1538 is required to be enhanced. One Po1ice Officer has suggested that preaching or abetting to do acts of vio1ence shou1d be made an offence with severe pena1ty in the form of both imprisonment and fine. State Law Commission agreed with the proposa1. 'Nirantar' has not responded.
Issue No.6 A11 the Judges and Registrar supported the proposa1 for insertion of new section 167A. One State Government agreed but another State Government does not support the proposa1. One Advocate responded in the affirmative whereas another Advocate has not touched upon the issue. Four Po1ice Officers are of the view that the proposed subject is a1ready covered under the provisions of Prevention of Corruption Act, 1988 and there is no need of section 167A. One po1ice officer fee1s that the proposed amendment may be inserted in Prevention of Corruption Act, --: 494 :- 1988 and not in the Indian PenaI Code. The State Law Commission dittoes the suggestion. Academician has not touched upon the issue. Nirantar has not responded to this issue. IssuegNo.7 A11 the Judges and Registrar who responded to our Wetter have rep1ied in the affirmative. Two State Governments supported the proposai and one of them has further suggested to make a1so a provision for corrupt1y using such certificates. One Advocate also agreed with the recommendations. Five Poiice Officers have supported the proposai, however, they are of the view that the Indian Medicai Councii shouid be invo1ved in this issue.
The State Law Commission a1so supported the issue. Acadamecian and other organisations are siient on this issue.
Issue No. 8 Except one Judge, aI1 the Judges and Registrar who responded to the Ietter have repiied in the affirmative. One State Government supported the proposal of the Law Commission of India and another State Government rep1ied -: 495 :- in negative.
On1y one Advocate agreed to this proposai. Four police officers are of the view that the proposed amendment has been covered under the Motor Vehic1es Act and there is no need to amend Indian Pena1 Code for that purpose. One Po1ice Officer fee1s that even if it is required to make new provision, the same shouid be made in the Motor Vehic1es Act instead of making it in the Indian Pena1 Code.
According to the State Law Commission, Sections 113, 114, 115 of the Motor Vehic1e Act were amended in 1994, therefore, this issue does not need further change. However, punishment provided under Sections 279, 304--A and 337 of Indian Penai Code may be enhanced. Issue No.9 A11 the Judges and Add1. Registrar who responded to the issue have agreed to the proposai. One State Government rep1ied in negative and another in the affirmative.
Both the Advocates supported the issue. Four poiice officers are of the view that the provisions of Section 383 Indian Penal Code read with Section 44 IPC cover this crime. The punishment provided under this section needs to be enhanced.
~: 496 :--
One poiice officer repiied in the affirmative. Others who responded to the ietter are siient on the issue.
Issue No. 10 The Judges and Addi Registrar who responded to Wetter, most of them have rep1ied in the negative to change the definitions of "cu1pab1e homicide" and "murder". About death sentence, they fee1 it shou1d be 1eft to the discretion of the court. Both the State Governments also do agree with the existing provisions.
One Advocate who responded to the issue, has not supported the proposi.
Four Poiice Officers responded in the negataive and one officer offered no comments on the issue. As per State Law Commission present issue does not require any change.
Issue No.11 Most of the Judges who responded to the ietter have answered this question in the affirmative. Both the State Governments agreed with this proposai. One Advocate a1so supported this issue. ~; 497 :~ Most of the po1ice officers we1comed the proposai and one of the them further suggested to deiete the punishment of imprisonment but the punishment by way of fine may be introduced by prescribing the minimum and maximum 1imit varying between Rs.10,000/-- and Rs.50,000/~. State Law Commission agreed as proposed and further suggested to make the offence non-bai1ab1e and cognizabie. Issue No.12 Most of the persons who responded to our letter (Annexure--II) have agreed to enhance the punishment for aggravated nataure of the offences. Issue No.13 Most of the Judges who responded, have agreed with the proposai of the Law Commission of India. Both the State Governments responded in the affirmative.
One Advocate a1so supports the proposa1. Except one a11 the poiice officers have repiied in the affirmative and pieaded for higher scaie of punishment. State Law Commission supported the issue and has pieaded to make the offence non--bai1ab1e and cognizabie and punishment shouid be made deterrent and in any case not iess --: 498 :- than 10 years.
Academician and other organisations have not responded.
Issue No.14 A11 the Judges who responded to the working paper have agreed to the suggestion.
One State Government agreed in toto but the Government of Gujarat is of the view that no change is necessary under Section 380 of the Indian Penai Code and new Section 380A is not required to be inserted. Further, it is agreed for the suggestions of Sections 381 and 381A under this issue.
One Advocate aiso agreed with the proposai. Four poiice officers repiied in the affirmative but one poiice officer is of the view that Section 380 of the Indian Penai Code need not be amended for inclusion of theft of pubiic property. Instead of enacting a new Section Iike 380A, Section 404 may be made cognizab1e and non--bai1ab1e offence. One expianation may be added to Section 381 in order to ciarify that servant inciudes empioyees. The incorporation of Section 381A is not suggested because it is difficuIt to prove intoxication and unconciousness. State Law Commission agreed with the proposa1. ~: 499 :-
Issue No.15 A11 the Judges and Add. Registrar who responded to the issue have repiied in the affirmataive. One State Government agreed to the proposai but another State Government repiied in the negative. One Adavocate agreed to the suggestion. Most of the poiice officers who responded the main issues of the Penai Code have repiied in the negative. they are of the view that Section 387 read with Section 44 of Indian Penai Code is sufficient for punishing a person for b1ackmai1ing..
The State Law Commission has endorsed the proposai. It ha aiso suggested that raggings in educationai U1 institutions shouid be made non--baiTab1e offence under Indian Penai Code.
Issue No.16 The present issue has been supported by aii the Judges and Add]. Registrar who responded the issues. One State Government has responded in the affirmative and another State Government in the negative. One Advocate responded in the affirmative.
-: 500 :~ Four police officers responded in the negative but two police officers are silent on the issue. The State Law Commission agreed to the proposal. Issue No.17 All the Judges and Addl Registrar who responded to the letter have replied in the affirmative. Both the State Governments responded in the affirmative.
Most of the police officers who responded to the letter have agreed with the proposal. One Advocate also supported the issue. The State Law Commission replied in the affirmative and suggested to make the offence cognizable and non--bailable.
Remaining persons are silent.
Issue No.18 Most of the Judges and Addl. Registrar of the High Courts who responded to the issues have replied in the affirmative.
~: 501 :-
One State Government has agreed to the proposai but anotherstate Governmentresponded in the negative. One Advocate aiso supported the proposai. Majority of the poiice officers do not agree with the proposal. They feei that it wouid seriousiy handicap the investigating agencies from iegitimate use of surviiiance equipments.
The State Law Commission fuiiy endorses the view under this issue.
Issue No.19 About insertion of new section 166A aii the Judges who responded to the ietter, have agreed with the proposai of Law Commission of India.
None of the State Governments who responded to our ietter have repiied in the affirmative. One Advocate expressed his views in favour of the said new Section.
Majority of poiice officers are of the view that the poiice in India are operating with crippiing handicaps of manpower and materiai resources, so a proposai iike this does not appear reasonabie. One poiice officer has suggested that the State Governments may amend provisions of State Poiice Reguiations in order to take discipiinary action against the -: 502 :- poiice officers vioiating provisions of Section 160 of Cr.P.C.
Other persons who have responded to our working paper either not repiied or are siient on the issue. Issue No.20 Except two state governments, most of the persons who responded to the issue have replied in the affirmative about the insertion of the new section 167A. -: 503 :- List of State Govenments. Judges/Regjstrars of High Courts/Judiciai Officers, Bar Counci1/Bar Associations] Advocates/Pubiic Prosecutors. Poiice Officers, State Law Commissions, Academicians and Socia1 organisations etc. whose responses have been re9,ei...y.e,g__.
State Governments
1. Mr. P.J.Dho1kia, Law Secretary,Govt of Gujarat.
2. Mr. Madan Prasad Srivastava, Joint Secretary, Govt. of Bihar.
(.0 Mr. S.C.Das, IAS, Secretary, Govt. of Assam. Judges/Registrars/Judiciai Officers
1. Chief Justice, High Court, Himachai Pradesh.
2. Justice R.G. Vaidanatha, High Court, Bombay. x'.-J Shri. R.S. Tripathi, Additionai Registrar, High Court, Madhya Pradesh, Jabaipur.
4. Justice Nagendra Rai )
5. Justice S.N. Jha High Court,
6. Justice Naresh Kumar Sinha ) Patna.
7. Justice P.K. Sarin )
8. Justice G.S. Chaube ) _n
-2 504 :-
Bar Counci1s/Bar Associations/Advocates
1. Sri. A.A.N. Sastry, Advocate, Hyderabad.
2. Sri. K. Srinivasamurthy, Advocate, Supreme Court, Hyderabd.
Po11ce Officers
1. Mr. Anjaneya Reddy, I.P.S., Director Genera1 (V19. & Eng.), Hyderabad.
Mr. P.S.V. Prasad, Joint Director, Indian F.) Po1ice Academy, Hyderabad.
3. Inspector General, C.I.D., Patna, Bihar.
4. Deputy Inspector Genera1, Eco. Offences, Patna, Binar
5. Deputy Inspector Genera1, B.M.P., Patna.
6. Deputy Inspector Genera], Ant1--Daco1ty, Patna.
State Law Commission
1. H1machaT Pradesh State Law Commission.
$311119
1. Dr. C.D'Souza, M. Sa1gauncar, Co11ege of Law, Panjim, Goa.
-: 505 :--
Soc1a1 Organisations
1. Smt. Anuja Gupta, "Nirantar" Centre for women and Education, New De1hi.
2. Dr. Amit Mitra, Federation Indian Chambers of Commerce and Industry, New Delhi.
ANNEXURE-V PROCEEDINGS OF WORKSHOP ON INDIAN PENAL CODE (AMENDMENT) BILL, 1978 AND INDIAN EVIDENCE ACT, HELD AT SHIMLA ON 26TH APRIL, 1997 ORGANISED BY HIMACHAL PRADESH STATE LAW COMMISSION IN COLLOBRATION WITH THE LAW COMMISSION OF INDIA.
A workshop on Indian Penal Code (Amendment) Bill, 1978 was held at Shimla on 26th April, 1997 under the auspices of the Law Commission of India and the Himachal Pradesh State Law Commissison.
The workshop was inaugurated by Hon'ble Chairman, Law Commission of India, Mr. Justice K. Jayachandra Reddy. It was presided over by Mr. Justice R.S. Thakur, vote of thanks was presented by Member Secretary, Shri Jiwanand Jiwan, IAS. The Workshop was attended by around 50 participants representing Judiciary, Executive, Police and Law Faculty of the Himachal Pradesh University.
In his inaugural address, Hon'ble Mr.Justice K.Jayachandra Raddy, Chairman Law Commission of India, said that there is need to amend various provisions of the Indian Penal Code, 1860. He suggested setting up of an independent investigating agency with an independent prosecution -: 507 :- department, for the fair triai of criminaI cases and speedy dispensation of justice. It was a1so observed by him that peopie are Iosing confidence in the investigation agencies because of the deiay. He said that during investigation the concerned officers are being asked to perform other routine duties as we1I, which causes the deiay. He suggested that the role of investigation agencies shou1d not be undermined as they form the link between the court and other wings. He advocated c1ose co-ordination between the investigating and prosecution agencies for the speedy disposai of criminai cases. Justice Reddy further said that it is the duty of the defence not to misiead the court and be fair and ensure that the guiity persons do not escape and the innocent are not punished. In the Iast, he drew attention of the participants to certain important proposed provisions as contained in Indian PenaI Code (Amendment) Biii, 1978, whiie throwing these open for interaction.
Mr. Justice R.S.Thakur, Member, Himacha1 Pradesh State Law Commission, in his presidentiai address, weIcomed the Chairman, Law Commission of India and Justice R.L.Gupta, Member, Nationai Law Commission. He emphasised the need to amend the Indian Penai Code in view of the present day requirement. He aiso diIated on the rising crime graph and criminai Iaw after the independence.
After the inaugural session, the first session started at 11.30 AM on the Indian Penal Code (Amendment) Bill, 1978. Justice Reddy, Chairman, Law Commission of India, chaired the first session. He pointed out that there are four agencies involved in criminal justice delivery system. These are; investigating agency, prosecution, defence and Court. He laid emphasis on fair work assigned to each of them, for the speedy and fair trial. He stressed the need for taking police into confidence. According to him, coordination between investigating agency and prosecution is also need of the hour. He referred to various provisions of Indian Penal Code (Amendment) Bill, 1978, which require specific deliberation during the course of workshop in order to meet the present day requirement in criminal justice system. During the discussion, however, he highlighted the difference between 'knowledge' and 'intention' for the purpose of completing the offence of murder. In the end, Justice Reddy threw open for discussion the issue of victimology.
In his reaction, Dr. I.P. Messey, Member, Himachal Pradesh State Human Rights Commission, appreciated the work done by the Law Commission of India on Indian Penal Code (Amendment) Bill, 1978. His emphasis was mainly on Sections 309, 376, 377, Sections 124(A), 124(8), which according to him, require updating. Mr. M.S. Mandayal, Presiding Officer, Labour Court, wanted a change in the definition of word 'India' as defined under Section 18 of the Indian Penal <2) Cede. He was of the view that the definition should be widened so as to cover the whoie of India inciuding Jammu & Kashmir. He proposed that provision under Section 345 of the Code of Criminai Procedure shouid be suitabiy made in view of the Section 228 of the Indian Pena} Code. Further, he stressed the need to amend Section 21 of Indian Penai Code to cover epecificaliy the eiected representatives such as M.L.As, M.Pe and Pradhans of Gram Panchayat etc. in the definition of Pubiic Servants.
Additionai Secretary (Law) to the Government sf Himachai Pradeeh, Shri K.C. Negi, sugdeeted that ou"5 being 3 we1'are state, there should be pro ieion in the Indian 73 famiiy Ci' .4.
3I'\ "X C)"
-4 Pena? Code to compensate adequately the Vie en the anaiogy of mote? vehicle cases. He further suggested that protection should be provided to the witnesses in :rimina1 cases inside and outside the Court, which proxieion Top ranking poiice officers of the State including D.G.P.'e and I.G.P.'e took active part in the deiiberatione. Shri P.F. Srivaetava, Director General (CID) eqggeeted that Section ?9 of th= Indian Pena? Code eheuid be dropped because of the provision under Section 76 thereof. Mr. Srivastava suggested that word 'near reiative' in the proposed Section 94 ehcuid take in ite sweep a 'Friend' aieo. He too spoke on '3 quantum of punishment to be awarded under Sections 30: and SOAWA of the Endian Pena? oode. Mr. A.K. Puri, Inspector Generai of Poiice (Law & Order), voiced his concern saying that military service has not been de?ined under the Code. He further fe1t that there is no need to re~draft Section 124(8). In his opinion, it can be misused. Shri S.R. Mardi, Superintendent of Police, Shimla, was of the view that Sections 427, 182, 186, 189, 199(A), and 174 to 187 of the Indian Penal Code shouid be made cogni:abIe, and non--bai1abIe.
Professor C.L. Anand, Chairman, Department of Law, Himacha1 Pradesh University, Shimla, suggested that Section 99 of the Indian Pena1 Code should be made subject to Section 46 Cr.P.C. He dweit on Sections 84, 299 and 300 IPC. Hon'bIe Chairman, Law Commission of India, dea1t with ail the points raised by the distinguished participants and he presented the correct perspective of ail TegaT provisions which came up for discussion.
The foiiowing were present:
1. Mr. Justice K.Jayachandra Reddy, Chairman, Law Commission of India.
T0 Mr. Justice R.L. Gupta, Member, H.P. State Law Commission of India.
Mr. Justice R.S. Thakur, Member, H.P. State Law Commission.
(.0
4. Shri Jiwanand Jiwan, Member Secretary, Law Commission of H.P.
5. Shri M.D. Sharma, Joint Secretary (Drafting), H.P. State Law Commission.
14.
15.
15.
17.
18.
19.
20. Shri S.S. Thakur, Secretary (Law) to the Govt. of H.P Shri S.N. Verma, Secretary (Home) to the Govt. of H.P. Shri K.C. Negi, Add]. Secretary (Law) to the Govt. of H.P. Snri Subhasn Ahiuwaiia, Director Pubiic Re1ations Shri C.S. Sharma, Joint Director (Prosecution), Himacnai Pradesh.
Shri Rameshwar Sharma, President, Distt. Consumer Disputes Redressai Forum Shimia.
Shri B.S. Thakur, Director General of Po1ice, H.P. Shri A.K. Puri, Inspector Generai of Poiice (Law & Order), H.P. Shri I.N.S. Sandhu, Add]. Director Genera} (Prisons), H.P. Shri R.K. Srivastava, Addi. Director General (CID), H.P. Snri C.R.B. Laiit, Registrar, H.P. University.
Shri 8.8. Chauhan, Distt. & Sessions Judge, Shimia Shri M.S. Mandayai, Presiding Officer, Labour Court Shimia Shri T.N. Vaidya, Secretary State Legai Board, Shimia Shri K.C. Chauhan, Member, H.P. Environmental Commission, H.P. Snarma, Superintendent of Poiice Lokayukta Shri S.R. Mardi, Superintendent of Poiice Shimia Shri Triiok Chauhan, Generai Secretary, Bar Association High Court of Himachal Pradesh Shri Vineet Association Gautam, President, Distt. Bar Snri Surender Steta, General Secretary, Distt. Bar Assocation.
....._-..... -
27.
28.
38.
39.
40.
45.
46. Snri Maikiat Singn Chandei, Advocate Shri K.D. Sood, Advocate Dr. I.P. Messy, Member, Human Rights Commission, H.P. Prof. C.L. Anand, Dean of Law Faculty H.P. University Dr. P.L. Mehta, Associate Professor of Law, H.P. University Dr. Suresh Kapoor, Associate Professor of Law, H.P. University.
Dr. O.P. Chaunan, Associate Prof. Law, H.p. University Dr. D.N. Gupta, Asstt.
University Professor Law, H.P. Dr. H.R. Jhingta, Asstt. Professor of Law, H.P. University Dr. K.C. Thakur, Asstt.
University Professor of Law, H.P. Shri S.N. Snarma, Asstt. Professor of Law, H.P. University.
Shri Dinesh Sharma, Law Officer, H.P. State Law Commission.
Shri Daiip Singn Kanwar, Section Officer, H.P. State Law Commission Dr. Surinder Singh Jaiswai, Law Officer, State Law Commission Shri Asnok Kumar Mohindru, Reader, H.P. State Law Commission Shri Paras Ram, Sub Inspector (Lokkayukta) H.P. Shri B.M. Snarma, Advocate Shri Avtar Singh, Advocate Shri Shashi Kumar Shirshoo, Advocate Shri Sanjay Snarma, Advocate Shri Bhagwan Cnand, Advocate
47.
48.
49.
50. Shri Shri Shri Shri Vinod Sood, Advocate Pramod Thakur, Advocate Gu1jar Singh Rathore, Advocate Chander Mohan Sharma.
ANNEXURE-VI PROCEEDINGS OF THE WORKSHOP ON CRIMINAL LAW UNDER THE AUSPICES OF THE LAW COMMISSION OF INDIA AND THE GOVERNMENT OF GOA HELD ON 18TH JANUARY, 1997 AT GOA.
The work--shop on criminai Taw was held at Panjim, Goa under the auspices of the Law Commission of India and the State Government of Goa. The workshop was chaired by Justice K. Jayachandra Reddy, Chairman, Law Commission of India. The workshop was organised to make a thorough study and ascertain views of the cross--section of the society Tawyers, poiice officiaTs, Taw officers and pub1ic prosecutors -- to make suggestions for amendment and improvement in the Indian Penai Code.
The Goa Minister said that as society progresses, changes in the Taw were required to meet changing needs. Law cannot be static, he said, and added that it needs to adapt to change.
Referring to the heavy backiog of pending cases before the courts, Mr. Fernandes said both the governments, at the State and Centre, were "endeavouring to bring about reforms in the judiciary."
Mr. Fernandes expressed the need to review the Portuguese laws in Goa, as also laws enacted after Liberation.
Justice Jayachandra Reddy emphasised the need to evolve a separate system for investigating of criminal cases and the work presently faced by the police. He said the police are loaded with many duties besides the maintaining of law and order.
Justice Reddy said the Law Commission has suggested many steps and measures for speedy justice. He mooted that witnesses should be propertly taken care of as they often have to come in from distant places and risk the loss of their daily earnings. He called for the State to take due care of the victims of criminal cases.
Justice Reddy strongly Felt that the NDPS Act should be reviewed by experts. Goa High Court Bench's Justice Chandrasekhar Das stressed the need to change the image of the police. He said that police should consider themselves as friends of the people and this called For the need of introspection on the part of police.
Later at the workshop most of the participants expressed displeasure over the public censure of the criminal and to some extent making him to pay the compensation. But there was a general consensus over the punishments like community service and disqualification from holding any office.
The workshop strongly felt that organised crimes should be dealt with a firm hand while criticizing the tendency of issuing false medical certificates to the accused which results in adjournment of cases and delay in bringing the culprit to book.
Some participants at the workshop pointed out that sexual crimes pertaining to children do not figure in the IPC (Amendment) Bill, 1978.
Justice Reddy was of the opinion that a separate cadre for prosecution officers could be created as very often every government that comes in power appoints its own nominees as prosecution officers. This, he said, hamperes the prosecution work.
He further said that the new agency could be termed as the Directorate of Prosecuting Agencies.
Referring to the police force, he said that they worked under tremendous pressure and due to which at times they cannot devote the necessary time to investigate crimes successfuiiy. He said that there was a need on the part of the peopie to change their attitude towards the police force in the country.
Highiighting the importance of witnesses in the courts, Justice Reddy said that they have to be protected. According to Justice Reddy frequent adjournments granted in any case caused inconvenience to witnesses who travei from far off piaces to attend the court case. He remarked that the state authorities shouid take into cognisance the work done by witnesses.
He said if no attention is paid to this, the witnesses who are so vitai in the proceedings of a case wiii iose their faith in the government agencies.
Speaking to journalists Justice T.K. Chandrashehhar Das supported the thought of setting up independent investigating and prosecuting agencies. He said that whiie the amendments were important, more important was the sustaining of these amendments. He opined that a thorough debate was required before bringing about any amendments in the IPC as aii iacunae which may be hidden in the proposed amendments had to be overcome. Justice Ranjithkuram Batta, R.M.8. Khandeparkar, the district and sessions judges, Law Minister Domnick Fernandes, Law Secretary Subanna, besides others, were aiso present for the workshop.
Main topics which were placed for discussion pertained to insertion of new forms of punishment in the IPC in addition or as alternatives to imprisonment in case of organised crimes, constructive liability of companies, issuing of and signing of false medical certificates, unsafe driving or over-loading vehicles on public way, blackmailing including or scurrilous matter intended for blackmailing, hijacking of any air--craft, bus, taxi, car or any other vehicle, causing death due to rash and negligent driving in hit and run cases, offences against privacy, penal action for refusal to record FIR, sexual offences including change in the definition of rape, scams including bank frauds and kidnapping for ransom.
Many of the speakers suggested that punishment should be made harsh and should necessarily include imprisonment in cases of deaths caused due to rash and negligent driving and overloading of vehicles, especially since deaths on roads due to accidents had increased in the country. The present provisions in the Motor Vehicles Act as well as for rape, they opined served no deterrent effect on the accused.
Penal provisions were also suggested for refusal of registering of FIR by police officials.
The following were present:
1. Justice K. Jayachandra Reddy, Chairman, Law Commission of India.
Smt. Edna Rodrigues, Pubiic Prosecutor Shri Pramod S. Hede, Pubiic Prosecutor Shri V.N.S. Maikarnekar, Pub1ic Prosecutor Smt. Asha Arsekar, A.P.P. Margoa Shri J.C. da Costa, Asstt. Pubiic Prosecutor Shri Shekhar S. Parab, A.P.P., Panjim Smt. Teodoiinda S> Sardinha, Asstt. Pub1ic Prosecutor Shri Subhas P. Dessai, A.P.P., Quepem Shri Devidas Kerkar, Asstt. Pubiic Prosecutor Shri Shaiiesh Ka1angutkar, A.P.P., Panjim Shri Ladisiau M. Fernandes, A.P.P. Vasoo Shri A.K. Nair, Supdt. of Centrai Excise Shri T.V. Shivdas, Supdt. of Centra1 Excise Smt. Eima Coiaco, Suptd. of Centrai Excise (Legai)
-1 521 :~ ANNEXURE -VII PROCEEDINGS OF THE WORKSHOP ON "CRIMINAL LAW" CONDUCTED BY BAR COUNCIL OF ANDHRA PRADESH IN COLLABORATION wITH LAW COMMISSION OF INDIA AND BAR COUNCIL OF INDIA TRUST HELD ON 25TH AND 26TH OCTOBER, 1996 AT VISAKHAPATNAM (ANDHRA PRADESH).
Apart from the nOrma1 inaugurai and va1edictOry sessions, there were five working sessions, name1y--
(a) working Session I-- Proposed amendments to Indian Penai Code.
(b) working Session II-- Sentences and sentencing policies and procedures.
(C) working Session III-- Arrest, remand and custody.
(d) Working Session IV~ Shift in trends of question of burden of proof in criminai matters.
(e) Working Session V-- Mens rea and modern criminai iegis1ation.
2. As is c1ear from the above, Working Sessions III and IV do not relate to Indian Penal Code.
working Session I: Proposed amendments to Indian Penal Code.
Faculty that led the Session:
(1) Shri Justice K.Jayachandra Reddy (2) Shri K.G.Kannabiran (3) Shri B.Jangam Reddy Shri Justice Jayachandra Reddy while briefing the participants outlined the passing of IPC and the times it has seen and some amendments made here and there during the long period of 136 years. Shri Jangam Reddy in his address traced the historical events.
He dealt with in his address amendment to section 124A which deals with 'Sedition'. He said that all the great leaders of the country were put behind the bars under this section- during emergency also most of the leaders were arrested. In addition to what is there, it is now sought to be amended. Even words that excite disaffection for administration of justice is also included. He posed a question "suppose the administration is unethical -- is it wrong in criticising?" He wanted it to be considered. Dealing with sections 299 and 300 IPC he said they are better not to be disturbed. 'Mens rea' changes the perspective of the crime. He said that every one is trying to avoid responsibility. He said it is profit careering, looting and making money in anonymous names and evade detection. He suggested that such property, ill--gotten, shall be forfeited.
-v He says that there is no zaw forfeiting such ill--gctten wealth and he said that there is little dividing linedishonesty. He lamented that our legislators are educated illiterates. He opined that suggested amendment to section 124A is death sentence to freedom of speech, press and liberty.
He specifically pointed out that there is no specific provision in IPC that deals with the killing of animals by rash and negligent act. Section 429 IPC contemplates cruelty and it is a warrant case. Therefore, the life of an animal is as important as a man.
He specifically suggested (1) wider circulation of amendments.
(2) No amendment is proposed to tackle "scams" and incidentally he says that section 438 Cr.P.C. should be made non-applicable to such offences.
(3) He said that attempts of certain offences are sought to be made but section 511 IPC is more comprehensive and is alright.
(4) The new section 120C does not appear to have been drafted properly. Minimum sentence prescribed puts unnecessary fetters on judge's discretion. There can be no hard and fast rule in avoiding sentence.
(5) Dealing with the proposed amendments "sexual assaults" he said sections 375, 376 and 376A are more clear than the proposed amendments.
(6) Section 376A punishing even preparation for committing rapes punishable will be atrocious. This gives scope for false implication. So it should be deleted.
Shri Kannabiran said that offences against human rights are not considered so far. He lamented that a person who takes Rs.50/-- or Rs.iOO/-- is treated on par with the person who accepted even crores. He opined it is necessary to define offences committed by the political persons. He said that rarest of rare cases shall not be defined. He is not for the state taking up retributory theory.
Shri C.Padmanabha Reddy said that there is lot of confusion while dealing with sections 302, 304 Part I and 304 Part II-- there are iumber of judgements which are not consistent. There is any amount of necessity about clarification. He said that if there is intention to cause death it comes under section 302 and if there is knowledge only it will come under 304 Part II. That much appears to be sufficient. He said that separate definition has to be added to section 3048 defining 'dowry' clearly.
Smt. Laxmi Rambabu referred to offences against wome ."l.
I <.
T O LT1 l Shri M.Satyanandam, Metropolitan Sessions Judge, Visakhapatnam referred to Scams, Economic Terrorismconsumer Terrorism, Offences against Human Rights, Offences committed by politicians. He specially pleaded for making any offences against quality control, culpable.
Prof.K.Gupteswar, Principal, P.Venkatasubbaiah Law College, Hyderabad opined that attempts should be directed towards reformation and descriminalisation. He said it is better to unburden the IPC rather than putting more into it. He said that illustrations alter the section are not necessary. He referred to making a provision for unnatural offences and false marriages.
Shri Kandala Srinivasarao, Advocate, Visakhapatnam said that the words 'misappropriation' is not defined. Better if it done. Secondly, he said that since the word 'relative' in section 498A IPC is not defined, persons, for the single reason of being related to the husband are harassed even though they are nowhere near the place of residence of the married woman at the relevant point of time. It is, therefore, necessary to define 'relative' in section 498A by adding explanation limiting to those who are living with the couple at the relevant point of time. He said that section 498A is more abused and misused than used. He also pleaded for addition of section 4988 making a wife punishable if she is cruel to her husband.
Shri Kannati Rama Mohan, Member, Bar Councii of Andhra Pradesh opined that for temporary purposes/situations statutes should not be made. He pieaded for deieting section 498A as it is used as a handie by the poiice and spoiiing the fabric of the society. It shouid be scrapped.
Kumari Kuijit Kaur, Advocate, Visakhapatnam suggested that offence under section 302 IPC should be made compoundabie. Section 354 IPC shouid be divided into parts to attract eve teasing aiso.
Shri T.Venkataratnam, Advocate, Visakhapatnam observed that section 498A IPC is more misused. He commented that offence under section 498 IPC charge sheet cannot be filed on their own.
Prof.R.Venkatarao, A.U.Law Coiiege, Visakhapatnam observed that there appears to be some compromise in regard to the capitai punishment and rarest of rare cases referring to AIR 1984 SC 1029 decision. The decision is i11ustrative and not exhaustive. Minimum mandatory sentence provisions are going opposite to human iife.
Shri P.A.Kishore, Advocate, Visakhapatnam referred to section 498A and demanded that there must be a section to oeai with cruei wives.
U1 rm
-4 I Shri K.V.Ramamurthy, Advocate, Visakhapatnam observed that section 420 IPC is 1imited to property offences;
"deception" is not defined, so aiso "bankruptcy" and "black maii" are not defined. He aiso referred about constructive iiabiiity.
Working Session II Delivering the key note address Justice Bhaskararao said that his articie "Sentence and Punishment in Administration of Criminai Justice" has aiready been circuiated. In his article he has dea1t with at iength the concept, poiicy and growth of sentencing. He has traced by giving extensive quotations from Manu to Court judgments. Shri C.Padmanabha Reddy, Senior Advocate, Andhra Pradesh High Court said that he has aimed his views in the articie but said it was written seven years back and much water has fiown since then. He iamented that triai court spends time but it hardly takes minutes in superior courts and better consideration in point of time and attention is necessary in disposing of matters. He has referred to his articie Sentences and Sentencing Poiicies and procedures".
He commented that in ali eariier enactments oniy maximum sentence was fixed but the recent trend is fixing minimum punishments thereby curtailing the discretion of the judge in a given set of circumstances of a case before him.
Shri Kannati Rammohan Rao said that justice should be tempered with mercy. Referring to various suggested forms of punishment like community service, he said that it was not practicable.
Shri K.L.N.Sama, Advocate doubted whether section 427 Cr.P.C. was reaiiy to be given effect to, particuiariy when the remaining term of sentence was served after eariier sentence. He referred to sections 138, 139 of Negotiable Instruments Act and demanded compuisory punishment of six months simpie imprisonment.
ohri V.Someswararao, 8ri.C.S.Rao aiso spoke.
Prof.K.Gupteswar intervening said that he wanted to share some information about U.S.A. On 12.10.1984 Federaf sentencing has been made an Act. The Supreme Court accepted it, one Judge dissenting.
Shri Srivastava, Joint Secretary, Law Commission of India sharing some information said that provision in defauit of fine has been taken care. He referred to sections 65 and 75 enhancement of punishment.
with some short observations about sections 303 and 307 IPC by Shri Justice K.J.Reddy, the session conciuded.
Working Session V Shri C.P.Padmanabha Reddy chaired the session with (1) Shri N.V.Ranganadham, Advocate, Visakhapatnam, (2) Prof.R. Venkata Rao and (3) Prof.K.Gupteswar as Facuity Members.
Shri C.P.Padmanabha Reddy, Senior Advocate, High Court of Andhra Pradesh initiated the discussion with iucid comments on the subject. He was of the view that mens rea shouid be an essentiai ingredient of criminai ofFence. Secondiy, minimum sentence shouid not be provided for these type of otfences and discretion must be given to the cdurts to award appropriate sentence.
Shri N.V.Ranganadham, Advocate & President, Bar Association, Visakhapatnam in his address traced the concept and theory of 'mens rea'. He said that the iegisiations are made making the 'act' itseif punishabie and without any need/ reference to mens rea. He made reference to Drugs Act and Factories Act, etc., where the 'act' itself is made punishable. Therefore, mens rea may not aiways be insisted when the very doing of an act itseif speaks aii about it.
Prof.K.Gupteswar striking a note of caution said that total exclusion of mens rea may touch fairness. Intention or knowiedge of existence of a particuiar iegisiation.
I J1 (,3 O A Publications making pubiic the iaw must be made avaiiable.
"Due Process and Fairness" have been violated if ruies are not made availabie.
Prof.R.Venkatarao iauded the concept of 'Victim compensation' informed by Shri Srivastava. He referred to an enactment in Tamil Nadu constituting "Victim Assistance Fund".
Justice Shri Y.Bhaskararao traced the 'meme rea' from the Engiish case R rs Prince, R re John, etc. Recaliihg the criminai law iectures in Law Co31ege. He particulariy appeaeed to make suggestion to piug the ioop hoies.
The foT1owing persons attended the workshop:--
1. Smt.k.Jhanei Rani, Hyderabad.
2. Shri K.Krishhamurthy, Hyderabad.
3. Shri R.V.Krishha Rao, Hyderabad.
4. Shri E.Sambasiva Pratap, Hyderabad.
5. Shri S.Srinivas Reddy, Hyderabad.
5. Shri K.Satharayaha Reddy, Hyderabad.
7. Shri S.Mura1ikrishna, Visakhapatnam.
8. Shri S.Srinivasamurthy, Visakhapatham. 9 Shri C.D.Sarveswara Rao, Visakhapatham. 1 .Smt.C.Maha1akshmi, Visakhapatham.
...L .Shri D.Raviprakash Sarma, Visakhapatnam. .Kum.L.Venkata1akshmi, Visakhapatham. .Shri U.S.R.Raju, Visakhapatnam.
.Shri G.V.P.B.S.Murthy, Visakhapatham. .Shri P.A.K.kishore, Visakhapatnam. .Kum.Ku1jeet Kaur, Visakhapatnam.
.Shri P.Rajendra Prasad, Tehaii.
.Shri G.madhava Rao, Nizamabad.
.8hri K.Anjaheyu1u, Karimnagar.
Kum.K.Jayaeree, Proddatur.
Shri Suresh Kumar, Nahdikotkur.
Shri J.Jahki Ram Reddy, Kurnooi.
Shri A.Ramasubba Reddy, Kurnooi.
Shri D.Srihivasuiu, Vijayawada.
Shri E.Vikram Reddy, Karimnagar.
to m re re re to -«A -A ---A -e -+ -- -~ -« U1 4: 1.; re --A O to to -J an 01 J» a.) K) -4 D -
F'-3 C» (2) 5.-D (.0 0) (.0 0) 0.'? (.3 L') f\) R) f\.') {,0-JCDU'|$>[».)l\)~*C3'.D 01 0'1 U1 U1 'U1 U1 4.11 J1 '£31 "T1 (0CD\lG7U1-li--(.A.)T\)-A (DH Shri R.Vijayanandan Reddy, Hyderabad. Shri P.Boothtucker, Visakhapatnam.
Shri K.Maheswr Reddy, Visakhapatnam. Shri K.L.N.Sarma, Khammam.
Shri K.V.Ramamurthy, Visakhapatnam. Shri K.Lakshmi Ram Babu, Visakhapatnam. Ms.Va11i Y., Visakhabatnam.
Shri T.Sivarama Reddy, Vijayawada.
Shri D.P.Ramakrishna, Vijayawada.
Shri Ch.V.Sharma, Visakhapatnam.
Sbri S.Jagannadham, Visakbapatnam.
Surf M.Venkata Raju, Visakhapatnam. Shri M.Venkataramana, Visakhapatnam. Kum. B. Jhansi, Visakhapatnam.
Smt.G.Uma Devi, Vieakhapatnam.
Kum.S.Rajani, Visakhapatnam.
Smt.V.N.R.S.Madhavi, Visakhapatnam. Smt.V.B.Sesbamma, Visakbapatnam.
hri Ch.VenRateswara Rae, Visakhapatnam.
Shri V.Someshwara Rao, Visakhapatnam.
Shri Po?isetty Srinivasa Rad, Vieakbapatnam.
Shri A.Bharat Kumar, Visakhapatnam.
Shri KandaWa Srinivasa Rab, Visakhapatnam. Shri Ch.Ram Babu, Visakhapatnam.
Shri V.Sarvanna, Visakhapatnam.
Smt.B.Kusuma Sree, Visakhapatnam.
Sbri S.Krishna Mohan, Visakhapatnam.
Shri V.Satanarayana Sastry, Visakhapatnam. Shri K.Ba1akrfishna, Visakbapatnam.
Shri S.S.N.Raju, Vieakhapatnam.
Shri P.V.V.Satnarayanamurthy, Visakhapatnam. Shri C.N.V.D.Sastry, Visakhapatnam.
Shri H.Ma111karjuna Rae, Visakhapatnam. Ms.M.V.Laxmi, Visakhapatnam.
Shri N.V.Badrinath, Visakhapatnam.
Shré M.S.Hussain, Visakhapatnam.
Shri P.Udayabhaskar Rao, Visakhapatnam. Sari O.Ka11ashnath Reddy, Hyderabad.
Shri N.V.Raghava Reddy, Hyderabad.
Shri K.Suresh Reddy, Hyderabad.
Shri T.Venkataratnam, Visakhapatnam.
Shri V.Ashok Kumar, Visakhapatnam.
Shri K.Appa Rao, Visakhapatnam.
8mt.T.Padmavath1, Visakhapatnam.
Shré N.V.Ranganatham, Visakhapatnam. Smt.A.Bhavani, Visakhapatnam.
Shri M.S.Madhav, Visakhapatnam.
Shri K.V.S.G.Sharma, Visakhapatnam. Smt.G.S.M.Lakshmi, Visakhapatnam. Shri D.Ramu1u, Visakhapatnam.
Shri N.V.Chakravarthy, Visakhapatnam. Shri P.Suresh, Viskhapatnam.
Kum.A.Sai1aja, Vieakhapatnam.
Mrs.D.V.Laxmi, Visakhapatnam.
Smt.G.Anupama Chakravarthy, Hyderabad. Shri G.Krishnamurthy, New De1hi.
ANNEXURE VIII PROCEEDINGS OF THE NATIONAL SEMINAR ON "CRIMINAL JUSTICE IN INDIA" HELD AT VIGYAN BHAVAN, NEW DELHI, ON FEBRUARY 22-23, 1997.
On February 22 and 23, 1997, National Seminar on "Criminal Justice in India" (with special reference to the Indian Penal Code (Amendment) Bill, 1978) was held at Vigyan Bhavan, New Delhi. Four Sessions i.e. working Session 1, working Session II, Working Session III and Working Session IV were devoted to Indian Penal Code with special reference to IPC (Amendment) Bill, 1978. Vth and vlth Sessions were devoted to (i) Evidence Act and Burden of Proof and (ii) Mode of search and seizure of Narcotics under NDPS Act (Section 42--53 in NDPS Act), respectively.
The seminar was inaugurated by Hon'ble Mr.Justice J.S.Verma, Judge, Supreme Court of India. It was presided over by Shri Ramakant D.Khalap, Hon'ble Minister of State for Law & Justice.
In his presidential address, the Law Minister regretted that though judicial reforms were very much on the agenda of the government and it had made tall promises in this regard, it had become difficult to redeem that C ) C-J assurance. He sought the evolution of new ways to book a new class of offenders who had emerged with the change in the country's scenario, foiiowing the impiementation of the iiberation poiicy. He caiied such offender "inteiiectuai wizards" who might affect the country more than the common criminais.
In his inaugurai address, Mr.Justice Verma said, if an agency or organ of the State had responsibiiity towards the citizens, judges too had equai responsibiiity and it was imperative for the Apex Court to act under Article 32 of the Constitution in aid of citizens rights.
Mr.K.T.S.Tuisi, Sr.Advocate emphasised that iimitations shouid be removed in seeking truth in the dispensing of administration of justice.
working Session I: Sentencing_ Policy and Combating organised crime--Kidnapping for V§_SQm-
This session was devoted to sentencing poiicy and Combating organised crime-Kidnapping for ransom. The Session was presided over by Mr.Justice M.M.Punchhi, Judge, Supreme Court of India. Mr.Justice Punchhi made generai observation regarding the principies to be foiiowed by courts whiie (ll) J} I determining and awarding sentences. "For a judge, sentencing is a very difficult task" said Justice Punchhi. He also said "my experience shows any guidelines leads to injustice".
Shri P.P.Rao, Sr.Advocate, who was a Key Speaker on the subject generally endorsed the concept of plea bargaining which according to him, plays a vital role in the administration of criminal justice. He stated that retribution has now become a thing of past and that the implementation of preventive theory of punishment is a difficult task. He laid emphasis on the speedy trial of cases so as to ensure full compliance with Article 21 of the Constitution. However, the ground realities have to be kept in view while having a thorough look at the sentencing policy. He supported the new kinds of punishment proposed to be incorporated in the IPC (Amendment) Bill, 1978. He stated that trial by the media also hampers the justice.
Dr.R.K.Yadav observed that a Judge has to follow certain principles before passing sentences like the facts perceived by the witnesses before him and then he has to form an opinion whether witnesses were trustworthy and that Present sentencing policy tells us only to give either maximum or in some cases minimum sentence and as these guidelines are not enough, Judge has to evolve his own theory of punishment and then use his discretion in the circumstances of each case depending upon his perception of fact, his skill, his social ideology, his own norms, etc. He (_;'J U} I also stated that apart from the above, there may be several mitigating factors to be taken into account while awarding the sentence. He endorsed the concept of "Public Censure" as a new form of punishment.
Shri Anup George Chaudhary, 8r.Advocate has stated that the proposed new forms of punishment are not properiy stated in the proposed Bill and he also talked about the practical difficulties while implementing them. He suggested that as in the matter of punishment of imprisonment for life, the convict is normally released after fourteen years which may not give the desired effect of the punishment, this aspect needs to be considered.
Prof.B.B.Pandey has laid emphasis on reintegration and resocialisation of the criminals into the society so that he does not feel stigmatised in the society for all the time to come.
Shri Shekhar Gupta, Editor, Indian Express, observed that securing conviction through media should be discarded and avoided and that the man should not feel to have been affected by the media before even the actual trial commences. He also observed that minimum sentence as a matter of policy should not be prescribed as it does not serve any purpose and that the court should avoid imposing such fines as may ultimately prove to be counter--productive in the administration of criminal justice. He emphasised the i (F1 (.0 O') l importance of awarding compensation to the victims and that the same should be normally awarded out of the fine imposed on the accused and section 357 should be suitably amended so as to provide for giving reasons in case where compensation is not given.
working Sessions II: Changing facets of sexual offences and Offences against Privacy.
The Session commenced with introduction by Shri K.T.S.Tulsi, Senior Advocate. The session was presided over by Justice Dr.A.S.Anand, Judge, Supreme Court of India.
Justice Anand observed that section 155(4) of the Evidence Act needs to be suitably amended because even a woman of past immoral character has a right not to be sexually abused/assaulted. He also laid emphasis on camera trial and suggested that camera trial should be mandatory, particularly in cases involving sexual abuses and that every police station should have a lady officer for investigating a case against a female accused. He further stated that it should be ensured that tapping of telephone, bed room searches, unauthorised photography, etc, do not in any way invade privacy.
Shri Harish Salve, Senior Advocate observed that common law does not adequately protect the privacy and that the scope of proposed new section 490 needs to be broadened as it at present does not extensiveiy cover a11 situations and that provision contained in section 492 virtuaiiy renders the right to privacy under sections 490 and 491 nugatory. He aiso emphasised on the heed to have a thorough examination of the matter.
Mrs.Padma Seth, Member, Nationai Commission for women, stated that dignity of women between four waiis needs to be protected and that there should be adequate provisions to prevent domestic vio1ence against women. She aiso suggested that in the new section 74C (Ciause 27) proposed to be inserted in the IPC (Amendment) B111, 1978 shouid aiso cover the offences of rape.
Mr.Justice C.Thakkar, Judge, Gujarat High Court while intervening stated that the provisions of the proposed new section 492 does not in any way render the provisions of section 490 and 491 meaningiess as the proposed section 492 covers oniy acts done in good faith. However, there was another view that proposed section 492 virtuaiiy and compietely nuiiifies proposed new sections 490 and 491.
3(J1 DJ 03 working Session III: Corporate Liabi1ity in Crimina1 Law and Liabi1ity of Doctors for issuing fa1se certificates.
This session commenced with the introduction by Shri S.K.Gambhir, Advocate. The session was presided over by Justice Ms.Sujatha V.Manohar, Judge, Supreme Court of India.
Justice Ms.Sujatha V.Manohar made genera} observation regarding the new sections 94A, 94B proposed to be incorporated in the IPC (Amendment) Biii, 7978 as aiso about clause 91 of the Biii which seeks to insert new section 190A regarding issue or signing of faise medical certificate and emphasised the need For suitabie consideration and examination ot these provisions.
Shri Dipankar P.Gupta, Sr.Advocate raised the basic issue as to whether company itseif can at a11 be held gui1ty of committing an offence and if so, how it can be possibie to award punishment of imprisonment for the company. He suggested that reappraisai of the proposed new section 94A and 948 is needed to ascertain whether these new provisions wouid serve any purpose at aii. He further stated that employees of the company whether in manageriai cadre or Iower ievei shouid be heid iiabie if they commit any offence whiie discharging their duties as it may not be physicaiiy possible to send the company itself to jail to suffer punishment of imprisonment.
1U1 on L0 Dr.D.K.Prahlada Rao, President, Institute of Company Secretaries of India vehemently opposed the insertion of new section 94A and 948 in the IPC as the insertion of these provisions would be counter--productive and would come in the smooth functioning of companies as according to him, it would be very difficult to decide as to who is really responsible for committing an offence and as sometimes there are several persons ranging from Director, Manager and other officers who are collectively and jointly incharge of running the business and in such a situation it would be rather impracticable to identify the real culprit who has actually been instrumental in committing the offence.
Dr.Achal Bhagat, Sr.Consultant, Apollo Hospital, explained the difficulties which the Doctors face while issuing certificates. He pointed out that sometimes to different views can be taken on the basis of a same clinical test results and that it may not be advisable to create criminal liability for a Doctor if he has issued any certificate in good faith. He further pointed out that there is no need to insert a new section 198A in the IPC as the existing provisions, particularly sections 193 and 194 are adequate to deal with the situation. He further stated that why only doctors should be discriminated when there are so many other authorities who issue certificates for various purposes.
U1 4:-
O l working Session IV: Indian Penal Code (Amendment) Bill, 1978 and any other suggestion.
The session commenced with the introduction by Shri R.L.Meena, Member~Secretary, Law Commission of India. The ession was presided over by Mr.Justice S.R.Pandian, former (I) Judge, Supreme Court of India.
Mr.Jtstice Pandian made general observation of the various provisions contained in the Bill. He pointed out that it may not be necessary to define "India" under section 18 of the IPC as proposed under clause 18 of the Bill and that proposed new sections 74A, 74B, 74C and 74D needs to be further examined. He also emphasized upon the need for making suitable amendments in clauses 75 and 76 of the Bill.
Shri R.K.Jain, Sr.Advocate and President, Supreme Court Bar Association pointed out that only those judges who know criminal law should sit in the bench, if the bench is deciding a criminal matter and that judge should have compassion while dealing with criminal matters. He also pointed out that more offences should be made compoundable with the leave of the court and that there should not be any -: 541 :- death penalty at all as it does not serve any purpose. He also emphasised upon the need to apply borstal laws. He Further pointed out that section 309 should be deleted.
Mr.Justice V.S.Dave, former Judge, Rajasthan High Court made general observation regarding criminal justice The following persons attended the Seminar:--
Agarwal Anita a High Court, Bombay Agarwala E.C. - Advocate, Supreme Court. Agarwal Mahesh--Advocate, Supreme Court. Agarwal 8.K. -- Advocate Agarwal Sharda Ms. Addl. Dt.S.J, Delhi. Anahd A.S.Dr.Justice, Judge, Supreme Court. Anand Pinki Ms. Advocate Delhi High Court. Anand S.D. Joint Secretary,(Law) Haryana. Arunachalam T.S. Sr. Advocate, Supreme Court. Arya Aditya Dr. Dy. Commissioner of Police, Delhi. Bagga Reena, Advocate.
Balaji V., Advocate.
Bakshi P.M. Former Member,Law Commission. Balchandran M., DIG, CBI.
Banarjee D., Addl. DC, Intelligence, Calcutta. Bhagat Achal, Sr. Consultant, Appollo Hospital. Bhatnagar A.P. Addl. D.G.P. Punjab. Bharadwaj Omendra, DIG, Rajasthan. Biswas A.M. Member, National Commission for SC &ST. Chandra Bharat, Addl. DGP,Andhra Pradesh. Chandra Satish Dr. Addl. LO. Law Commission. Chaudhary musharraf Ms. Advocate. Chawla 8.C. Advocate.
Chopra R.C. Addl. Dist. & Session Judge, Delhi. Das 8.8. Advocate, Cuttack.
Das Mano; K. Advocate.
Dave V.S. Justice, Retd. Chairman, State Law Commission, Rajasthan.
Dhania R.P., Chief Prosecutor, Directorate of Prosecution, Delhi.
Dhawale Sujatha, Confederation of Doctors Assn. Dikshit R.C., Addl. D.G.P., Uttar Pradesh. Dulre N., D.I.G., Gwalior.
Gambhir S.K., Advocate, Delhi.
Gambhir Vivek, Advocate, Delhi.
Ganguly A.K. Justice.
Garg Manish, Advocate, Delhi.
Gautam D.N., D.I.G., I.T.B.P. George Anup., Sr.Advocate.
Ghildiyal Subodh, Journalist.
Gulati B.L., Secretary (Law), Haryana. Gupta Aruheshwar, Advocate.
Gupta Arvind, Advocate.
Gupta A.K., Advocate.
Gupta Dipankar, Sr.Advocate.
Gupta K.L., A.D.G. Police (Crime), Uttar Pradesh. Gupta R.L. Justice, Member, Law Commission. Gupta Naresh Kumar, Advocate.
Gupta Shekhar, Editor, Indian Express. Jacob Alice Mrs., Member, Law Commission. Jain R.C., New Delhi.
Jain R.K., Sr.Advocate, New Delhi. Jha S.N. Justice., Judge, Patna High Court. Kak Purnima Bhat Ms., Advocate, Supreme Court. Kapoor Suman, Advocate.
Hatara Parmanand Pt., Advocate.
Yaw Sanjay, Journalist.
Khalap Pamakant, Union Minister of State for Law & Justice.
Khurana Ruchi Ms., Trainee Advocate. Krishnamurthy Ch.G., Member, Law Commission. Kumar Mukesh, Trainee Advocate.
Kumar Sushil, Sr.Advocate.
Kumar Swatanter Justice, Judge, P$H High Court. Kumaraswamy K., Addl.D.G.P.(Crimes), Tamil Nadu. Lalit Uday, Advocate.
Marchardi Ramesh, Chief Prosecutor, Directorate of Prosecution, Delhi.
Manohar Sujatha V.Justice, Judge, Supreme Court. Mansharamani G.G. Dr., Delhi.
Mathur S.P., B.P.R & D. Mathew Anne, Advocate.
Meena M D., I.G., Police, Surat.
Meena R.L., Member~Secretary, Law Commission of India.
Nair Vipin, Advocate.
Narayan Nand Indra, Advocate.
Narayan Ranjana Mrs, Advocate.
Nariman F.S., Sr.Advocate.
Niklesh R., Advocate.
Pahwa Vikas, Advocate.
Pali Anand, Advocate.
Palli Rekha Ms, Advocate.
Pandey B B., Faculty of Law, University of Delhi. Pandher G.S., D.G., B.P.R.& D. Pandian S.R. Justice.
Parthasarathy K., Law Secretary, Pondicherry. Parekh P.H., Advocate.
Perreria Maxwell, Addl.Commissioner of Police. Pradhan B.R., Law Department, Govt. of Sikkim. Prasad P.S.V., Jt.Director, S.N.P.A. Punchhi M.M. Justice, Judge, Supreme Court. Puri 8.8., Director of Pubiic Prosecutions, Mumbai. Rachhdya P.N., I.P.S. Raina S.C. Dr, Project Director, B.P.R. & D. Raheja Devinder, Chairperson, Law Dept, Kurukshetra University.
Ram Mani, 1.P.S. Rama1ingam P.N.. Advocate.
Rao A.T.,Advocate.
Rao D.K. Prahiada, President, Institute of Company Secretaries of India.
Rao 5. Jagannadha Justice, Chief Justice, Delhi High Court.
Rao M.V.Krishna, Director, A.P.Po1ice Academy. Rao P.P., Sr.Advocate.
Rao Suiaxan J.T., A.L.O., Law Commission. Rangam A.V., Advocate.
Ranganathan Buddy, Trainee Advocate. Rath Sri1ok N., Trainee Advocate.
Rathore S.P.S., D.G.P. (Crimes), Rajasthan. Reddy C.S.R., SSP., Chandigarh.
Reddy K.Jayachandra Justice, Chairman, Law Commission of India.
Reddy Sadashiva, Advocate.
Reddy Usha Ms., Advocate.
Sachar Rajender, Senior Advocate. Sainghar N.K., I.P.S.{Retd) Saive Harish, Sr.Advocate.
Sampath A.T.M., Advocate.
Sandhu H.S., S.P., C.B.I. Sankrityayana K Dr., Member, National Commission for Minorities.
Satish R., Advocate.
Seth Padma Ms., Member, Nationai Commission for Women.
Sharma Atui, Advocate.
Sharma M.K. Justice, Judge, De1hi High Court. Sharma Pawan Mrs, A.L.O., Law Commission. Sharma T.C., Advocate.
Sharma Vibhakar, D.I.G., Tirune1ve1i, Tamil Nadu. Sharma Vishnu, ADvocate.
Shroff M.N., Advocate.
Shinghai N.K. Retd. I.P.S. Sibai Kapii, Sr.Advocate.
Singh J.P. Add3.Dist. Judge, De1hi. Singh Bhawani Justice.
Singh Su7tan, Advocate.
Srivastava G.P., Advocate.
Srivastava S.C., Jt.Secretary, Law Commission. Subashini A., Advocate.
Suri A.K., Add1.D.G., J&K, Jammu.
Suri R.S., Advocate.
Syed S.J., Legai Consuitant, National Commission for woemn.
Thakker Chniiai Justice, Judge, Gujarat High Court. Thomas K.T. Justice, Judge, Supreme Court. Sanjay Tripathi, D.L.O., Law Commission. Trivedi B.V Dr., Asst. Director, B.P.R.&D. Tuisi K T.S., Sr.Advocate.
Upadhaya A.K., A.L.O., Law Commission. Varshy Anup Kumar Dr. Verma J.S.Justice, Judge, Supreme Court of India. Venkatachaiiiah M.N. Justice, Chairman, Nationai Human Rights Commission.
wadhwa D.P. Justice, Chief Justice, Patna High Court.
Yadav R.K., Add1.Dt.Judge.
Yadhav Ranbir, Advocate.
ANNEXURE-IX PROCEEDINGS OF THE WORKSHOP ON PROPOSED AMENDMENTS TO INDIAN PENAL CODE (AMENDMENT) BILL 1978 HELD JOINTLY BY THE LAW COMMISSION OF INDIA AND THE ANDHRA PRADESH JUDICIAL ACADEMY ON 14TH DECEMBER, 1996 AT A.P. JUDICIAL ACADEMY, SECUNDERABAD.
The first session was the InauguraT Session where Hon'b1e Sri Justice K. Jayachandra Reddy, Chairman, Law Commission of India presided over the function. Hon'b1e Sri Justice Prabha Shanker Mishra, Chief Justice of Andhra Pradesh was the Chief Guest. Sri H.J. Dora, IFS, Director Genera] of Police of the State of Andhra Pradesh, addressed the gathering.
Actuai business commenced from the 2nd ses ion 07 onwards. The second session concerns Amendments in respect wffences reiating to Human Body.
0
"h C Hon'bie Sri Justice Y.Bhaskar Rao, Judge, High Court of Andhra Pradesh opened the Session. He referred to 42nd Report of Law Commission as we11 as 1978 Biii. He first explained the offences reiating to Human Body. He read quotation from Manu with reference to the aspects to be borne in mind in the imposition of sentence. Hon'bie Shri Justice Y. Bhaskar Rao, pointed out that the guiity must be punished. He declared that the crime is in the increase in geometric (progression) since Independence in 1947, whereas punishment has been on the deciine and that oniy 2% of the cases tried by the courts are ending in conviction.
Shri C.Padmanabha Reddy, Senior Advocate of the High Court of Andhra Pradesh, spoke next. He pointed out the opinion of Sir James Fitzeraid Stephen's remark that Sec.299 and Sec.3OC IPC are the weakest part of the gamut of the Indian Penai Code. He made reference to the famous Govinda's case decided by the Bombay High Court as weil as the 42nd Law Commission Report. He pointed out that there is confusion between Sec.304 first limb and Sec.304 second part I.P.C. Shri C. Padmanabha Reddy suggested that Indian Penal Code may be suitabiy amended to punish the guiity under Section 302 IPC oniy when the offence is premeditated. He further suggested that if the case fails in one or the other exception of Sec.300, the punishment shouid be under Sec.304 first iimb and other offences of murder shaii be punished under the second part ofSec.304 IPC. He criticised Sec.304~B and pointed out that dowry within the meaning of Sec.304--B IPC shaii be given the same meaning as Sec.2 of the Dowry Prohibition Act defines dowry. He further stated that fine shouid be imposed compuisoriiy for the offence under Sec.304~B IPC and that such fine shaii be made payable to the victim.
He suggested that Sec.309 {PC shaii be removed from the U) tatute book making reference to Sec.3 3 IPC as one which is ipractfoaiiy) removed from the statute book. with regard to Se:.354 IPC Shri C. Padmanabha Reddy suggested that the State Amendment of the Andhra Pradesh shaii be carried out in the centrai enactment aiso.
Shri M.E.N. Patrudu, Registrar {Vigilance}, High (1) 0 I5
-J ...J '4 (0 Court of A.P. spoke next pointihg out that if a per one person by mistake instead of kiiiing another person, such an offence shaii be made punishabie under Sec.302 IPC if there is premeditation. He further suggested that gruesome murder, or murder by hired assassin shaii be compulsory punishabie with death.
He suggested that there shaii be a minimum sentence of 5 years for offences punishabie under Sec.304~A first iimb or the second limb. he aiso suggested minimum punishment of 5 years for the offence under Sec.3Q4--A IPC and that if both rasnness as weii as negiigence are established, the nunishment for 334--A IPC shafi be a minimum of TC years. He P-
fdrther recommended minimum punishment for Sec.306 IPt.
.p.
0) 2 Shri M.E.N. Patrudu pointed out that Section 207 IPC is grossly misused by the prosecution agency. Regarding the offences pf rape and outrage of the modesty of woman covered by the SeC.376 and 354 IPC, Shri M.E.N. Patrudu considered that the attempt of the said offences do not carry ciear definitior and suggested proper definition of the attempt of rape and for the attempt to outrage the modesty of a woman.
Shri M.E.N. Patrudu also suggested for a provision in the Indian Penal Code for the punishment of sexual harassment of Tady empioyees by the concerned empioyer pointing out that such harassments have been on the increase.
Hon'bTe Shri oustice K.S. Srivasthava, who spoke thereafter pointed out that Seo.303 IPC shaii be deEeted from the statute book. He pointed out that the definition of wife sha7. incidde even a second wife even while the first (.0 L J E:
(W marriage is subsisting within the meaning of .-O4~B IDC by husbard who ('r 30 providing explanation to Sec 3C4~B {PC so tna-- contracted a second marriage can not have Ticence to treat the second wife craeiiy. Shri Justice K.S. Srivasthava Further pointed od. th=t a even a oonoubine known to public as its wife sha'1 aiso be treated as a wife For the purpose L _. {W He pointed out that abduction simpiiciter is not punishaofe at present and that such abduction shouid also be He further suggested that even if a wife is living separately from the husband without a Forma' decree ot Judicial separation, a husband who forces such separated wife to "K carnal knowledge shall be considered to be a rapist and punished suitably, by suitably amending Sec.376--A EPC. with reterence to Sec.32O IPC Shri Justice K.S. Srivasthava pointed out that disfigurement of any exposed part of human body by an act of the accused such as acid throwing shall be considered to be grievous hurt, not necessarily confining the definition of grievous hurt to cases of disfigurement o' face or head. He suggested that the definition of cruelty under Sec.498--A IPC shall be suitably amended to include every variety of cruelty against the wife by the husband.
He considered that Sec.354 IPC is we?l defined and needs no amendment. He expressed Fear that any attempt to amend Sec.354 IPC may lead to disastrous results. Regarding section 308 IPC, he opined that if a girl commits suicide on account of cruelty on the part of her paramour, it shall be considered to be an abetment to commit suicide of such gir ninally he suggested that ragging should be punished. Hon'ble Shri Justice R.M. Bapat stated that Sec.239 E 330 IPC are well deiined and they need no amendment. He disagreed with the opinion of Shri C. Padmanabha Reddy that 1 -s i intention and the knowledge sha.= be separately punishable under the first and second limbs of Sec.304 IPC pointing out that intention and knowledge are not tangible objects. He also pointed out that there is no need to amend Sec.353 EPC on the ground that the concept of modesty of women changes 'rom class to class, from place to place and from society to society. He considered that the offense 0? Seo.354 IPC need not be defined so that the judge shall have a leeway to decide in each case, there was outrage of modesty. He pointed out that shaking hands with a woman of economically highclass society may not be outraging the modesty of that woman, in a metropolitan city like Bombay, whereas it might be outrage of the modesty of the woman in a small town.
Shri D.Subrahmanyam, the Metropolitan Sessions Judge, Hyderabad, agreed with the suggestion of Hon'ble Shri Justice Srivasthava, that 3ec.320(6) IPC shall include every part of the bod; in respect of the definition of grievous hurt and that Se:.309 IPC shall be deleted. Shri G.Yethirajulu, the Chief Judge, City Civil Court, Hyderabad, suggested that in cases of adultery, the wife also shall be made puflishable. At that stage Hon'ble Shri Justice K.Jayachardra Reddy, the Chairman of the Law Commission of India intervened to state that it is now proposed to tunish even the woman in cases of adultery.
Ehri G. Bhawani Prasad, Secretary, Department of Law (Legislatiye Aftairs}, Government of Andhra Pradesh, who is a istrict Judge, submitted that the distinction between Sec.299 IPC & 300 IPC is very thin in practice. He submitted that the case proposed by Shri M.E.N. Patrudu, is covered by the doctrine of Transferred Malice enunciated under Sec.30i IPC.
He contended that a person who is guilty of murder as defined under Sec.3OO IPC falls in one or the other exceptions mentioned in Sec.3OO IPC is considered to have committed the lessor offence of culpable homicide not amounting to murder. Shri G. Bhavani Prasad considered it unjust and suggested that for all offences, lesser punishment should be provided when the offence falls within the exceptions provided under Sec.3OO IPC.
Shri G.Bhavani Prasad considered that severe punishments should be imposed for grave industrial negligence involving danger to the life of more than one individual such a Bhopal gas tragedy. He also suggested that domestic violence against the servants and servant--maids which is made punishable all over the world shall also be punished with severe sentence. He also suggested that marital rape is punishable even in a conservative society like England and '1 shall be made punishable even in India. At that stage Hon'ble Shri Justice K.Jayachandra Reddy intervened and asked the delegates to consider the possibility of punishing a woman for committing rape. Shri G. Bhavani Prasad conciuded his submission pointing out that ragging shouid be punished and pointed out that Sec.303 and Sec.309 IPC shali be deieted.
Once again Hon'b7e Shri Justice K. Jayachandra Reedy intervened and pointed out if attempt to commit suicide is not made punishable, perhaps the abetment of the same can not be punished and suicide squads iihe ;TTE squads may go s ot C) Free. Shri G. Bhavani Prasad submitted that whereas committing suic'de is not punishabie the attempt to commit suicide is made punishabie; and that on the same anaiogy though the attempt to commit suicide is not punishabie, the abetment of the same may be made punishable.
Hon'bie Shri Justice K.S. Srivasthava tried to synthesise suggesting that an explanation to Sec.309 IPC may be incorporated punishing the abetment whiie not punishing the attempt to commit suicide.
Shrf Narayanarao Deshmukh, the Director of Prosecutions suggested that in case Sec.309 IPC is to be removed from the statute book, activities like self immoiation and Commission of suicide by jumping from roof tops shoulo be taken care of.
Hon'ble Shri Justice S.S.M. Quadri considered that the commission of suicide is only a process of self destruction but is not a weapon and that is therefor desirable for Sec.3D9 IPC to continue to hold sway.
Shri M.V.Krishna Rao, the Director of Andhra Pradesh Police Academy considered that Sec.309 IPC should remain in the statute book in order to protect persons from attempting to commit suicide. He also felt that a lover, a paramour or a husband of a lady might not actually abet the lady to commit suicide but might create a situation where the lady becomes inclined to commit suicide and that such cases shall be brought under Sec.3D6 IPC.
At that stage Hon'ble Shri Justice K. Jayachandra Reddy intervened and pointed out that the situation referred to by Shri M.V. Krishna Rao squarely falls within the ambit of abetment to commit suicide. He further pointed out that there are people who tend to commit suicide on the slightest provocation whereas some persons do not tilt towards the commission of suicide in whatever difficulties they be. He considered that the question wil be a question of Fact from case to case and there i no need for the amendment of (D Sec.306 IPC on th's count.
Srri Ramakrishna Rao, CBI Prosecutor, pointed out that a Hindu woman who is deserted by the husband suffers from mental harassment by the act of desertion and that such cases shall be made to fall within the Sec.498~A IPC.
Shri P.V.Ramakrishna, CB1 Prosecutor, submitted that in case capital punishment is to be abolished by and large, exceptions shall be provided for imposition of capital punishment in extreme cases. He also pointed out that he Head note of Sec.304~A IPC deserves to be altered to include rashness and negligence in the headnote. Hcn'ble Shri Justice K. Jayachandra Reddy intervened and pointed out that rashness involves a positive act whereas negligence can be by mere omission also. He Further pointed out that Headnotes of many Sections are incorrect and should suitably be amended.
Shri P.V.Ramak ishna further pointed out that a distinction should be drawn between a rash act and a negligent act and that the offence under Sec.304--A IPC deserves much more severe maximum punishment. He also opined =3 that Sec.uO9 IPC deserves to be repealed and Sec.354 IPC deserves to be redefined.
Shri Seethapathi, a senior criminal lawyer, later pointed out that there is every need to punish the offence of putting any person to indignation. He submitted that a new section as Sec.35A~A IPC shall be incorporated to punish the offence of indignity of a man on the ground that self-esteem of every human being in India, which is in crisis shall be protected.
Hon'ble Shri Justice K. Jayachandra Reddy pointed out that putting any person to indignation might be a violation of the Human Rights and is punishable under the provisions of Human Rights Act.
Shri G.Vithal, a Prosecuting Officer submitted that causing mental pain or mental hurt to a woman by the husband shall also be made punishable by suitably amending Sec.498~A IPC.
Shri Balakrishna, a CBI Prosecutor, submitted that 8ec.304--B IPC shall include the Act of making demands even after marriage and that a person who indulged in sexual intercourse with a lady on a promise of future marriage shall be made punishable under 8 ec.375 EPC. Hon'ble Shri Justice S.S.M. Quadri intervened and pointed out that the situation can be covered by suitably amending Sec.493 IPC. Sri Balakrishna continued that what is modesty covered by Sec.354 IPC and what is obscenity covered by Sections 292 and 294 IPC deserves to be clearly defined. He also considered that Sec.498--B IPC may be enacted in order to protect human dignity.
Shri Dasaradhi, Retired District Judge and part--time Member of the Law Commission of India opined that Section 309 IPC shall be retained in order to punish the persons guiity of abetment to commit suicide. He a1so pointed out that perceptions of modesty vary from piace to piace and therefore it is neither desirabie nor safe to define modesty under Sec.354 IPC. He agreed with many of the speakers that ragging shouid be punished with a clear definition of ragging.
He posed a question that shouid it be necessary to redefine Sec.299 & Sec.3OO IPC and shouid it not be Teft to the discretion of the judge. If Sec.299 and 300 IPC are to be redefined, Shri Dasaradhi opined that it may be so amended keeping in view the ratio of various cases. He considered that Sec.304--A IPC requires a minimum sentence, though he did not state as to what shaii be the minimum sentence.
Shri Pattabhi, Advocate, High Court of Andhra Pradesh, pointed out that the theft of human organs which result in the death of the person shaii be brought within U) the meaning of Sec.299 IPC atieast to create fear in the mind of human organ thieves.
--*---s..4...--A He considered that enhancement of sentence for €ec.304--A IPC does not meet the ends of justice where accused are acquitted day in and day out. He pointed out that mere
0.) enhancement of sentence of the offence under Sec. O4--A IPC wouid be a mere paper tiger.
H considered that Sec.498--A IPC is oftentimes used to hara s honest husbands and that the Section shouid be (I I redefined in order to protect honest husbands. He considered that Sec.309 IPC shaii stand as it is on the ground that euthanasia (mercy kiiiing) is not recognised in India. He aiso considered that Sec.306 IPC requires no amendment.
Sri Ramakrishna Rao, CB1 Advocate, submitted that Sec. 304--B IPC shaii enquif dowry which shaii inciude even an offer by the reiatives of the wife to the husband by way of presents for festivais and other occasions. He submitted that Sec. 309 IPC shaii be on the statement book.
Sri Pattabhi, once again spoke pointing out that whiie domestic vioience needs to be punished, such cases shaiT first to be sent For psycho--anaiysis.
Sr
-4 Shivshanker Rao, Trainee District Judge, submitted that the fine that can be imposed for the offence under the Indian Pena} Code shaii be enhanced and shaii be made part of each section, pointing out that circumstances in an on the Indian Pena? Code was enacted more than i3U years ago can wot hoid good any more. He pointed out that not only ragging but eve teasing should also be made punishable. He Further submitted that teasing of male persons by women in places like exclusively women's colleges shall also be punished as Adam teasing.
Sri M.Seetharama Murthy, another Trainee District Judge, submitted that Sec. 309 IPC shall be retained while exempting mere attempt to commit suicide from the purview of punishment. He further contended that disobedience of the civil decrees shall be punished severely.
Hon'ble Sri Justice 8.8. M. Quadri pointed out that so long as the concept of family exists, it may not be possible legally to punish a husband for forcible sexual intercourse with the wife. He opined that the word "decree" in Sec. 376-A IPC was legally and morally correctly incorporated.
Hon'ble Sri Justice Y. Bhaskar Rao, summed up the deliberations and pointed out that the consensus of the deliberations is that Sec. 309 IPC shall continue to be in the statute book. Hon'ble Sri Justice K. Jayachandra Reddy then thanked all the participants. He pointed out that the Law Commission has recommended for making Sec. 498-A IPC a compoundable offence within Sec. 320 cf the Criminal Procedure Code. He also opined that so long as tangible and perceptable difference can not be brought out between knowledge and intention, it may not be possible to redefine I {VI L U) i Sec. 299 and 300 IPC. He aiso drew the attention o? tre deiegates to the fact that Sec. 299 and 300 IPC have a very thin distinction. The second session conciuded thereafter at 2.00 p.m. The Third Session was chaired by Hcn'bTe Sri Justice R.M. Bapat, Hon'bTe Sri Justice K.S. Srivasthave, Hon'bie Sri Justice S.S.M. Quadri, Hon'bie Sri Justice Y.Bhaskara Rao and Hon'b1e Sri Justice K. Jayachandra Reddy participated. The remaining aspects pertaining to Offences against the Propert'. Offences against Pubiic Justice and General Exceptions, Generai Expianations and other topics were deait in the session.
Hon'bie Sri Justice R.M. Bapat, initiated discussion in respect of Offences against Property. He pointed out that Chapter 17 of the Indian Pena1 Code deaiing with offences against property aTso inciudes some offences against human body aiso Tike decoity coupled with murder covered under Sec. 396 IPC. He pointed out that decoity coupied with murder is a duei offence and such offence shaii be made punishabie with capitai punishment compuisoriiy.
He referred to various scandais and scams and opined that {PC needs to have a separate Chapter to punish the ruiity in the scams and scandais.
3Sri Narayanarao Deshmukh pointed out that in cases of decoity coupled with murder, if the decoits have knowledge that murder is part of the offence, all the persons shall be made guilty of murder not confining only to the person who committed the murder. He cautioned that this situation should exist only where all the decoits have knowledge that murder was also part of the offence. Thus he pointed out that conjoint responsibility shall be the hallmark for punishing offenders under Section 396 IPC.
with reference to mischief, Sri Narayanarao Deshmukh pointed out that mischief, at present is limited to damage to the property only and that mental injury owing to the damage to the property shall also be included in the definition of mischief. He considered that ragging could be included in the definition of mischief in this back drop. He is of the opinion that separate section dealing with blackmail is not necessary on the ground that Sec. 383 IPC defining extortion includes blackmail. He criticised Sec. 380-A IPC pointing out that it is unjust to punish the persons when the ;oss results owing to the natural calamities and accidents.
He requested for incorporating a new Section as Sec. 420~A IPC to punish scams. He agreed with suggestion of the Law Commission that persons collecting money allegedly for securing employment are correctly proposed to be punished.
Sri Seethapathy pointed out that offences against property took the dimension of corporate offences like scams. He also cautioned that bank frauds are in the increase. He considered that decoit shall be made punishable in order to curb these tendencies. He also pointed out that criminal breach of trust shal be extended to scams and shall be rated as a grave crime, as grave as murder. He pointed out that such offences shall be punished with not less than 7 years imprisonment and that cheating and criminal breach of trust shall be punished with life imprisonment. Sri Seethapathy further pointed out that Section 320 Or. P.C. needs to be amended to include the offence of cheating within the list cf compoundable offences. He also suggested that special rules hall be made for expeditious trial of cases like cases of U) Harshad Mehta where the scams involve more that one crore 'UQ€€S. Sri Seethapathy also contended that real estate business is in the hands of unsocial elements and that Criminal Courts shall be able to provide interim relief as as financial relief in such matters. He also highlichted the fact that courts are not releasing converted properties such as article committed theft f being converted into money and items like money in extortion being converted into jewellery, carts etc., and that the law should provide for the return of even such converted properties to the real GWHEVC.
I U1 Ch f\) 1 Sri M.V.Krishna Rao asked the Chairman where it was going to retain 1978 bi11 and Hon'b1e Sri Justice R. Jayachandra Reddy responded by stating that the covering 1etter to 1978 bi1T itse1f has indicated that the bi11 can be modified in accordance with the suggestions. Sri M.V. Krishna Rao pointed out that cheating as defined in the 1978 biii is very sound where upon Hon'b1e Sri Justice k.
Jayachandra Reddy pointed out that burgaiery and theft are aiso cieariy defined in the 1978 bi11.
Sri G.Yethiraju1u pointed out that the amount invoived in the Criminai Breach of Trust cases deserves to be confiscated and that maximum punishment of death sentence is warranted for the offence of Criminal Breach of Trust. He contended that Criminal Breach of Trust sha11 be treated as a grave offence.
Bri M.E.N.Patrudu pointed out that the property of the culprits shcuid be attached in Criminal Breach of Trust cases by suitabiy amending Sections 406, 409 and 410 IPC.
Sri P.V.Ramakrishna pointed out that Criminal Law Amendment Act provides for attachment of properties is Criminai Breach of Trust and cheating cases. He aiso pointed out that the Criminai Law Amendment Ordinance Provided for confiscation of attached property. By referring to Sec. 16, P.C. Act, Sri P.V. Ramak ishna pointed out that matters tc be taken note of by that courts in fixing the quantum of fine I 01 CD (.0 I shaii be stated in cases of misappropriation, Criminai Breach of Trust and cheating. Hon'bie Sri Justice K. Jayachandra Reddy intervened and pointed out that Sec. 53 IPC includes forfeiture of property as one of the modes of punishment. Sri M.E.N. Patrudu intervened and submitted that the forfeiture can not be resorted to uniess the property is received in the court.
Sri Baiakrishna pointed out that Sec. 452(5)Cr. P.C. can be taken advantage of in cases of forfeiture and that Criminai Law Amendment Act is not of much heip. Sri R.V. Ramakrishna interfered and pointed out that forfeiture can be made a part of punishment for every offence against property inciuding cheating. Hon'bie Sri Justice S.S.M. Quadri intervened and pointed out that the concept of forfeiture deprives the owner froming getting back his property and therefore forfeiture can not be resorted to in every property offence.
Sri Ramakrishna Rao pointed out that NDPS Act and prevention of Corruption Act provided for attachment as weli as forfeiture of property of the accused. Sri P.V. Ramakrishna intervened and pointed out that properties are forfeited even under Essentiai Commodities Act.
Sri Vithai submitted that transactions reiating to securities act, 1992 provides for the attachments of property automaticaiiy and that such a provision be incorporated in the Indian Penai Code. He aiso suggested that the presumption of quiit can be created in cases of scams, cheating and Criminal Breach of Trust.
Sri Pattabhi pointed out that the Indian Pena? Code did not define property but merely defined mowabie property. He cautioned that creation of general forfeiture wouid be piaying with the fine and submitted that no special provision of forfeiture is needed in view of Sec. 53 IPC. He opined that the judioiai discresion can be used whether to forfeit or not to forfeit property so that the provisions of forfeiture are not abused.
(O ri C.Padmanabha Reddy pointed out that at present there sha17 be a dishonest intention at the time of the commission of the offence for making the offender punishabie for the offence under Sec. 420 IPC shouid be suitably amended to punish those persons who develop dishonest intention at a iater point of time aibeit not at the time of the aotuai transaction.
Sri Ramakrishna suggested that Eiectricity shouTd be brought within the definition of movabie property for being punished under Sec. 379 IPC. Hon'bie Sri Justice H. Jayachandra Reddy opined that electricity is part of movabie property whereupon Sri Ramakrishna submitted that judiciai opinion is that eiectricity is not movabie property and consequentiy its theft is not punishabie under Sec. 379 EPC.
F (11 0') Ln Hon'ble Sri Justice S.S.M. Quadri pointed out that electricity is movable property as per the Sale of Goods Act whereupon Sri Ramakrishna submitted that a clarification may be incorporated in the Indian Penal Code to include electricity within the meaning of movable property.
5Hon ble Sri Justice K.S.Srivasthava pointed out that Sec. 27 IPC provides that possession by wife or servant shall be the possession of the husband or a master as the case may be, which deserves to be reconsidered. Sri Vithal suggested that the freezing of the properties of accused in cases of cheating, misappropriation and Criminal Breach of Trust might be considered.
The session that took up Offences relating to the Public Justice. Hon'ble Sri Justice K.S. Srivasthava opened the discussion pointing out that chapter XI IPC contains 41 Sections. He pointed out that while false evidence leads to devastating results, the sanctity of oath is lost. He pointed out that Secs.463 & 464 IPC dealing with forgery should be redefined clearly and that Sec. 466 and 467 IPC deserve to be combined. He requested for a severe punishment of the offence under Sec. 228 IPC in order to discourage cowing down of judges and that the sentence for Sec. 228 IPC '1 A shasl be a maximum of 4 years imprisonment and a fine of Rs. 10,000/-- He pointed out that Sec. 229 IPC is redundent. He requested that Sec. 276 IPC should be amended and that 275 IPC shall be amended deleting the word "knowingly".
Definition of documents should be amended and should be incorporated in Sec. 464 IPC to include dishonest manipulation of court records according to Hon'ble Sri Justice K.S. Srivasthava.
Sri M.V.Krishna Rao, pointed out that Sec. 198--A IPC and Section 198~B IPC suggested by the 1978 bill are good amendments. He pointed out that Sec. 229--A IPC as proposed by 1978 bill needs to be further amended to include persons jumping bail even during investigation stage and during pre~trial stage. He agreed with the suggestion of Hon'ble Sri Justice K.S. Srivasthava that provisions relating to false evidence and public justice should be used properly.
Sri P.V.Ramakrishna pointed out that since the object of Sections 198--A and 198-8 IPC are intended to prevent falsification of medical certificate, other false certificates like date of birth and community certificates as well as agricultural value certificates deserve to be included in the two Sections. Sri Balakrishna pointed out that by omitting the word "Public" in Sec. 218 IPC the purpose may be served. Hon'ble Sri Justice K. Jayachandra Reddy intervened and pointed out that medical certificates and caste certificates created havoc and that the use of such certificates might amount to cheating whereas the issuance of such certificates might be covered by Sections 198--A, 198--B IPC. ori P.V. Ramakrishna submitted that persons who issued such false certificates are out of the purview of cheating
--: 567 1* whereas Hon'ble Sri Justice K. Jayachandra Reddy opined that the creation of false certificate is punishable under IPC. Sri D. Subrahmanyam pointed out that Sec. 229--A IPC should be made applicable to sureties as well as accused. Sri M.E.N. Patrudu agreed with the suggestion of Sri D. Subrahmanyam. Sri P.V. Ramakrishna suggested that the proposed Sec. i98--A and 198-8 IPC deserve to be Sections 197--B and 197--C and that the punishment shall be more than one year. Hon'ble Sri Justice K. Jayachandra Reddy opined that one year's imprisonment for a medical doctor is a grave punishment and that in fact it is very difficult to prove a false medical certificate. Sri M.E.N. Patrudu submitted that fraud played on court shall be made punishable when it is committed by an advocate and that Sec. 193 IPC is not sufficient to punish hostile witnesses. Sri Pattabhi pointed out that no two doctors ever agree and that Sec. 198--A IPC not a desirable Section where the Section 463 IPC U1 adequately takes care of the the situation. He opined that medical profession shall be given a leewage. He considered that Sec. 228 IPC as it stands now is an excellent balance of judicial restraint.
The last part of the session was devoted to amendments relating to General Exceptions, General Explanations and other miscellaneous topics. Hon'ble Sri Justice S.S.M. Quadri opened that the discussion pointing it that Chapters II, III and IV IPC deal with General Explanations and General Exceptions and that fraud falling l 01 CD 03 I within Chapter II IPC required redefinition. He also pointed out that many definitions covered in Chapter II are stated in the General Clauses Act and that such of those definitions finding place in the General Clauses Act deserve to be repealed from the provisions of the Indian Penal Code. He cautioned that it is difficult to define fraud. He also pointed out that more severe punishments which are proposed by 1978 bill deserve to be included in Sec. 53 IPC and hat each punishment Section however shall specify those newly to be incorporated punishments.
In respect of General Exceptions, he threw open a debate for discussion as to whether all offences which are punishable with a maximum sentence of 3 years imprisonment or more be included in Sec. 75 IPC. He opined that Exception (1') to ec. 99 IPC deserves to be deleted and opined further that the Right of Private Defence covered by Section 100 IPC shall be extended to abduction cases also.
Sri M.V.Krishna Rao agreed with the suggestion of Hon'ble Sri Justice S.S.M. Quadri that the restriction imposed by Sec. 99 IPC should be deleted as the concept of the Right of Private Defence which is based on the Right of each person to live should have a leeway. He contended that it may not be possible for the victim at the time of the incident to decide whether to protect himself or to run to a police station for protection. He considered that India is a timid society and that S c. 99 IPC may never be misused even without the exception as it stands now in Sec. 99 IPC. He considered that 8ec.iO3 IPC shall be retained in the statute as much as See. 100 IPC engulfing cases of abduction also. He explained that Sec. 103 IPC is rarely resorted to in India and need not be removed from the statute book.
Sri C.Padmanabha Reddy opined that Sec. 86 IPC shall not only presume knowledge but shall also include a presumption of intention when an act is committed by a person tics under the influence of intoxication. Hon'ble Sri Ju U) 8.8. M. Quadri intervened and pointed out that intention can be proved from the circumstances of each case. Hon'ble Sri Justice K. Jayachandra Reddy intervened and questioned as to whether Sec. 86 IPC is necessary at all on the face of Sec. 85 IPC. He pointed out that the Indian Penal Code wanted is safeguard murderers under intoxication and that the Code merely supplies knowledge to a drunkard which is necessary to be proved otherwise, whereas intention can be inferred from situations like repeated attempts and the lite.
Sri Seethapathy pointed out that an explanation needs to be added to Sec. 84 IPC since several offences are committed due to psychological and neurotic causes. He considered that psychopathological aspects need be included in Sec. 84 IDC.
Sr' Pattabhi pointed out that the ingredients of each offence shouid be grasped by the investigating officers oorrectiy and that provisions shouid be created making 't compuisory for the police to take the heip of financiai experts, medicai experts and other experts in cases of forgery, manipulation of accounts and the iike.
Hon'b1e Sri Justice K.Jayachandra Reddy summed up the discussion by pointing out that hqman dignity is invoéved in the exercise of the Right of Private Defence and that see. 99 IPC however is intended to curb the use of Right of Private Defence for situations Eike possession of vacant :and. He questioned the propriety of a victim in not going to Tawfui autnority in ordinary and non--urgent cases pointing out that one s freedom ends where another person's right begins. He de: ared that no person can Ki17 another person for mere vioiation of the rights. Hon'b1e Sri Justice V.Ja;a:handra Reddy finaTiy thanked all the deiegates for 5- taking active part in the deiiberations.
Tte foT7owing persons attended the workshop:
I" D C») .13
-4 F») L Hon'b1e Mr. Justice K. Jayachandra Raddy, Chairman, Law Commission of India.
Hon'bTe Mr. Justice Y. Bnaskar Rao, Judge, A.P. High Court.
Justise R.M. Bapat, Judge, A.P. High Court Srivasthawa, Judge, A.P. High Court Justice F.S. L Justice S.S.M. Quadri, Judge, A.P. High Cour. Mrs. C. Suseeia Devi, Public Prosecutor, A.P. High Shri G.Krishnamurthy, Member, Law Commission of indie Snri C. Padmanabna Reddy, Senior Advocate Snri Narayanarao Deshmukh, Director of Prosecutions Shri P. Seethapathi, Advocate Snri M.V. Friehna Rao, Director of A.P. PoTé:e Academy AI snri P.V. Ramakrishna, Advocate Shri T.S.V. ficademy Prasad, Joint Direct r, National Pc.i:e ohri T. Paiareddy, Senior Advocate Shri M.E.N. Patrudu, Registrar (Vigilance) Snri G. Vethirajuzu, Chief cudge, City $ivi1 Court ('0 Shri D. Subrahmanyam, Metropolitan Sessions Judg Shri G. Bhavani Prasad, Law Secretary Shri H.J. Dora, Birector Senerai of Police, Andhra cnri Aravind Rao, Inspector Genera? Shri Dinaiara Prasad Srri G. Vithai, Prosecutor Qhri Ramakrishna Pac, Prosecutor U1 Shri Ba1akriehna P., Prosecutor Shri P. Satyanarayana Raju, Advocate Sufi B. Pattabhi, Advscate Academy Shanker, Senior Facu1ty Member of the A.P.