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Law Commission Report
The Indian Penal Code Volume 1
LAW COMMISSION OF INDIA
ONE HUNDRED FIFTY - SIXTH
REPORT
ON
THE INDIAN PENAL CODE VOLUME 1
AUGUST, 1997.
LHC; {r;f;2}_»'¤ CHAIRMAN
lJAYACHANDRA REDDY LAW COMMISSION
, GOVERNMENT OF INDIA
' I
gpih, h SHASTFI BHAWAN
` ~;· NEW DELHI- 110001
nit!
Tal. Off.: 3384475
Ras.: 3019455
¤.o.N¤.s<2>
The line dividing preaching disaffection towards
the Government and legitimate political activity in a W
democratic set—up cannot be neatly drawn. Where legitimate
political criticism of the Government in power ends and
disaffection begins, cannot be ascertained with precision.
The demarcating line is thin and wavy. what was sediticn
against the Imperial rulers may today pass off as a
legitimate political activity in a democratic set—up under
I our libertarian Constitution. The interpretation of the
relevant sections in this chapter will have to be moulded
within the letter and spirit of the Constitution.
In this chapter, the first five sections deal with
what may be called acts of high treason waging war against
the Government of India, conspiring to wage war, preparation
to wage war, facilitating of such activities and overawing
the Government or the Head of State by force.
· —: 108 :-
Next section is the punishing one of sedition.
Then three sections aim at preserving friendly relations with
foreign States by punishing those who attempt to prejudice
those relations by unwarranted aggressive action. The last
three- sections of the chapter, which relate to prisoners of
war and state prisoners, are not of much practical importance
during peace time, especially since the category referred to
dye "State prisoners" during the British regime no longer
exists, having given place to the less dignified appellation
of "persons under preventive detention".
7.02 with this chapter begins the definition of
particular offences which the makers of the Code thought fit
to include in it. Despite the large number — about 400 - of
such offences for which the punishment is prescribed in the
Code, the compilation cannot in the nature of things be
exhaustive. Other types of wrongful, injurious or
p'anti-social conduct made punishable under other special laws
like Army Act, Air Force Act, and so on. The Law Commission
in its 42nd report observed that while an enlargement of the
scope of the Penal Code by including therein some of the
offences now punishable under a special or local law may be
desirable, it is neither necessary nor practicable to attempt
to make the Code an absolutely complete· law of crime. ul
However, in brief some of these special laws which are
dealing treason, sedition and other kindred offences against
the security and integrity, may be mentioned as under —
—: 109 :—
(1) The Foreign Recruitment Act, 1874
(11)The Indian Criminal Law Amendment Act, 1908
(iii)The Official Secrets Act, 1929 7
_ (iv) The Criminal Law Amendment Act, 1938
(v) The Criminal Law Amendment Act, 1961
(vi)The Unlawful Activities (Prevention)
Act,1967; and so on
7.03 It is clear that treason, sedition and cognate
offences which may be classified as offences against the
security of the state, are dealt within codes of other
countries in much greater detail than in our Penal Code. In
particular, it is noticeable that treason and treaeonable
activities are spelt out elaborately, and not limited to
waging war against the Government and assaulting the head of
State. On a preliminary study of the problem it appears that
the strengthening, consolidation and revision of some of the
provisions of this important branch of criminal law would be
necessary. However, in the Amendment Bill only two changes
are proposed, namely, insertion of a new section 123A and
substitution of section 124A and changing the nature of
sentence to rigorous imprisonment under sections 122 and 123.
Having regard to the importance of the Penal provisions in
-: 110 :-
this regard, we would also examine the question whether any
changes are necessary in these existing provisions, namely,
section 121 and 121A.
7.04 Section 121 prescribes the punishment, namely death
or imprisonment for life, for the principal offence of waging
war against the Government of India and for abetting that
offence or attempting to commit that offence. Neither 42nd
ggport nor IPC (Amendment) Bill, 1978 has suggested any
change. G
Therefore, this section does not require any
change.
7.05 Section 121A provides as under:-
"121A. Conspiracy to commit offences punishable by
section 121- whoever within or without India
conspires to commit any of the offences punishable
by section 121, or conspires to overawe, by means
of criminal force or the show of criminal force,
the Central Government or any State Government,
shall be punished with imprisonment for life, or
with imprisonment of either description which may
extend to ten years, and shall also be liable to
fine.
-: 111 :-
Explanation: To constitute a conspiracy under this
section, it is not necessary that any act, or
illegal omission shall take in pursuance thereof."
Section 121A punishes two different kinds of
conspiracy. The first is a conspiracy to wage war against
the Government of India, and the second is a conspiracy to
overawe by force the Central Government or any State
kGovernment. In view of section 120 B, there is hardly any
need for a separate section to deal with the first kind of
conspiracy. If any such conspiracy actually results in the
waging of war against the Government of India, or even an
attempt to wage such war, the conspirators will be punishable
with death or imprisonment for life under section 121 read
with section 120 B; and the conspiracy is infructuous, they
will be punishable with half the longest term of imprisonment
provided for the offence, that ten years, which may be
'sufficient.
7.06 On reading, it looks difficult that purpose is
served at present by the words "within or without India"
which appear at the beginning of the section. when it was
enacted in the last century, _ the extra—territorial
application of the Code was limited during colonial days, to
offences committed by Government servants in the territory of
any Indian State. By referring to conspiracies entered into
"without British India", the section was apparently intended
to cover British subjects and not foreigners.
,Mw_ ,e,_ _________m_ V M __ M_ i
-: 112 :-
In view of sections 1 and 4 of the Code as they
stand at present, it is fairly clear that section 121A cannot
apply to the acts of foreigners committed outside India. It
was also considered by the Law Commission in its 42nd report
that the words "within or without India" are of no practical
consequence and should be omitted.
7.07 In the 42nd report, it was also recommended to
extend the idea to overawe by criminal force or by show of
criminal force, the Parliament of India or the legislature of
any State in addition to overawing the Central Government or
any State Government as an offence of conspiracy. At
present, the award of simple imprisonment is permissible
under the section, which in view of the gravity of the
offence is not appropriate. It was accordingly proposed by
then Law Commission that section 121A may be revised ae
follows:-
"121A. Qegsejrggy tg eyerewe the Berliamept or
Ggyergmegt gf Ipgig eg ghe Legjsleture eg
Government of any Statezwhoever conspires to
overawe, by means of force or show of force, the
` Parliament or Government of India, or the
Legislature or Government of any State, shall be
-:.113 :—-
punished with imprisonment for life or with
rigorous imprisonment for a term which may extend
to ten years, and shall also be liable to fine.
Explanation:- To constitute a conspiracy under this
section, it is not. necessary that any act or
illegal omission shall take place in pursuance
thereof."
The Law Commission observed in its 42nd report that
since this offence is akin to the one described in section
124, it would be logical to bring it after the three sections
dealing with waging war and the proposed new section about
assisting India’s enemies, and to number it 1238.
7.08 Pertaining to the second kind of conspiracy (para
05 above), in the 42nd report it was recommended that section
121A may be amended but in the IPC (Amendment) Bill 1978, the
same was not accepted. Also in the proposed amendment, the
idea to overawe by criminal force as an offence was extended
to the Parliament or the State’s On the other hand, the
original text of section 121A (which was inserted by the Act
3 of 1951) provides general and wide scope to cover all types
of conspiracy for the offence mentioned in section 121 of the
Code. Needless to mention that the words, A
-: 114 :-
"o’ conspires to overawe, by means of criminal
force or the show of criminal force the Central
Government or any State Government, shall be
punished..."
are sufficient to cover the words, “Parliament or the State M
b Legislature" as the legislative is an essential part/wing of
every democratic government. About the said recommendations
nothing has been mentioned in the Amendment Bill.
7.09 Having earnestly considered in the aforesaid manner
these provisions, namely, section 121A, we are of the view
that no changes are necessary and we endorse that the absence
of any major policy changes in the Bill is of no consequence.
Likewise, having examined sections 121, 122, 123 and also
having noted that the Law Commission in its 42nd Report did
} not suggest any amendment, and these sections will remain as
they are except that the words "imprisonment of either
description" being substituted with "rigorous imprisonment".
7.10 The Law Commission in its 42nd Report recommended
for inserting a new section 123A and the same finds place in
the Amendment Bill. The New Section 123A as recommended by
the Law Commission reads as follows:
"123A. Assisting ;ggja’g egemies; whoever
assists in any manner an enemy at war with India,
or the armed forces of any country against whom the
-: 115 :-
armed forces of India are engaged in hostilities,
whether or not a state of war exists between that
country and India, shall be punished with rigorous
imprisonment for a term which may extend to ten
years, and shall also be liable to fine."
The above recommendation for inserting a new
section 123-A got a place in the IPC (Amendment) Bill. But
in the Bill, an Explanation was added in the proposed
section. The said Explanation may be read as under:-
"Explanation — In this section -
(i) "Armed forces of India" means the military,
naval and air forces, and includes any other armed
forces of the Union;
(ii) "enemy" includes any person or country
committing external aggression against the Union,
or any person belonging to such country." ·
7.11 Proposed section 123A in the Bill is based on the
recommendation of the Law Commission in its 42nd Report. An
Explanation is, however, added in the Bill which explains the
expressions 'armed forces of India' and 'enemy’ in the
context of the offence covered by the main section 123A as
recommended by the Law Commission. Therefore, there is no
harm in having this Explanation. —
-: 116 :-
7.12 The existing section 124A defines the offence of
sedition. Despite the umbra of repression which a mention of W
this section is likely to evoke in one’s Amind, it is a
provision which has to find a place in the Penal Code for the
reason that every State, whatever its form of Government, has
to be armed with the power to punish those who by their
Q conduct, jeopardise the safety and stability of the State, or
disseminate such feelings of disloyalty as have the tendency
to lead to the disruption of the State or to public disorder.
7.13 In England, the crime of sedition is a crime
against society nearly allied to that of treason, and it
frequently precedes treason by a short interval. The objects
of sedition generally are to induce discontent and
insurrection and stir up opposition to the Government, and
bring the administration of justice into contempt; and the
5 very tendency of sedition is to incite the people to
insurrection and rebellion. Sedition has been described as
disloyalty in action and the law considers as sedition all
those practices which have for their object to excite
discontent or dissatisfaction, to create public disturbances,
- or to lead to civil war; to bring into hatred or contempt the
Sovereign or the Government, the laws or Constitution of the
realm, and generally all endeavours to promote public
disorder.
______e - -.s____coooc.. V . ..--h _Moi l
—: 117 :— ·
7.14 It may be observed that criticism on political
natters is not of itself seditious. The test is the manner
in which it is made. Candid and honest discussion is
Jermitted. The law only interferes when the discussion
Jasses the bounds of fair criticism. More especially will
Lhis be the case when the natural consequence of the
¤risoner’s conduct is to promote public disorder.
It may be mentioned that the definition of sedition
in the existing section 124A is limited to exciting
iisaffection towards the Government established by law.
Exciting disaffection towards the Constitution or Parliament
or the administration of justice is not mentioned as a
seditious activity. On the other hand, while promotion of
Jublic disorder in some form or other is considered an
essential ingredient of seditious conduct in England, this
idea is not brought out in the wording of section 124A.
7.15 In view of the controversy which has raged round
section 124A for all this time, it is clearly necessary to
revise the formulation of the offence so as to make it a
patently reasonable restriction under Article 19 (2). The
elements mentioned in this Article which are relevant to the
offence of sedition are integrity of India, security of the
State and public order. The section has been found to be
defective because "the pernicious tendency or intention"
underlying the seditious utterance has not been expressly
related to the interests of integrity or security of India or
O -: 118 :-
of public order. The Law Commission in its 42nd report
observed that this defect should be removed by expressing
"mens rea" as "intending or knowing it to Abe likely to
endanger the integrity or security of India or of any State
or to cause public disorder."
7.15 Another defect already noticed in the definition of
sedition is that it does not take into account disaffection
towards (a) the Constitution, (b) the Legislatures, and (c)
the administration of justice, all of which would be as
disastrous to the security of the State as disaffection
towards the executive Government. These aspects are rightly
emphasised in defining sedition in other Codes and section
124 A should be revised to take them in.
The punishment provided for the offence is very
odd. It could be imprisonment of life, or else, imprisonment
_ upto three years only, but nothing in between. The Law
> Commission observed that there is a need to give a firmer
indication to the Courts of the gravity of the offence by
fixing the maximum punishment at seven years rigorous
imprisonment and fine. That is why, the Law Commission in
its 42nd report asked that this section be revised as
follows:- I
"124A. Sedition - Whoever by words, either spoken .
or written, or by signs, or by visible
representation, or otherwise,
—: 119 Q-
excites, or attempts to excite, disaffection
towards the Constitution, or the Government or
Parliament of India, or the Government or
Legislature of any State, or the administration of
justice, as by law established, A
intending or knowing it to be likely thereby to
endanger the integrity or security of India or of
any State, or to cause public disorder,
shall be punished with rigorous imprisonment for a
term which may extend to seven years, and shall
also be liable to fine.
gxplgngtjon ]; The expression "disaffection"
includes feelings of enmity, hatred or contempt.
Explanation 2: Comments expressing disapprobation
of the provisions of the Constitution, or of the
actions of the Government, or of the measures of
Parliament or a State Legislature, or of the
provisions for the administration of justice, with
a view to obtain their alteration by lawful means
without exciting or attempting to excite
disaffection, do not constitute an offence under
this section."
—: 120 :—
7.17 This recommendation found a place in the IPC
[Amendment) Bill, 1978 under the_heading "sedition". Clause
48 of the Bill is substituting a new section for section
124-A as was originally proposed by the Law Commission in its
42nd report.
7.18 For the reasons discussed above, the section 124-A
Qay be substituted.
7.19 The then Law Commission had suggested in its 42nd
report that the Code should contain a provision for punishing
insults to the book of the Constitution, the national flag,
the national emblem and the national anthem. Burning of the
copies of the Constitution, desecration of the national flag
or national emblem and offering deliberate insults to the
national anthem, are not only unpatriotic acts but are also
likely to cause a disturbance of public order. As such, they
>are reprehensible enough to be made offences in the Penal
Code.
Legislative competence of Parliament in the matters
is derivable from the entry relating to criminal law in the
Concurrent List and from the residuary entry in the Union
List. It could hardly be said that such a provision curtails
the freedom of expression unreasonably, and the restriction
would be clearly in the interests of public order.
~: 121 :—
7.20 The Law Commission had already recommended that a
new section be inserted after section 124 B, as follows:-
"124B. gnsult to the boo; of the Constitutiom,
national flag, national emblem or national anthem.
— whoever deliberately insults the book of the
Constitution, the national flag, the national
emblem or the national anthem, by burning,
desecration or otherwise, shall be punished with
imprisonment of either description for a term which
may extend up to three years, or with fine, or with
both." .
The above recommendation was incorporated in clause
48 of the IPC (Amendment) Bill, 1978.
7.21 Under this clause a new section 1248 is also sought
to be inserted. Under this new section, whoever deliberately
insults the Constitution of India or any part thereof, the
national flag, the national emblem or the national anthem, by
burning the national flag etc., shall be punishable. The Law
Commission in its 42nd Report observed that there should be a
provision for punishment for insults to the Constitution,
national flag, emblem and the national anthem which may
include burning of the Constitution and deliberate insults to
the national anthem which are unpatriotic. Therefore, they
recommended the insertion of this new section. However, on
A- H _ _ _ _`____`>`r_r Wi _‘f "-r_Uni i ` V ··
‘ -: 122 :—
the basis of those recommendations, Prevention of Insults to
National Honour Act, 1971 has been·enacted. Therefore, this
new section 124B need not be inserted again in IPC and the
same may be deleted from clause 48 of the Bill.
7.22 The existing section 125 reads as under:-
"125. waging war against any Asiatic Power in
alliance with the Government of India - whoever _
wages war against the Government of any Asiatic
Power in alliance or at peace with the Government
of India or attempts to wage such war, or abets the
waging of such war, shall be punished with
imprisonment for life, to which fine may be added,
or with imprisonment of either description for a
term which may extend to seven years, to which fine
may be added, or with fine."
7.23 Section 125 makes it an offence to wage war against
the Government of any Asiatic Power in alliance or at peace
with the Government of India. The reference to 'Asiatic
Power' is now meaningless, and the words "in alliance or" are
unnecessary. It would be sufficient to refer to the
Government of any foreign State at peace with India.
The punishment of life imprisonment for the offence
is unduly severe; on the other hand, if ever the offence is
committed, éthe offender ought not do be let off with a fini
—: 123 :-
as now provided in the section. The Law Commission had
already proposed that the punishment should be imprisonment
of either description not exceeding ten years, and also fine.
The section may accordingly be revised as followsz-
"125. waging war against any foreign state at
I peace with India. - Whoever wages war against the
Government of any foreign State at peace with
India, or attempts to wage such war, or abets the
waging of such war, shall be punished with
imprisonment of either description for a term which
may extend to ten years, and shall also be liable
to fine."
7.24 The same recommendation was incorporated in the IPC
(Amendment) Bill, 1978. Clause 49 of the Bill runs as under:
"49. In section 125 of the Penal Code, for the
words "any Asiatic Power in alliance or at peace
with the Government of India", the words any
foreign State at peace with India; shall be
substituted." T
Thus the recommendation for reducing the quantum of
the punishment was not accepted. It may be mentioned that in
the existing provision the punishment is prescribed "with
—: 124 :—
imprisonment for life to which fine may be added, or with `
imprisonment of either description for a term which may
extend to seven years ..... " _ *`
when there is already a provision for reducing the
punishment, then there is no need to reduce expressly the
upper limit of the punishment.
:5
7.25 In view of the above, section 125 may be amended as
proposed in the IPC (Amendment) Bill, 1978.
—: 125 :—
CHAPTER-VIII
SUICIDE : ABETMENT AND ATTEMPT
Section 306: Abetment of Suicide
i Section 306 of the Indian Penal Code penalises
abetment of suicide. It reads as :
"306. Abetment of Su1cid•.— If any person commits
suicide, whoever abets the commission of such
suicide, shall be punished with imprisonment of
either description for a term not exceeding ten
years, and shall also be liable to fine."
8.02. The constitutionality of section 306 was challenged
in Smt.Gian Kaur v State gf Punjab-l Upholding the
constitutionality of section 306, the Supreme Court held that
section 306 enacted a distinct offence which is capable of
existence independent of section 309. The Court observed:2
"Section 306 prescribes punishment for ‘abetment of
suicide' while Section 309 punishes 'attempt to
commit suicide’. Abetment of attempt to commit
suicide is outside the purview of section 306 and
it is punishable only under section 309 read with
section 107, IPC. In certain other jurisdictiont,
this · · e~—~sss eeee »sssss»s.»»i S S Sac baba SS
A ·: 126 :·
even though attempt to commit suicide is not e
penal offence yet the abettor is made punishable.
The provision there provides for the punishment of
abetment of suicide as well as abetment of attemnt
to commit suicide. Thus even where the punishment
for attempt to commit suicide is not considered
desirable, its abetment is made a penal offence.
In other words assisted suicide and assisted
attempt to commit suicide are made punishable for
cogent reasons in the interest of society. Such e
provision is considered desirable to also prevent
the danger inherent in the absence of such a penal
provision."
8.03. In England and Wales, the 6uicide Act of 1961 has
abrogated the rule of law whereby it is a crime for a person
to commit suicide (S;1). Section 2(1) of the Act imputee
j criminal liability for complicity in another’s suicide. It
reads:
"2(1).— A person who aids, abets, counsels or 1
procures the suicide of another, or an attempt by
another to commit suicide, shall be liable on
B conviction on indictment to imprisonment for a term
not exceeding fourteen years."
.__aHe- . - .e___eee ....... I A V- i
—: 127 :— I
l 1;. Section 309 — AIIEQQI IQ Qgggll QQIQIQE
8.04. Section 309 of IPC punishes attempt to commit
suicide with simple imprisonment for a term·which may extend .7
to one year or with fine or with both.
8.05. The Law Commission in its Forty Second Report had
’§‘ examined whether attempt to commit suicide be retained as a
penal offence. The Commission referred to the Dhagmg Sggtggs
which legitimised the practice of taking one’s life in
certain situations° and also referred to the provisions of
Suicide Act, 1961 in Britain which decriminalised the offence
of attempt to commit suicide.‘ After examining these v1ew•,
the Commission recommended that section 309 is harsh and
unjustifiable and it should be repealed.
8.06. In pursuance of the recommendations of the Law
Q commission, clause 131 of the Bill omits section 309 from
IPC.
8.07. Subsequently, there have been significant judicial
developments. The Delhi High Court in State v §gnJay__;uma;
. Bhatig* speaking through Sachar J, as he then was, for the
Division Bench observed that the continuance of section 309
is an anachronism and it should not be on the statute book.
However, the question of its constitutional validity was not
considered in that case.
—: 128 t-
8.08. Soon thereafter the Bombay High Court in Marutj v
Shripati Dubal v State of Maharashtra° speaking through
Sawant J., as he then was, examined the constitutional
validity of Section 309 and held that the section is
violative of Article 14 as well as Article 21 of the
Constitution. The Section was held to be discriminatory in
nature and also arbitrary and violated equality guaranteed by
Article 14. Article 21 was interpreted to include the right
to die or to take away one’s life. Consequently it was held
to be violative of Article 21.
8.09. The Andhra Pradesh High Court also considered the
constitutional validity of section 309 in Chenna Jagadeeswar
v State of Andhra Pradesh.’ Amareshwari J., speaking for the
Division Bench, rejected the argument that Article 21
includes the right to die. The court also held that the
courts have adequate power to ensure that "unwarranted harsh
treatment or prejudice is not meted out to those who need
care and attention". The court also negatived the violation
of Article 14.
8.10. The ‘Supreme Court examined the constitutional
validity of section 309 in P.Rathinam v Union of India° with
reference to Articles 14 and 21. The Court considered the
decisions of the Delhi, Bombay, and Andhra Pradesh High
Courts and disagreed with the view taken by Andhra Pradesh
U —: 129 :-
High Court on the question of violation of Article 21.
Agreeing with views of the Bombay High Court, the Supr me
Court observed:'
"Oh the basis of what has been held and noted
above, we state that section 309 of the Penal ·Code
deserves to be effaced from the statute book to
humanise our penal laws. It is a cruel and
irrational provision, and it may result in
punishing a person again (doubly) who has suffered
agony and would be undergoing ignominy because of
his failure to commit suicide. Then an act of
suicide cannot be said to be against religion,
morality or public policy, and an act of attempted
suicide has no baneful effect on society. Further,
suicide or attempt to commit it causes no harm to
others, because of which State’s interference with
C the personal liberty of the persons concerned is
not called for.
we, therefore, hold that section 309
violates Article 21, and so, it is void. May it be
said that the view taken by us would advance not
only the cause of humanisation, which is a need of
the day, but of globalisation also, as by effacing
section 309, we would be attuning this part of
criminal law to the global wavelength".
__- _ , a_____aaas s as use scsi
-: 130 :- `
3.11. But this view of Supreme Court was overruled by a
larger Bench in Smt. Gign Kaur v. §;ate of Punjab'° wherein
lerma J.,(as he then was) speaking for the Court, 'held that
¤,Rathingm’s case was wrongly decided. The Court observed:"
"whsn a man commits suicide he has to undertake
certain positive overt acts and the genesis of
those acts cannot be traced to, or be included
within the protection of the ’right to life' under
Article 21. The significant aspect of 'sanctity of
life' is also not to be overlooked. Article 21 is
a provision guaranteeing protection of life and
personal liberty and by no stretch of imagination
can 'extinction of life’ be read to be included in
'protection of life'. whatever may be the
philosophy of permitting a person to extinguish his
life by committing suicide, we find it difficult to
construe Article 21 to include within it the 'right
to die' as a part of the fundamental right
guaranteed therein. Right to life is a natural
right embodied in Article 21 but suicide is an
unnatural termination or extinction of life and,
therefore, incompatible and inconsistent with the
concept of 'right to life'. with respect and in
all humility, we find no similarity in the nature
V of the other rights, such as the right to 'freedom
of speech' etc. to provide a comparable basis to
hold that the 'right to life' also includes the
—— · - ·- ~———}m_,r _ ____ _ _ A i
·: 131 :— ‘
'right to die'. with respect, the comparison is
inapposite, for the reason indicated in the context »
~ of Article 21. The decisions relating to other
fundamental rights wherein the absence of
compulsion to exercise a right was held to be
included within the exercise of that right, are not
available to support the view taken in E,3athjggm
QQQ Article 21.
To give meaning and content to the word 'life’ in
Article 21, it has been construed as life with
human dignity. Any aspect of life which makes it
dignified may be read into it but not that which r
extinguishes it and is, therefore, inconsistent
with the continued existence of life resulting in
effacing the right itself. The 'right to die' if
any, is inherently inconsistent with the 'right to
life' as is 'death with life'."
8.12. On the question of violation of Article 14, the
Court agreed with the view taken by Hansaria J. in
E.Bathinam’s case.
8.13. Verma J. further observed that the arguments "on
the desirability of retaining such a penal provision of
punishing attempted suicide, including the recommendation for
its deletion by the Law Commission are not sufficient to
indicate that the provision _is unconstitutional being
violative of Article 14. Even if those facto are to weirdo,
-: 132 :—
the severity of the provision is mitigated by the wide
discretion in the matter of sentencing since there is no
requirement of awarding any minimum sentence and the sentence
of imprisonment is not even compulsory. There is aleo no
minimum fine prescribed as sentence, which alone may be the
· punishment awarded on conviction under Section 309, IPC.
This aspect is noticed in P,3athinam for holding that Article
14 is not violated."‘2
8.14. The Supreme Court's decision in Smt. Gign Kgyr has
· thus categorically affirmed that right to life in Article 21
does not include the right to die. Consequently section 309
which penalises attempt to commit sucide is not
unconstitutional.
8.15. There is a school of thought which advocates the
decriminalisation of the offence ·0f attempt to commit
suicide. They plead for a compassionate and sympathetic
treatment for those who fail in their attempt to put an end
to their lives. They argue that deletion of section 309 is
not an invitation or encouragement to attempt to commit
suicide. A person indulges in the act of attempt to commit-W
suicide for various reasons some of which at times are beyond
his control.'°
8.16. On the other hand, certain developments such as
rise in narcotic drug—trafficking offences, terrorism in
different parts of the country, the phenomenon of human
—: 133 :—
bombs, etc. have led to a rethinking on; the need to keep
attempt to commit suicide an offence. For instance, a
terrorist or drug trafficker who fails in his/her attempt to
consume the cyanide pill and the human bomb who fails in the
attempt to kill himself or herself along with the targets of
attack, have to be charged. under section 309 and
investigations be carried out to prove the offence. These
groups of offenders under section 309 stand under a different
category than those, who due to psychological and religious
reasons, attempt to commit suicide.
5.17. Accordingly, we recommend that section 309 should
continue to be an offence under the Indian Penal Code and
clause 131 of the Bill be deleted.
g V —: 134 :-
FOOTNQ[§§
1. 1996 (2) Scale 881.
2. gg at 891.
3. Law Commission, Forty·§ggggd Report, para 16.31,
g page 243.
4. Lg, para 16.32, page 243.
5. (1985) Cri.L.J. 931.
6. (1987) Cri. L.J. 743.
1. (1988) cri. L.J. 549. ‘
8. (1994) 3 SCC 394. A
9. gg at 429.
10. gggga note 1.
11. gg at 888.
12. jg at 890.
13. Justice R.A.Jahagirdar (Retd.), " Attempt at
ggjgjgg - A Qpjmg or g Q;!" (1996).
-: 135 :-
CHAPTER-IX
T OFFENCES AGAINST WDM: AND CHILDREN
L_BABE·
The Law Commission in its Eighty—fourth Report. gg
Rage and Allied offences ; Some Questions of Supgtagtjyg
has defined rape as "the ultimate
violation of the self. It is a humiliating event in a
woman’s life which leads to fear for existence and a sense of
powerlessness".' Other scholars have described rape as an
internal assault or sexual invasion which is characterised by
violent taking away of control over the sexual autonomy of
the woman. Rape is an act of violence affecting the physical
and emotional integrity and dignity of tHb victim.?
9.02. The Law Commission in its Forty Second Report had
recommended certain changes in Section 375 which deals with
the offence of rape. The following were the changes
recommended by the Commission to Section 375.
Clause 'Thirdly’ of Section 375 defines sexual
intercourse as rape with the woman’s consent when it has been
obtained by putting her in fear of death or of hurt. The
Commission had recommended that the words "either to herself
or to anyone else present at the place" be added after the
wordulhurt".
—: ian :- _
On the question of consent, the Commission had
pointed out that section 90 of IPC includes the term "injury”
which is of wider import. Injury includes any injury to
mind, body, reputation or property. The Commission, however,
did not recommend any amendment on this count.
9.03. The Commission also recommended that marital rape
should be removed from the scope of Section 375 and placed as
a separate offence. The Commission 0bserved:°
"The exception in Section 375 provides that sexual
intercourse by a man with his own wife, the wife
not being under 15 years of age is not rape. The
punishment for statutory rape by the husband is the
same when the wife is under 12 years of age but
when she is between 12 and 15 years of age the
punishment is mild, being imprisonment upto two
years, or fine or both. Naturally, the
prosecutions for this offence are very rare. we
think, it would be desirable to take this offence
altogether out of the ambit of section 375 and not
ito call it rape even in a technical sense. The
punishment for the offence also may be provided in
a separate section."
é · —: 137 :- · ’
9.04. The Commission considered the position of legally
separated wife vis-a—vis the offence of rape. It was
observed:
"Under the exception, a husband cannot be guilty of
raping his wife if she is above fifteen years of
age. This exception is to take note of one special
situation, namely when the husband and wife ere
living apart under a decree of judicial separation
or by mutual agreement. In such a case, the
marriage technically subsists and if the husband
has sexual intercourse with her against her will or
without her consent, he cannot be charged with the
offence of rape. This does not appear to be right.
we consider that, in such circumstances, sexual
intercourse by a man with his wife without her
consent will be punishable as rape."'
9.05. Explanation II as recommended by the Commission is
as follows:
"A woman living separately from her husband under a
decree of judicial separation or by mutual consent
shall be deemed not to be his wife for the purpose
of this Section."
9.06. The Forty—Second Report had recommended amendment
in Section 375 on the following lines:
° —: 138 :-
"section 375 - Rape — A man is said to commit rape
who has sexual intercourse with a woman other than
his wife — I
(a) against her will ; or
(b) without her consent; or
(c) with her consent when it has been obtained by
putting her in fear of death or of hurt, either to
herself or to anyone else present at the place; or
(d) with her consent, knowing that it is given in
the belief that he is the husband.
Explanation I. — Penetration is sufficient to
constitute the sexual intercourse necessary to the
offence of rape.
Explanation II. — A woman living separately from
her husband under a decree of judicial separation
or by mutual agreement shall be deemed not to be
his wife for the purpose of this section."’
9.07. The existing Section 375 stipulated a maximum
sentence of life or imprisonment of either description for 10
years for rape. The Commission suggested that it should be
rigorous imprisonment for a term upto 14 years.
9.08. The Commission recommended the incorporation of
@ Sections 376A and 376B. Section 376A distinguished sexual
.J§l¤tercourse between a wife of 12 to 15 years of age and a
jjfa `_; of less than 12 years of age, sexual intercourse with
Q_ —: 139 :- 4
»the wife over 15 years of age without her consent not being
,an offence. The Commission recommended rigorous imprisonment
upto 7 years if the wife was under 12 years_and in any other
case, imprisonment upto 2 years of either description.
9.09. Section 3769 made illicit intercourse with a girl
under 16 years but not under 12 years of age even with her
consent punishable with imprisonment of either description
upto 7 years.
9.10. The Commission added that it shall be a defence to
a charge under this section for the accused to prove that he,
in good faith, believed the girl to be above sixteen years of
age.'
9.11. The Forty—Second Report’s signal' contribution to
the reform of rape laws was the introduction of the concept
of custodial rape. The Commission recommended the addition
of sections 3760,3760 and 376E dealing with custodial rape by
a public servant or by a superintendent etc. Qof a women’s or
children’s institution, and by a manager of a hospital with a
woman patient suffering from mental disorder respectively.'
9.12. The provisions on rape law remained unamended, asl
the Indian Penal Code Amendment Bill could not be passed due
to the dissolution of the Lok Sabha in 1979.
-1 T40 Iv
g,T3. 'In the interregnum the» Supreme Court of India
decided some cases which took a restricted view of the scope
of the offence of` rape and acquitted the accused. The
relevant decisions are Pratap Misgg v. State of Orissgl and
Ig;a_3gm v. State of Maharash;rg.• The latter case popularly
known as the Mathura Rape case involved the rape of a yo ng
girl aged between 14-16 years of age by two police constable
in the police station. The Bombay Migh Court reversed the
order of acquittal of the accused by the Session Court and
sentenced them to rigorous imprisonent of varying terms. The
High Court came to the conclusion that the policemen had
"taken advantage of the fact that Mathura was involved in a
complaint filed by her brother, and she was alone in the dead
hour of the night " in a police station. This proved that
she could not in any probability, have consented to
intercourse. The Supreme Court after assessing the evidence
on record concluded that the circumstantial evidence was such
that it did not lead to "reasonable evidence of guilt" and
reversed the Bombay High Court decision and acquitted the
accused. This led to four law teachers writing an Open
Letter to the Chief Justice of India criticising the
judgment. The Open Letter generated nationwide protests from
women’s organisations and different sections of the Indian
society.9 Their collective demand was for reform of the law
on rape. The Union Government responded to the public
campaign and referred the matter of reforming rape laws to
the Law Commission.
· —: 141 :-
E 9.14. The Law Commission sent its 84th Report on· "Rape
i and Allied Offences; Some Questions of Substantive Lau,
Procedure and Evidence" to the Government in 1980..
9.15. The Commission gave particular attention to the
definition of consent and to rape of girls below the minimum
age. It also took into account some of the recommendations
incorporated in the Forty Second Report. The Commission had
dispensed with the suggestions in the earlier Report which
had characterized rape as —
1. rape proper;
2. rape with child—wife and
3. Rape i.e. sexual intercourse with the girl
between 12-16 years of age, with her consent. W
The reasons given by the Commission for discarding the above
categorisation were:'°
"...the Commission now i feels that such a
restructuring would be out of tune with the current
thinking on the question of trial of offenders for
rape and, therefore, structure of Section 375
should not be altered. Since the making of the
recommendation by the Commission in its earlier
Report, there has been a radical and revolutionary
change in the approach to the offence of rape; its
enormity is frequently brought into prominence and
-: 142 :- i
_ heightened by the revolting and gruesome
h circumstances in which the crime is committed; the
case law has blurred the essential ingredients of
the offence and introduced instability into the
previously well established law bearing on the
offence of rape. The Commission feels thet
restructuring will produce uncertainty. and '
distortion in section 375, which should in its
opinion, retain its present logical and coherent
structure."
Consequently, the Commission recommended the omission of
Section 375A and Section 375B. Instead, the Commission
recommended leaving rape of child-wife (S.375A) in the
general Section 375 instead of placing it in a separate
section. Section 375B which dealt with rape on a girl
between 12-16 years of age with her consent was omitted
altogether. Further, the Commission retained Sections
376C,376D and 376E which dealt with custodial rape; but
renumbered them as Sections 376A,376B and 3760.
9.16. On the question of consent, the Commission observed
that they would not only include the suggestions made in the
earlier Reporti but suggested further amendments which would
strengthen the concept of "free consent" for the purposes of
Section 375. The Commission felt that the term "consent" was
inadequate and should be substituted by the phrase "free and
·VOTuntary consent". The Commission observed:" S
—: 143 :-
"The substitution of the expression "free and ‘
voluntary consent" for nthe word "consent" in the
second clause makes it clear that the consont
should be active consent as distinguished from that
consent which is said to be implied by silence."
The Commission proceeded to say: i I
"Under the amendment as recommended, it would not
be open to the Court to draw an inference of
consent on the part of the woman from her silence
due to timidity or meekness or from such
circumstances without any more,- as that the girl
meekly followed the offender when he pulled her,
catching hold of her hand, or that the woman kept
silent and did not shout or protest or cry out for
help."
The Commission further statedzlz
"The modifications recommended by us in the third
clause vitiated consent not only when a woman is
put in fear of death or hurt, but also when she is
put in fear of any "inJury" being caused to any
person (including herself) in body, mind,
reputation or property and also when her consent is
obtained by criminal intimidation, that is to say
by any words or acts intended or calculated to put
. —: 144 :-
her in fear of any injury or danger to herself or
to any person in whom she is interested or when she
is threatened with any injury to her reputation or
“ property or to a reputation of any one in whom she
· is interested. Thus, (if the consent is obtained
after giving the woman a threat of spreading false
and scandalous rumours about her character or
destruction of her property or injury vto her
' children or parents or by holding out other threats
of injury to her person, reputation or property,
that consent will also not be consent under the
third clause as recommended to be amended."
9.17. The Commission made significant recommendations on
age of consent. The age of consent as applicable to the
offence under Section 375 has been amended several times
since the framing of IPC. The 84th Report has graphically
presented in the form of a chart which is given below:‘3
CHART _
Age of Age men- Minimum
consent tioned in age of
under the Exception marriage
Year S.375, to 8.375, under
5th I.P.C. the Child
clause, Marriage
I.P.C. Restraint
' Act,1929
1860 10 yrs. 10 yrs. —
1891 12 yrs 12 yrs. —
(Act 10 of 1891)
(after the amendment
_of IPC)
E;
t1 145 :— · 4
{ 1925 14 yrs. 13 yrs. —
(after the amendment
gbf IPC)
; ( 1929 14 yrs. 13 yrs. 14 yrs.
_(after the passing of _
@the~Child Marriage Act)
1940 16 yrs. 15 yrs. 15 yrs.
(after the amendment
of the Penal Code
and the Child Marriage
Act)
1978 ..... 16 yrs 15 yrs. 18 yrs. r
F -
9.18. As may be seen from the chart, the minimum age of
marriage for girls has been increased to 18 years after the
amendment of the Child Marriage Restraint Act, 1929 in 1978.
The Commission recommended that "since marriage with at girl
below eighteen years is prohibited ... sexual intercourse
with a girl below eighteen years should also be prohibited."
9.19. The 84th Report did not recommend any changes in
section 376 which provides punishment for the offence of
rape. The Commission was of the view that judicial
discretion be not fettered by prescribing a minimum sentence.
9.20. The 84th report by introducing a broader concept of
"misconception of fact" has eliminated any examination of
morality or the sexual antecedents of the victim of rape.
Section 375, fourthly (b) allows this under a broader
misconception of fact which includes the narrower mistake of
identity.
-: 146-:-
9.21. Consequent on the recommendations of the Law ~
commission in its 84th Report, the Government introduced in
the ;g5__§abha the Criminal Law (Amendment) Bill, 1980 to
amend, ;n;g;_alja, the Indian Penal Code. The Governm•nt
accepted the following recommendations of the Law Commission:
1. Accepting the concept of consent as free
and voluntary consent; n
2. making a distinction between judicially
separated wife and wife; and
3. accepting the three concepts of
custodial rape as recommended in the
Commission’s 42nd Report.
9.22. The Bill made a significant addition by introducing
the separate offence of gang rape by two or more persons.
9.23. The Bill was sent to the Joint Committee of the
Parliament. The changes made by the Committee were:
1. It reduced the age of marital rape. The
I exception to Section 375 stated that
sexual intercourse by a-man with his own
wife, the wife not being under 15 years
- of age, is not rape. The Committee
reduced this age to 12 years. »
’ -: 147 :-
2. A new section, section 376A was
incorporated, which deals with sexual
- intercourse with judicially separated
wife without her consent. The Committee
provided a lower punishment for rape of
a judicially separated wife
3. The Committee did not accept the
expanded concept of free and voluntary
consent in Section 375.
9.24. In the Draft Bill reported by the Joint Committee,
one change was made in its final reading stage. The age
above which sexual intercourse with the wife is not rape was
retained at 15.
9.25. The Parliament enacted the Criminal Law (Amendm•nt)
Act,1983. The chief features of which, so far as the offence
of rape in IPC was concerned, were:
1. Increase in the punishment of rape;
2. distinction between gang rape- and
custodial rape and stiffer penalties for
the same;
3. separate category of rape on pregnant
woman;
4. distinguishing rape on a judicially
separated wife and provision for a lower
—: 148 :- -
punishment for it than in other
instances of rape;
5. reduction in the punishment of rape on
wife between 12 and 15 years of age;
6. distinguishing rape on woman of unsound
mind or one who is intoxicated. .
{5 9.26. According1y sections 375 and 376 were amended and
new sections 376A,376B and 3760 were inserted. A11 the
important recommendations of the Law Commission have been
incorporated.
The provisions read as fo11ows:
I "375.Rape.— A man is said to commit "rape" who,
except in the case hereinafter excepted, has sexua1
intercourse with a woman under circumstances
fa11ing under any of the six fo11owing
descriptions:-
First;— Against her wi11.
Second1y.-without her consent. e
Third1y .—with her consent, when her consent has
been obtained by putting her or any person in whom
she is interested in fear of death or of hurt.
Fourth1y.—with her consent, when the man knows that
. he is not her husband, and that her consent is
-1 149 :—
given because she believes that he is another man
I to whom she is or believes herself to be lawfully
married. A
Fifthly.—with her consent, when at the time of
giving such consent, by reason of unsoundness of
mind or intoxication or the administration by him
personally or through another of any stupefying or
unwholesome substance she is unable to understand
the nature and consequences of that to which she
gives consent.
Sixthly.—with or without her consent, when she is
under sixteen years of age.
Explanation.—Penetration. is sufficient to
constitute the sexual intercourse necessary to the
offence of rape.
Exception.-Sexual intercourse by a man with his own
wife, the wife not being under fifteen years of
age, is not rape."
"376. Punishment for rape.- (1) whoever, except in
the cases provided for by sub—section (2), commits
rape shall be punished with imprisonment of either
description for a term which shall not be less than
seven years but which may be for life or for a term
i —: 150 :-
which may extend to ten years and shall also be
liable to fine unless the woman raped is his own
wife and is not under twelve years of age, in which
case, he shall be ipunished with imprisonment of
either description for a term which may extend to
two years or with fine or with both;
Provided that the court may, for adequate and
special reasons to be mentioned in the judgment,
impose a sentence of imprisonment for a term of
less than seven years.
(2) Whoever,-
(a) being a police officer commits rape-
(i) within the limits of the police
station to which he is appointed ; or `
(ii) in the premises of any station 0
house whether or not lsituated in the
police station to which he is appointed;
or
(iii) on a woman in his custody or in
the custody of a police officer
subordinate to him; or
(b) being a public servant, takes
advantage of his official position and
commits rape on a woman in his custody
—: 151 :- _
as such public servant or in the custody
_ of a public servant subordinate to him;
or '
(c) being on the management or on the
staff of a jail, remand home or other
place of custody established by or under
any law for the time being in force or
of a women’s or children’s institution
takes advantage of his official position
and commits rape on any inmate of -such
jail, remand home, place or institution;
or
(d) being on the management or on the
. staff of a hospital, takes advantage of
his official position and commits rape
on a woman in the hospital; or °
(e) commits rape on a woman knowing her
to be pregnant; or
(f) commits rape on a woman when she is
under twelve years of age; or
(g) commits gang rape,
-: 152 :— .
shall be punished with rigorous imprisonment for a
term which shall not be less than ten years but
which may be for life and shall also ue liable to
fine; j
Provided that the court may, for adequate and
special reasons to be mentioned in the judgment,
impose a sentence of imprisonment of either
description for a term of less than ten years.
Explanation I.-where a woman is raped by one or
more in a group of persons acting in furtherance of
their common intention, each of the persons shall
be deemed to have committed gang rape within the
meaning of this sub-section.
Explanation 2.-"women’s or children’s institution"
means an institution, whether called an orphanage
or a home for neglected women or children or a
widows' home or by any other name, which is
established and maintained for the reception and
care of women or children.
Explanation 3.—"hospital" means the precincts of
the hospital and includes the precincts of any
institution for the reception and treatment of
persons during convalescence or of persons
requiring medical attention or rehabilitation."
C -: 153 :-
"376A. Intercourss by s man with his wife d ring
separation.- whoever has sexual intercourse· with
his own wife, who is living separately fr m him
under a decree of separation or under any custom or
usage without her consent shall be punished with
imprisonment of either description for a term which
may extend to two years and shall also be liable to
fine."
376B. Intercourse by public servant with woman in
his custody.- whoever, being a public servant,
takes advantage of his official position and
induces or seduces, any woman, who is in his
custody as such public servant or in the custody of
a public servant subordinate to him, to have sexual
intercourse with him, such sexual intercourse not
amounting to the offence of rape, shall be punished
with imprisonment of either description for a term
which may extend to five years and shall also be
liable to fine. -
376C. Interoourse ·by Superintendent of jail,
remand home, etc.- whoever, being the
superintendent or manager of a jail, remand home or
other place of custody established by or under any
law for the time being in force or of a women’s or
children’s institution takes advantage of his
—: 154 2- if
official position and induces or seduces any female
inmate of such jail, remand home, place or
institution to have sexual intercoursel with him,
such sexual intercourse not amounting to the
offence of rape, shall be punished with
imprisonment of either description for a term which
may extend to five years and shall also be liable
to fine. t
Explanation 1.~"superintendent" in relation to a
jail, remand home or other place of custody or a
women’s or children’s institution includes a person
holding any other office in such jail, remand home,
place or institution by virtue of which he can
exercise any authority or control over its inmates.
Explanation 2.-The expression “women’s or
children’s institution" shall have the same meaning
as in Explanation 2 to sub—section(2) of section
376.
"376D. Intercourse by any member of the manegemh t
or staff of a hospital with any woman in that
hospital.- whoever, being on the management of a
hospital or being on the staff of a hospital takes
advantage of his position and has sexual
intercourse with any woman in that hospital, such
sexual intercourse not amounting to the offence of
-: 155 :—.
rape, shall be punished with imprisonment of either
description for a term which may extend to five
years and shall also be liable to fine.
Explanation.- The expression 'hosp1tal' shall have
the same meaning as in Explanation 3 to sub-section
(2) of section 376." ` V
9.27. Now we shall examine the recommendations gof the
National Commission for women(NCw) and other suggestions made
in response to the Questionnaire. Following are the
recommendations of the National Commission for women:
1. Section 375 be amended to change the reference
to 16 years in paragraph, sixthly, to 18 years to
provide for the increase in the age of majority of
girls to 18 years.
2. Also a consequential amendment to change the
a
reference to 15 years to 18 years- has also been
made in the Exception which deals with "sexual
intercourse by a man with his own wife not being
under 15 years of age".
3. Section 376 providing for punishment of rape be
amended thus:
——--s · ~ »—————--—we · w--w.~» 1 --222.- 2- -2-2-222-2
—: 156 :—
(a) The reference of sentence of punishment to 2
years for rape by the husband with his own wife who
is more than 12 years of age is proposed to be
increased to 5 years(S•ction 376 sub-clause(1)).
(b) The punishment proyided in sub—section (2) is
proposed to be increased from a minimum punishment
of 10 years to punishment of rigorous imprisonment
for life. At the same time, the punishment for
rape when a woman who is less than 12 years_of age
is proposed to be taken out of this section and
dealt with in a separate Section providing for
higher punishment. This is sought to be done by
incorporating a new section, namely sub-section (3) T
to section 376 which would read as :
whoever commits rape on a woman when she is under
twelve years of age shall be punished with rigorous
imprisonment for a term which shall not be less
than ten years and shall also be liable to fine.
It is also recommended that three new sections,
section 376E, Section 376F and Section 376G be incorporated
in the Indian Penal Code.
Section 376E: Offence under Section 376A to
Section 3760 against children:
—: 157#:>‘
whoever commits an offence under Section 4376A °t6
Section 376D (both inclusive) shall, if the wom n
is under eighteen years of age, be punished with
imprisonment of either description for a term which
may extend to ten years and shall also be liable to
fine. t
Section 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 public place intending
that such word or sound shall be heard or that such
gesture or object shall be seen or that such act
shall be noticed or felt by such woman, commits the
offence of eve—teasing.
·Section 376G: Punishment for eve-teasing.- whoever
commits the offence of eve—teasing shall be
punished with imprisonment of either description
for a term which may extend to 5 years and shall
also be liable to fine.
9.28. According to the latest report of the National
Crime Records Bureau entitled Crjmg in India, 98,948 cases of
crime against women were registered in 1994 compared to
83,954 cases in 1993 and 79,037 cases in 1992. This amounts »
to an increase of 17.9 per cent in crime against women at the
national level in 1994 with considerable increase in c|•••
.—»~ e . __*_ng __.. hgggghmghj
r ` -: 158 :—
·registered under rape, kidnapping and abduction. The Report
points out that Delhi, Rajasthan, Tamil Nadu, Madhya Pradesh,
Himachal Pradesh, Karnataka and Pondicherry `have. been
categorised as "high crime prone" States. In 1994 Madhya
Pradesh reported the highest incidence of rape (2,929)
accounting for 22.2 per cent of the national ratio. This was
followed by Uttar Pradesh(2,078), Maharashtra (1,304), Bihar
(1,130), Rajasthan (1,002). Other States which recorded more
than 500 cases of rape during the year were. Andhra Pradesh,
west Bengal and Assam. Delhi reported 309 incidents
contributing 2.3 per cent towards national average.
Among the cities, Delhi and Mumbai continued to
record more cases of rape. At the national level, victims of
rape were the highest in the age group of 16-30 years
accounting for 56.3 per cent of the total victims. But in
the metropolitan cities, the situation was altogether
different as 50 per cent of the total victims were girls
below 16 years of age.l‘
The Delhi State Commission for women in its Report
Situation gf Girls and Women in Delhi (1997) has pointed that
the "rate of rape" in delhi is twice as high as in the whole
country. During 1993 as many as 233 rape cases were reported
which rose to 321 in 1994, to 362 in 1995 and to 470 in 1996.
An analysis of 1996 crime data showed that in 88 per cent of
the rape cases relatives and acquaintances were involved and
in 89 per cent of the cases the crime was committed at home.
I · -: 159 :-i
ine Report also points out that 60 per cent of the reported;
leases in Delhi are of girls below 10 years. Further in 1993
as many as 18 per cent of rape victims were below 10 years of
age as against 6 per cent in the whole country. About 42 per
cent of the rape victims were in the 10 to 16 age groups
compared to 23 per cent in the country.'!
9.29. The UN Commission on the Status of Women in its
Draft Declaration of Violence Against women declares that
"violence nullifies women's enjoyment of human rights of
freedom". The Convention for the Elimination of All Forms of
Discrimination Against women (CEDAH 1979), ratified by India
recently, also does not speak of gender-based violence. It
is generally agreed that violence against women is an
infringement of their fundamental rights to life, liberty and
dignity
9.30-. There is a school of thought that the existing
definition of rape in IPC is narrow and ‘does not cover
different forms of sexual violence experienced by wom•n.‘°
The present definition requires proof of penetration by penis
and lack of consent by the complainant. Consent plays a
crucial part in a rape trial .
jr; . TJ
&g1, Further, section 354 (assault or criminal force on %}?i
man with intent to outrage her modesty) and section 509
ya rd, gesture or act intended to insult the modesty of a
éoman) as interpreted by the courts do not cover virulent
forms of sexual assault on women.
9.32. The proponents of thisi view (advocate that the
sections of IPC dealing with rape (sections 375 and 376) and
sections 354 and 509 be repealed and be substituted by
provisions on "Sexual Assault" - to be defined broadly to
include all forms of sexual violence on women including rape.
9.33. After giving considerable thought to the point of
view referred to above, the Law Commission is of the opinion
that the offence of rape including custodial rape and its
punishment be retained in IPC subject to the modifications
l stated below in para 9.34.
E+
9.34. The Law Commission recommends that clause 'Thirdly’
in section 375 be amended on the following lines:
Section 375: A man is said to commit rape -
Firstly —...
Secondly — ... · _ `
Thirdly — with her consent, when her consent has
been obtained by putting her or any person in whom
she is interested, in fear of death or of hurt, gg
Qf..§!L..Q.DL*.Q.L]..¥1.j.*·U'.`1·
E- —: 161 :—
§
Ewhg words "or of any other injury" expand the scope of this
§clause to provide for situations of rape by persons in
éposition of trust, authority, guardianship or of economic or '
social dominance. These cases will include incestuous rape
and other instances where a victim of rape is totally
dependent on the offender who is in a dominant position.
The National Commission for women has recommended
that section 375 be amended to change the reference of age to
16 years in clause 'Sixthly’ (rape with or without her
consent) to 18 years. The Law Commission approves that the
charge proposed by NCW is necessary particularly in view of
raising the age in section 361 (Kidnapping from lawful
guardianship — age changed from 16 to 18 years).
The Law Commission, however, does not endorse the
change proposed by NCW in the Exception to Section 375
(sexual intercourse by a man with his wife) increasing age
from 15 years to 18 years. Consequently, there need not be
any amendment to section 198(6) Cr.P.C. as suggested by the
g National Commission for Women.
The Law Commission is of the opinion that the
Offence of child rape and its punishment is provided for
under the existing Section 376(2)(f). Consequently, the
—: 182 :— -—
incorporation of a new sub—section (3) to Section 376, as
recommended by the National Commission for women, is not
called for.
9.35. To deal with the issue of increasing sexual
violence on women and female children, the Law Commistion
recommends that the offence of sexual assault be added to the
existing offence of outraging the modesty of women in Section
354 and punishment be increased from two years to five years.
Accordingly, Section 354 be amended on the following lines:
Section 354. Assault or criminal force to woman
with intent to outrage her modesty.- whoever
assaults or uses criminal force to any woman,
intending to outrage her modesty or to commit
sexual assault to her or knowing it to be likely
that he will thereby outrage her modesty or commit
sexual assault to her, shall be punished with
. imprisonment of either description for a term which
V may extend to five years and shall also be liable
to fine.
Expanding the scope of Section 354 in the above manner, would
in our view, cover the varied forms of sexual violence other
than rape on women and female children.
-: 163 :— A
The Law Commission is further of the view that the
offence of eve teasing falls within the scope of Section 509
and there is no need for a new section 376F as recommended by
the National Commission for Women. However, the Law
Commission feels that the quantum of punishment be increased
from 1 year to 3 years and fine; Accordingly, we Irecommend
that Section 509 be amended in the following manner:
Section 509. word, gesture or act intended to
insult the modesty of a woman.- whoever, intending
to insult the modesty of any woman, utters any
word, makes any sound or gesture, or exhibits any
object, intending, that such word or sound shall be
heard, or that such gesture or object shall be
seen, by such woman, or intrudes upon the privacy
of such woman, shall be punished with imprisonment
of either description for a term which may extend
to three years and shall also be liable to fine.
II. BIGAMY
9.36. Section 494 defines bigamy as the act of a person
who, having a husband or wife living, marries but only in a
case where such subsequent marriage is void under his or her
personal law. »
it
·—: 164 :—
9.37. Till the enactment of the Hindu Marriage Act, 1955,
the impact of this section fell only on Christians and
J Parsis. But after the coming into force of that Act, Hindus
also have come within the purview of this provision. Muslims
and some tribes, who are permitted by their family law and
customs to practice polygamy, are excluded.
9.38. The Law Commission in its 42nd Report had revised
the section as follows:
"494. Bigamy.- whoever, being married, contracts
another marriage in any case in which such marriage
is void by reason of its taking place during the
subsistence of the earlier marriage, commits
bigamy.
Explanation.- where a marriage has been dissolved
by the decree of a competent court under an
enactment but the parties are, by virtue of a
provision of the enactment under which their
marriage is dissolved prohibited from re—marryinq
within u specified period, then, for the purposes `
of this section, the marriage shall,
notwithstanding its dissolution, be deemed to
subsist during that period.
-. . - .... . . M.
_-: 185 :-
Exception. — The offence is not committed by any
person who contracts the later marriage during the"
life of the spouse by earlier marriage, if, at the
time of the later marriage, such spouse shall have
been continually absent from such person for seven
years and shall not, within that period, have heard
of by such person as being alive, provided the
person contractingi the later marriage inform the
person with whom it is contracted of the real state
of facts so far as the same are within his or her
knowledge." »
The Commission felt that the punishment for bigamy
was "unnecessarily high" and so be reduced from seven years
to three years."
9.39. The Commission also recommended the reduction of
punishment for the aggravated form of bigamy, under section
495 namely where bigamy is accompanied by the concealment of
the fact of former marriage from the person with whom the
subsequent marriage is contracted, from ten years to seven
years.'°
9.40. Cut the IPC Bill (Clause 198) has not accepted the
recommendation of reduction of punishment for bigamy under
section 494.
¥ -:,166.:- -
9.41. The Bill significantly has added Explanation. I
which stipulates that a person shall be deemed to marry again
whatever legal defect theqe may be in contracting,
celebrating or performing such marriage.
For prosecution for bigamy to succeed, prosecution
must show first of all that at the time of second marriage,
there was a valid subsisting marriage. where proof of either
marriage is unsatisfactory, there would be no conviction.
Explanation I to Section 494 in the Bill has introduced a
deeming fiction. It deems the second marriage valid despite
legal defects in contracting, celebrating or performing such
marriage. By this, the accused cannot take the defence of
non performance of ceremonies in the second marriage to save_
himself from the clutches of the offence of bigamy.
The incorporation of this deeming provision in
Explanation was in consequence of the judicial decisions on
the scope of section 17 of the Hindu Marriage Act,1955. The
Supreme Court in Bhaugag v. gtate of Maharashtra" held that
the offence of bigamy was not proved unless it was
established that the second marriage was celebrated with
proper ceremonies and due form. This conclusion was reached
on the ground that S.17 of the Hindu Marriage Act, had used
the word "solemnized". Accordingly the court held that it
was essential for the purpose of section 17, that the
marriage to which section 494 applies on account of the
provisions of the Act, should have been celebrated with
—; 167 ;-
proper ceremonies and due form. As the law requires no
specific ceremonies but recognises ceremonies of marriage
according to custom, it becomes extremely difficult. to
determine which ceremony or ceremonies were really essential.
Bhaurao decision was reiterated in two subsequent decisions
of the Supreme Court in ;eygl_3am v. 5,3, Agmjnjgtggtjgg 20
and Priya Bala v. Suresh Chandra.2* Consequently a great
burden is cast on the prosecution to show that the second
marriage is performed with all due formalities. This burden
in many cases cannot be discharged satisfactorily to prove
the offence of bigamy. Therefore, it was felt necessary to
add the Explanation. The Committee on the Status of wo en in
its Report "Towards Eguality" (1975) had recommended the
incorporation of Explanation to Section 17 of the Hindu
Marriage Act that an omission to perform some essential
ceremonies by parties shall not be construed to mean that the
offence of bigamy was not committed. This recommendation has
also found a place in Explanation (1) to Section 494 in the
Bill.
Explanation 2 has been added to section 494 by which it is
made clear that where the relevant divorce law prohibits
re-marriage of the parties within a specified period after
the decree of dissolution, such re—marriage amounts to
bigamy. Explanation 2 is as follows:
#· ~ Y e————--.~s. .-MEEEEaL.2Maé A
—: 168 :—
"where a marriage has been dissolved by a decree of
a competent court but the parties are, by virtue of
a provision of the enactment under which their
_ marriage is dissolved, prohibited from re-marrying
within a specified period, then for the purposes of ·l
this section, the marriage shall, notwithstanding
its dissolution, be deemed to subsist during that
period."
W The Supreme Court in Sarla Mudgal’s22 case held
that conversion from a monogamous religion (Hinduism) to a
polygamous religion (Islam) for the purpose of second
marriage, during the subsistence of first marriage, would
make the second marriage violative of justice, equity and
good conscience etc. The Court also held that the apostate
husband would be guilty of the offence of bigamy. The Court
has thus removed the uncertainty as regards the effect of
conversion on marriage.
9.42. we recommend that another Explanation, Explanation
3 be added to section 494 incorporating the principle laid
down by the Suprqaeme Court in the Sarla Mudgal’s case on the
following lines to put the matter beyond doubt: A
"Explanation 3: The offence of bigamy is committed
when any person converts ihimself or herself to
another religion for the purpose of marrying again
during the subsistence of the earlier marriage."
---~» é -e.a_..—E_ae aaa .a.A d_a1 4
t —: 169 :— ,.
III. QADULIEQI A n
9.43. In the First Report on the Draft Indian Penal Code,
adultery was not made an offence. However, the First Law
Commission in its Second Report on the Draft Indian Penal
Code, after giving due consideration to the subject, cane to
the conclusion that it was not advisable to exclude this
offence from the Code.2°
9.44. The offence of adultery under section 497 is very
limited in scope in comparison to the misconduct of adultery
in divorce (civil) proceedings. The offence is committed
only by a man who has sexual intercourse with the wife of
another man without the latter’s consent or connivance. The
wife is not punishable for being an adulteress or even as an
abetter. Punishment is imprisonment of either description
for a term up to five years or with fine or with both.
9.45. The Law Commission in its 42nd Report recommended
the retention of section 497 in its present form with the
modification that, even the wife, who has sexual relations
with a person other than her husband, should be made_
punishable for adultery. The Commission also recommended
that five years' imprisonment is “unreal and not called for
- . - e.I.Iee~. essss Isc sts. ssshs.Im.i .
—: 170 :-
n any circumstances and should be reduced to two years”.**
‘he Commission recommended that the section may be revised as
’ollows:- 4
"497. Adultery.e If a man has sexual intercourse
with a woman who is, and whom he knows or has
reason to believe to be the wife of another man,
without the consent or connivance of that man, euch
sexual intercourse not amounting to the offence of
E rape, the man and the woman are guilty of the
offence of adultery, and shall be punished with
imprisonment of either description for a term which
may extend to two years, or with fine, or iwith
both."25 i
9.46. The constitutionality of section 497 was challenged
under article 32 as violative of the right to equality in
article 14 in §owm1thri Vishnu v. Qnjgn of India?'. The
basis of challenge was that the section makes an irrational
classification between men and women and it unjustifiably
denies to women the right given to men. This section confers
upon the husband the right to prosecute the adulterer but
does not confer any right upon t e wife of the adulterer to
do so. The Supreme Court negatived the contention and upheld
the constitutionality of section 497.
Clause 199 of the Indian Penal Code Amendment Hill, _
1978 reads as Section 497: ·
·· - ssss -. awe;
-: f71_:·
"whoever has sexual intercourse with a person who
is, and whom he or she knows, or has reason to
believe, to be the wife or husband as the case may
be, of another person, without the consent or
connivance of that other person, such sexual
intercourse by the manjnot amounting to the offence
of rape, commits adultery, and shall be punished
with imprisonment of either description for a term
, which may extend to five years, or with fine, or
with both."
The IPC (Amendment) Bill has brought in the concept
of equality between sexes in marriage vis—a-vis the offence
of adultery in the substituted section 497. However, the Law
Commission recommends that the phraseology of clause 199 has
to be modified on the following lines to reflect the concept
of equality between sexes. Accordingly clause 199 shall read
as:
"Secti0n 497.- whoever has sexual intercourse with
a person who is, and whom he or she knows, or has
reason to believe, to be the wife or husband, as
the case may be, of another person, without the
consent or connivance of that other person, such
sexual intercourse not amounting to the offence of
rape, commits adultery, and shall be punished with
—: 172 :· y
imprisonment of either description for a term which
may extend to five years, or with fine or with
both." i `
The Supreme Court in Sowmithri Vishnu case had
observed that "it is for the Legislature to consider whether
section 497 should be amended appropriately so as to take
note of the 'transformation’ which the society has
undergone". The proposed change reflects the transformation
of women’s status in the Indian society. The punishment of
five years remains the same.
9.47. If section 497 is amended on the lines indicated
above, sub—secticn (2) of section 199 of the Code of Criminal
Procedure,1973 needs to be suitably amended.
IV. UNNATURAL OFFENCES
9.48. Section 377 deals with unnatural offences like
sodomy, buggery and bestiality. This section was amended in
1955 making the punishment more stringent to one of
imprisonment for life or with imprisonment of either
description for a term up to ten years and fine. Section 377
reads as:
-: 173 :— - " M
"whoever voluntarily has carnal intercourse against
the order of nature with any man, woman or animal,
shall be punished with imprisonment for lif•, or
with imprisonment of either description for a term
which may extend to ten years".
9.49. The Law Commission in its 42nd Report had
recommended that cases of bestiality should be regarded as
pathological manifestations to be ignored by the criminal
law.
9.50. The Commission, however, felt that "Indian Society,
by and large, disapproves of homo—sexuality and this
disapproval is strong enough to justify it being treated as a
criminal offence even where adults indulge in it in private",
and observed that "Buggery" may continue as an offence
punishable less severely than at present but, where it is
committed by an adult on a minor boy or girl, the punishment
be higher. So the Commission had irecommended that section
377 be revised as follows:—
"377. Buggery— whoever voluntarily has carnal
intercourse against the order of nature with any
man or woman shall be punished with imprisonment of
ieither description for a term which may extend to
two years, or with fine or with both;
—: 174 :-
and where such offence is icommitted by a person,
over eighteen years of age with a person under that
age, the imprisonment may extend to seven years. g
Explanation: Penetration is sufficient to
constitute the carnal intercourse necessary to the
offence described in this section." _
The Indian Penal Code (Amendment) Bill (clause 160)
nas adopted the above recommendation of the Law Commission. r
I.51 We recommend that in view of the growing incidence
>f child sexual abuse in the country, where unnatural offence
is committed on a person under the age of eighteen years,
ahere should be a minimum mandatory sentence of imprisonment
>f either description for a term not less than two years, but
which may extend to seven years. The court shall, however,
iave discretion to reduce the sentence for adequate and
special reasons to be recorded in the judgment. Consequently
section 377 be amended on the following lines:-
"S.377. Unnatural offences.- whoever voluntarily
has carnal intercourse against the order of nature
with any man or woman shall 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
~—»~-—— .AMA nh. . U , A A .,., Q1 I
—: 175 :—
Pn A person over eighteen years of age with ai person
under that age, he shall be punished Jwith
imprisonment of either description for a term which
shall not be less than two years but may extend to
seven years and fine.
Provided that the court may for adequate and
special reasons to Ibe recorded in the judgment,
impose a sentence of imprisonment of either
description for a term of less than two years.
Explanation — Penetration is sufficient to
constitute the carnal intercourse necessary to the
offence described in this section."
g V. CHILD SE;UAL ABUSE
9.52. Child sexual abuse (CSA) is considered one of the
'new’ epidemics of the last decade. CSA could be any kind of
"physical or mental violation of the child with sexual intent
usually by an elder person who is in possession of trust or
power viz—a-viz the child".?' The experience may vary from an
adult exposure of genitals to the child or to persuade the
child to do the same, the adult touching the child’s genital
or making the child to touch his own, involving the child in
Q n-: 176 :— _
Qwornography - both printed and visual, having oral, vaginal
wor anal intercourse with the child, making verbal or other
sexual suggestions or indecent overtures. In ,addition,
.fondling or fingering, touching or voyeurism or any such
Lattempt could also be CSA.2°
9.53. According to the statistics reported in Crime in
India, of the total victims of rape cases, children accounted
for more than 25 per cent. There is an increasing trend
since 1990 as regards child rape.
While 3,393 cases of child rape were reported in
1993, it increased to 3,986 in 1994. Giving the state—wise
incidence of child rape, the Report says Madhya Pradesh led
in reporting the highest number of 809 child rape cases,
followed by Uttar Pradesh (538), Rajasthan (205) and Delhi
(206) in 1994. Among the cities, Delhi and Mumbai reported
more victims of child rape in the age group below 10 years
and also in the age group of 10-16 years.?9
while conducting the study of CSA in Delhi, the
Delhi Police found that information regarding the offences of
molestation or outraging of modesty (5.354 IPC) and unnatural
Sex offences (8.377 IPC) committed on children below 16 years
was not readily available. Information was collected for
1994 wherein a total number of 291 cases was recorded out of _
which 69 girls were below 16 years.(31%). 'In respect of
Or -: 177 :-_
Jnnatural offences, out of 24 cases, there were 22 boys and 2
girls indicating that 95.9% of the victims, were children
Below 16 years.¤° _
w It is difficult to get hard data on the extent of
SSA in the country. But there is a silver lining in the
norizon. Some NGOs have undertaken studies oni CSA and
nreliminary findings are none too happy. Samvada, a
Bangalore based NGO found, in a study of 348 college girls,
that 47 per cent of students had been subjected to sexual
abuse. About 45 per cent had experienced such abuse before
the age of 14. The most common offender was a known male
family member. Similar are the findings of Sakshi, a Delhi
based NGO in a study made of 357 girls of government and
private schools. It was found that 53 per cent of the
children had suffered some form of sexual abuse, about 22 per
cent suffered serious sexual abuse and in 29 per cent of the
cases, the abuse was by a person whom they trusted fully. In
their analysis of 19 cases of CSA in 1995 it was found that
in majority of the cases, the victims were children between
one and twelve years.
9.54. The Constitution of India provides special
Protection to children. Article 15(3) confers powers on the
State to make special provisions for women and children.
OArticle 39(f) provides that children are given opportunities
and facilities to develop in a healthy manner and in
(conditions of freedom and dignity and that childhood and
-_q , .a_______wa OOOO aott O O -O E
—: 178 :- _
éyouth are protected against exploitation éand against moral
and material abandonment. This provision was added to the
constitution by the Constitution· (Forty—fourth Amendment
Act), 1978. Article 45 mandates the State to provide for
free and compulsory education for all children until `they
complete the age of 14 years.
9.55. Since 1945 the welfare and rights of children have
been a matter of great concern for the United Nations. One
of the first acts of the General Assembly was to establish
the United Nations Children Fund (UNICEF). In 1959, the
Declaration on The Rights of the Child was drafted which has
been serving as a guide post to private and public action in
the interest of children on the basis "that mankind owes to
the child the best it has to give". This Declaration
ultimately led to the drafting of the Convention on The
Rights of The Child which was adopted unanimously by the
General Assembly on 20th November, 1989. 187 States have
ratified this Convention. The Convention came into force in
India on 11th January, 1993. Some of the provisions of the
Convention specifically deal with the protection of children
from sexual offences and violation, in particular Articles
34,35 and 35- Article 34 of the Convention imposes an
obligation on the State parties to protect the child from all
forms of sexual exploitation and sexual abuse. For these
purposes the States are mandated to take appropriate measures
to prevent (i) the inducement or coercion of children to
engage in any unlawful sexual activity; (ii) the exploitative
F e, E —: 179 :- .
Iuse of children in prostitution or other unlawful sexual
igractices and (iii) the exploitative use of children in
;pornographic performances and materials. Article 35 requires
59tates to take all measures to prevent the abduction of the
sale of or traffic in children for any purpose or in any
nform. Article 36 mandates states to protect the children
against all other forms of exploitation prejudicial to any
aspects of the child’s welfare!
9.56. So far as rape of children under 12 years is
concerned, the existing section 376(2)(f) provides a minimum
mandatory sentence of 10 years rigorous imprisonment which
may extend to life and fine. ‘
9.57. To counter the evil of all other forms of sexual
abuse of female children, the Law Commission’s
recommendations for amendment of section 354 as stated in
para 9.35. in Part—IV should be adequate. In addition, the
Law Commission’s recommendation in para 9.52 of Part—IV for
aggravated punishment for the commission of unnatural
offences under section 377 IPC,: on both male and female
persons under eighteen years of age by adults would cover
child sexual abuse on children, both male and female.
9.58. In the opinion of the Law Commission, the existing
section 376(2)(f), and the Law Commission’s recommendations
for amendment of sections 354 and 377 are adequate to deal
with child sexual abuse. Consequently, the Law Commission
{ ·
-: 180 :- _
Idoes not recommend the incorporation of new section 354A as
suggested in clause 146 of the Indian Penal Code (Amendment)
iBil`I.
9.59 Sexual-child abuse may be committed in various
forms such as sexual intercourse, carnal intercourse and
sexual assaults. The cases involving penile péhetration into
vagina are covered under section 375 of the IPC. If there is
any case of penile oral penetration and penile penetration
into anus, section 377 IPC dealing with unnatural offences,
i.e., carnal intercourse against the order of nature with any
man, woman or animal, adequately takes care of them. If acts
such as penetration of finger or any inanimate object into
vagina or anus are committed against a woman or a female
child, the provisions of the proposed section 354 IPC
whereunder a more severe punishment is also prescribed can be
invoked and as regards the male child, the penal provisions
of the IPC concerning 'hurt’, ‘criminal force' or 'assnult’
as the case may be, would be attracted. A distinction has to
be naturally maintained between sexual assault/use of
criminal force falling under section 354, sexual offlnces
falling under section 375 and unnatural offences falling
under section 377 of the Indian Penal Code. It may not be
appropriate to bring unnatural offences punishable under
section 377 IPC or mere sexual assault or mere sexual use oi
criminal force which may attract section 354 IPC within the
ambit of 'rape’ which is a distinct and graver offence with e
definite connotation. It is need¤ess _to mention that any
' —: 181 :—
attempt to comm1t any of these offences 1s also punishable by
virtue of sect1on 511 IPC. Therefore, any other or more
changes regarding this law may not be necessary.
—: 182 :—
§1_ Law Commission, gighty Fourth Regort, para 1.2,
§ page 1 (1980).
g, See Susan Brownmiller, Against Our will 5gg,] mgn
g and Rape (1990); Lotika Sarkar, "Rapei A Human
Rights versus a Patriarchal Interpretation," I
Indian gournal gf Gggggp Stggigs 69 (1994); Flavia
Agnes, "Protecting Women against Violence?" 27
Economic and Politigal yeekly (EPW) 19 (1992); also
by the same author, State, Gender and the Rhgggrig
of Law Reform (1995) Lorenne Clark and Debra Lewis, ·
Rape - The Price of Qgercive Sexuality (1977).
3. Law Commission, Forty Second Report, para 16.115,
page 277.
4. Igjg.
5. IQ., para 16.117, pages 277-278. ·
6. Ig., para 16.120, page 278.
7. AIR 1977 SC 1307.
8. AIR 1979 SC 185.
9. See Vasudha Dhagamwar, Law, Boyer ang guggigg
237-287 (2nd ed. 1992). — .
10. Law C¤mm1S¤1¤¤. Eighty EQU[DhnB9DOFC» supra note 1.
para 2.21, page 9.
11. Ig., para 2.8, page 6.
12. Ig., para 2.9, page 6.
-: 183 :-
C13. Ig., para 2.19, page 8.
14. See, "upeurge in Crime against Women: Report",
l HIDQQ (Delhi ed.) 9.12.1996.
15. See " Delhi’s Shame: . women Most unsafe,"
incorporating an analysis of the Report of the
Delhi State Commission for women, Hindustan Times
(Delhi ed.) 5.21997. i
16. See provisions of the Sexual Assault Draft Bill,
1993 prepared by the Ad hoc Committee of the
National Commission for women; also se• the
Memorandum on Reform of Laws relating to Sexual
Offences prepared by Shomona Khanna and Retna
Kapur, Centre for Feminist Legal Research, New
Delhi. ‘ e
17. Report, para 20.10, page 323.
18. Inig, para 20.10.
19. AIR 1965 SC 1964.
20. AIR 1966 SC 1564.
21 AIR 1971 SC 1153.
22. ;—s_as;La_uug1sa1 v MR 1995 80 1531-
23. Second Report on the Draft Indian Penal Code 134-35
(1847), Law Commission.
24. Forty Second Report on the Ingian Penal Code, para
20.18, page 327 (1971).
$*5- IM-
-: 184 :-
?26_ AIR 1985 SC 1618; 1985 (Supp) SCC 137.
;27. Child Sexual Abuse literature by 'Sakshi’ New
i` umm.
.28. Schwartz, Horovitz and Cardarelli Child Seggaj
Abuse 58-59 (Sage Publications 1990) ‘
29. Amod Kanth, "CSA ` Legal and Investigative,
Perspective", in Sheela Barse (Ed) Child
Victims’Rights: Report of International Conference
on Child Sex Abuse, Victim Protective Investigation
and Trial Procedure 11 at 13(1996).
30. See Pipneer (Delhi ed.) dated 7.11.1996, page 3.
See also "Incestuous Father Poisons Pregnant
Daughter to Death," Indian Express - Express
Newsline (Delhi ed.) 3.12.1996.
,_ —: 186 :-
CHAPTER—X
ABDUCTION INCIDENTAL TO HIJACKING
The Indian Penal Code has been·spoken of as a model,
piece of legislation as the premier Code of Criminal law, and
as the monument of the great genius of Lord Macaulay under
whose supervision it was constructed. The Code deals with
territorial as well as extraterritorial crimes.
Section 4 extends the Code to extraterritorial
offences. Accordingly, the provisions of the Code apply also
to any offence committed by any person on any ship or
aircraft registered in India wherever it may be.
To deal with the problem of "Piracy" which was very
common in the last Century, two special legislations were
enacted namely:-
(i) Admiralty Offences Act, 1894; and
(ii) The Merchant Shipping Act, 1894.
But the framers of the Code never thought about the
crime of "A1r—Piracy“ which ie commonly known ae
"Air—Hijacking" now a days. So the Code confines to the
;. -: 186 :—
grimes of the abduction of person only but not the abduction
gf the aircraft or vehicles. Hence a need has been felt to
include the crime of "Air—Hijacking“ in the Code.
¤R§SENT POSITION IN THE IPC
10.02. Section 362 of the Indian Penal Code is dealing
with the abduction which runs as under:
"362. Abduction:- whoever by force compels, or by
deceitful means induces, any person to go from any
place, is said to abduct that person."
The ingredients necessary to constitute an
lbduction of a person are-
1. that the person must have been made to go
from any place, and
2. that such going must have been —
(a) under compulsion by the use of
force, or
(b) induced by deceitful means -
(1)Abduction by itself is not
D punishable as a substantive offence.
(2) But if it falls within the
categories dealt with by sections 364 to
369 except 366A, 366B and 368 by reason
—: 187 :—· '
of other additional elements apart from
" force or fraud, it will be an oftence
— punishable under those sections.
Of course, Section 362 is dealing with the problem
of "Abduction" of a "person". But in the ·crime of
Air—hijacking, the "Aircraft" is a juristic ”pere0n“.
Moreover, at the time of committing the crime of
Air—Hijacking, there may be persons inside the aircraft
either as passengers or as crew members or both. _
But legally, it will be very difficult to cover the
crime of Air-Hijacking under_Section 362 of the IPC as this
crime was never imaginated by the framers of the Code. And
as society progressed, the notions of property and revenge
grew up which germinates new crimes in the society and one of
them is the modern crime of Air-Hijacking.
Eggposal to Include "Ai;-hijacking" in the IRQ
10.03. In the recent past, the new crime of air hijacking
has increased. Despite the steps taken by the countries as
well as International Civil Aviation Organisation (ICAO)
there is no reduction in the incidence of hijacking.
W`. .; V .r*;..j......i-.W--rL._.. A -._..-.- __
{ —: 188 :—
The Law Commission of India in its letter dated
{26th December 1995 sought the auggeations to tackle the
*problem of hijacking of aircrafts or other vehicles. Item 13
fof the letter says that-
" the cases of hijacking of aircraft and vehicles *
in recent past have been galore in parts of our
country ridden with terrorism. In view of this, it
is felt that the hijacking of an aircraft or
Y vehicle be made punishable under the Indian Penal
Code. Do you think that there should be a uniform
punishment for both the offences or it should vary
according to gravity of the offence and be
deterrent punishment in case of hijacking of an
aircraft on board or in flight?"
Similarly in its questionnaire on IPC, 1860 (Item
18 p. 36), the Law Commission has asked the opinion to
include this crime in the IPC, namely- n
(i) hijacking of aircraft; and _
(ii)hijacking of the vehicles.
—: 189 :—
kf In the questionnaire, the option has been sugg•sted
whether there should be a uniform punishment for both the
ioffences or it should vary according to the gravity of the
isffence and be deterrent punishment in case of hijacking of
:ah_aircraft on board or in flight.
EARLIER REEORT (42nd) OF IHE LAQ QQMMISSION I A
10.04. The Law Commission of India has submitted its 42nd
Report in June 1971. In the said report (Item 16.96 p.296),
the problem of abduction incidently to hijacking was
discussed. The Commission had received the suggestion that,
to cover the crime of hijacking of aircraft or other vehicle,
an amendment may be made so as to punish those who indirectly ·
cause persons to be transported to a place which is not their
intended destination. In other words, extradition was
sought. The need for such amendment was emphasised on the
ground that the compulsion in such cases, at least so far as
the passengers are concerned, is indirect. However, the Law
Commission expressed its view that such cases could be
regarded as falling within the Section 362, notwithstanding
the indirect nature of the compulsion and therefore, no
amendment is necessary.
Nonetheless, IPC (Amendment) Bill, 1978 made an
?6ttempt to include the crime of “Air—h1jack1ng in a new
isection 362A.
g
rz 190 :-
Igsertion gf section QQZA in the IRQ:
l0.05. By clause 149 of the IPC (Amendemnt) Bill, 1978, it
Is proposed to add a new section 362A. The proposed section
which explains the meaning of Air—hijacking and hijacking of
;he Vehicles and also prescribed the punishment for the said
zrime reads as follows:
*362A. (1) whoever on board an aircraft in flight,
being an aircraft registered in India, or any other
aircraft in flight over Indian air space,
unlawfully by force or show or threat of force or
by any other form of `intimidation seizes such
aircraft or exercises control over it or attempts
to seize or exercise control over it for the
purpose of landing it at a place other than the
place of its destination or for any other purpose,
is said to commit the offence of hijacking of
aircraft and whoever commits such hijacking shall
be punished with imprisonment for life, and shall
also be liable to fine.
(2) whoever on board a vehicle in India or a _
vehicle registered in India unlawfully by force or
show or threat of force or by any other form of
intimidation seizes such vehicle or exercises
control over it or attempts to seize or exercise
—: 191 :· 1
control over it for the purpose of taking it to a
A place other than the place of its destination or
for any other purpose, is safd tot commit the ·
offence of hijacking of vehicle and whoever commits
such hijacking shall be punished with rigorous
imprisonment for a term which may extend to ten
years and shall also is liable to fine.
Explanation- In this section-
(i) the period during which an aircraft
is in flight shall be deemed to include
any period from the moment when power is
applied for the purpose of the aircraft
taking off on a flight until the moment
when the landing run, if any, at the
termination of that flight ends;
(ii) theh word "vehicle" include any
vessel but does not include an
aircraft." A
l0.06. Apart from the above, the following offences are
also contained in the Bill: F
E. ]g substitute of sggtjgg ]Q§ IEC, (Clause 35(d) of the
Bill)
Clause 35 of the Bill substituting section 103
relevant sub-clause 35(d) .
—: 192 :— ·
"§ub—Clause 35(d) mischief to property used or
intended to be used for the purposes of' the
Government or a local authority or a Corporation
owned or controlled by the Government, where such
mischief is committed by intentional destruction
of, or substantial damage to, property, or"
(e) hijacking of aircraft, or
(f) sabotage." .
However, this clause does not deal with the
iischief intended to be committed with the private aircraft.
II. To substitute of section 105 IPC (clause 37 of the Bill)
"Clause 37 of the Bill for substituting section 105
of the IPC runs as under:
105. "The right of private defence of property
commences when a reasonable apprehension of danger
to the property commences; and it continues-
(a) ....
—: i93 :¥
(b) ....
(c) against mischief, criminal trespass, hijacking
of aircraft, or sabotage, as long as the offender
continues in the commission of the offence."
III. To sgbstitute sections 426 to 432 and 434 tg 440 gf
_ the IPC: (clauses 179 and 180 of the Bill) -
In Clause 179, it is proposed to substitute
Sections 426 to 432 of the IPC. Similarly, it is proposed in
clause 180 to substitute Sections 434 to 440. The most
important proposed section in the Bill relating to the
Mischief of Aircraft runs as under:-
"432. Whoever commits mischief by doing any act
whereby he destroys or moves or renders less useful
any air-route, beacon or aerodrome light, or any
light at or in the neighborhood of an air—route or
aerodrome provided in compliance with law, or any
g other thing exhibited or used for the guidance of
aircraft, such act not amounting to the offence of
sabotage, shall be punished with imprisonment of
either description for a term which may extend to
seven years, or with fine, or with both." `
i —: 194 :- gg
10.07. The IPC (Amendment) Bill, 1978, though pas••d by
the Rajya Sabha, but could not become an. Act due to
dissolution of the then Lok Sabha. In the meantime, the ·
problem of “Air Hijacking" was increased and it was felt
urgently to have an effective piece of legislation to deal
with the burning problem. Therefore, two principal Acts came
into force in 1982 and after amendments the Acts are known as
under: 1 `
(i) The Anti—Hijacking Act, 1982;
e (ii) The Anti—Hijacking (Amendment) Act, 1994;
· (iii)The Suppression of Unlawful acts against
V T in Safety of Civil Aviation Act, 1982;
(iv) The Suppression of Unlawful acts against
‘ Safety of Civil Aviation (Amendment) Act, 1994.
The Anti—Hijacking Act, 1982
10.08. This Act was enacted to give effect to the
Convention for the Suppreesioné of Unlawful Seizure of
Aircraft and for matters connected therewith. The said Act
(No 65/1982) came into existence on 15th November 1982.
ft 195 I- _
Section 3 of the Act explains the crime- of
hijacking" as under- l
"3.(1) whoever on board jan aircraft in flight,
unlawfully, by force or threat of force or by any
other form of intimidation, seizes or_ exercises
control of that aircraft, commits the offence of
hijacking of such aircraft.
(2) whoever attempts to commit any of the acts
referred to in sub section (1) in relation to any
aircraft, or abets the commission of any such act,
shall also be deemed to have committed the offence
of hijacking of such aircraft.
(3) For the purposes of this section, an aircraft
shall be deemed to be in flight at any time from
the moment when all its external doors are closed
following embarkation until the moment when any
such door is opened for disembarkation, and in the
case of a forced landing, the flight shall be
deemed to continue until the competent authorities
off the country in which such forced landing takes
place take over the responsibility for the aircraft
and for persons and property on board."
—: 198 :- .
Section 4 has prescribed the punishment for the
'rime of hijacking. It says that whoever commits the offence
gh hijacking shall be punished with imprisonment
gif life and shall also be liable to fine.
Section 7 explains the provisions as to
{extradition. Accordingly, the offences under the Act shall
gba deemed to have been included as extraditable offences and
iprovided for in all the extradition treaties made by India
éwith Convention countries and which extend to, and are
`binding on, India on the date of commencement of this Act.
10.09. This Act was amended in 1994 (No. 39/94). Through
the amendment any police officer by notification was made
competent to arrest, investigate and prosecute the criminal
of hijacking. The Amendment Act also prescribed the
establishment of special Designated Court and the Designated
'C0urt shall presume, unless the contrary ie proved, that the
Laccused had committed such offence.
The Suppression of Qnlgwful Act; Against §afgty__gf ·
Civil Ayjation Act, jgggn A
l0.10. The said Act was enacted to give effect to the
Convention for the Suppression of Unlawful acts Against the
Safety of Civil Aviation and for matters connected therewith.
lhis Act came into force on 15th November 1982.
—: 197 :· i
Section 3 of the Act defines the offence committing
yiolence on board an aircraft in flight, etc. Section 3 runs
he under — ‘ ` ` e
"3.(1) whoever unlawfully and intentionally-
(a) commits an act of violence against a person on
board an aircraft in flight which is likely to
endanger the safety of such aircraft; or
(b) destroys an aircraft in service or causes `
damage to such aircraft in such a manner as to
render it incapable of flight or which is likely to
endanger its safety in flight; or
(c) places or causes to be placed on an aircraft in
service, by any means whatsoever, a device or
substance which is likely to destroy that aircraft, o
or to cause damage to it which renders it incapable
of flight, or to cause damage to it which is likely
to endanger its safety in flight; or
(d) communicates such information which he knows to
be false so as ito endanger the safety of an
aircraft in flight,
shall be punished with imprisonment for life and
shall also be liable to fine.
—: 198 :-S t
(2) whoever attempts to commit, or abets the
commission of, any offence under sub-section (1)
shall also be deemed to have committed such offence
and shall be punishable with the punishment
provided for such offence."
)0.11. This Act was amended by an Amendment Act (No.14/94)
‘and Section 3A was added which explains the mischief too. It
suns as under. 4
Q After Section 3 of the Principle Act, the following
Esections shall be inserted, namely:-
"3A.(1) whoever, at any airport, unlawfully and
intentionally, using any device, substance or
weapon-
(a) commits an act of violence which is likely to
cause grievous hurt or death of any person; or
(b) destroy or seriously damages any aircraft or
facility at an airport or disrupts any service•at
thelairport,
endangering or threatening to endangertsafety at
that airport, shall be punished with imprisonment
for life and shall also be liable to fine.
e —: 199 :- I 4
3(2) whoever attempts to commit, or abets the
commission of, any offence under sub—section (1)
shall also be deemed to have committed such offence
and shall be punished for such offence."
The Section 9A was also inserted in the Principle
Act and accordingly the Designated Court shall presume,
unless the contrary is proved that the accused had committed
such offence mentioned in the Act.
Thus, it is crystal clear that this Special Act is
dealing about the mischief to aircraft and its operation in
an effective manner, and certainly in a better manner than
proposed section 432 in the IPC (Amendment) Bill of 1978
(Clause -179).
Thus these two special legislations are sufficient
for dealing with the offences relating Hijacking, Safety, and
mischief of Civil Aviation in an effective manner.
Special Legislation vis-g—vis Indian Penal Cgge
10.12. For the framers of the Code, it was impossible to
make the Code exhaustive of all offences. Section 5 of the
(Code is important and has` wisely left all pre—existing,
SDecial, or local laws. The Code deals only with general
·: 200 tf
pffences, and it cannot cover thegoffencss which are cover•d“
Qy local or special laws. The saving of special or local law
nt; in accordance with the general _principle ggpgggljg
§2§91él1§Q§..nQn..Q9£999n; which means_that general words do
pt.der0gate from special. In other words, general words do
hot repeal or modify special legislation. (Seward vs. gage,
Em AC ca) _ A
10.13. The effect of this section is to qualify the
lgeneral repeal contained in section 2 of the code seeking to
repeal all other laws for punishment of offence. Thus the i
code was intended to be a generali one, it was not found
desirable to make it exhaustive and hence offences defined by
local or special laws were left out of the code, and merely
declared to be punishable as thereto fore.
Therefore, it is provided in Section 26 of the
General Clauses Act, 1897 that- ·
"where an act or omission constitutes an offence
under two or more enactments, then the offender
shall be liable to be prosecuted and punishable
under any of those-enactments, but shall not be
liable to be punished twice for same offence." _
(Also double jeopardy Article- 20 (2) of the
Constitution).
7 -: 201 :— ‘ h
M __,v But this, of course, assumed, that there is nothing
in the one to exclude the·operation of the other. In other
words, where a special or local Act prescribes its own
penalties they are presumed to be exhaustive, unless there is
·anything in the Act to save general law. Moreover, it is
well settled law that where an Act is punishable both under
the code as well as under la special or local law, the
preferable course is to convict under the special law and not
under the code, both because specialia generalibus derogant,
as well as because the special Acts are primarily constituted
to punish such delinquencies.
Moreover, it is proposed in clause 3 of the IPC
(Amendment) Bill, 1978 to substitute section 5 of the IPC as
under:
"Nothing in this code shall affect the provisions
of any special or local law."
Problem of hijacking of aircraft or vehicles__sum
MQ;
10.14. The existing general provisions in the IPC cover
moving of any property unlawfully amounting to theft and when
a force is used it may become robbery and if committed by
five persons or more it amounts to dacoity. But in view of
new trends of crime like hijacking of aircraft or vehicles,
in 1978 Bill certain provisions are sought to be included and
i I -: 202 :—
iff `
ihijacking of aircraft or vehicles are being made specific
ioffences by virtue of section 362A under clause 149.
glncidentally, some changes are suggested in the provisions
lielating to private defence and are sought to be made in
sediticns 103, 105 by adding hijacking of aircraft or
sabotage. The other existing provisions relating to mischief
also cover some of the alleged offences committed in respect
of the aircraft or vehicles. In view of the changes to be
brought about relating the offence of hijacking in the Bill,
they have explained under the proposed section 437 the
meaning of sabotage which is sought to be introduced or
inserted under clause 180. Likewise, some changes are
suggested in the Bill in the proposed new section 432
regarding mischief committed in respect of the air services
like beacon, lights, etc. at the airport. The IPC ~
(Amendment) Bill was prepared in 1978, thereafter the
Anti-hijacking Act of 1982, subsequently amended in 1994.
Also the Suppression of Unlawful acts against Safety of Civil
Aviation Act, 1982 was enacted which was also amended in
1994. An examination of the provisions of these Acts it is
crystal clear that the changes what are sought to be brought
about in this regard under clause 179 are being taken care of
in these special enactments both in respect of hijacking as
well as the mischief to the service as such.
Therefore, there is no necessity now to have
section 362A as proposed in the IPC (Amendment) Bill, 1978 in
respect of hijacking of aircraft. Consequently, the changes
i —: 203 2-.
¤F0pOS€d under clauses 35 and 37 of the IPC (Amendment) Bill,
EQYB for the amendments in sections 103 and 105 of the 1Pc
yudch deal with the mischief to property including hijacking
[R aircraft, would not be necessary. Needless to mention
[hat the mischief to the air service etc. has been made a
Erime and punishable under the special enactments mentioned
above. Hence, no amendment is also required in section 432
§f the IPC as proposed in the IPC (Amendment) Bill, 1978.
10.15. In the light of above discussion, it is recommended
that section 362A is not required to be inserted in the IPC.
Similarly there is no need to amend sections 103, 105, 432 of
the IPC for covering the crime of air hijacking and mischief
to air service etc.
10.16. But this crime is tremendously increasing
throughout the world. The legislation of a country fails
when the jurisdiction for the crime of air hijacking or
criminal arises in two or more countries. It is the need of
the hour that to prevent this crime international cooperation
és required. Therefore, it is very necessary to have a look
jor international trends towards the problem specially where
éhs crime issa continuing crime and have jurisdiction of two
;F more countries. In brief, discussion pertaining to
§nternational trends and convention pertaining air hijacking
éhall be useful not only for our recommendations but also for
gcademic value. .
—: 204 :r
International Trends and Conventions relating to
the Crime of Air—hijacking:— ~ h
;k10.17. Aircraft hijacking is a contemporary addition to
:;the roster of international and national crimes and the
rsneeessity for its control at international and national level
is only beginning to be recognized by States. In its wide
sense hijacking is an act against the safety of civil
aviation and resembles piracy.
Tokyo Conventions, 1963.
10.18. According to Article 1, when a person on board has
unlawfully committed, by force or threat thereof, an act of
interference, seizure or wrongful exercise of control of an
aircraft in flight or when such an act is about to the
committed, contracting States shall take all appropriate
measures to restore control of the aircraft to its lawful
commander or to preserve its control of the aircraft.
Further, the contracting State, when the aircraft lands,
shall permit its passengers and crew to continue their
journey as soon as practicable and shall return the aircraft u
and its cargo to the persons lawfully entitled to the
'Dossession. Article 13 further provides that any contracting
?—State shall take the delivery of any person whom the aircraft
¢·commander delivers and that it shall immediately make a
Dreliminary enquiry into the facts. It is clear from the
—: 205 :— Q
agvg provisions that an attempt to define the term
?1jaoking’ has not been made, but it simply imposes certain
Q _ _ .
pligations upon a contracting State and lays more emphasis
5 the return of the hijacked aircraft and its passengers to
ieee persons who are entitled to its possession and to
rermit its passengers and crew to continue their journey as
aoon as practicable. i A
he Hague Convention of 1970
0.19. Article 1 provides that "Any person who on board an
lircraft in flight: _
(a) unlawfully, by force or threat thereof, or by
any other form of intimidation, seizes or exercises
control of that aircraft or attempts to perform any
such act, or
(b) is an accomplice of a person who perform or
attempts to perform any such act, commits an
offence ..... "
This provision also` does not define the term
hijacking', but simply mentions its essential elements.
Vonetheless, according to International Law, following are
he essential elements of the offence of hijacking:
· —: 206 1-
(i) Unlawful use of force or threat thereof or any
I other form of intimidation;
(ii) To do above—mentioned acts with a view to
seize the aircraft or to exercise control over it;
(iii) The said acts should have been committed on
board an aircraft in flight;
(iv) Accomplice of person who performs to- attempts
to perform the above—mentioned act is also guilty
of the offence of hijacking.
The above—mentioned essential elements are similar
to those mentioned in Article 11 of the Tokyo Convention,
1963. The only innovation in "Hague Convention, 1970" is
that it includes an accomplice of a person who performs or
attempts to perform any such act. _
The Montreal Convention, 1971.
10.20. A conference was called by ICAO at Montreal from
8th to 23rd September, 1971. As a result of this conference,
8 Convention (known as Montreal Convention For The
Suppression of Unlawful Acts Against the Safety of Civil
Aviation, 1971) was adopted. Article 1 of the Montreal
C¤nvention provides that any person commits an offence if he
unlawfully and intentionally-
—: 207 :—
(a) performs an act of violence against a person on
is board an aircraft if that act is likely to endanger
z· the safety of that aircraft;
(b) destroys an aircraft in service or causes
damages to such an laircraft which renders it
incapable of flight or it is likely to endanger its
safety in flight; or W
(c) places or causes to be placed on an aircraft in
service, by any means whatsoever, a device or
substance which is likely to destroy that aircraft,
or to cause damage to it which renders it incapable
of flight, or to cause damages air navigation
facilities or interferes with that operation, if
any act is likely to endanger the safety or
aircraft in flight; or
(d) destroys or damages air navigation facilities
or interferes with that operation, if any such act
is likely to endanger the safety or aircraft in
flight; or
(e) communicates information which he knows to` be
false, thereby endangering the safety of an
aircraft in flight.
—: 208 :- C
Besides this, it is further provided that a porson
also commits an offence if he attempts to commit any of the
goffences mentioned above or if he is an accomplice of a
?g6rSon who commits or attempts tp commit any such offence.
s
No doubt, Under Article 1 of this Convention, the
concept of the offence of hijacking was further widened.
Under this Convention, the State parties have undertaken that
they will provide deterrent punishment to the hijackers.
Other provisions are similar to that of the Hague Convention.
It would not be wrong to say that it is simply an improvement
of the Hague Convention. As a matter of fact, it would have
been better if the provisions of Montreal Convention had been
adopted as protocol to the Hague Convention.
Principle of universal jurisdiction in respect of
the crime of the hijacking.
10.21. The principle of universal jurisdiction is
universally recognised in respect of the crime of piracy.
Since hijacking is generally described as aerial piracy, the
principle of universal jurisdiction should apply in respect
of the crime of hijacking. By universal jurisdiction in
respect of a crime, it is meant that the crime is against the
interests of international community and in order to suppress ‘
such a crime, all States can exercise jurisdiction in respect
of the crime. The Hague Convention, 1970, and the Montreal
Convention, 1971 on hijacking have gone a long way to confer
—: 209 :— _ e
Engversal jurisdiction to a great extent on all States, if an
Effender or alleged offender is within the territory of a
gtate, both conventions contain provisions for him to be
iaten into custody, and if he is not extradited, for his case
to be placed before the prosecution authorities.
Although neither Convention creates a duty to
axtradite or an inescapable duty to prosecute authorities are
ievertheless under a duty to take their decision in the same
nanner as in the case of any ordinary offence of a serious
iature under the law of that State. If the decision is in
:he affirmative, the above mentioned universal jurisdictional
:lause ensures that the courts will be competent to hear the
:ase.
Proposal for the Establishment of an International
Criminal Court:
0.22. The idea of the establishment of an International
riminal Court is not a new one. It has been a much
iscussed topic since the end of the first world war. It has
ssumed urgency in view of the fact that political aspects
re not sufficiently regulated in the Hague convention of
970. On September 14, 1970,the than Secretary—General of
he U.N. proposed that hijacker should be brought to trial
Store an international tribunal. In his view, the proposed
lternational tribunal would defend the interests of all
30Dles and nations and would be effective if governments
—: 210 :—
pledged themselves to extradite hijackers to be brought
before the tribunal. One of the reasons for the
establishment of an International Criminal Court is that some
I ‘ times it will be difficuft for a National Court to punish an
International delinquent.
In this connection, following three kinds of
proposals have been made.
(1) A separate court administered by the United
Nations;
(2) A Special Division of the International Court
of Justice; or
(3) A court by means of International Conventions.
But since many States do not still seem to be
prepared to take stringent measures against hijackers and in
view of the present state of international relations and
affairs, preventive measures comprising of thorough searches
of all passengers, and their luggage constitute the best
means to prevent or at least minimise the incidents of g
hijacking. i
Problems of Extradition of the Hijackers:—
Q —: 211 :- .
`v10.23. Yet another shortcoming in the existing law is in
respect of extradition of the hijackers. Extradltion of
alleged offenders is obligatory only when there is a treaty
to that effect. Moreover, the hijacking is not included as
an extradition offence in some extradition treaties. Also
extradition treaties often provide that State is under no
obligation to extradite its own nationals, or persons who
5 have committed crimes of political nature. Further, the
reluctance of States to extradite hijackers who have acted
for political motives is understandable, hijacking an
aircraft is often the only way in which an individual can
escape from a country where he is liable to political, social
or religious persecution and it would be undesirable to
require other States to send him back to a country where he
faces such persecution. But unless such an individual is
punished, there is danger that other people with less
excusable motives will be tempted to imitate him. It is,
therefore a matter of regret that the Hague and Montreal
N Conventions stopped short of requiring States prosecute
hijackers, who are not extradited.
As regards action against States which refuse to
extradite or prosecute, it may be suggested that an amendment
to the Chicago Convention which empowered the Council of
I.C.A.O. to order the suspension of all services to or from
A member States or I.C.A.O. which refused to extradite or
Drosecute hijackers would override air service treaties
previously concluded between member States. If member States
—: 212 :-
were forced to choose between accepting such an amendment and
ceasing to be members of I.C.A.O. they would probably accept
the amendment, because they` would not likev to lose the
advantage of membership of I.C.A.O. It was unfortunate that
such an amendment when presented to the I.C.A.O. Assembly in
1973 could not be adopted as it failed to secure the
requisite 67 votes. It could secure only 65 votes, i.e.
only two votes less than the requisite number.
Extradition and Indian Law
10.24. In India, there is the Extradition Act, 1962. The
Act felicitate the Extradition Treaty with other countries if
the same provides extradition of the accused of the crime
including Crime of Air-Hijacking. ‘
Moreover, Section 7(2) of the Anti-Hijacking Act,
1962 provides that for the purposes of the application of the
Extradition Act, 1962 to offences under- this Act, any
aircraft registered in a Convention country shall, at any
time while that aircraft is in flight, be deemed to be within
the jurisdiction of that country, whether or not it is for
the time being also within the jurisdiction of any other
country.
—: 213 :—
W10.25. In the light of the abovei discussion, it appears
that there is an urgent need to have an International Court
gf Civil Aviation. The proposed Court will deal with the
crimes of Air hijacking, mischief in the air service where
tho jurisdiction will nriso in two or more countrlou. Thu
Law Commission is aware that making a direct recommendation
in International Law is not 'within its jurisdiction,
nevertheless this recommendation is being made incidentally
and in the interest to prevent the crime of international
civil aviation. Therefore, it is ekpected from the `
Government of India to take up this recommendation with the
jnternational comity as and when possible.
HIJACKING OF THE VEHICLES ETC.
10.26. In the recent past the crime of vehicle hijacking
has increased in various parts of the countries. To take
away the passenger vehicle sometimes by miscreants like
'terrorists etc. has created the problems for the
administration of Law and order.
10.27. In this connection, it is proposed that amendment
is required in the IPC to tackle this problem. Though the
Chapter XVII of the IPC " offences against the property" is
already dealing with the offence against the property but not
dealing with hijacking of vehicles as there is no motive to
take the ownership of vehicle in case of hijacking of
4 —: 214 :-
vehicle. In the hijacking, generally motive may be to create
terror or demand ransom or counter bargaining. But on the
other hand, in Chapter XVII of the IPC; sole motive is to
take the property for the purpose of ownership ultimately.
If the criminals for the hijacking of vehicles will be booked
under this Chapter as well as Section 362 of the IPC which is
dealing with the abduction of the person either in the
vehicle or outside the vehicle, then prosecution may face
problem in proving "mens rea". Another problem may be gg
punish and identify the actual group behind the crime.
The establishment of the principle that there must
be a mental,even though objective, in crime, is now a {Sw
centuries old. Tracing the evolution of this princisle,
Russell on Crime (iaith Edition p.23) says: "The new
conception that merely to bring about a prohibited crime
should not involve a man in liability to punishment unless in
addition he could be regarded as morally blameworthy, camo to
be enshrined in the well—known maxim "actus non facit rsum
nisi mens sit rea". This ancient maxim which means that an
act does not make a man guilty unless there be guilty
intention propounds a moral test of criminal liability Mdch
has lingered in the law for no man can be convicted of a I
crime at common law unless both the physical andrmmtal
elements are present in the crime.
—: 215 :— _
iistatutory Qffence;
i>10.28. The law relating to mens rea in statutory offences
. is substantially the same. The basic rule of interpretation
of statutory offences is that "unless the statute, either
Q clearly or by necessary implication rules out mens rea as a
constituent part of a crime, a defendant should not be found
guilty of an offence against the criminal law unless he has a
guilty mind". This rule is "of the utmost importance for the
protection of liberty of the subject". with this view their
Lordships of the Privy Council agreed in Srinivasa Mall vs.
i Emperor (AIR 1947 P.C.135). This statement of the law by the
Privy Council was approved by the Supreme Court in Ravula
Hariprasada Rao vs. State (AIR 1951 SC 204)
Though it is true that actus non facit reum nisi
, mens sit rea is a cardinal doctrine of criminal law the
Legislature can create an offence which consists solely in
doing an act, whatever the intention or state of mind of the
person acting may be. Whether mens_rea is a constituent part
of a crime or not must in every case depend upon the wording
of the particular enactment. The Privy Council observed in
Srinivasa Mall‘s case that in a limited class of offences
which are usually of a comparatively minor character the
offence can be committed without a guilty mind. This class U
is generally made up of acts mala__prohibita and the
prohibitions are intended to protect the public or to promote
-: 216 :- ‘
the general welfare, and , therefore, mens rea is not
gsnsisted upon as an essential ingredient of the offence
gunless so declared in express words by the Legislature.
However, so far as the Indian Penal Code is
concerned, every offence under it virtually imports the idea V
éof criminal intent or mens rea. _ Intent denotes all those
states of mind which the statute creating the offence in
question regards as necessary that an accused must have in
order to fix the guilt in him.
_ Needless to mention that to constitute a crime the
act must, except in the case of certain statutory crimes, be
accompanied by a criminal intent or by such negligence or
indifference to duty or to consequences as is regarded by the
law as equivalent to criminal intent. Intention, however, is
not capable of positive proof: it can only be implied from
overt acts. As a general rule, every sane man is presumed to
intend the necessary or the natural and probable consequences
of his acts and this presumption of law will prevail unless
from a consideration of all the evidence the Court entertains
a reasonable doubt whether such an intention existed. This
Dresumption, however, is not conclusive, nor alone sufficient
to justify a conviction and should be supplemented by other
testimony.
—: 217 :—-
10.29. The gravity is such that it cannot be left ae
theft. Therefore, there is an urgent need to make it a
geparate offence. Therefore, to avoid doubts, it 10
recommended to incorporate the Crime of "Hijacking of
Vehicles" etc. in the IPC. By making this crime a
"statutory Crime",all the controversies (like whether the
said crime can be covered or not in Chapter XVII), will
disappear.
10.30. In the light of the above, it is recommended that-
I. Section 362A (1) as mentioned in the IPC
(Amendment) Bill, 1978 (Clause 149) may be omitted but clause
(2) may be inserted in the IPC as under:
8.362A. Whoever on board a vehicle in India or a
vehicle registered in India unlawfully by force or
show of threat or force or by any other form of
intimidation seizes such vehicle or exercises
control over it or attempts to seize or exercise
control over it for the purpose of taking it to a
place other than the place of its destination or
for any other purpose, is said to commit the
offence of hijacking of vehicle and whoever commits
such hijacking shall be punished with rigorous
imprisonment for a term which may extend to ten
years and shall also be liable to fine.
-:218:-
Explanation— In this section-
(i) The word "Vehicle" include any vessel but does
not include an aircraft.
II. Section 432 of the IPC (Amendment) Bill, 1978
(Clause 179) may be dropped.
III. In the above mentioned explanation the words,
“helicopter, air glider etc." may be inserted. It may read
as under:-
(i) The word "Vehicle" include any vessel including
h helicopter, or air—glider etc., but does not
include an aircraft.
i OR
The words "helicopter, air—glider etc." may be
inserted in S.2 (a) of the Anti—Air Hijacking Act
1982, as well as in the Suppression of Unlawful,
.acts Against Safety of Civil Aviation Act, 1982.
IV. If need be, necessary amendment may be carried out
in the special legislations, mentioned above.
—: 219 :—
CHAPTER- XI
DOCUMENT - SCOPE OF ITS DEFINITION
Section 463 defines the term "forgery". This
section provides that "whoever makes any false document or
part of a document with intent to cause damage or injury, to
the public or to any person, or to support any claim or
title, or to cause any person to part with property, or to
enter into any express or implied contract, or with intent to
commit fraud or that fraud may be committed, commits
forgery". Section 464 defines making of a false document and
enumerates various situations as to when a person can be said
to make a false document. V The Commission proposes to
further examine the scope of the term ’document’ in view of
the latest scientific developments in the field of computers
as well as in the context of forgery of a copy of a document
as also the implications of fabricating a document to conceal
8 past injury or fraud to escape liability for criminal
prosecution.
11.02 Commission of fraud through the use of computers:
with the advent of electronics many transactions
Ore done through computers. Recent scam of fraud in New
Delhi Municipal Corporation electricity bills through use of
computers is an illustration of computer fraud.
—: 220 :— R
The topic of computer crime has recently formed the
subject of a report by the Scottish Law Commission. In this
respect the Scottish Law Commission identified eight distinct
forms of behaviour, while the English counterpart referred to
five main headings. In both cases, however, three critical
issues stand out, namely (i) the involvement of the computer
in a scheme to secure unlawful financial advantage or the
unauthorised `Hamendment or deletion of data, (ii) the
unauthorised use of a computer system or the securing of
unauthorised access to data held therein and (iii) the
’theft’ of the information.
The Audit Commission (U.K.)(1) has conducted a
triennial survey of 'computer fraud and abuse’. The
Commission was only able, in their survey covering the years
1984—B7 to discover 118 incidents of frauds within England
and wales with total losses amounting to a little over 2.5
million pounds. It has also been alleged that clearing bankn
have set aside the sum of 85 million pounds to cover losses
arising from computer fraud. The Audit Commission (U.K.)
further found that the concept of computer frauds spans a
wide range of activities ranging from sophisticated
multimillion pound frauds to the misuse of a bank’s automatic
teller machine.
Therefore, 'there is a need to explicitly bring the
computer frauds within the purview of Chapter XVIII of the
IPC dealing with offences relating to documents by enlarging
—: 221 :—
the scope of the term 'document'. A
11_O3 The term ’document’ is defined in Section 29 IPC as
fellows:-
"29. Document. — The word "document" denotes any
matter expressed or described upon any substance by
means of ietters, figures, or marks, or by more
than one of those means, intended to be used or
which may be used, as evidence of that matter. I
Expianation I. — It is immateriai by what means or
upon what substance the letters, figures or marks
are formed, or whether the evidence is intended,
for or may be used in, Court of Justice, or not.
Iiiustrations
A writing expressing the terms of a contract, which
may be used as evidence of the contract, is a
document.
A cheque upon a banker is a document.
A power—of—attorney is a document.
A map or pian which is intended to be used or which
may be used as evidence, is a document.
A writing containing directions or instructions is
a document.
A —: 222 :—
Explanation 2. — Whatever is expressed by means of
letters, figures or marks as explained by
mercantile or other usage, shall be deemed to be
expressed by such letters, figures or marks within
the meaning of the section although the same may
not be actually expressed.
Illustration
A writes his name on the back of a bill of exchange
payable to his order. The meaning of the
endorsements, as explained by mercantile usage, is
that the bill is to be paid to the holder. The
endorsement is a document, and must be construed in
the same manner as if the words "pay to the holder"
or words to that effect had been written over the
signature."
Evidently, this definition though wide in nature,
needs to contain explicitly a provision in the light of the
recent electronic developments. The Law Commission in its
42nd Report, para 2.56, observed that :—
"2.56 The main idea in all the three Acts is the
same and the emphasis is on the "matter" which is
rocordod, and not on the substance on which the
matter is recorded. We feel, on the whole, that
the Penal Code should contain a definition of
—: 223 :—
"document" for its own purpose and that section 29
should be retained.
The two Explanations attached to section
29 are, we think, helpful. The first Explanation
helps to clear ambiguity about the import of the
word "evidence" used in the section, and is in
accord with the view of the Courts."
11.04 It may be noticed that in the Forgery and
Counterfeiting Act, 1981 (U.K.), Section 8(1), the term
’instrument’ means:
"... in this part of this Act ’instrument’ means —
(a) any document, whether of a formal or informal
character;
(b) any stamp issued or sold by the Post Office;
(c) any Inland Revenue Stamp; and
(d) any disc, tape, sound track or other
device on or in which information is
recorded or storedl by mechanical,
electronic or other means."
Arlidge & Parry on Fraud,(2) pr.5-O12, observes:
"in particular it is submitted that the words "any
device on or in which information is recorded or
stored by mechanical, electronic or other means" in
section 9(1)(d) include the magnetic stripe on a
payment card: the stripe ia clearly a device on
—: 224 :— I
which encoded information about the holder’s
account is recorded and stored. The same must
apply to electronic chip used on "smart" card.
A Since the stripe or chip is attached to the card,
it follows that information is also stored on the
card; but is the card a "device"? It is submitted
that if it is not a “document" within section
section 8(1)(d). It is clear that cheque cards and
credit cards, at least, are intended to qualify as
instruments because they are expressly included
among the special category of instruments
possession of which can be an offence. Other forms
of payment card are not so included; but it would
be strange if a credit card were an instrument and
a debit card were not."
11.05 A survey of definition of 'Document’ in other
legislations would be of great use. According to Black’s Law
Dictionary,(3) ’Document’ means-
"An instrument on which is recorded, by means of
letters, figures, or marks, matter which may be
evidentially used. In this sense the term
"document" applies to writings; to words printed,
lithographed, or photographed; to seals, plates or
stones on which inscriptions are cut or engraved;
to photographs and pictures; to maps or plans. The
inscription may be on stone or gems, or on wood, as
well as on paper or parchment."
—: 225 :- I
Under Section 3 of the Indian Evidence Act, 1872, the term
. 'Document’ "means any matter expressed or described upon any
j substance by means of letters, figures or marks, or by more
than one of those means, intended to be used, or which may be
used, for the purpose of recording that matter.
Illustrations I
A writing is a document; words printed lithographed
or photographed are document;
A map or plan is a document;
An inscription on a metal plate or stone is a
document;
A caricature is a document."
Under section 10(1) of the Civil Evidence Act, 1968 (U.K.)
the word 'document’ is defined as follows —
"Document: A written paper or something similar
which may be put Forward ae evidence.
'Document’ includes in addition to a document in
writing.
(a) any map, plan, graph or drawing;
(b) any photograph;
(c) any disc, tape, sound track or other device in
which sounds or other data (not being vleual
images) are embodied so as to be capable (with or
without the aid of some other equipment) of being
-: 226 za
reproduced from it; and
(d) any film, negative tape or other device in
which one or more visual images are embodied so as
to be capable (as aforesaid) of being reproduced
from it."
Under clause 11 of the Companies (Amendment) Bill,
1996 the following Section was proposed to be inserted in the
Company’s Act, 1956:-
"61OA. (1) Notwithstanding anything contained in
A any other law for the time being in force, —
(a) a micro film of a document or the reproduction
of the image or images embodied in such micro film
whether enlarged or not); or
(b) .........
(c) a statement contained in a document and
included in a printed copy produced by a computer
(hereinafter referred to as a computer printout),
if the conditions mentioned in sub—section 2 are
satisfied
shall be deemed to be also a document
for the purposes of this Act ......
(2) The conditions referred to in sub-section (1)
in respect of a computer print-out shall be the
following, namelyz-
(a) the information contained in the statement
reproduced or is derived from returns and documents
filed by the company on paper or on computer
—: 227 :— ‘
network, floppy, diskette, magnetic, cartridge
tape, CD—rom or any other computer readable media;
(b) ......
(c) ....... "
11.06 It is, thus, evident that there is a trend of
widening the scope of the term 'document’ having regard to
the latest scientific inventions in the field of electronica.
Consequently, there is apparent need to combat frauds
committed through computers. This would give rise to the
need to exhaustively define the term 'document’ under section
I 29, IPC. In this connection, it is pertinent to refer to
clause 11 of the Bill which seeks to amend section 29 of the
Penal Code.
Under sub-clause (a) of clause 11 of the Bill, it
is provided that in section 29 of the Penal Code, for the
words "expressed or described", the words "expressed,
described or recorded" shall be substituted. By virtue of
sub—clause (b) of clause 11, for the worde "figuree or
marks", the words "figures, images, marks or sounds" shall be
substituted in aection 29, IPC.
11.07 The Law Commission in ite 42nd report, para 2.57
recommended for a slight alteration of the language of
section 29 of the Penal Code. It observed that the
definition under section 29 relating to the term "document"
is wide enough to cover every kind of document. Some doubt
g ri 278 I·
was however, noticed as to whether it includes mechanical
records of sound or image. It recommended that it should
include such, as mechanical devices like "tape—records" which
are in frequent use. It referred to the decision of the
supreme Court in Pratap Singh Kairon, (AIR 1964 SC 72, 96,
pr.i5) that a conversation recorded on a tape is good
evidence, and obviously if a person forges a tape record, he
ought to be punishable the same way as a person preparing a
false document. The Commission recommended to make this
clear by adding an illustration to section 29. The
Commission recommended that section 29 should be revised to
read as follows:-
"29. Document - The word ’document’ denotes any
matter recorded upon any substance by means of
letters, figures, or marks, or by more than one of
those means, intended to be used, or which may be
used, as evidence of that matter.
Explanation I. — It is immaterial by what means or
upon what substance the letters, figures or marks
~ are formed, or whether the evidence is intended
for, or may be used in, a Court of Justice or not.
—: 229 :-
Illustrations
The following are documents—
(a) a map or plan;
(b) a caricature;
(c) a writing on a metal plate, stone or tree;
(d) a film, tape or other device on which sounds or
images are recorded.
Explanation 2. — Whatever is expressed by means of
letters, figures or marks as understood by
mercantile or other usage, shall be deemed to be
recorded by such letters, figures or marks within
the meaning of this section, although the same may
not be actually expressed.
Illustration
A writes his name on the back of a bill of exchange
payable to his order. The meaning of the
endorsement as understood by mercantile usage, is
that the bill is to be paid to the holder. The
endorsement is a document, and must be construed in
the same manner as if the words 'pay to the holder’
or words to that effect had been written over the
signature."
—: 230 :—
The proposed substitution of the words "expressed
Or described" under sub—clause (a) of clause 11 of the Bill
by the words "expressed, described or recorded" are thus
intended to widen the scope of the term "document" by
bringing within its import any matter even "recorded". One
may argue that by virtue of the insertion of the word
"recorded" in the definition of term ’document’ under section
39, IPC that any matter recorded on any disc, tape, sound
track or other device on or in which information is recorded
or stored by mechanical, electronic or other means would fall
within the ambit of the proposed amended definition of
’document’ vide clause 11 of the Bill. Nevertheless, the
matter is arguable both ways. Accordingly, it would be
advisable to define the term ’document’ on the lines of
definition of ’document’ given under section 8(1)(d) of the
Forgery and Counterfeiting Act, 1991 (UK).
11.08 Therefore, the term ’document’ as defined in
Section 29, IPC may be enlarged so as to specifically include
therein any disc, tape, sound track or other device on or in
which any matter is recorded or stored by mechanical,
Glectronic or other means. These words also find place in
Sec.8(i)(d) of the Forgery and Counterfeiting Act, 1981(U.K.)
Quoted above. In order to achieve this purpose, in addition
tO the amendment proposed to be added vide clause 11 of the
Blll, we recommend that a new Explanation 3 be also inserted
i“ Section 29, IPC on the following lines:-
—: 231 :-
"Explanation 3. — The term "document" also
includes any disc, tape, sound track or other
device on or in which any matter or image or sound
is recorded or stored by mechanical or other
means."
The aforesaid proposed amendment in section 29
would also necessitate consequential amendment of the term
"document" under section 3 of the Indian Evidence Act, 1872
on the lines indicated above.
—: 232 :—
FOOT NOTES
2 1_ Audit Commission (U.K.)
g_ Ar1idgo & Parry on Fraud, —sdn, ch.5 pr.5.012
3, B1ack’s Law Dictionary, Fifth Edn., p.432.
A —: 233 :—-
CHAPTER XII
THE INDIAN PENAL CODE (AMENDMENT) BILL, 1978
S The Indian Penal Code was placed on the statute
ibook in the middle of the last century and the title "Indian
.Penal Code" given by the then Law Commission refers to the
basic criminal law. The Indian Penal Code which is the basic
penal law of India, is thus more than 134 years old and the
task of bringing it to date was taken up by the Law
Commission of India in the year 1969 and it presented its
42nd Report in 1971. The Government after a careful
examination of the recommendations made by the Law
Commission, introduced a comprehensive Bill in the Rajya
Sabha in 1972. A Joint Parliamentary Committee scrutinised
the same for nearly four and a half years. After
finalisation by the Parliamentary Committee, the Bill was
passed in the Rajya Sabha in November, 1978. However, it
could not be passed in the Lok Sabha as it was dissolved in
1979. For some reason or the other this Bill was not again
introduced. The Government of India, however, made a
reference to the Law Commission of India to undertake a
comprehensive revision of the IPC and to come up with
appropriate recommendations.
12.02 Since the provisions of the Bill are mainly based
On the recommendations made in 42nd Report, we propose to
examine the recommendations made by the Law Commission in its
—: 234 :—
Etd Report and the changes in the circumstances in the ’
$anwhll€ and make our own assessment of the necessity to
Ering about the changes and also indicate modifications to
gw various clauses in the Bill wherever it is necessary.
In the present Bill there are 151 amendments, 95
igbstitutions, 32 omissions and 25 insertions. Apart from
gese, new sections 13OA to 140’ are substituted to the
Listing Chapter VII and sections 490, 491 and 492 are
wbstituted under Chapter XIX by changing the heading as
'Offences against Privacy' instead of the existing heading
’Criminal Breach of Contracts of Service’. In addition, two
iew chapters, namely, Chapters VB and XVIIIA are inserted and
mapter XXIII containing section 511 under the title
’Attempts to Commit Offences" has been omitted. Sections 161
w 165A have been omitted by and transposed to the Prevention
W Corruption Act, 1988. Besides, some of the sections or
Hauses or sub—clauses are renumbered. After introduction of
me proposed Bill, sections 228A (Disclosure of identity of
me victim of certain offences, etc.) and 304B (Dowry death)
ere inserted by Acts 43 of 1983 and 43 of 1986,
éspectively. Sections 375 and 376 (Sexual offences) and
wading of the chapter were substituted by sections 375, 376,
USA, 3768, 376C and 3760 by Act 43 of 1983. A partial
mendment to Explanation 1 to section 405 has been made. In
ddition, a new chapter XXA containing a new section 498A was
nserted by Act 46 of 1983.
·_—;—-l —: 235 :-
There are 207 clauses 1n the 1978 B1ll. Clauses 1,
5, 7, 8, 12, 16, 39, 40, 44, 46, 47, 49, 50, 51, 53, 55, 56,
57, 59, 60, 61, 62, 65, 69, 70, 71, 72, 73, 74, 75, 76, 77,
79, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 92, 95,
96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108,
109, 112, 113, 114, 115, 116, 117, 118, 120, 121, 126, 127,
129, 132, 133, 135, 136, 138, 139, 140, 141, 142, 143, 147,
148, 150, 153, 154, 156, 157, 158, 185, 186, 189, 191, 192,
193, 195, 200, 202, 205 and 207 are only 1nconsequent1al.
The changes proposed 1n the other clauses
contemplate to br1ng about the bas1c penal statute of th1s
country updated to remove lacunae and make 1t useful for
meet1ng the opt1mum needs. Several new offences are proposed
to be 1ncluded wh1ch would result 1n large scale changes 1n
the F1rst Schedule of the Code of Cr1m1nal Procedure.
We have carefully perused these clauses of the B1ll
and we f1nd that some of the changes contemplated go beyond
the recommendat1ons made by the Law Comm1ss1on 1n 1ts 42nd
Report. Therefore, we th1nk 1t necessary to exam1ne each of
these clauses as 1nd1cated already.
Clauses 2 to 8
12.03 Chapter II prov1des for general explanat1ons.
Sect1ons 6 to 52A conta1n var1ous def1n1t1ons and
explanations. The object of def1n1t1on 1s to avo1d the
,; —: 236 :- `
necessity of frequent repetitions in describing the
subject-matter to which the word or expression is intended to
apply. The definitions may be restrictive and exhaustive but
sometimes may be inclusive and exclgsive. In other words, a
definition may be inclusive and exclusive, i.e., it may
include certain things and exclude others. It is well
settled that the definition is not to be read in isolation
but must be read in the context of the phrase which defines
because the function of a definition is to give precision and
certainty to a word or a phrase which would otherwise be
vague and uncertain. In The Vanguard Fire and General
,Insurance Co. Ltd., Madras vs. Mgs Fraser and Ross and
another (AIR {1950 SC 971), the court observed -"It is well
settled that all statutory definitions of abbreviations must
be read subject to the qualification variously expressed in
the definition clauses which created them and it may be that
even where the definition is exhaustive inasmuch as the word
defined is said to mean a certain thing, it is possible for
the word to have a somewhat different meaning in different
sections of the Act depending upon the subject of the
context".
Section 6 lays down that throughout the Code (IPC),
Gvery definition of an offence, every penal provision, etc.,
Shall be understood subject to the exceptions contained in
the chapter titled "General Explanations", though those
Gxceptions are not repeated in such definition, penal
Drovision or illustration.
' —: 237 :—
Section 7 adds that every expression which is
explained in any part of the Code, is used in every part of
the Code in conformity with the explanation.
In these sections, various words and explanations
used in the Code are defined.
The Law Commission, in its 42nd Report, clearly
observed that neither the definitions nor the general rules
of construction contained in General Clauses Act are
applicable to the Indian Penal Code except to a very limited
extent but, however, noted that tc some extent there is
overlapping resulting in duplication which can be removed by
expressly providing that the General Clauses Act shall apply
for the interpretation of the Code. To that extent, the
Commission recommended the omission of certain sections
containing the definitions which are there in the General
Clauses Act also. In this view, the Law Commission
recommended deletion of sections 8, 9 and 1O which define
'gender’, 'number’, 'man’, 'woman’ and section 11 defining
`¤erson’. In the Bill, by virtue of clause 5, these sections
8, 9 and 11 stand deleted since these expressions are in the
same terms as they are found in the General Clauses Act.
A perusal of the General Clauses Act, 1897 would
Show that the definitions and the General Rules of
Construction contained therein are not specifically made
j —: 238 :— -
appiicable to the Indian Penal Code except to a very limited
extent. It is well accepted that all penal statutes are to
bg construed strictly and that the court must see that any
act or omission charged of, amounts to an offence within the
plain meaning of the words used in the Code and the word
should not be strained in construing the penal statutes, its
_cardinal principle being that in case of doubt the
construction favourable to the subject should be preferred.
The framers of the Indian Penal Code had in view this general
scope of the substantive law in incorporating the definitions
in the chapter of General Explanations. It is also an
accepted principle that the essence of a penal law is to be
Alsxhaustive on the merits in respect of which it declares the
law. In so construing very often the meaning and the object
Iunderlying the definitions with reference to the offence
kcharged assumes importance. To determine that a case is
Qwithin the ambit of the statute, its language must be
ijxplicit and facilitate the court as to what to say and how
interpret. Having regard to these aspects, it is better
EG retain the definitions in the Penal Code instead of
eitting them as recommended by the Law Commission in its
End Report. In the result, we do not recommend any changes
ssections 8, 9 and 11. Consequently, clauses 2 to 8 of the
all have to be deleted.
H¤
E2
-04 By virtue of this clause, sections 18 to 21 are
mm; YO be substituted. Existing section 18 says- "Indi8"
—: 239 :- A
means the territory of India excluding the State of Jammu &
Kashmir. As pointed out by the Law Commission, there is a
need to amend this definition to make it clear that the
Indian Penal Code extends to the territorial waters of India
in the same manner as it extends to the land territory. The
Law Commission, in its 42nd Report suggested an amendment to
section 18, namely, "India" means a territory of India
including territorial waters but does not include the
territory of Jammu & Kashmir." In recommending this
amendment, the Law Commission laid more stress in extending
the Code to the land territory as well as internal waters of
India. Though clause 2 has more clearly covered the
territorial jurisdiction, it is silent as to the extension of
the Code to the State of Jammu & Kashmir. It has been voiced
in many workshops as well as observed in court judgments and
suggestions from the members of legal fraternity and jurjsts
to extend the applicability of Indian Penal Code to the
entire country (including Jammu & Kashmir). Though this is a
laudable object, new section 18 is not in conformity with the
same.
The existing section 1 reads, "the title and extent
Of operation of the Code- this Act shall be called the Indian
penal Code and shall extend to the whole of India except the
State of Jammu & Kashmir". The words "extend to the whole of
India" were introduced by way of an amendment in the year
7950 and the words "except the State of Jammu & Kashmir" were
Substituted in the year 1951. The existing section 18
defines India as "India means the territory of India
—: 240 :-
excluding the State of Jammu & Kashmir". It may be noted
that this section was substituted in the year 1950. By
reading these two sections together it appears that the
intention was not to extend the Penal Code to the State of
Jammu & Kashmir as can be noticed from section 1. But India
85 defined in section 18 is somewhat incongruous, i.e., as
the territory of India excluding the State of Jammu &
Kashmir. However, in the Bill the existing section 1 is not
touched upon whereas the oxietlng definition of India as
found in section 18 is sought to be substituted by new
section 18 which reads, "the word 'India" wherever it occurs
in this Code means the territories to which this Code
extends". when the existing section 1 is not modified then
the definition of India in the new section does not carry the
matter further because it says that India means the
territories to which this Code extends, thereby clearly
implying that this Code would not be applicable to the State
of Jammu & Kashmir. In the 42nd Report, the Law Commission
made a recommendation for amendment of section 18 in a
Slightly different way than what we find in the new section
78 sought to be substituted under the Bill. Having examined
the matter carefully and also bearing in_ mind that in the
Bill there is no reference to section 1 at all, there is no
heed to substitute the existing section 18 by the proposed
new section. However, to make things clear if necessary and
to remove any ambiguity, namely, that the restricted meaning
Of India for the purpose of applicability of this Code would
-: 241 :— ‘
be the territories to which this Code extends, as found in
the existing section 1, the proposed new section 18 may
suitably be worded.
The existing section 19 defines 'judge’ and section
20 ‘Court of Justice’. There was some confusion as to the
interpretation of the expression 'judge’. Section 19 is
sought to be substituted by the new section. The existing
section 19 reads-
"Judge- the word "judge" denotes not only every
person who is officially designated as a Judge, but
also every person-
who is empowered by law to give, in any
legal proceeding, civil or criminal, definitive
judgment or a judgment which, if not appealed
against, would be definitive, or a judgment which
is confirmed by some other authority, would be
definitive, or
who is one of a body of person, which
body of persons is empowered by law to give such a
judgment."
The Law Commission in its 42nd Report noticed some
lacunae in this and recommended that illustrations can be
omitted and section suitably be amended. Now the section
that is sought to be substituted reads as follows-
—: 242 :— _
"The word "judge" denotes not only every person who
is officially designated as a Judge, but also-
(a) every person-
(i) who is empowered by law to give, in
any legal proceeding, civil or criminal, a
definitive judgment, or a judgment which, if not
appealed against, would be definitive or a judgment
which, if confirmed by some authority, would be
definitive, or
(ii) who is one of a body of persons,
which body of persons is empowered by law to give
such a judgement; and
(b) a magistrate."
While retaining the emphasis on giving a
'definitive judgment’ and while recommending it, the only
change brought out is inclusion of magistrate. we endorse
the changes sought to be introduced by the Bill.
The existing section 20 defines a "court of
justice“ as meaning a judge or body of judges empowered by
law to act judicially when such judge or body of judges is
acting judicially. The Law Commission, in its 42nd Report,
having examined the language of the Section, observed that
the definition is unnecessarily lengthy and suggested that
the same may be simplified. As mentioned above, section 19
—: 243 :—
defining 'judge’ as we find in the Bill comprehensive and all
those words need not be repeated again. Section 20, as we
find in the Bill after the change is simple and sufficient.
The existing section 21 defines 'public servant’.
The same contains the categories of persons which come within
the meaning of 'public servant'. The concept of 'public
servant’ is quite important from the point of view of
administration of criminal justice. The definition of
'public servant’ in section 21 has nexus to section 197
Cr.P.C. whereunder sanction is necessary for prosecuting a
public servant. Now, it is well settled that if the act
complained of is connected with official duties of the
accused and if reasonably found that it was done in the
course of discharging of his official duties, section 197 is
attracted and sanction is essential for his prosecution.
Therefore, it becomes necessary to find out whether the
accused is a public servant as defined in section 21. The
Law Commission having examined the existing section observed
that the elaborate enumeration of various categories of
public servants in section 21 is primarily based on the
functions discharged by such servants and further noted that
there is considerable overlapping particularly after the
Fecast of clause twelve by the amending Acts of 1958 and 1964
and that some of the clauses require drastic revision. In
the Bill, the new section 21 reads as follows-
—: 244 :— _
21. "Public 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
public duty;
(ii) any person in the service or pay of a local
authority;
(iii) any person in the service or pay of a
corporation owned or controlled by the Government;
(iv) any judge, including any person empowered by
law to discharge, whether by himself or as a member
of a body of persons, any adjudicatory functions;
(v) any person specially authorised by a Court of
Justice to perform any duty in connection with the
administration of justice, including a liduidator,
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 employed or engaged as an examiner
or as an invigilator by any public body in
connection with any examination recognised or
approved by or under any law.
Explanation—— The expression "public
body", includes-
(a) a University, Board of Education or
other body or institution, either
—: 245 :-
established by or under a Central, State
or Provincial Act or constituted by the
Government;
(b) a local authority;
(viii) any person who holds an office by virtue of
which he is empowered to prepare, publish, maintain
or revise an electoral roll or to conduct an
election or part of an election; or
(ix) any person who holds an office by virtue of
which he is authorised or required by law to
perform any public duty.
Explanation 1.- Persons falling under any of the
above clauses are public servants whether appointed
by the Government or not.
Explanation 2.- A person calling under any of the
above clauses by virtue of any office or situation
he is actually holding is a public servant,
whatever legal defect there may be in his right to
hold that office or situation.
The Law Commission in its 42nd Report having
Carefully examined the various clauses in section 2l
Suggested certain changes which are incorporated in the new
Section. In this context, the Law Commission has examined
various judgments of the High Courts and Supreme Court.
—: 246 :— I
The corresponding provisions in existing section
reads as follows-
"Twelfth — Every person —
(a) in the service or pay of the government or g
remunerated by fees or commission for the
performance of any public duty by the government.
(b) in the service or pay of local authority, a
corporation established by or under a Central,
Provincial or State Act or a Government company as
defined in section 617 of the Companies Act, 1956
(1 of 1956)."
It can be seen that in this clause there is
emphasis on public duty. In G.A.Monterio v. The State of
Aims; , (1956 SCR 692), the Supreme Court indicated that the
requirements of pay and public duty are cumulative. The
court observed, "If therefore, on the facts of a particular
case, the court comes to the conclusion that a person is not
only in the service or pay of the government but is also
Derforming a public duty he has delegated to him the
functions of the government or is in any event performing
duties immediately auxiliary to those of some one who is an
Gfficer of the government and is, therefor, an officer of the
Qdvernment within the meaning of section 21(9), Indian Penal
Code. The Supreme Court reiterated the same view in State of
5lm§£.i;. Shivji Lal, (1959 SUDD(2) SCR 739). After noting
—: 247 :—
these observations, the Law Comgpssion opined that the
expression "public servant" cannot be easily defined and no
court has attempted any such definition.
Taking into consideration various aspects mentioned
above, the Law Commission recommended in its 42nd Report
substitution of section 21. The definition of "public
servant" as found in the Bill (new section 21) elaborately
contains the recommendations made by the Law Commission.
However, the Law Commission specifically mentioned one clause
to be included, namely- "any person who is a Member of
Parliament or of a State Legislature". In view of the
various political developments and where numerous instances
of criminalisation of politics are alleged it is necessary to
have a provision, but in what manner can it be effectively
done?
The existing provisions to the effect that any
person receiving remuneration for discharging public duty may
in a general way cover them since they are receiving some
remuneration and also discharging a public duty. The Law
Commission in its 42nd Report clearly recommended that these
People should specifically be included as public servants
under the relevant provisions. But the question would be
whether or not suitable amendments are also necessary to
section 19 of the Prevention of Corruption Act and
correspondingly section 197 of Cr.P.C. because a reading of
these provisions would show that the emphasis is on the
—: 248 :-
government service and the power to remove the delinquent
Officer by the State Government or the Central Government as
the case may be. But in the case of legislators these
provisions providing for grant of sanction as such do not
contemplate as to who should be the sanctioning authority in
case a legislator is to be prosecuted for an act of criminal
misconduct while discharging or purporting to discharge his
1 official duties which to whatever limited extent may be a
public duty performed by them, namely, being members of the
legislatures. It is but logical that the power should rest
only with the presiding officer of the legislature since the
proceedings or any acts connected with such proceedings
including voting or defecting also are within the privileged
category and it is only the presiding officer who can take a
decision whether the act has any nexus of public duty of a
legislator. Consequently, in case of legislators committing
misconduct, the sanctioning authority can be only the
presiding officers of the legislatures. Unless such changes
in the provisions providing for sanction are also brought
about it may not be appropriate to just include them as
Dublic servants in the relevant provisions. If for
argument’s sake no sanction would be necessary under section
19 of the Prevention of Corruption Act or section 197 of
Cr.P.C., then it would be ironical to say that only such
Drotection can be extended to the other public servants and
not to the members of the legislatures who are also by virtue
of performance of public duty fall in the category of public
servants. Unless such major changes are brought about, it is
-: 249 :— _
not desirable and highly inappropriate to just merely bring
them within the purview of public servants under section 21
by inserting a new clause and make them amenable to any of
the relevant penal provisions.
Clause 10
12.05 The existing section 25 defines the expression
"fraudulently" — a person is said to do a thing fraudulently
if he does that thing with intent to defraud but not
otherwise. The expression "fraudulently" occurs in few
sections, namely, 206, 207, 208, 242, 243, 246, 247, 262,
253, 261, 262, 263 and sections 421 to 424. The existing
section 23 explains the terms "wrongful gains" and "wrongful
loss". Section 24 says that a person does a thing
dishonestly if he does it with the intention of causing
wrongful gain to one person or wrongful loss to another
person. These definitions are in clearer terms. But the
same cannot be said about the definition of "fraudulently".
The courts, however, observed that to attract the definition,
there must be some advantage on the one side with the
corresponding loss on the other. The Supreme Court in
Dr.S.Dutt v. State of U.P. (1966 (1) SCR 493) observed that
the words "with intent to defraud" in section 25 indicate not
a bare intent to deceive but an intent to cause a person to
act or omit to act, as a result of deception played upon him,
to his advantage." Having examined various views, the Law
—: 250 1-
Commission recommended the change in the definition, so that
the meaning can be brought out in clearer terms. The
amendments suggested in the Bill serve the purpose.
Clause 11
12.06 The existing section 29 defines a document and
there are two Explanations. Section 3 of the Evidence Act
and section $(18) of the General Clauses Act also define the
word 'document’. A reading of these three sections would
show that the main idea in all the three Acts is the same and
the emphasis is on the matter which is recorded. The Law
Commission in its 42nd Report examined the provisions in all
these Acts and recommended an amendment. It also observed
that the existing definition with its Explanations is wide
enough to cover every type of document. A doubt was
expressed whether it includes mechanical records of sound or
image like tape recording etc., which are in frequent use.
Taking these aspects into consideration, the Law Commission
suggested slight alteration in the language of the definition
to make its intention clear. It is on this basis, in clause
11, the words "particularly expressed, described or recorded"
and the words "figures, images, marks or sounds" are sought
to be substituted. A detailed discussion on this aspect can
be found in Chapter XI entitled "Document—Scope of its
Definition". In view of the changes in the audio and video
technology and computers, it is recommended that another
Explanation (3) can be added to the existing section. So we
-: 251 :— _
recommend that Explanation (3) namely, "The term document
also includes any disc, tape, sound track or other device on
or in which any matter or image or sound is recorded or
stored by mechanical or other means".
Clause 12
12.07 Under this clause, existing sections 31, 32 and 33
which define the words "will" referred to in the Act are
sought to be omitted. A perusal of the 41st Report of the
Law Commission shows that the omission of this section was
recommended on the basis that they are defined in the General
Clauses Act. Having given our earnest consideration, we have
already noted that such words which are defined in the
General Clause Act and which are specifically found in the
other provisions of the IPC should be retained for several
reasons already mentioned. For the same reasons we are of
the view that there is no harm in retaining existing sections
31, 32 and 33 and Clause 12 has to be omitted.
Clause 13
s
12.08 By virtue of this clause the words "several
persons" wherever they occur are sought to be substituted by
the words "two or more persons". A perusal of some of the
judgments would show that the courts felt that there is some
ambiguity in the language of the section, particularly in
respect of the meaning to be given to the expression "several
—: 252 :—
persons". Section 34 embodies the principle of constructive
liability in the doing of a criminal act, the essence of that
liability being the existence of a common intention. Section
34 explains that when a criminal act is jointly done by
several persons who are actuated by common intention, in
furtherance of that intention each of them is liable for it
as if the whole of it had been done by him alone. Starting
from Baredra Kumar Ghosh v. King Emperor, (AIR 1925 RC1)
uptil now there have been a number of judgments rendered by
the courts about the scope of section 34. The expression
“several persons" has been examined with reference to the
question whether two persons should at least be there as
participants for section 34 and whether a single known
offender can be convicted by application of section 34 if the
facts show that he along with one unknown offender at least
must have committed the offence. The Law Commission with a
view to see that this ambiguity is not there recommended in
its 42nd Report the substitution of the words "two or more
persons" for the words "several persons" which expression is
rather wide and vague. By carrying out this amendment the
language of section 34 becomes more explicit. For the same
reason the expression "several persons" occurring in sections
35 and 38 also can be substituted by the expression "two or
more persons".
z —: 253 :—
Clause 14
12.09 Under this clause it is proposed to substitute
section 40 by another section. The existing section 40 has
three clauses giving three different definitions of the
expression "offence". The first clause provides that except
in the chapters in sections mentioned in clauses 2 and 3, the
word "offence" denotes "a thing made punishable by the Code".
Clause 2 lays down that the offences covered by Chapters IV
and VA and also several sections enumerated therein, the word
"offence" denotes "a thing punishable under the Code or under
any special or local law". According to clause 3, the word
"offence" in respect of the eight sections mentioned therein
has "the same meaning when the thing punishable under the
special or local law is punishable under such law with
imprisonment for a term of six months or upwards, whether
with or without fine."
It has to be noted that the expression "offence"
has a definite meaning. The existing section lacks clarity
nor is it conducive. The Law Commission in its Report
Dointed out that whenever a question arises as to the meaning
of the word "offence" appearing in a particular section of
the Code, one has to go to section 40 and go to the clauses
to find out where the section in question is mentioned. In
the General Clauses Act, section 3(38) says that "offence"
Shall mean any act or omission made punishable by any law for
the time being in force. The language in this definition is
i —: 254 :—
precise and would be sufficient to cover all the offences
under the Penal Code since they are a result of an act or
omission made punishable under the court. However, there are
some sections having the expression "offences punishable with
death or imprisonment for life". The Law Commission
suggested that there should be a separate definition for
capital offence incorporated in section 40 which has to
substitute the existing section. The expression "offences
punishable with death or imprisonment for life" occur in many
sections like 115, 118, 1208, 388, 389, 506, etc. It was
suggested by the Law Commission and as proposed in the Bill,
a new section 40 shall contain the definition of capital
offence wherever the expression "offences punishable with
death or imprisonment for life" occurs. Even this expression
has to be substituted by the words "capital offence" which
would be more specific and from the.8illgye find in all those
sections the expression "capftal offence" had been used. The
amendment by way of substitution of section 40 as proposed
under clause 14 defining "capital offence is an appropriate
change. In our considered view and as noted already, to make
IPC as a self—contained Code, it would be better to have the
definitions of the relevant words in IPC itself. The section
40 as mentioned above is sought to be substituted on the
ground that the word "offence" is clearly defined in the
General Clauses Act and the definition of offence in the
existing section 40 defining offence lacks clarity. In that
view of the matter and to provide a definition in respect of
the offences punishable with imprisonment for life and death,
n -: 255 :-
section 40 is to be only substituted by the new section
defining capital offences. Thereby if one want to know the
section, one has to refer to the General Clauses Act which in
the process while adopting may not be necessary. Therefore,
it is better to have the meaning of the offence as defined in
the General Clauses Act also incorporated in that new section
4O which shall read as follows:-
"Section 40- Offences which mean any act or
omission made punishable by any law for the time
being in force and "capital offence" means offence
for which death is one of the punishments provided
by the law".
Clause 15
12.10 The existing section 43 defines the expressions
"illegal"— "legally bound to do" and lays down that the word
"illegal" is applicable to everything which is an offence or
which is prohibited by law or which furnishes ground for a
civil action and a person is said to be "legally bound to do
whatever is illegal in him to omit." Under this clause in the
Bill, this section is sought to be substituted by a new
section having two clauses. The proposed section is in the
following terms-
"43.(1) A thing is "illegal" if it is an offence or
is prohibited by law or furnishes ground for a
-1 256 :— ‘
civil action.
(2) A person is "legally bound to do" a thing when
he is bound by law to do that thing or when it is
A illegal in him to omit to do that thing."
It can be noticed that according to the definition in the
existing section a person is legally bound to do only what is
"illegal" in him to omit and the word "illegal" is applicable
to everything which is an offence or which is prohibited or
which furnishes ground for civil action." The Law Commission
also noticed that these definitions are in a circle and have
led to some difficulties as is seen from decisions rendered
by the courts including the privy council in Ali Mohomed
Adamalli v. Emperor, (AIR 1945 RC 147), it was recommended
by the Law Commission in the 42nd Report to omit the
definition of the expression "offence" in the Renal Code and
go by the wider definition of the word in the General Clauses
Act as it would obviate the difficulty pointed out by the
courts. However, there may ·be situations creating
difficulties if the omission to do what is enjoined by law is
not made an offence under the particular Act in question.
The Law Commission in its 42nd Report observed in other words
under the present definition of the term "legally bound to
do" unless a law which enjoins a person to do a particular
thing also lays down, in so many words, that the person shall
not omit to do that thing, then the person cannot be
—: 257 :— U
é considered "legally bound to do" that thing. In this view a
new section is sought to be substituted which appears to be
g sound.
I clause 16
12.11 Under this clause, existing sections 48, 49 and 50
defining words "vessel, year, month, section" respectively
are sought to be omitted for the reasons that they are
defined in the General Clauses Act. For the same reasons
mentioned above in respect of clause 12, etc., the section
need not be omitted and accordingly Clause 16 of the Bill has
to be omitted.
Clause 17
A 12.12 The existing section 52 defines the word "good
faith" and section 52A defines the word "harbour". As per
this clause, these two sections are to be substituted by new
Sections. In the existing section 52 the definition of "good
faith" is different from that which we find in the General
Clauses Act. In the General Clauses Act the term "good
faith" is defined in the following terms-
"A thing shall be deemed to be done in good faith
where it is in fact done honestly whether it ia
done negligently or not".
It can be seen that so far as the other laws are concerned,
-: 258 :-
the definition in the General Clauses Act appears to lay down
that honesty of purpose alone is sufficient to make an act
bona fide. Under the Penal Code the emphasis is on due care
and attention. The Supreme Court in Harbhajan Singh v.
State of Punjab, (1955 SCR 235-243) while reversing the
judgment of the Punjab High Court, however, observed "the
element of honesty which is introduced by the definition
prescribed by the General Clauses Act is not introduced by
the definition prescribed by section 52 of the Code". It can
also be noticed that the language of the definition in
section 52 is in the negative form as compared to the
language in the General Clauses Act. From the observation of
the Supreme Court it can be seen that the Code does not
expressly exclude the requirement of honesty. However, the
Code stresses the aspect of care and attention but honesty is
implicit in the idea of good faith. Therefore, taking the
overall view a substitution of section 52 is an appropriate
one. The existing section 52A was introduced in the year
1942 and lays down that except in sections 130 and 157 in the
case in which the harbouring is given by the wife or husband
of that person, the word "harbour" includes supplying a
person shelter, food, drink, etc. The Law Commission noticed
that special mention of sections 130 and 157 in the general
definition is inappropriate and section 52A has to be
revised. A new section sought to be introduced under this
clause in the Bill reads as followe-
-: 259 :-
"52A.Harbouring—The expression ’harbouring’ means
giving shelter to a person, and includes supplying
a person with food, drink, money, clothes, arms,
ammunition or means of conveyance or assisting a
person in any manner to evade apprehension."
It can be seen that the expression harbouring in the proposed
section is clear and explicit. Therefore, we recommend a
substitution of sections 52 and 52A.
Clause 19
12.13 Under this clause, the existing section 53 is
sought to be substituted. The proposed section 53 enumerates
various kinds of punishments. Under this proposed new
section 4, new forms of punishments such as Community
service, Disqualification from holding office, Order for
payment of compensation and Public censure have been added.
The sentencing policy and the proposed changes have already
been discussed in detail in Chapter II. For the reasons
stated in that Chapter, we do not endorse the addition of
those new forms of punishments except public censure.
Clause 19
12.14 Under this clause sections 54, 55 and 55A of the
Penal Code are sought to be omitted. Section 54 provides for
commutation of sentence of death and lays down that in every
-: 260 :—
case in which sentence of death has been passed, the
appropriate government may without the consent of the
offender commute the punishment for any other punishment
provided by IPC. Section 55 provides for commutation of
sentence of imprisonment for life by the appropriatel
government for a term of imprisonment of fourteen years.
Section 55A defines appropriate government that can exercise
the powers under sections 54 and 55, namely, the Central and
State Governments. The Law Commission in its 41st Report on
the Code of Criminal Procedure having examined section 40211)
of Cr.P.C. 1898 as well as sections 54, 55 and 55A of the
Penal Code noticed that the appropriate government as
mentioned in section 402 Cr.P.C., 1898, is somewhat
ambiguous. However, the Law Commission noticed that the
provisions regarding commutation in sections 54, 55 and séw ,
are mostly repeated in section 402, 1898 Cr.P.C. and
recommended that this duplication should be removed and the
law should be stated at one place, namely, Cr.P.C. In this
view of the matter in 42nd Report, the Law Commission
recommended deletion of these three sections. On that basis
clause 19 is incorporated in the Bill. In the 1973 Code of
Criminal Procedure this recommendation has been taken care of
and incorporated in the newly numbered sections, namely, 432
and 433. It can be noticed that the Law Commission in its
41st Report on Cr.P.C. 1898 mentioned that section 402
should be revised incorporating some of the provisions of
sections 54, 55 and 55A to remove the ambiguity particularly
in respect of the definition of appropriate government. In
—: 261 :—
gection 432(7) the meaning of the expression "appropriate
government" is given and the ambiguity which is noticed by
the Law Commission in the language in section 55A has been
removed. So for as the commutation is concerned the
provisions in sections 54 and 55, IPC have been duly
incorporated in section 433, Cr.P.C. 1973. Therefore,
clause 19 under which sections 54, 55 and 55A are sought to
I be omitted is very appropriate in view of the changes in the
Cr.P.C. as noticed above.
Clause 2O
12.15 Under this clause the words "imprisonment for 2O
years", are sought to be substituted by the words "rigorous
imprisonment for 2O years". This is necessary.ia,view of
some of the Judgment as discussed in Chapter II. '
` Clause 21
12.16 By virtue of this clause, sections 64 and 65 are to
be substituted by revised sections. These revised sections
Drovide for the sentence to be imposed in default for payment
of fine etc., and the amendments are incidental and they may
be carried out.
Clause 22
12.17 In view·of the revised sections 64 and 65, section
66 may be omitted.
—: 262 :—
9J;.¤y2e_2§.
12.18 Under this clause section 67 and 68 are sought to
be substituted by the revised sections providing for imposing
imprisonment for default of payment of fine in case of
offence punishable with fine only. In the amended sections
it may be included.
Qlause_24
12.19 Under this clause the existing section 69 providing
for termination of imprisonment on payment of proportional
part of fine is sought to be omitted.. This omission is
necessary in view of the new revised section 58.
Clause 25
12.20 Under this clause the existing sections 70, 71 and
72 providing for the limitation of time for levy of fine and
limit of punishment in case made of several offences are
Sought to be substituted by revised sections. The revised
sections are comprehensive on these aspects and the
amendments may be carried out.
E —: 263 :-
clause 26
12.21 Under this clause sections 73 and 74 providing for
solitary confinement by way of punishment is sought to be
omitted. In earlier Reports the Law Commission has observed
that this punishment is out of tune with the modern thinking.
Therefore, it has to be omitted as solitary confinement
cannot be one of the general punishments under the statute
like IPC. It may be necessary in case of indiscipline in the
jail for which the prison laws may provide for. Therefore,
it is necessary to omit these two sections.
Clause 27
12.22 Under this clause new sections 74A, 74B, 74C and
74D are sought to be incorporated. New section 74A provides
for imposition of punishment of community service. We have
already discussed this aspect in Chapter II. we have reached
the conclusion that the punishment by way of community
service cannot be executed in a practical manner. The
Droposed section 74B provides for compensation to the
Victims. In our Report on Cr.P.C. we have proposed suitable
amendments to section 357 providing for such compensation and
all the aspects mentioned in section 74B in IRC have been
incorporated there. Therefore, we do not recommend addition
Or incorporation of new sections 74A and 74B.
—: 264 :-
Section 74C, however, provides for imposition of
the punishment by way of censure in addition to the
substantive sentence under sub—section (3) and this is
1imited to offences mentioned in Chapters 12, 13, sections
272 to 276, 383 to 389, 403 to 409, 415 to 420 and offences
under chapter 18 as we11 as offences under proposed new
sections 420A and 462A under the Bi11. These are a11
Q offences where persons entrusted with some pub1ic duties
commit offences. Therefore, the additiona1 punishment by
censure wi11 have sa1utary effect.
The new section 740 provides for imposition of
additiona1 punishment, name1y, disoua1ification for ho1ding
office. This app1ies to pub1ic servants. We have discussed
this aspect in Chapter II and reached the conc1usion to 1eave
this aspect to the concerned Departments for taking
discip1inary action under the re1evant Acts or ru1es.
I Therefore, we do not recommend incorporation of this new
section 740. Conseduent1y, the new section 74C providing for
additiona1 punishment by way of censure can be numbered as
74A and may be added.
C1ause 31
12.23 Proposed new section 94 — The existing section 94
iays down that except murder and offences against the state
DUnishab1e with death, nothing is an offence which is done by
a Derson who is compe11ed to do it by threats which at the
-: 265 :—
time of doing it, reasonably cause apprehension that instant
death to that person will otherwise be the consequence.
However, a rider is there to the effect that the person doing
the act did not of his own accord place himself in the
situation. This section embodies the principle that a person
compelled by force or threat of force to do any act should
not be punished for that act. However, two exceptions are
also there. The Law Commission in its 42nd Report suggested
that such defence of duress can be usefully extended so as to
include the threats to "near relatives" enumerating them as
parents, spouse, son or daughter. The two exceptions and
also the embargo are provided for in the he new section.
A view has also been expressed that a person may
not be close or near relative but may be one in whom a person
compelled is very much interested and thatfnke concept of
"person interested in" is not new to the I.P.C. as we find
the same embodied in section 97 I.P.C. We are of of the view
that such an inclusion of threats to any other person in whom
the person committing the act is interested would be very
wide and may not be an acceptable concept from the point of
view of the principles of jurisprudence. In view of the
recent threats of kidnapping of children for ransom,
advancing threats to cause the death or grievous bodily
injury to the victim have become a- common feature.
Therefore, the inclusion of threats to near relatives like
Darents, son, daughter, etc. would adequately serve the
Durpose.
-2 266 2-
It may be noted that two exceptions in the existing
section 97 are murder and offences against the state.
Further the threat must be of instant death to the person
made to commit the offence. To that extent he gets the
benefit under this provision. Section 99 I.P.C. enumerates
the restrictions to the exercise of right of private defence.
Section 100 enumerates the circumstances under which the
right of private defence of the body extends to causing the
death. Exception 2 to section 300 is to the effect that
culpable homicide is not murder if the offender in the
exercise in good faith of the right of private defence,
exceeds the power given to him and commits the death of the
person without pre—meditation and without any intention of
doing more harm than is necessary.
A question may arise as to what would be the nature
of offences when a person under threat causes death as
contemplated under section 94 or under the new section to be
substituted. would it be culpable homicide not amounting to
murder under certain circumstances ? Causing death prima
facie amounts to culpable homicide. The question is whether
it amounts to murder or not depends on the attendant
Circumstances. If they satisfy the requirements of section
300, then it would be murder. This aspect would be a matter
For consideration of the court while extending the benefit of
SGction 94. with these clarifications, we recommend
substitution of section 94.
—: 257 :—
Proposed new sections 94A and 94B — Under this
clause two more new sections 94A and 94B are also sought to
be inserted. Section 94A seeks to cast prima facie absolute
and strict liability upon a company and punish the company
concerned whenever any employee commits an offence in the
course of furthering the affairs of the company. It also
specifies that any act constituting such offence must either
be authorised, requested, commanded, ratified or facilitated
by any violation of a duty to maintain effective supervision
by the management, the board of directors or any other person
who is placed in a position of control over other employees
or in the evolution of company policy and affairs. Section
94A(2) discusses the class of offences in which the existence
of a culpable mental state is a condition and fixes absolute
liability upon the company for the offence committed by an
employee whatever his position may be. Section 94B is
supplementary to section 94A under which the persons who were
in charge of or were responsible to the company for the
conduct of the business of the company, are also made
constructively liable for the offence committed by the
employee and the whole concept underlying the two provisions
is that the persons who are in charge or control of the
company affairs and their employees should also be made
constructively liable which denotes that they are expected to
exercise the duty of loyulty und the duty of cure ln munuqlnq
the affairs of the company and if they in any manner
authorise, request, command, ratify or facilitate an offence
-: 268 :—
of that nature by an employee by violation of the duty,
should be equally responsible. We have gone through every
limb of the two provisions carefully. In the several
workshops, detailed discussions and deliberations were there
about the desirability of incorporating these two new
provisions in the Indian Penal Code which is substantive
loss. It needs no mention that if any of the offences under
IPC are committed then the provisions of the IPC may apply
and the concept of constructive liability would be taken care
of by the relevant provisions including abetment, attempt and
conspiracy. That apart, the offences that could be envisaged
being committed with reference to the affairs of the company
would be altogether of a different nature and some of them
could be statutory. There are several other special
enactments which to a large extent cover many such offences
which could be capable of being committed by the companies.
Acts like MRTP Act, Essential Commodities Act, FERA Act,
Prevention of Adulteration Act, Fertilizers Act, are some
such. with regard to the employment there are other labour
laws including Shops and Establishment Acts, Factories Act
etc. That apart, in the new emergence of globalisation,
liberalisation of trade and commerce, insertion of such
provisions in IPC may prove to be counter—productive to the
growth of business and any regulation that impedes the
Droduction and productivity and also creation of wealth
should be discouraged as in the final analysis the overall
growth of the nation’s wealth would be impaired. Therefore,
we are of the view that sections 94A and 948 should be
—: 269 :—
deleted from clause 31. If necessary we may add some of such
provisions in the other enactments including the Companies
Act, which may be strengthened to meet such a situation.
Clauses 32 to 37
12.24 Under these clauses some of the existing sections
relating to right of private defence of persons and property
are either sought to be amended or substituted. The law of
private defence of person and property in India is codified
in sections 96 to 106 based on the concept that the right of
self—preservation is a basic one. The right of private
defence must be distinct from the doctrine of necessity
though the right of self—defence arises out of the necessity
for self preservation. Still the latter is wider for there
cannot be a right of self defence in all cases of necessity.
The motive of self preservation is inherent in every man.
The authors of the 1860 Code, Rattan Lal & Dhiraj Lal "Law of
Crimes" (23rd Edition 1987) p.273, said »
"we propose to excepting from the operation of the
penal clauses of the Code large class of acts done
in good faith for the purpose of repelling unlawful
aggression. In this part of the chapter we have
attempted to define as such exactness as the
subject appears to ua to admit the limits of the
right of private defence. It may be thought that
we have allowed to accord a latitude to the
I —: 270 :—
exercise of this right; and we are ourselves of the
opinion that if we have in framing laws for a bold
and high spirited people, accustomed to take the
law in their own hand, and to go beyond a line of
moderation in repelling injury, it would have been
convenient to provide additional restrictions. In
this country the danger is on the other side; the
people are too little deposed to help themselves.
The punishments with which they submit to the cruel
depredations of gang murders, dacoities and
mischiefs committed in the most outrageous manner
by all of us of ruffians, is one of the most
remarkable and at the same time most discouraging
society in India presents to us. In these
circumstances we are desirous rather to rouse and
to encourage a manly trade than to multiply
restrictions on the exercise of a right to self
defence. We are of opinion that all the evil which
is likely to arise from the abuse of that right is
far less serious than the evil which would arise
from the execution of one person for overstepping
what might appear to be the exact line of
moderation in resisting a body of dacoits."
n.
Q —: 271 2-
If we take the present scenario into consideration,
we find that the situation in respect of such crimes noted by
the authors has not in any way changed. Therefore, the law
of private defence of persons and property based on the right
of self—preservation is absolutely necessary.
The existing sections 96 to 106 analyse and delimit
the right of private defence. These provisions have very
often come up before the courts for interpretation and
application. Section 96 states that nothing is an offence
which is done in exercise of this right. This right is
analysed in the subsequent sections from two aspects, namely,
defence of the body and defence of property. Section 97
defines these two aspects while sections 98 and 99 are
applicable to both the aspects. Sections 100, 101, 102 and
106 are concerned with defence of the body and sections 103,
104 and 105 are concerned with the defence of property.
The Law Commission in its 42nd Report proposed a
rearrangement of the provisions bringing together those
relating to the right to defend the body in one section and
those relating to the property in another for the purpose of
an easier understanding and for facilitating their
application. In the Bill no change in respect of sections 97
and 98 is mooted. Coming to section 99 the Law Commission
after having considered the various claueee in section 99
recommended the insertion of a new provision in section 99 so
as to make the immunity conferred by section 97 co—extensive
—: 272 1- {
with the deprivation of right of private defence and such
action in the first paragraph of section 99. The Law
commission was also of the view that extra protection should
be given only when the public servant acts in pursuance of an
order of a court of justice. Coming to the third paragraph
gf section 99, the Law Commission recommended for deletion of
the third paragraph. It may be noted that the third
paragraph in the existing section 99 lays down a restriction,
namely, debarring the right of private defence in cases where
there is time to have recourse to the public authority.
However, whether there was sufficient time to have recoqrse
to the public authorities is a duestion of fact in each case.
If this restriction is removed altogether, then ever in
respect of acts where there is no immediate danger
particularly those relating to property, people with impunity
may resort to exercise this right even though they had ample
time to go to the public authorities for the purpose of
averting the danger to the property. Therefore, we are of
the view that this restriction should be retained.
Under clause 32 of the Bill the existing section 29
is sought to be substituted and to altogether remove the
third clause. Therefore, we recommend that the third
Daragraph in the existing section should be included in the
Droposed section and rearrange the clause.
V -: 273 1-
The existing section 100 justifies the killing of
an assailant when apprehension of serious crimes enumerated
in several clauses thereunder is caused and they should be
read subject to the provisions of section 99. The section
lays down that the right of private defence of body extends
under the restrictions mentioned in section 99 to the
voluntary causing of death or of any other harm to the
assailant for an offence which occasions the exercise of the
right by any of the descriptions enumerated in clauses 1 to
6. In these clauses 1 to 6 serious offences like death,
grievous hurt, committing rape, unnatural lust, kidnapping or
abducting, wrongful confinement are mentioned. The Law
Commission, after examining the existing section 1OO did not
suggest any amendment in respect of 3rd, 4th and 5th clauses.
However, minor change is suggested, namely, that in the 5th
clause the right to exercise in respect of abducting should
be limited where the abduction is punishable under the Code,
since abduction by itself is not punishable unless it is
committed with one or the other of the intents specified in
sections 364 to 369. Under clause 33 of the Bill some more
changes have been added. The clauses are numbered as (a) to
(el. Assault with the intention of having carnal intercourse
is also added and with regard to abduction it should be one `
punishable under the Code. However, there is clause (el
which is to the same effect — as clause "sixthly" in the
existing section. Therefore, the proposed change is
appropriate.
—: 274 :— V
Under the existing sectien 101 the werds
"veluntarily causing te the assailant ef any harm ether than
death" are seught te be substituted in clause 34 ef the Bill
by the werds "veluntary causing ef any harm ether than death
er the inveluntary causing ef the death te the assailant".
The Law Cemmissien suggested such a change because there may
be cases ef inveluntary causing ef death, fer example, death
by rash and negligent act. This change appears te be
apprepriate.
Sectien 103 indicates as te when a persen can act
in defence ef preperty and enumerates the effences in clauses
1 te 4 in respect ef which the right extends. The right
under this sectien extends net enly when the effences thus
enumerated are cemmitted but alse when an attempt te cemmit
is made. The Law Cemmissien in its 42nd Repert neted that
clause "secendly" mentiens heusebreaking by night, but net
lurking heuse trespass by night, which is as severely
punishable as heusebreaking by night, and that it is eften
difficult te decide whether the effender has cemmitted
lurking heusetrespass er heusebreaking. The Law Cemmissien
alse ebserved that since certain amendments in chapter XVII
relating te effences against preperty where heusebreaking by
night weuld cease te be a separate effence recemmended te
emit clause "secendly" alse en the greund that the existing
clause 4 geverns aggravated ferms ef criminal trespass.
Existing sectien 441 defines criminal trespass, 442 heuse
trespass, 443 lurking heuse trespass, 444 lurking heuse
—: 275 1-.
trespass by night, 445 house breaking, 446 housebreaking by
night. These sections were there incorporated in the
existing Code, taking into consideration the circumstances
prevailing in India. The Law Commission in its 42nd Report
while dealing with offences under chapter XVII that is
relating to property recommended deletion of these provisions
and introduced a new section 445 under the head "Burglary".
We have considered these changes while examining clause 182
of the Bill and are of the view that the changes proposed are
salutary. Consequently, the changes proposed by the Law
Commission in respect of clause "secondly" of section 103
need to be incorporated. The Law Commission also recommended
that clause 3 relating to offence — mischief by fire should
be amplified including mischief by explosive substances,
mischief by fire or explosive substances committed on any
vehicle should be added.
In the proposed section 103 of the Bill, there is a
new clause (d) relating to the offences of mischief to
property, house, or intended to be used for the purpose of
Government or any corporation.
Two more new clauses (e) and (f) are sought to be
added in the proposed section. Clause (e) includes hijacking
of aircraft and clause (f) includes sabotage. while
discussing the offence of hijacking under new section 362A,
we have indicated that the same need not be incorporated
because of the reasons stated in Chapter X. Therefore, here
I -: 276 :—
also clause (e) has to be omitted. we may also add that
clause (e) was added in conformity with the new section 362A
applying to the offence of hijacking of an aircraft. If that
section is to be deleted, clause (e) need not be there. It
may be mentioned that in every offence of hijacking, there
would be an offence being committed against property or
person. To that extent the relevant provisions of right of
private defence would be applicable. Under (f), the offence
of sabotage is mentioned. In our discussion under clause 180
we have suggested that the new provisions with reference to
the offence of sabotage can be retained. Therefore, clause
(f) can be retained but may be renumbered as (e).
Under clause 36 a minor amendment to section 104 is
proposed. The words "voluntary causing to the wrong—doer of
any harm other than death" are sought to be substituted on
the same lines as in clause 34 with reference to section 101.
These changes can be carried out.
Clause 37
12.25 Under this clause the existing section 105 is
Sought to be substituted by a new section bearing the same
number. The existing section 105 deals with commencement and
Gontinuance of private defence of property. The Law
Commission did not propose any change to the section.
However, it recommended to omit 5th para which deals with
house brenking by night. The new section deals with house
—: 277 :—
trespass which has been considered by us under clause 182 and
because of the consequent changes approved thereunder the
clause 5 has to be accordingly omitted. In the new section,
however, we find clause (c) which also mention hijacking of
aircraft. While considering changes in clause 35 with
reference to section 103, we observed that clause (e) dealing
with "hijacking of aircraft" should be omitted. For the same
reason, the words "hijacking of aircraft" in clause (c) in
the proposed new section 105 have to be omitted.
Clauses 38 to 44
12.28 Under the Indian Penal Code ’abetment’ is a
separate and distinct offence provided a thing abetted is an
offence. As a general rule, a charge of abetment fails if
the substantive offence is not established against the
principle assailant. The Supreme Court in Jamuna Singh’s
case, (AIR 1967 SC 553) has held that it cannot be held in
law that a person cannot ever be convicted of abetting a
certain offence when the person alleged to have committed
that offence in consequence of abetment, has been acquitted
and that the question of abettor’s guilt depends upon the
nature of abetment and the manner that the abetment was made.
Sections 107 to 120 in Chapter V relate to the
abetment. Section 107 classifies abetment under three heads,
i.e., by instigating or by conspiracy or by intentional aids.
These are explained in both Sections 107 and 108. The Law
Commission in its 42nd Report examined Section 120-A which
· —: 278 :—
lays down that when two persons agree to commit an offence or
to cause an offence to be committed, they are guilty of
criminal conspiracy to commit that offence whether or not any
of the parties thereto does any act besides the agreement in
pursuance thereof and noted that the persons who are
initially guilty of conspiracy to commit an offence become
guilty of abetting the offence as soon as an act or illegal
omission takes place in pursuance of the conspiracy and that
after an enactment in 1913 of Sections 120A and 1208 making
conspiracy itself punishable in the same manner as abetment.
Abetment of an offence by conspiracy has lost its relevance
and, therefore, all references in Chapter V including Section
107 ’abetment by conspiracy’ should be omitted. The Law
Commission also examined Sections 108 and 108A and after
referring to some of the decided cases recommended that
Explanations 2 and 3 may be combined and revised and that
Explanation 4 may be reworded and that Explanation 5 which
mentions about the abetment by conspiracy to be omitted. On
these lines, the Law Commission recommended that Section 108
and 108A may be combined and revised. Clause 38 of the
(Amendment) Bill 1978 has incorporated these recommendations
but with some changes. By and large, Section 108 as
mentioned in clause 38 is in conformity with the
recommendations made by the Law Commission. Therefore, we do
not recommend any further change.
—: 279 :-
Sections 115 and 116 deal with the punishments for
successful abetment of offence. Section 115 specifically
deals with the punishment for unsuccessful abetment of
offence punishable 'with death or imprisonment for life'.
The Law Commission in its 42nd Report noted that the words
'death or imprisonment for life' are ambiguous and they may
cover sedition. Therefore, they recommended to limit it to
capital offences for which death is the only punishment or
one of the punishments provided by law and accordingly
recommended revision of this Section. Existing Section 116
prescribes punishments of offences punishable with
imprisonment when the offence is not committed. The Law
Commission recommended that in order to avoid any overlapping
between Section 115 and 116, it is desirable to exclude
capital offences by inserting the words in Section 116 'not
being a capital offence’. The Law Commission also noted that
the maximum punishment for abetment if that offence be not
committed is only 1/4th of the longest term and this was too
low and should be increased to 1/2 of the maximum term
provided for the offence. The Law Commission also examined
second paragraph of Section 116 and recommended that where
the abettor is a private person who abetted a public servant
should not be dealt with more severely than in a case where
the person abetted is a private individual. Section 117
applies to abetment of the commission of an offence by the
public generally or a number of class of persons exceeding
ten. The Law Commission having noted judgments of some High
Courts recommended a new Section 117A to be inserted which is
—: 280 :—
to the effect *that whoever commits the commission of an
offence punishable with imprisonment py a child under 15
years of age whether or not the offence_is committed shall be
punished with imprisonment of any description provided for
that offence which may be extend twice the longest term of
imprisonment provided for that offence. Likewise, the Law
Commission also examined Sections 118 and 119 and suggested
some minor changes like the words 'a capital offence’ be
substituted. A perusal of the new provision sought to be
included would show that they are in conformity with the
recommendations of the Law Commission and we are also of the
view that the changes are warranted.
The changes suggested in clause 39 of the Bill are
of minor nature.
Clause 45
12.27 Under this clause a new Chapter VB is sought to pe
inserted under which new section 12OC, 12CD defining attempt
and punishment for offence of attempt. The existing section
511 is sought to be omitted. we have carefully examined this
clause and the scope of these new two sections in Chapter
No.VI and recommend that section 511 pe retained and this
clause be deleted.
` -: 281 :—
clause 47 `
12.28 Under this clause a new section 123A is sought to
be inserted. The new section lays down that 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 hostilities, whether or not a state of war exists
between that country and India, shall be punishable. The Law
Commission in its 42nd Report recommended insertion of a new
section but in the Bill we find that an Explanation is also
added to the section which is explanatory in nature. we are
also of the view that the new section may be inserted.
Clause 48
12.29 Under this clause, the existing section 124A which
deals with Sedition is sought to be substituted by a new V
section bearing the same number. Most of the clauses
mentioned in the existing section 124A find a place in the
new section. In addition, certain acts are included. The
new section postulates that whoever by words, either spoken
or written, or by signs, or by visible representations, or
otherwise, excites, or attempts to excite, disaffecticn
towards the Constitution, or the Government or Parliament of
India, or the Government or Legislature of any State or the
administration of justice, intending or knowing it to be
likely thereby to endanger the integrity or security of India
¤F of any State or to cause public disorder shall be
Dunishable. The expression "disaffection" is the same except
the word "disloyalty" is omitted. This change is in
—: 282 :— _ i ’
conformity with the addition of offence of disaffection
towards Parliament, Legislatures, administration of justice
which was not there in the existing section. Having
considered both these provisions, we are of the view that the
changes as found in the Bill can be carried out. We have
discussed all these aspects in Chapter No.VII in detail and
we have also given reasons why the changes should be carried
out.
Under this clause a new section 1248 is also sought
to be inserted. Under this new section, whoever deliberately
insults the Constitution of India or any part thereof, the
national flag, the national emblem or the national anthem, by
burning the national flag etc., shall be punishable. The Law
Commission in its 42nd Report observed that there should be a
provision for punishment for insults to the Constitution,
national flag, emblem and the national anthem which may
include burning of the Constitution and deliberate insults to
the national anthem which are unpatriotic. Therefore, they
recommended the insertion of this new section. On the basis
of that recommendations, Prevention of Insults to National
Honour Act, 1971 has been enacted. Therefore, this new
I Section 1248 need not be inserted and the same may be deleted
from clause 48. (Vide Chapter VII)
E Qlrius e_5 2,
El2.3O Under this clause the existing Chapter VII is
ESOught to bo substituted by a new Chapter bearing the name _
_
—: 283 :-
number. This chapter deals with offence which might be
committed by the civilians in` relation to the defence
services personnel. In the Bill a new section.13OA is there
which only deals with definitions occurring in the sections
131 onwards. The new section 131 deals with abetment of
mutiny. Section 132 deals with attempts, 133, 134 & 135 with
abetment, 135 & 137 with Deserter, 138 with abetment and 138A
with incitement etc. The Law Commission in its 42nd Report
recommended these changes. It is observed that civilian
population are not dealt with severely as service personnel
involved. Therefore, the Law Commission suggested that there
should be co—relation between such offences punishable under
the Penal Code and the offences punishable by court martial.
Likewise the Law Commission also referred the Air Force Act
also. The new section 139 clearly lays down that persons
subject to certain laws like Army Act, Navy Act, Air Force
Act not to be punishable under this chapter. Taking the
implications retognised by the Law Commission, there is no
harm in having this Chapter inserted in place of existing
Chapter.
Clause 54
12.31 Having regard to the large scale riotings of
various crimes that are taking place, the Law Commission in
its 42nd Report observed that it is desirable that rioting
should be checked at the earliest stage and also mentioned
collecting sticks, knives, other weapons by anti social
elements who are bent upon committing mischief and with a
view to check such preparation, the Law Commission
recommended insertion of a new section 1§fA. Accordingly a
new section 147A is sought to be added vide`clause 54 of the
Bill. We agree with that proposed insertiont
Clause 58 ·
12.32 Under this clause a new section 153C is sought to "
be added. Sections 153A and 153B were added in the year 1972
in chapter VIII which deals with offences against public
tranquillity. Under section 153A whoever by words, either
spoken or written, promotes disharmony, ill-will, etc., or
commits any act, organise any movement etc. with a view to
promote enmity between different groups on grounds of
religion etc., is punishable. Under section 153B whoever, by
words either spoken or written, etc. makes or publishes any
imputation, asserts, propagates, makes or publish any
assertion or an appeal concerning the obligation of any
person belonging to any religion, language, caste or
community, is also punishable. In its 42nd Report, the Law
Commission having traced the legislative history of these
sections referred to the judgment of the Supreme Court in
Kedarnath’s case (AIR 1962 SC 955) wherein the validity of
section 124A was upheld. On a parity of reasoning the Law
Commission noted that the validity of section 153A could also
be supported. Thereafter, the Law Commission proceeded to `
Consider the scope of section 153A and observed that
explanation to section 153A protects honest criticism or any
Gct of the persbn criticising a political party without a
,—; ass 5-
gmalicious intention. The Law Commission, however, did not
recommend insertion of section 153C. It may be noted at this
stage that the existing section 505 deals with offence of
making statements conducive to public mischief and lays down
that whoever makes, publishes or circulates, etc., with
intent to cause fear to the personnel of the defence services.
or with a view to cause fear to public etc. would be
punishable. The Law Commission in its 42nd Report
recommended deletion of this section. However, there was a
recommendation to bring changes in sections 153A and 1538,
but section 153C, however, is being added under clause 58 of
the Bill and the same carries the essence of section 505
except omitting the soldiers, Navy, etc. Obviously, because,
these offences against defence personnel have been taken care
of in the respective Acts applicable to those services. we
have already discussed this in this Chapter dealing with
offences against armed forces, etc. we agree that section
153C may accordingly be added.
Clauses 63 & 64
12.33 Clauses 53 and 64 of the Bill seeks to amend
Sections 161, 162 and 163 of the IPC. Since these sections
Lhad and already been repealed by the Prevention of Corruption
éh¢t, 1888 and transposed thereto, clauses 63 and 64 have to
@9, therefore, omitted.
—: 285 1- ‘ `
Clause 66
12.34 Under this clause a new section 166A is sought to
be inserted which deals with offences by or relating to
public servants- It may be mentioned that sections 161 to
165A which deal with offences of misconduct have been deleted
AQ in the IPC and made offences under the Prevention of
`. Corruption Act, 1988. The remaining sections 166 to 171 deal
` with other kinds of offences committed by a public servant.
The existing section 166 deals with offences of disobeying
law by public servants with intent to cause injury. The Law
Commission in its Forty Second Report observed that the Code
does take into account this kind of misconduct by a public
servant where the misconduct takes the shape of bribery. It
is further observed that it is desirable to ensure that no
public servant shall in the exercise of the duties of his
*office while acting under colour of his office, do any act
[ which is wrongful in itself, or do an otherwise lawful act in
wrongful manner. From this point of view the Law Commission
recommended that there will be a penalty to punish misconduct W
1 and also recommended insertion of new section 186A. The
content of new section 166A proposed is different from the
content of section i66 as we finds earlier. The words as to
"maliciously to cause injury to any person" are added,
otherwise the spirit behind the section is more or less same.
i Therefore, 166A may be inserted.
-: 287 :~ `
Qau seJ.& a
12.35 Under this Clause a new section 167A is sought to
be inserted in Chapter IX which deals with offences by or
relating to public servants. The Law Commission in its 42nd
Report noted that even in their earlier Report namely 29th
Q Report it was recommended that to tackle the problem of
V cheating of Government on large scale by dishonest
l contractors while supplying goods or executing works,
unauthorised payment in respect of such contracts should be
made punishable under specific provisions. Having noted so
the Law Commission in its 42nd Report recommended insertion
of new section 157A. A perusal of the provision would show
that it is a salutary one particularly in the present
scenario where large scale execution of public works is
taking place. Therefore we agree that 167A may be inserted.
V Clause 91
12.36 Under this clause new sections 198A and 1988 are
A sought to be added in Chapter VXI which deals with the
offences of giving false evidence and offences against public
justice. The unscrupulous persons do not hesitate to use
false medical certificate to gain advantage in the course of
the litigation and sometimes for purposes unconnected with
the Courts. The Law Commission recommend that issuing false
medical certificates and using the same should be made
Specifically punishable under the new provisions. We find
—: 288 1-
from the Report that in so recommending the Commission noted
that people are accepting generally the medical certificates
because they are issued by doctors and therefore it would be
better to have a specific provision. In the workshops and in
the National Seminar in particular it was deliberated in
detail whether such a provision dealing with medical
, certificate issued by any practitioner should be made a
{ »_ separate offence. The consensus particularly from those
j practitioners who participated was to the effect that
provisions are unnecessary and if in a given case a false
certificate is deliberately given with intention that it
should be used in the judicial proceedings and if any person
uses such certificate then he would be punishable under
section 197 of the IPC. That apart, section 196 is in
general terms and may cover any such usage or attempt to use
such document as evidence. Having_ given our earnest
consideration and also having regard to the fact that the
* medical practitioners are also brought within the provision
of Consumer Protection Act which is a later Act, we think
that addition of new sections 198A and 1988 is unnecessary.
U Consequently clause 91 has to be omitted.
Clause 93
12.37 Chapter XI of the Code deals with offences of false
evidence and offences against public justice. The existing
sections 206 and 207 punish certain fraudulent acts designed
to prevent the seizure of property under the order of court.
—: 289 :-
Section 206 deals with fraudulent removal or concealment of
property to prevent its seizure as forfeited or in execution.
Likewise section 207 deals with an offence of a fraudulent
claim to property to prevent its seizure as forfeited or in
execution. It can be seen that while section 206 deals with
removal or concealment or such property, section 207 deals
with a fraudulent claim to such property. There is no
, specific provision to deal. with other types of removal or
i interference of such property. Once property is lawfully
1 attached by an order of a court, it is obligatory that no
removal of any kind or interference whether fraudulent or
otherwise should be there. The Law Commission in its 42nd
Report having considered this aspect, pointed out that once
any movable property has been lawfully attached by a court
order, any unauthorised removal or any interference with that
property should be punishable irrespective of the motive or
the intention of the person concerned. Accordingly, the Law
Commission recommended insertion of a newy!Ection 2OBA under
j this clause. This provision appears to be necessary as the
concept is that the court’s order should prevail under any
circumstances to promote ends of justice.
Clause 94
‘ 12.38 The existing section 182 deals with the offence of
giving false information with an intent to cause public
servant to use his lawful power to the injury of another
Derson. Section 211 deals with the offence of making false
charge of offence of making false charge of offence made with
intent to injure and it is in two parts. The second part
deals with such a false charge of an offence punishable with
death, imprisonment for life, etc. and makes it to be a
graver offence punishable with higher sentence. To some
extent the contents of these two provisions overlap. The Law
I Commission in its 42nd Report rightly noted that the
practical importance of this overlapping or conflict lies in
Y the procedural rule with reference to section 195 of the
1 Criminal Procedure Code. The Law Commission also noted that
. the wording of section 211"is not as clear and unambiguous as
could be desired". Consequently the Law Commission
recommended rewording of that section and the new section is
to substitute the existing section. The change proposed is
an appropriate one.
Clause 100 i'J·.T"?’
12.39 In Chapter XI the existing section 229 deals with
an offence of personation of a juror or assessor. It has no
relevancy. Therefore, it has been rightly suggested to omit
that section. The Law Commission however recommended in its
42nd Report to substitute two new sections in the place of
R section 229, namely, sections 229A and 2298. As per that
g recommendation section 229A is to deal with the offence of
éinterference with witnesses and section 2299 is to deal with
Yithe offence of failure by a person who is on bail or on bond
—: 291 :— A
to appear in court. Under clause 100, however, they are
numbered as sections 229 and 229A. In the present scenario
of criminal trials, the enormous delay is due to various
reasons, particularly the non—attendance of the witnesses due
to some reason or the other and in many cases mainly because
of threats and corrupt means etc. and likewise absence of ·
persons who are on bail. Therefore, these two proposed
sections under this clause which are in conformity with the
recommendations of the Law Commission are much needed.
Clause 110
12.40 The existing sections 254 and 203A deal with
offences of delivery of coins as genuine and using fictitious
stamps that occur in chapter XII dealing with the offences
relat_i.ng*to coins and government stamps. New types of
criminal acts are coming to light, namely, dishonest use of
slugs in vending machines, misuse by inserting something elseu
in the place of a coin. Though this recommendation was made
by the Law Commission in 1971, as at present we noticed that
such machines are being largely used even by public
authorities or private concerns and in places where such
services are being rendered. The insertion of new section
254A under this clause is a salutary on that will combat such
malady.
i —g 292 :— ·
Clause 111
12.41 Under this clause new sections 263A, 2538 and 263C
are sought to be substituted. These sections also deal with
offences relating to fictitious postage stamps and also
preparation to commit such offences. The existing section
263A lays down that whoever makes, knowingly utters, deals or
if ,5ells any fictitious stamps or has in possession are sought
; to be punished. In its place the new sections are sought to
i be substituted. In the new proposed sections we find more
coverage of such offences and having regard to the large
scale use of stamps at present by the public and to prevent
misuse, it would be better to have these provisions.
Clause 112
12.42 In Chapter XIII sections 254-267 deal with offences
yof using false instruments for weighing and measuring and
being in possession of false weights or measures or making or
selling the same. In 42nd Report the Law Commission having
regard to such offences committed on large scale recommended _
that the sentence should be two years instead of one year and
0n the basis of that recommendation in clause 112 the
substitution of words "two years" for "one year" in those
sections is sought to be contemplated. {
-:293:-
In this context, in several workshops it was
highlighted whether the retention of _those sections in
Chapter XIII would be necessary in view of the Standards of
weights and Measures Act, 1975. A perusal of the penal
provisions of sections 50-70 and an examination of the scope
and object_of the Act would reveal that the main purpose in
enacting this Act is to see that the standards of measures
E and weights are established and the same to be used in trade
E A and commerce. This aspect is also clear from an examination
T of the definition of "false weight or measure" which means
any weight or measure which does not conform to the standard
established by or under this Act of 1975. Therefore, any
such violation, namely, using non—standard weights and
measures per se amounts to an offence. The word
"fraudulently" which is used in each of the sections 254. 255
and 255 IPC and the words "which he knows" occurring in
sections 255 and 257 IPC are not found in the various
I offences enumerated in Part 5 of the Standards of Weights and
Measures Act. That means for an offence punishable under
those sections, the question of mens rea or an element of
. fraud is not relevant. Whereas in respect of those offences
in Chapter XIII of IPC such a state of mind is an important
factor. It can also be noticed that the sentence in respect
of offences punishable under the Standards of Weights and
Measures Act is much more lenient and a complaint can be
filed only by a Director or an authorised officer mentioned
therein and a private citizen who is a victim cannot
· —: 294 :—
prosecute in a court. Therefore, it is appropriate that the
said sections in IPC should be retained as they are and
increase the sentence as proposed under clause 112.
Clause 119
12.43 Under this clause a new section 279A is sought to
Q _ be inserted. The existing section 279 deals with one type of
· I offences relating to rash driving or riding on a public way.
I Under the new section the offence of driving unsafe or
I overloaded vehicle on a public way is sought to be punished.
Having regard to the increase in the volume of road traffic
and indiscriminate use of vehicles whether they are
roadworthy or not, such a provision is very much needed.
Clause 122
_ 12.44 The existing section 292 in chapter XIV dealing
A with offences affecting the public health, safety,
convenience, decency and morals, punishes the obscene books
_ etc. This section has been also amended in the year 1969.
As to the nature of the test of obscenity, the assessment of
the same depends upon so many factors and there have been
judgements rendered on it. There have always been a
practical problem in deciding what is "lascivious“ and what
appeals to the "prurient" interest, and what does or does not
tend to deprave or corrupt. The Law Commission in its 42nd W
Report observed that "more important than this attempted
·: 295 :—
definition is the new exception, which allows a defence on
the ground that the publication is in the interest of art or
science or literature or learning. This will actually turn
on "expert evidence“, which would be permissible under
section 45 of the Evidence Act. The Law Commission however
recommended that it would be safer if in the section itself a
provision is specifically made for admission of such expert
y evidence. We are also of the view that such expert evidence W
y A in respect of the facts and circumstances in a case on the
i question whether they are of lascivious nature etc. should
be covered by the section on the lines recommended by the Law
Commission in the new sub—section sought to be inserted in
section 292 under clause 122 of the Bill which would be an
appropriate addition.
Clause 123
i2.45 After section 292 a new section 292A is sought to
i be inserted. Under this clause the new section deals with an
offence of printing etc. of grossly indecent or
surreptitious matter or matter intended for blackmailing. A
A perusal of this new section shows that the object of
inserting the same is to prevent the irresponsible way of
printing newspapers, periodicals or other exhibits meant for
Dublic view in such matter when the same is intended for
blackmailing. This will be a good check on such printings
etc. which are grossly indecent. This section also provides
for a minimum punishment if the same offence is committed
_·_ —: 296 Z- `
again on the same lines as we find in section 292. There are
also explanations to this new section dealing with good faith
etc. Explanation 2 gives certain guidelines to the court and
provides certain considerations regarding~ general character
of the person incharge etc. to be taken into consideration
by the court. However, we are of the view that the sentence
may be made three years so that it may be on par with the new
Q section 292A to be inserted. Further, in conformity with our
- 1 i recommendations on sentencing policy vide Chapter II, the
{ punishment under this proposed new section_292A should ialso`—`-
be imprisonment and fine.
Clause 124 I
12.46 The existing section 294A deals with offence of
keeping lottery office. This section is sought to be
substituted by a new sections 294A and 294B under this
AA clause. The existing section lays down that whoever keeps
i any office or place for the purpose of drawing any lottery
not being a State lottery shall be punished with imprisonment
and also deals with publication of any proposal to pay any
sum. The new section is more elaborate and enumerates the
various steps and prescribes the necessary punishment. In
View of the modern trends in proliferation of the lotteries,
this new section is a salutary one and it~ is on the lines
recommended by the Law Commission in its 42nd Report.
Likewise, section 2948 though a new section only prescribe
the necessary punishment in respect of the offences of sale,
_ —: 297 :—
distribution of lottery tickets. Section 294B deals with the
sale, distribution of lottery tickets of a State lottery
without authorisation by the respective Governments and makes
such sale punishable. The object underlying is obvious,
namely, to prevent illegal dealing with the State lottery
tickets. In conformity with our recommendations on
sentencing policy vide Chapter II, the punishment under these
proposed new sections 294A and 294B should also be
imprisonment and fine.
Clause 125
12.47 In this clause Section 302 is sought to be
substituted by the new section bearing the same number.
Under Section EQ2 a person who commits murder shall be
sentenced >to·Z_ §iea1:h. The question in what type of
f,cases the,deaBEEE;§{§EE[f§·uld,be_awarded has been considered
C in a number ‘Bf?Q%ses by the Supreme Court and a concept of
' _ "rarest of rare cases" have been evolved. But in the
gproposed section it is sought to be enumerated as to in what
type of cases death sentence can be awarded. We have
considered this aspect in Chapter III_ and arrived at a
conclusion that all categories of such cases can not be in
the said Chapter. Consequently, Section 302 should be left
as it is and clause 125 may stand deleted.
— I V —: 298 :— n
Clause 128
12.48 Under this clause a new section 3048 is sought to
be inserted. At the outset we must point out that in 1985 by
amending Act 43 of 1986, the existing section 3048 dealing
with dowry death was inserted. Therefore, the new section
namely 3048 under this clause cannot- be given the same
number. It is obvious that the Bill is much anterior.
Q However, a perusal of the new section shows that all those
. ji offenders who indulge in rash and negligent driving, drive or
i run away without informing any police station within a
reasonable time after having caused death or injury. This is
a phenomenon, namely, "hit and run" to escape from the
liability. Therefore, this provision can be inserted as
mentioned above, but the number cannot be 3048. We recommend --—~
that this may be inserted in 304A as subsection (2).
Clause 130
V 12.48 Under this clause sections 307 and 308 are sought
to be substituted. In general, both the sections are
analogous in many respects to the existing sections.
Illustrations to section 307 are, however, sought to be
deleted under the proposed section. The Law Commission in
its 42nd Report proposed a new Chapter 58 defining attempt
and also prescribing punishment by inserting sections 120C
land 1200. Consequently, the Law Commission also have
frecommended substitution of the new sections 307, 308 while
lbealing with Chapter V8 and the proposed sections l2OC and
_ , —: 299 :— 9
1200. we make it clear that it is not_necessary to HES;
these new sections 120C and 1200 and also recommended to
retain sections 307, 308 and 511 as they are except to delete
the second part of existing section 307 which prescribes
death as the punishment for any attempt made by a life
convict. This has to be deleted for the same reasons for
deleting section 303. (Vide Chapter VI)
Clause 131
12.50 Under this clause the existing section 309 which
makes attempt to commit suicide punishable is sought to be
omitted. But in view of the recent judgement by the Supreme
Court In Gian Kaur 59mtQ VS State of Punjab, ( 1996
SCC(Cr)37A) vires of the section has been upheld.
consequently, the existipggsection 309 has to be retained and
clause Q131 has- to q§§g§Qitted From the Bill.( Vide Chapter
VIII)
' Clause 134
12.51 Under this clause the existing section 320 defining
A grievous hurt is sought to be substituted. The Law
Commission in its 42nd Report observed that the word
"privation" used in the efisting section is archaic and
"emasculation" in that clause may be omitted as the same is
Covered by the widened Sth clause. The proposed changes are
Only peripheral, but a little more explanarative. Therefore,
that can be carried out.
· C ·; 300 :—
Clause 137
i 12.52 Under this clause the existing section 328 is
sought to be substituted by the new section. In content
though both the sections are same except in the new section
_ in place of "unwholesome drug or other thing" the word
{ ·` "unwholesome substance" are inserted which are of same effect
1 i, but little wider.
Q Clause 144
12.53 Under this clause the existing sections 341 and 344
are sought to be substituted. The Law Commission in its 42nd
Report recommended that under section 341 the sentence of
imprisonment is unnecessary but fine may be upto Rs.
1,000/and where, however, the offence is jointly committed by
ten or more persons, it should be more severely punishable
,' with imprisonment of either description upto one year, or
fine or both. Accordingly, the Commission recommended the
revision of section 341 and also section 342. while dealing
‘ with section 343 and 344 the Law Commission recommended that
both of them could be incorporated in one section and
proposed new section 343 dealing with wrongful confinement
for five days or more. In the Bill, however, we find on the
same lines, the new sections are being incorporated. The
question is whether the offence is aggravated if there are
ten persons and whether there should be such a limit. We are
of the view that the number of persons on the basis of
4 —: 301 :-
constructive liability can be limited to two or more persons
as we find in the proposed amendment in section 34, 35 and 38
IPC. _
Clause 146
12.54 Under this clause a new section 354A dealing with
offence of indecent assault on a minor is sought to be
inserted. This aspect was considered in Chapter IX and
accordingly for the reasons stated therein, this clause has
to be omitted.
Clause 149
12.55 Under this clause, the existing section 362 is
sought to be substituted by the new section. This existing
section 362 _deals with offence of definition of abduction.
Under the new section it is elaborated. This new section
362A dealing with hijacking of aircraft or any other vehicle
is sought to be added. We have discussed about this new
section in Chapter X. For the reasons mentioned therein the
new section 362A need not be inserted. However, so for as
the new section 362 is concerned, it has enlarged the meaning
of abduction and it can be inserted.
—: 302 :— -
Clause 151
12.56 Under this clause, after section 354, a new section
364A dealing with offences of kidnapping is sought to be
inserted. Having regard to the present crime scenario ot
this nature, the new section is a salutary one and has been
rightly carried out by Act No.42 of 1993.
Clause 152
12.57 under this clause, the existing section 365 and
355A are sought to be substituted by the new sect‘on_ `he
second hal? of the section 356 and 356A are closely oonnectec
with each other. The Law Commission also accorcingl,
recommended that they could appropriately be cut ‘¤ one
section. Accordingly, the second half ot section 365 is
incorporated 356A. The change is only conseouential and »e
endorse the same.
Clause 155
12.58 under this clause the existing section 359 is
sought to be substituted. The Law Commission in its 12nc
Report observed that the existing section 358 which deals
vwith wrongfully concealing a person knowing to be kidnapped
or abducted, leaves the punishment to be regulated according
to the punishment for the principal ofFence of kidnapping ot
abduction. It would be better if specific punishment is
- —: 303 ;- _
provided in the section. The new section is on the same
lines suggested by the Law Commission. Therefore, the
substitution accordingly be made. _
Clause 159
12.59 Under this clause, the existing sections 375 and
376 are sought to be substituted by new sections 375, 375A to
375C. For the reasons stated in Chapter IX this clause may
be omitted. we, however, recommend a modification in clause
3 of section 375 by inserting the word "injury". The change
may be brought about.
Clause 150 V
12.60 Under this clause the existing section 377 is
1 sought to be substituted by the new section. This existing
section makes as unnatural offence punishable and the
sentence prescribed is imprisonment for life or imprisonment
I of either description for a term which may extend to ten
years and also shall be liable to be fined. The Law
Commission in its 42nd Report examined the question whether
the sentence of imprisonment for life or for the ten years js___W
a serve one. A ouestionnaire was issued and one of the
questions was whether unnatural offences should be punishable
at all and the replies received appears to be conflicting.
—: 304 :— _
However, having regard to the social values in our country,
` the Law Commission recommended some changes particularly in
respect of punishment. The Law Commission rightly observed
that the sentence of imprisonment for life or ten years in
every case is unrealistic and very harsh. They, however
recommended that such assault on a minor by an adult should
be punishable sever. On those lines, the new section 377 is
Q formulated. So the same may be substituted, on the lines
_ suggested in Chapter IX.
Clause 181
12.51 Under this clause, the existing Sections 380 and
381 which deal with offences of theft are sought to be
I substituted by Sections bearingv the same numbers. This
existing Section 380 deals with theft in any building,
dwelling house, tent or vessel etc. and lays down that such
an offence shall be punishable with imprisonment of either
" description, which may extend to seven years and shall also
be liable to fine. In the new Section, more number of places
where such theft is committed are added. For instance
V aircraft etc and Sub—section (2) specifically includes theft
of "antiquity or art treasure" and theft in respect of those
, things is made a graver offence and is punishable with _3?1*
years. In Clause (d) of the Section in the Bill the words
"shall be punished with imprisonment of either description
for a term" appear to be missing. They have to be added.
Another new Section 380A deals with theft of property
l —: 305 :— i
_ affected by accident, fire, flood etc. The property thus
affected cannot be easily protected and committing the theft
of the same is rather easy and, therefore, this Section is
specifically meant to deal with the offence of theft of such
property. There is no existing provision which covers such
crime. The changes may be carried out.
` . Section 381
12.62 The existing Section 381 deals with theft by clerk
V or servant of property. The scopes of the Section is
broadened by the new Section 381. The earlier Section
covered only theft by clerk or servant but the new Section
. says that whoever being employee in any capacity would be
liable when he commits such theft.
Section 381 A, a new Section intends to cover
thefts of any property by putting any person in a State of
f
intoxication. Though in a way, it may be covered by the
Section dealing with theft in general but the object appears
to be to make the sentence severe by making the same rigorous
and the same may be inserted.
Clause 162
12.63 Under this clause a new section 385A is sought to
be inserted. The proposed section is intended to cover an
offence of blackmailing with the dishonest intention. The
e l - -: 306 1-
existing section 383 defines extortion and section 385 lays
hdown that putting the person in fear of injury in order to
commit extortion irrespective of delivery of_ any property
etc. is an offence punishable under the Code. The Law
Commission in its 42nd Report examined the question whether
the definition of extortion as it exists covers every case as
blackmail as, for instance, where money is obtained by
threatening to expose something true 'but unsavory about a
person and when such conduct though reprehensible may not
squarely attract the definition of extortion or at any rate
an ambiguity is there because it is not clear whether such a
threat would amount to a threat of injury. The word ’injury’
is defined as to denote any harm whatever illegally caused to
any person in body, mind or reputation or property. The word
’dishonesty’ is defined to mean that "whoever does anything
with the intention of causing wrongfuT gain to any person or
wrongful loss to any person is said to have acted
dishonestly". Now the new section 385A is to the effect that
whoever by words either spoken or intended to be read or by
signs or by visible representations, dishonestly threatens
any person with the making or publication of any imputaticn....
which is likely to harm his reputation or the reputation of
any near relative or any person shall be punishable. The
object underlying the new section is that such an act of
blackmailing with the dishonest intention is to threaten in
the manner mentioned therein which may result in harm should
be made punishable. The Law Commission in the proposed
section did not use the words “any near relative" but on the
. ·; SGT r-
other hand used the words "any other person". In the new
section in place of words "any other person" we find the
words "any near relative of that person." The change brought
about in the new section appears to be more coherent than
make it so wide as to cover harm to any "other person". A
doubt may arise whether this new section can properly be
added after 385 for the reason that the word "extortion" as
2 defined in Section 383 envisages extortion of some property
~ _ or putting the person in fear. But in the new section the
T { word "dishonestly" itself indicates the intention of causing
a wrongful gain or wrongful loss which naturally implies the
delivery of property or valued security, etc. The further~”
usage of the word likely to harm the reputation would mean
_ causing an injury. In the present crime scenario the
c’ackmailing has become very rampant. Therefore, the new
section dealing with such offences is very necessary.
Clause 163
12.54 Under this clause the words "may be punished with
A imprisonment for life" occurring in sections 388 and 388 are
sought to be substituted with imprisonment of lesser periods.
Sections 388 and 389 deal with specific offences of extortion
by threat or accusation or putting a person in fear in order
to commit extortion. Under section 388 the threat or
accusation contemplated is one of putting any person in fear
O? such an accusation of having committed or attempted to
Commit any offence punishable with death etc. and the
_ -1 308 :-
punishment for such extortion is imprisonment upto 10 years,
and if the accusation is with reference to an offence under
section 377 then the punishment is imprisonment for life,
Likewise, under section 389 where in order to commit
extortion puts a person in fear of accusation of offences
mentioned therein then he would be punishable with a sentence
extendable to 10 years and if the accusation is with
X reference to the offence under section 377 "may be punished
_ with imprisonment for life". A bare perusal of these
Q L sections would show that sentences are severe and
_ V disproportionate and perhaps violate the doctrine of
proportionality. Therefore, the substitution of the words
"may be punished with imprisonment for life" with "lesser
periods of sentence" is called for.
Clause 164
12.85 Under this clause a new section 395 is sought to be
. substituted in place of existing section. The existing
section lays down that when a person while committing dacoity
commits murder, every one of the persons participating in the
V offence shall be punished with death or imprisonment for life
or rigorous imprisonment for ten years. Imposition of death
sentence is made to be applicable to some categories
mentioned in the proposed section 302. we have already dealt
with this aspect in Chapter III and suggested that it should
be left to the court as to in what circumstances the death _
sentence can be imposed. In this context, we have also
V —: 309 :— `
referred many of the Supreme Court judgements wner§`E§§"
concept of rarest of rare cases has been vividly considered,
we finally suggest that section 302 must be left as it is.
For the same reasons in respect of section 396, no changes
are necessary thereby leaving it to the discretion of the
court to give death sentence in appropriate cases.
Clauses 165 & 166
12.66 Under these clauses the words "uses any deadly
weapon, or" in section 397 is sought to be omitted and
section 378 after the words "at the time of" the words
"committing or" are sought to be inserted and for the words
"seven years", the words "five years are sought to be
substituted.
Section 397 contemplates even use of any deadly
weapon while committing robbery or dacoity apart from causing
grievous hurt or attempt to cause death or grievous hurt.
Likewise section 398 which deals with attempt to commit
robbery or dacoity also lays down that if the offender is
armed with any deadly weapon the imprisonment shall not be
less than seven years. It can be seen that under section 397
the emphasis is on use of any deadly weapon or whereas in
section 398 mere being armed with any deadly weapon. This is
more explanatory. This clause is proper and in the same
section the words "five years" in place of "seven years"
thereby making the punishment less severe also appears to be
A ' A —: 310 :—
proportionate with the gravity of offence. However, we do
not find any reason as to why the words "uses any deadly
weapon" should be omitted in section 397. Otherwise, in a
case where a dacoit being armed·with deadly weapon puts into
use any deadly weapon for creating fear without causing
grievous hurt or attempting to cause hurt may not be covered
by the section. So it is better to retain the words and
clause 165 may be omitted.
Clause 167
12.67 Under this clause in section 399 for the words "ten
years ", the words "seven years" are sought to be
substituted. This offence is with reference to making
preparation and making the sentence lesser appears to be
proportionate.
Clause 168 E
12.68 Under this clause a new section 399A is sought to
be inserted. The existing section 399 makes "preparation to
commit dacoity" punishable. The dacoity is only an
aggravated form of robbery when committed by five or more
persons. Therefore, it is logical, if preparation to commit
robbery is also made punishable under section 399A which is a
new section. We suggest that the change may be made.
4 4: 211 z-
Clauses 169 and 170
12,69 The changes proposed under these sections are oHTY"
consequential and can be made.
Clause 171 `
12.70 A new Explanation I is sought to be added in
section 403. Consequently renumbering of the existing
Explanation is also sought. The new Explanation which
relates to oFFence of misappropriation committed by partner
in respect of the property belonging to the partnership is
sought to be covered. Therefore, the proposed changes can be
brought about.
Clause 172-173
12.71 Under these clauses some minor changes are proposed
in sections 404 and 408. The changes can be brought about.
· Clause 174
12.72 Under this clause the word "factor" occurring in
section 409 is sought to be omitted. May be in certain
respects the word "Factor" may be obsolete, but there is no
no harm in retaining this word. Accordingly clause 174 may
be omitted.
I I —: 312 :— l
Clause 175
12.73 Under this clause the existing section is sought to
be substituted by way of giving an extended meaning to the
expression "stolen property". The existing section 410
describes the stolen property as property a portion whereof
has been transferred by theft or by extortion etc. A
question arose whether a property a portion whereof has been
transferred by committing an offence of cheating would also
amount to stolen Property. The Law Commission in its 42nd
Report examined this aspect and recommended that property
obtained by cheating should also be included. The Law
Commission also considered the question whether the property
which is subject matter of a theft committed by an offender
who gets the benefit of general exceptions under Section 82,
83 or 84 can be described as stolen property when a portion
Qthereof has been transferred. Having considered this tissue,-
lthe Law Commission recommended that it is but logical and
transfer of a portion of such property will also come within
the meaning of stolen property though the actual offender may
not be punishable by virtue of the applicable exceptions. To
amplify the point, an illustration also was recommended to be
added. The proposed new section 410 with illustration is
based on the Law Commission’s recommendations, which is
appropriate having regard to the meaning which can logically
be given to the expression stolen property.
_ A —: 313 :— I
Clause 176
12.74 Under the existing Section 411 dishonestly
receiving a stolen property is made punishable and under
Section 414 dishonestly receiving stolen property in the
commission of dacoity is made a graver offence. There were
suggestions that such dishonest receipt of stolen property
Q, belonging to the government or local authority or corporation
. x` etc. should be made punishable with very severe punishment.
1 Accordingly under this clause the words mentioned therein to
. carry out this suggestion are sought to be inserted in both
the Sections which would serve the purpose.
Clause 177
12.75 Under this clause the existing Section 415 is
sought to be substituted by a new section with some changest
In the existing section, the damage or harm likely to be
caused is with reference to only the person deceived but in
the proposed section the scope of the damage is sought to be
extended to not only that person but to any person.
V Therefore, the words "to any person" are virtually substitute
to the words "to that person" thereby extending the sweep.
The only other change is the words "wrongful gain" after the
words "reputation or property" are sought to be added which
are in line with the change contemplated in clause (al viz.
adding the words "to any person". The scope of the existing
explanation is expanded by including that if any person
' A - —: 314 :—
dishonestly omits to disclose the Fact which he is bgunc
under the law to disclose also amounts to deception. we may
mention here by way of clarity that the. Bill does ngt
specifically refers to Explanations under Section 415 but as
cheating is of such a wide connotation it would be better tc
retain the illustrations.
Q
‘ ‘ Clause 178
i 12.75 Under this clause Section 420 is sought to be
A substituted by a new Section with some changes. Likewise.
anew Section 420A relating to cheating of public authorities
in performance of certain contracts is sought to be inserted.
Yet two new Sections, Section 420B relating to publication of
False advertisements and Section 4200 relating to Fraudulent
acts in relation to property of a company are also sought tc
be added. The existing Section 420 lays down that whoever
cheats thereby dishonestly induces a person to deliver _the
property to any person or to make or alter, destroy etc.
shall be punished. A question came up that in a case where
V by deceiving any person fraudulently induces to consent that
any person shall retain any property would also be covered.
The Law Commission in its 42nd Report recommended that such a
clause be added. That is the only change in the proposec
Section 420 which makes the Section more explicit. The
change may be carried out.
-1 315 1- ‘
The Law Commission in its 29th Report considered as
to how to tackle the problem of cheating of government on a
large scale by dishonest contractors while supplying go6d§T`
The Law Commission in its 42nd Report adverted to this aspect
and recommended that a provision should be made making such
offences punishable. The new Section 42OA is fairly
exhaustive to cover such offences and the punishment provided
it is not severe. In the modern trend of trade and commerce, a
I _ number of false advertisements are being made to mislead the
A Q public. Though the Law Commission in its 42nd Report has not
~ adverted to that, the proposed new Section 42OB appears to be
salutary.
£@Q _
Fraudulent transfer of property in relation to
companies is sought to be covered by this Section. This
section lays down that whoever with an intent to mislead or
injure a person or public, makes or causes to make any
transfer of property belonging to a company by a gift, sale
etc. or with such intent alters, removes and conceals any
sign or name plate of the company to indicate that the
company has ceased to exist shall be punishable. This is in
line to check fraudulent acts by way of cheating as mentioned
therein.
—: 316 :· Q
Clause 179 Q
12.77 Under this clause the existing sections 426 to 432
are sought to be substituted by new sections covering in
general the offence of mischief. The existing section 425 in
general defines mischief. Sections 426 to 440 are punishing
sections applicable to different kinds of offences of
X mischief and higher punishments are prescribed in respect of
Z. I aggravated offences of mischief like destroying public
l 1 property or public services etc. The Law Commission in its
1 4 ` 42nd Report considered these sections and recommended that in
A respect of certain offences the punishment should be
increased from five to seven years. with reference to
section 437 it is also recommended that a reference to
S V aircraft should be added. The Law Commission however
recommended that sections 426 to 440 should be substituted.
Section 426 prescribes punishment for mischief and the Law
Commission recommended enhancement of sentence from three
months to one year. Sections 427 to 436 as proposed by—the—-·
Law Commission deal with the offence of causing mischief to
the public property or machinery to the amount of Rs.i0O/- or
V V more, mischief by killing or maiming animals, injury to
public road, aircraft etc. and mischief by fire or explosive
substances with intent to destroy place of worship. So far
as sections 438 to 440, the only changes are with regard to
sentence and omission of section 439. In the Bill, the new
sections 426 to 432 cover the offences of mischief more or
less as proposed by the Law Commission in the above mentioned
sections to be substituted as per its Report. I we hav
examined the new sections 426 to 431. However, we recommer
that the sentence of three years prescribed- under each c
these sections may be enhanced to five years. Now coming t`
section 432 proposed in the Bill, we find that the type c·
mischief covered by this section is with reference tc
· destroying, moving or rendering less useful any air route or
a beacon or lights etc. used for guidance of the aircraf"
and such a mischief is made punishable and the sentence being
_ ‘ seven years, but it is also mentioned there that if it does
I not amount to sabotage then it would be a different matter tc
_ be covered by section 437. This Bill was prepared in 1979.
perhaps having noticed the alarming increase in the types of
offences of hijacking and rendering air service unsafe, the
Anti—Hijacking Act of 1982 and the Suppression of Unlawful
A Acts against Safety of Civil Aviation Act, 1982 (SUACA)4were
passed._ These two Acts were further amended in 199A. we
have discussed the offence of hijacking in Chapter X with
reference to the new section 362-A proposed in the Bill and
f we suggested that in view of the provisions cf the
Anti—Hijacking Act as amended it may not be necessary to have
this proposed provision.
In the Suppression of Unlawful Acts against Safety
of Civil Aviation Act as amended in 199A a new section BA was
inserted which reads as follows:-
—: 3T8 :—
"3A.(1) whoever, at any airport, unlawfully enc
intentionally, using any device, substance or
weapon- _
(a) commits an act of violence which is likely tc
cause grievous hurt or death of any person; or
(b) destroys or seriously damages any aircraft or
facility at an airport or disrupts any service at
the airport, endangering or threatening to endanger
safety at that airport, shall be punished with
imprisonment for life and shall also be liable tc
o fine. _
(2) Whoever attempts to commit, or abets the
‘ commission of any offence under subsection (1)
shall also be deemed to have committed such offence
and shall be punished with the punishment provided
for such offence."
A comparison of the contents of this section with
the contents of section 432 would show that the acts of
violence mentioned in the latter are in a general way covered
by the words used in section 3A-1B of the SUACA Act.
However, the disruption of the words used in section 432.
namely, less useful route etc. and the damage to various
other gadgets would be of a specific type of mischief. To
make the section more comprehensive and effective we P
recommend that section 3A of the SUACA Act may further be
amended incorporating some of the acts mentioned in the
-7 319 :—
proposed section 432. We may also add that we are making
these suggestions, firstly because we have already
recommended deletion of new section 352A to the` extent
applicable to the aircraft and also for the reason that so
many technical issues would be involved in these kinds of
offences and the special courts with the help of technicians
W acting as assessors would be in a better position to
i _ understand and decide the complicated questions that may
U arise. If amendment of section 3A is not to be carried out
in the above manner then the new proposed section 432 may be
V retained in the clause. If so, then the sentence under
section 432 may be brought in accordance with section 3A.
Clause 180
12.78 Under this clause the new sections 434 to 440 which
also deal with graver or serious type of mischief are sought
g- to be substituted in the place of the existing sectionsT** Ne`"
have already mentioned that the changes suggested by the Law
Commission with reference to sections 438 to 440 were only
regarding sentence. But in the Bill in these proposed
sections the mischief caused to the public institutions,
public services and to aircraft etc. with a view to impair
the efficiency or impede the working thereof of any of these
public institutions rendering service is made punishable
severely. The proposed seégion 434 again deals with mischief ,
to any aircraft or to any docked vessel or to any vessel of a
burden of 20 tones upwards with a view to render it unsafe
—: 320 1-
etc. Section 435 covers the offence of mischief by fire or
any explosive substance intending to cause or knowing it to
be likely that thereby would be causing damage to any
_ property to the amount of Rs.100/— or upwards. Section 436
T again covers the offence of mischief by fire or any explosive
i etc. which results in destruction of any building or any
. it object which is held sacred. The language of this section is
— g` somewhat analogous to existing section 436. Section 437 is s
f new one and the offence mentioned therein is "sabotage".
‘ This section is very exhaustive. A careful reading of this
section which contains several types of acts of mischief
would reveal that the intention of the Legislature is to
combat the destructive acts of violence with an intent to
impair the efficiency of the public institutions and the
services which in the present type of organised crime
sometimes of international ramifications. Sub—sections (2)
has been rightly added in this section. 6ub—Sections C3) and
l(4) also have been properly added in this very section.
Though preparation by itself in general is not an offence but
having regard to the magnitude and the propensities the
preparation for committing sabotage also is made punishable
under section 438, but the sentence of three years maywbe ghhq
enhanced to five years. However, the' word "aircraft“
occurring in section 434 may be omitted in view of our
suggestions made in Chapter X. In respect of other tyoesl cf
mischief regarding the aircraft section 3A of the SUACA Act f
—: 321 :—
is to be amended. If not, the section as proposed may be
retained and the sentence be brought in accordance with
section 3A of SUACA Act.
Clause 181
12.79 Under this clause the word "lawfully" found in the
existing section is omitted in the the proposed section. In
the existing section the second limb of the definition of
criminal trespass reads: "having lawfully entered into or
upon such property unlawfully remains ......... " The new
clause (b) in the proposed section 441 also carries out the
same meaning.
Clause 182
12.80 Under this clause sections 443-480 dealing with
various kinds of house trespass are sought to be substituted.
" In the proposed section 443 a new expression 'burglary’ is
defined and it says that a person commits burglary if he
commits house—trespass in order to commit or having committed_»
house—trespass he commits theft. The existing section 443
gives the meaning of offence in lurking trespass. In the new
proposed section such an offence is not mentioned. It can be
seen from the existing sections 443, 444, 445 and 446 that
the various types of trespassing by night and by house
breaking by night are with reference to commit an offence
like theft. The framers of the Bill by introducing the
—: 322 :—
offence of burglary were of the opinion that the various
types of offences of house—trespassing or lurking
house—trespassing by night etc. would be covered. The Law
Commission having considered some judgments of the High
Courts and amendments made by the UP Government suggest the
change in section 441 to which we have already adverted. The
Law Commission also recommended that sections 443 and 444
which define lurking house trespass and lurking house
trespass by night should be omitted and instead of
house—breaking the burglary should be defined in section 445.
These suggestions of the Law Commission are logically
reflected in the proposed sections and it may be noticed at
this stage that the existing section 445 is somewhat lengthy
and enumerates six ways of house—breaking and section 445
mentions that whoever commits house—breaking after sun—set or
before sun—rise is said to commit house—breaking by night and _
in other sections the punishment is prescribed. Coming to
the proposed sections we find "burglary" as recommended by
.the Law Commission, is defined.
Sections 444 to 447 deal with various types of
criminal trespass. Some of them prescribe punishment varying
from 3 years to 7 years. Section 448 prescribes punishment
for burglary being extended to ten years and with fine.
—: 323 1-
Section 449 lays down that whoever whilst
committing burglary causes grievous hurt or attempts to cause
death or grievous hurt to any person shall be punishable with
imprisonment for life or with rigorous imprisonment for a
term which may extend to ten years and with fine.
Section 450 deals with conjoined liability of other
-persons who were also concerned in committing house-burglary
during which one of them commits offence under section 449
and all of them made constructively liable.
We have carefully considered these provisions and
we think that such substitution in the place of the existing
sections will be salutary.
Clause 183
_ Under this clause, Chapter XVIIA is sought to be
lintroduced by way of inserting section 462A. A perusal of
this new section manifestly shows that it is meant to cover
the offences committed in relation to private employment.
The relationship between an employer and employee in a__#`
private employment is different as compared to the employment
relating to a public servant as defined in section 21 of IPC.
Corruption by public servant is of public concern and is
specifically dealt with under the Prevention of Corruption
Act as well as by some of the provisions in IPC. The same
principle cannot be made applicable to private employees even
—: 324 :—
if the acts mentioned under the new section amount to a kind
of misconduct with reference to discharge of his duty vis~a
—vis the employer. If during the course of such employment
the employee commits offences like forgery, cheating,
criminal breach of trust, misappropriation etc., then that
would definitely amount to an offence punishable under the
Penal Code. But other types of acts like taking some
remuneration other than legal remuneration for doing some act
A by themselves may not amount to any one of these offences and ilk M
if such act or omission by the employee results in injury or
loss to the employer then that would be a cause for
dismissing or claiming damages and the liability will be one
of the tortuous nature. Having carefully considered all the
aspects, we are of the view that this new Chapter dealing
with offences relating to private employment need not be
there. So consequently clause 183 should be omitted.
[Clause 184
12.82 The Law Commission in its 42nd Report recommended
that (i) the word "place" be also added in the first
Daragraph of section 464 and that (ii) the words "addition"
and "obliteration" be also added in the second paragraph
thereof in addition to the existing word "cancellation" and
that (iii) sections 463 and 464 be combined and the
illustrations provided thereunder be omitted. Clause 184 of
i the Bill seeks to bring about the aforesaid recommendations
—: 325 :-
(i) and (ii) except (iii). While we agree with the aforesaid
changes proposed in Clause 184 of the Bill, we propose to
further examine the scope of section 464 I.P.C.
While section 463 defines "forgery", section 464
defines "making a false document" and enumerates various
circumstances which would amount to making of a false
document. It is not clearly spelt out under either of the
sections 463 or 464 as to whether forgery of a copy of a
document or copying a false document or making a false copy
of a document, would also amount to forgery within the
meaning of section 464, IPC. It would not be out of place to
mention that under sections 2 and 4 of the Forgery &
Counterfeiting Act, 1981(U.K.) copying a false document and V. _
using a copy of a false document, has been specifically made
punishable. As regards the position in India, there existed
a controversy on the above point (see H.S.Shamosundorariah v.
State of Mysore, (1968) 1 Mys LJ 294 at p.297; Cobinda Prasad
Parui v. State, AIR 1962 Cal.174 at p.175) (cited at page
3939 of Penal Law Of India by 0r.Hari Singh Gaur, 10th Edn.
and 5 Bom HC Rep cc 56 (ref.Law of Crimes (A Handbook) by
V.V.Raghavan, Second Edition, page 931).
However, the Supreme Court has finally settled the
Dosition in Rama Shankar Lal v. State of U.P., 1970 UJ(SC)
507 by approving the following observations in Essan Chunder
Dutt & others v. Baboo Prannauth Chowdry & others, 1
;Narshalla’s Reports 270
* —: 326 :—
"we regard the forgery of a copy clearly to come
within the purview of the section just cited.
Forgery of a copy which was not true copy, would be
the offence there rendered penal, and the criminal
intention to make a false document serves the
purpose of a true one would be clear by such act of
forgery." g E 4 wu
E We are of the view that though the position is now
settled it would be desirable to add an Explanation in
section 464, IPC so as to make it specifically clear that
knowingly committing forgery of a copy cf a document or
knowingly making copy of a false document or making a false
copy of a document would also amount to forgery within the
meaning of section 464, IPC.
we recommend that in order to meet the above
situation, Explanation 3 in Section 464 may be added on the
g following lines —
"Explanation 3. — Knowingly committing forgery of
`a copy of a document or knowingly making a false
copy of a document or copying a false document
which he knows or believes to be a false document,
n with the intention that he or another shall use it
E to induce somebody to accept it as a copy of a
—: 327 :—
genuine document to do or not to do some act to his
own or any other person’s prejudice, will amount to
making a false document."
Clause 187
12.83 The proposed changes under sub—clauses (a), (b) and
(c) of clause 187 of the Bill are on the basis of the reasons
‘and recommendations contained under paras 18.8, 18.10 and
18.11 of Chapter 18 of the aforesaid 42nd Report.
By virtue of sub-clause (a), the words "in respect
ofla document which is, or purports to be..." are proposed to
be substituted in Section 467, IPC for the sake of clarity as
stated under the preceding paragraph in respect of 8ec.466
IPC and also as recommended under para 18.10 of the 42nd
Report. We also concur with the proposed changes under sub
clause (a) that the words "authority to adopt a son or"
should be substituted by the words "authority to adopt any
person or " as a female may also be adopted as a daughter
(vide the Hindu Adoption and Maintenance Act, 1956).
Besides, adoption of a female child may also be permissible
under the laws or customs or usages governing other
religions. >... M.
-n- —: 328 :- I Vi T"
Under sub—clause (b) the proposed substitution by
the words "or an acduittance" is in the interests of clarity
as recommended in the revised form of Section 467 IPC as
stated under Para 18.11 cf the 42nd Report.
By virtue of sub—clause (c) the words "with
imprisonment for life, or" are sought to be omitted under
Section 467 IPC. This is necessary because the imprisonment
for life provided in Section 467 for forgery of valuable
securities appears to be too harsh as observed in the 42nd
Report. We also concur with this change.
Clause 188
12.84 The proposed changes in sections 470 and 471 of the
Penal Code are on the basis of the reasons and
recommendations contained under paras 18.13 to 18.15 of
Chapter 18 of the aforesaid 42nd Report.
Section 470, IPC is proposed to be substituted
because the existing section 470 which defines a "forged
document" as "a false document made wholly or in part by
forgery" is defective as observed by the Law Commission in
its 42nd Report, (para 18.13) thereof. This is in view of
the fact that forgery is itself defined in Section 463 read
with Section 464, IPC as "making a false document" with the
requisite intent, so that, when one reads section 470 and
Sections 463 and 464 together, one meets the idea of "making
_ —: 329 :— g
a document" twice. By virtue of second part of clause 188,
section 471, IPC is proposed to be substituted. The proposed
changes are in accordance with the recommendations of the Law
Commission and the changes can be carried out.
Clause 190
12.85 Under this clause the existing section 474 is
sought to be substituted by the proposed new section. The
change suggested is only peripheral and the proposed new
section simply lays down that whoever has in his possession
any Adocument of the description mentioned in both the
sections 466 and 467 knowing the same to be forged and
intending to use the same fraudulently or dishonestly shall
be punished with rigorous imprisonment of seven years.
Clause 194
By virtue of clause 194 of the Bill, certain
amendments are sought to be made under the Explanation Clause
of Section 489A of the Code. These include (a) the
Explanation Clause shall be numbered as [A Explanation I and
in the Explanation as so numbered, the words "and includes a
traveller’s cheque" shall be inserted at the end; (b) the
following shall be inserted as Explanation II:
"Explanation II. For the removal of doubt it is
—: 330 :-
hereby declared that in this section and in
sections 489B, 489C, 489D and 489E the expression
"currency notes" includes a foreign currency note".
Since the proposed changes are clarificatory
nature, the changes sought to be made under sub—clauses (gi-
and (b) of clause 194 of the Bill may be carried out.
Clause 196
12.87 Clause 196 of the Bill seeks to insert a new
section 489 F which provides for punishment for ’preparation’
for committing offences under Section 489A to Section 489E.
Counterfeiting of currency notes is a serious
offence since it affects the economy of the country. we
agree with the insertion of the proposed new section 489F.
Clause 197
12.88 The existing Chapter XIX entitled "OF THE CRIMINAL
BREACH OF CONTRACTS OF SERVICE" contains only Section 491.
The Law Commission in its 42nd Report under para
19.2 has recommended for deletion of the chapter XIX of IPC
which includes Section 491, IPC mainly on the ground that it
is not of practical utility. A close look at the provision
would indicate that the provision is implemented to protect
—: 331 :—
the contractual rights of helpless or incapable person who,
by reason of youth or of unsoundness of mind, or of a disease
or bodily weakness is helpless or incapable of providing for
his own safety or of supplying his own wants. In other words
the provision intends to protect the rights of such persons
on the grounds of humanity. Such persons may not be in a
position to seek -civil remedy. Therefore in the present
context of the human rights, it may be desirable to retain
this provision with enhanced punishment. we recommend that
the existing punishment may be enhanced from three months to
one year and the existing limit of imposing fine of Rs.2OO
may be substituted by the word "fine" only so that the Court
may fix the quantum of fine depending upon circumstances of
the case. We also recommend that this offence be made
cognizable, if information relating to the Commission of the
offence is given to an officer incharge of a Police Station
by the parsed aggrieved by the offence or by any person
related to him by blood, marriage or adoption or by any
public servant belonging to such class or category as may be
notified by the State Government in this behalf.
This clause also seeks to substitute Chapter XIX*
and insert thereunder new sections 490. 491 and 492 providing
for the offences against privacy.
The Law Commission examined the various aspects of
right to privacy under Chapter 23 of its 42nd Report and
recommended for insertion of a new Chapter on "Offences
—: 332 :-
against Privacy". While adopting the recommendations of the
Law Commission, with certain modifications, Clause 197 of the
Bill seeks to substitute the existing Chapter XIX of the
Penal Code for the said purpose which contains new sections
490, 491 and 492. Under the proposed section 490 use of
artificial listening or recording apparatus for listening the
to or recording any conversation in any premises without the
knowledge or consent of the person in possession of the
. premises is made punishable for imprisonment upto six months W.
In case any one publishes such conversation while knowing
that it was so listened to or recorded, he will be liable for
a higher punishment of imprisonment upto one year. The
proposed section 491, makes the taking of unauthorised
photography is made punishable for imprisonment upto six
months, and if one publishes such photograph, the
imprisonment may extend to one year. However, the proposed
Sec.492 provides for exceptions regarding certain acts of
public servants, and persons acting under their directions.
Right to privacy is a vast subject and its scope
has been widened considerably under Article 21 of the
Constitution of India by the Supreme Court under its various
decisions. Various countries abroad have also dealt with the
various aspects of right to privacy in separate legislations.
For example, the Law Reform Commission of Hongkong in its
Report of December 1996 entitled "Privacy; regarding the
Interception of Communications", has referred to various
legislations in different countries regulating interception
—: 333 :—
of communications. It observed under para 4.11 of its Report
that several jurisdictions, including common law
jurisdictions, have legislation regulating_interception of
communications and although the scope of protection by such
legislation varies, all the statutes apply criminal sanctions
to safeguard the privacy interests of individuals in one way
or another. The Law Reform Commission of Hongkong suggested
various legislative measures under Chapter 6 of its Report to
provide protection against undue interference with the
privacy of the individual and in the interest of public
security. Similarly, the Law Reform Commission of the
Ireland in its Consultation Paper headed ’Privacy;
Surveillance and Interception of Communications’ has
provisionally recommended for the enaction of a separate Act
to protect the privacy of the individual from intrusive
surveillance.
It may be pointed out that in the National Seminar
on Criminal Justice in India, organised by the Law Commission
on 22nd & 23rd February, 1997 New Delhi, many participants
viewed that the proposed provisions under clause 197 of the
Bill are bare and sketchy and do not meet the existing
demands of society for protection of right of privacy of
individuals. A view was also expressed in that Seminar that
the exceptions carried out under the proposed section 492
virtually render the provisions of the proposed sections 49C~-
and 491 meaningless.
—: 334 :—
In view of the above discussion, we are of the view
that a separate legislation should comprehensively deal with
various aspects of offences against right to privacy in the
context of the present day needs. The Law Commission is
proposing to take up a comprehensive study on this subject
separately. It is, therefore, recommended that clause 197 of
the Bill which seeks to substitute the existing Chapter XIX
of the Penal Code, may be deleted.
Clause 198 O
12.89 Under this clause ithe existing Section 494 is
sought to be substituted by new section. We have discussed
the proposed amendment in Chapter IX and for the reascn:~·
stated therein. The proposed new Section can be substituted
but as already noted, another Explanation 3 should be added
in accordance with the principle laid down by the Supreme
Court in Smt. Sarla Mudgal v. Union of India, (AIR 1995 SC
1531).
.` Clause 199
12.90 Under this Clause again, the existing Section 497
is sought to be substituted by a new Section. This Section
deals with offence of committing adultery. we have discussed
about this proposed amendment in Chapter No. IX in detail
and we suggested some changes by way of corrections in the
proposed Section so as to make the woman also punishable and
` —: 335 :—
to carry out the consequential changes in the provision of
Cr.P.C. Accordingly, in the proposed Section, the words "by
the man" have to be omitted.
Clause 201
12.91 Under this clause the existing section 5OO is
sought to be substituted. The Law Commission in its 42nd
Report considered this aspect and observed that certain
changes are necessary in the existing section. Under the
existing section the punishment for defamation is one of
simple imprisonment which may extend to two years. The Law
Commission considered the suggestions for enhancing the same
but opined in its 42nd Report that there is no practical
justification for doing so. They, however, recommended that
the imprisonment to be imposed should be of either
description and accordingly suggested a change. Another
suggestion made is that, where the defamatory statement has
5 been published in a newspaper and thus made known to a large
number of persons, the fact of the offender’s conviction
should be similarly published and costs should be made
recoverable from the convicted person as if it were a fine.
The amendments are in conformity with the recommendations of
the Commission and may be carried out. Likewise, the other
sub-sections (1) and (2) are also in accordance with the
recommendations of the Law Commission.
—: 336 :— _
Clause 203
12.92 The Law Commission has recommended in para 22.5
read with para 7.9 of its 42nd Report that Clause (a) of
sub-section (1)) of Section 505, IPC should be incorporated
with certain modifications in Chapter VII as new section 138A
on the lines mentioned in the Report.
The Commission further recommended under para 22.5
read with para 8.25 of 42nd Report that the rest of the
section 505 should be taken in Chapter VIII as new section
158B:
By Virtue of clause 52 of the Bill, Chapter VII is
proposed to be substituted and under the proposed section
138A thereof, the provisions of existing sub—section (1) of
section 505, IRC are proposed to be transposed withww
modifications. Similarly, by Virtue of clause 59 of the
Bill, sup—sections (2) & (3) of the existing section 505 are
proposed to be transposed with modifications, as section
1530.
The Law Commission in para 22.5 read with para 7.9
of its 42nd Report, recommended that clause (a) of
sub—section (1)) relating to statements made with intent to
cause mutiny, dereliction of duty, insupordination etc.
among the armed forces should find a place in the Chapter
relating to offences against the armed forces. The
—: 337 :—
Commission recommended to add it as section 138A on the lines
stated under para 7.9 of the Report. The proposed section
138A is in accordance with the said recommendations to which nw;
we agree.
However with regard to the rest of section 505 i.e.
section 505(2) and (3) of the Penal code, the Commission
recommended under pr.22.6 read with para 8.25 that the
provisions could well, be regarded as creating offences
against public tranquillity and should be taken in Chapter
VIII as section 1588. It felt that the provisions of section
505(2) and (3) of the Penal Code really relate to public
tranquillity. This part of the section is very similar to,
though not wholly covered by section 153-A and thus it would
be logical to include it in Chapter 8 immediately after
section 153-A.
A perusal of the proposed section 153-C under
clause 58 of the Bill shows that these provisions are on the
lines of the proposed section 1588 recommended under para
8.26 of the 42nd Report which incorporates the provisions of
section 505 (2) and (3) with certain modifications. Thus the
provisions under the existing section 505 may be omitted
since these are covered and transposed in the proposed
provisions as stated above.
—: 338 :—
Clause 204
12.93 By virtue of clause 204, after section 507, a new
section 507A is proposed to biginserted. Proposed section
507A provides punishment withtj imprisonment of either
description for a term which may extend to two years, or with
fine, or with both for causing damage etc. to places open to
public view. The term "place open to public view" and
"objectionable matter" are comprehensively clarified under
the sub—section (2) of proposed section 507A.
Proposed section 507 A has a laudable objective for
creating an orderly society and we endorse the same.
Clause 206
12.94 The Law Commission in its Forty second Report
recommended that the last chapter of the Indian Penal Code
containing section 511 be omitted and, instead, a new Chapter•mv_>
VB entitled "Attempt" consisting of two sections 120C and
1200 be inserted after Chapter VA on the lines indicated by
the Commission under para 5.54 thereof. Accordingly, clause
206 of the Bill seeks to omit chapter XXIII of the Indian
Penal Code. After having carefully considered the matter, we
are of the view that section 511 is working well and there is
no need to omit it and transpose its provisions to a new
Chapter VB containing sections 120C and 1200 for the reasons
discussed in Chapter VI of this Report.
. —: 339 :—
CHAPTER ¥ XIII
CONCLUSION AND RECOMMENDATIONS
We have now come to the end of our detailed study
of the Code. The recommendations which we have made for its
improvement are numerous, ranging from verbal changes
designed to remove ambiguities and clarify underlying ideas,
to substantial changes with a view to its simplification and
modernisation along with some additions in the existing
provisions.
13.02. No doubt, the evaluation of The Indian Renal Code
(Amendment) Bill, 1978 was the main task in this Report. The
said Bill was based on 42nd Report of the Law Commission, and
could not become an Act in spite of having been passed by the
Rajya Sabha as the then Lok Sabha was dissolved. Beside the
said Bill, the Law Commission also examined a number of new
problems and issues which gave rise to the necessity of
undertaking a further comprehensive revision of the Indian
Penal Code in the light of current Socio-legal Scenario.
13.03. we have given special attention to the extent and
nature of the punishments prescribed in the Code for various
offences and suggested modifications to bring them into
accord with modern notions of penology. We have indicated in
each Chapter of this Report, corresponding to a Chapter of
—: 340 :—
the Code, the provisions which should be made in lieu of, or
in addition to, the existing provisions, and also the
amendments, both major and minor, to be made in them. A sum
up of the principal recommendations made in each Chapter is
as unders-
CHAPTER — I
13.04. At this stage, we may also mention that under
Clause 197 of the IPC (Amendment) Bill, 1978, for the
existing Chapter XIX, a new Chapter bearing the same number
(Chapter XIX) is sought to be inserted to deal with "Offences
against Privacy". In the existing Chapter XIX, three
sections namely, sections 490, 491 and 492 are mentioned.
But out of them sections 490 and 492 were repealed and the
only remaining section 491 deals with "Breach of Contract" to
protect the contractual rights of the helpless persons. In
the proposed new Chapter XIX which is sought to be
substituted in place of the existing Chapter, sections 491 to
492 are inserted and they deal with "Offences against
Privacy" like use of artificial listening or recording
apparatus either to listen or to record conversation of g
person or persons without their knowledge or consent or
making unauthorised photographs, etc. we have dealt with
this clause in detail in Chapter XII after duly referring to
the contents of 42nd Report as well as the concept of right
to privacy as extended under Article 21 of the Constitution
and also various reports of foreign Law Commissions and
—: 341 :—
ultimately recommended that these offences cannot
appropriately be incorporated in the Indian Penal Code and
that a separate legislation should be there to
comprehensively deal with such offences against privacy.
It is also mentioned that Law Commission is
proposing to take up a comprehensive study on this subject
separately as early as possible.
(Para 1.11) ~ ~
13.05. CHAPTER - II
SENTENCES AND SENTENCING - POLICIES & PROCEDURE
1. In the context of fast changes in the sociolegal
scenario warranting application of the reformative theory of
punishment, it is necessary to modify provisions of the
BORSTAL School Act, 1970, Juvenile Justice Act, 1986 and
Probation of Offenders Act, 1958 suitably.
(Para 2.05)
2. In the Indian Penal Code, the offences are divided
into bailable and non—bailable depending upon the gravity of
the offence. About 120 offences in the Indian Penal Code are
non—cognizable. It is voiced that some trivial offences
affecting public order also can lead to serious developments
• —: 342 :—
if they are not dealt with promptly and, therefore, it is
desirable that such offences are made liable for public
intervention.
It is recommended that the offences punishable
under sections 290, 298, 431, 432, 434, 504, 505 and 510 be
made cognizable.
(Para 2.06)
3. The amounts of fine to be imposed should
considerably be enhanced and it should, as far as possible,
be substituted for short—term imprisonment. Further, the
poor victims of uses and abuses of criminal law should be
compensated by way of reparation and that the amounts of fine
prescribed long ago have lost their relevance and impact in
the present day and the fines imposed have no relation to the
economic structure of society and necessary element of
deterrence is generally absent. .
An examination of the various sections in the Code»»»-
where sentence of fine, is provided for, reveals that from a
minimum fine of Rs.100/— it varies up to Rs.1,000/—. In
respect of most of the offences it is below Rs.500/—.
Therefore, a change regarding the quantum of fine
should be made in all those sections correspondingly, at
least by 20 times and make a provision in the Code of
(_ -: 343 :— g
Criminal Procedure regarding the powers of the First Class
Magistrates to impose such a fine.
( Para 2.09)
4. The proposed amendment vide clause 18 of the IPC
(Amendment) Bill, 1978 making imprisonment for life rigorous,
that is, with hard labaour, is necessary.
(Para 2.11)
5. Clause 27 of the IPC (Amendment) Bill, 1978.
provides the insertion of a new Section 74A exclusively to
deal with punishment of community service. It means that
convict will have to perform the service without any
remuneration. The implementation part of it provides that_ a
the work is to be performed under proper supervision as per
arrangements to be made by the State Government or any local
authority.
The Commission felt that there are a number of
difficulties in enforcing the same like that supervisory
authority will have to see whether the convict is working and
rendering service for the number of hours specified and if he
fails to do so by way of default, he has to be sentenced
thereafter.
-: 344 :-
Therefore, we think an open air prison system is
better suited from the point of view of correctional measures
rather than the proposed punishment of community service.
( Para 2.13)
6. Another suggestion was whether the punishment
"disqualification from holding office" should be incorporated
in section 53 of the Indian Penal Code. In some types of
cases particularly involving public servants and other
persons holding office in corporations, companies, registered
societies, etc., ending in conviction should necessarily
entail with the disqualification from holding office, but
such a course is intrinsically connected with their
respective service rules and regulations. It is a matter of
common knowledge that in almost all such service rules we
find some provision or other disqualifying such a person
after conviction, from holding the office.
It is recommended that it would be appropriate to
leave the issue to be decided by the concerned authorities
under all those rules and regulations because incidentally
some other questions pertaining to the service conditions may
also arise which warrant a further inquiry.
(Para 2.14)
7. The Law Commission in its 154th Report on the Code
of Criminal Procedure has recommended insertion of a new
provision, namely, 357A providing for framing victim
. —: 345 :—
compensation scheme by the respective State Governments under
which the compensation can be awarded to the victims on the
lines indicated therein wherever it is found to be necessary
apart from the compensation awarded by the court under
section 357 out of the fines. We may also indicate that
awarding sufficient compensation depends upon many
circumstances which require some inquiry. Further in some
cases an order for payment of compensation need not
necessarily be by way of punishment.
Therefore, we are of the view that it is not
appropriate to include order for payment of compensation in
section 53 by way of punishment.
(Para 2.16)
8. Another punishment which is sought to be included--
in section 53 is ’public censure’, namely, publication of the
name of the offender and details of the offence and sentence.
The proposed Section 740 provides for imposition of the
punishment by way of public censure in addition to the
substantive sentence under sub—section (3) and this is
limited to offences mentioned in chapters XII, XIII, sections
272 to 275, 383 to 389, 403 to 409, 415 to 420 and offences
under chapter XVIII of the Code as offences under proposed
new Sections 420A and 462A under the Indian Penal Code
(Amendment) Bill, 1978. These are all offences where persons
entrusted with some public duties commit offences. Such a
punishment has great relevance in respect of anti—social
—: 345 :—
offences, economic offences, otherwise called white—collar
offences particularly committed by sophisticated persons.» It-Dv
is of common knowledge that while these offences affect a
large number of people, the offenders are not readily booked.
However at least in such cases which end in conviction, the
punishment of public censure is likely to act as a greater
deterrence because of the fear of infamy resulting from the
publicity and consequent repercussions like loss of business,
etc. Such a censure is one of the prescribed punishments in
Russia, Columbia and other countries. In India such form of
punishment is included in the Prevention of Food Adulteration
Act and Income—tax Act. The Law Commission in its A2nd
Report considered the inclusion of such a punishment and
recommended that such additional punishment would be useful
in the case of persons convicted for the second time of any
of the offences under chapter XII and XIII, like extortion,
criminal misappropriation, cheating and of offences relating
to documents.
It is recommended that such public censure by way
of an additional punishment should be there and accordingly
be included in section 53 of the Indian Penal Code and it
should be left to the discretion of the court regarding
imposition of the same in selective cases.
(Para 2.16)
—: 347 :e
9. In respect of number of offences the punishment
prescribed is "imprisonment or with fine or with both". It
is voiced in various workshops that in view of the changes in
the modern society, the type of crimes and the repetition of
those crimes or the frequent occurrence of certain types of
crimes, it is necessary that the punishment should be
imprisonment and in addition fine also.
Having examined various provisions in the IPC and
A the modern trends of crime, we are of the view that in
respect of the offences under sections 153, 153A, 160, 166 to
175, 177, 182, 221, 269 to 291, 292, 294 to 299, 336, 465 and
477A, the punishment should be imprisonment as well as fine.
Incidentally, we also suggest that the extent of imprisonment
should be enhanced suitably in respect of these offences.
(Para 2.17)
13.06. CHAPTER — III
DEATH PENALTY
1. The Commission carefully considered the question
from several angles after making comparative study of the law
of other countries and after examining various judgments till
date rendered by the apex court.
. -: 348 :—
We reiterate the recommendation of Law Commission __V
in its 35th Report for retention of the capital punishment,
but to be awarded in accordance with the guidelines laid down
by the Supreme Court.
(Para 3.07)
2. It is already recommended to retain section 302 as
it is instead of reading any limitations into the same
regarding imposition of death sentence for the reason that it
is impossible to put them in any straight jacket For the
reason that what circumstances make a case a "rarest of rare
one" cannot be fixed by way of a legal provision.
The Law Commission recommends that no change is
required in Section 302 as is proposed in clause 125 of the
Bill.
(Para 3.10)
3. Clause (3) of section 302 of IPC (Amendment) Bill,
1978 is providing for running of sentence of life
imprisonment consecutively instead-of concurrently. It will
be a retrograde step in accord with deterrent and retributive
theories of the past as observed by the Supreme Court.
Therefore, we do not approve the proposed clause
(3) of section 302 in the Bill.
(Para 3.12)
——~* —; 349 ;— _
4. Section 303 of the Indian Penal Code provides;
"303. Punishment for murder by life
convict.whoever, being under sentence Of
imprisonment for life commits murder, shall be
punished with death."
The Supreme Court in Mithu v. State of Punjab
(1983) 2 SCC 277, declared that the aforesaid provisions of
Section 303 violate the guarantee of equality contained in
Article 14 as also the right conferred by Article 21 of the
Constitution.
We have carefully considered the various provisions
of the Bill and feel that after section 303 is omitted, the
second part of Section 307 which provides that "when any
person offending under this Section is under sentence of ww
imprisonment for life, he may, if hurt is caused, be punished
with death" cannot be retained on the same analogy and
principles on the basis of which section 303 has been held to
be arbitrary and oppressive and violative of Article 14 and
21 of the Constitution. We accordingly recommend deletion of
the second part of Section 307.
(Para 3.14)
—: 350 1-
13.07. CHAPTER - IV
CRIMINAL CONSPIRACY·
1. Though the IPC (Amendment) Bill, 1978 is silent
about the offence of criminal conspiracy but the Law
Commission earlier in its 42nd Report recommended that the
criminal conspiracy for petty offences should not be covered
under this Chapter. Therefore, a revision of Section 120 of
this Chapter was recommended.
Now after re—examining, -it is recommended that
there is no need to disturb Chapter VA as it works well even
it covers conspiracy for petty economic crimes. (Para
4.08)
2. The Law Commission in its 42nd Report had
recommended that Section 120B should be revised to make the
section self-contained. But the same was not incorporated in
the IPC (Amendment) Bill, 1978.
we are of the view that a Criminal Conspiracy is a
separate offence and punishable separately from the principal
offence. Chapter VA works like residuary provision for the
crime of conspiracy. Therefore, no need to disturb the
current provisions pertaining to criminal conspiracy.
T (Para 4.13)
—: 351 :—
13.08. CHAPTER V
FINANCIAL §CAM
1. Recently, various sort of financial scams in
various fields like banks, hospitals, non—financial
institutions involving crores of rupees have surfaced.
We are of the view that this problem can be tackled
if the following new section, namely, Section 12OBB is
inserted in the IPC.
"12OBB. Criminal conspiracy to defraud _¤ubjjc_"w
institution, etc. 4
when two or more persons agree to defraud a public
institution or a local authority, fraudulently or
dishonestly, to cause, or cause to be done,
wrongful gain to themselves or to any person, or to
cause or cause to be done, wrongful loss to such
public institution or local authority, such an
agreement is designated a criminal conspiracy to
defraud and whoever is a party to such criminal
conspiracy shall be punished with imprisonment for
life or with imprisonment of either description for
a term which may extend to ten years, and shall
also be liable to fine:
—: 352 :- A
Provided that no agreement shall amount to a
criminal conspiracy to defraud unless some act
besides the agreement is done by one or more
parties to such agreement in furtherance thereof.
Explanation — Any bank or financial organisation or
company or body or body corporate, which is owned
. or controlled by the Government, shall be deemed to
be a ’public institution' for the purposes of this —
section".
(Para 5.06)
13.09. CHAPTER —VI
ATTEMPT — Insertion of new sections
120 C & 120 D by way of new Chapter VB in the Bill
1, The Indian Penal Code (Amendment) Bill, 1979 made a
M provision for this new Chapter under clause 45. Clauses 46
to 51 of the Bill seem to be incorporated by mistake in this
Chapter i.e. Chapter VI of the IPC. Therefore, this new
Chapter ought to be confined to sections 120C and 1200 only
which are dealing with "Attempt".
After examining from various angles, it. isms.?
recommended that there is no need to insert proposed sections
in the IPC as Section 511 is working well and covers the said
aspects. Therefore, in view of it, no need to introduce a
—: 353 :-
new Chapter VB containing Section 120C and 1200. If need be
the language of section 511 may be amended.
(Para 5.16)
13.10. CHAPTER — VII
OFFENCES AGAINST THE STATE
SECTIONS 121 - 130 2
1. Having considered the provisions of section 121-A,
we are of the view that no changes are necessary. Similarly
sections 121, 122 and 123 need not be disturbed as already
suggested in the 42nd Report of the Law Commission except,
the words "imprisonment of either description" be substituted
with "rigorous imprisonment".
(Para 7.09)
2. The proposed section 123 A in the Bill is based on
the recommendations of the Law Commission in its 42nd Report.
However, the Bill, apart from incorporating new section 123A
in the IPC, sought to add an Explanation thereto. We are of
the view that there is no harm in having the said
Explanation.
(Para 7.11)
3. The Law Commission in its 42nd Report had
recommended the revision of section 124A dealing with
sedition. The same has been incorporated in the IPC
(Amendment) Bill, 1978 under clause 48. After reexamining
—: 354 :-
the matter, we are Of the view that section 124A may be
substituted as recommended.
(Para 7.18)
4. On the basis of earlier recommendations made by the
Law Commission in its 42nd Report, Prevention of Insults to
National Honour Act, 1971 was enacted.
Therefore, the proposed section 124B in the IPC
(Amendment) Bill, 1978, is not required to be inserted in the
IPC and the same may be deleted from Clause 48 of the Bill.
(Para 7.21)
5. We agree with the proposed Clause 49 of the IPC
(Amendment) Bill, 1978 that section 125 of the IPC may be
revised as follows:
P
"125. waging war against any foreign state at
peace with India. — Whoever wages war against the
Government of any foreign State at peace with
India, or attempts to wage such war, or abets the
waging of such war, shall be punished with
imprisonment of either description for a term which
may extend to ten years, and shall aiso be liable
to Fine."
(Para 7.25)
. -: 355 :-
13.11. CHAPTER — VIII
SUICIDE : ABETMENT AND ATTEMPT
1. Law Commission in its 42nd Report had recommended
that Section 309 is harsh and unjustifiable and it should be
repealed.
However, on re—examining, we recommend that Section
309 should continue to be an offence under the Indian Penal
Code and Clause 131 of the Bill be deleted.
(Para 9.17)
13.12. CHAPTER — IX
OFFENCES AGAINST WOMEN AND CHILDREN
1. The Law Commission recommends that clause Thirdly
in Section 375 be amended as under:-
Section 375: A man is said to commit rape-
Firstly— .....
Secondly- .....
Thirdly — with her consent, when her consent has
been obtained by putting her or any person in whom
. —: 356 1-
she is interested, in fear of death or of hurt, or
of any other injury.
(Para 9.34)
2. T0 deal with the issue of increasing sexual
violence on women and female children, the Law Commission
recommends that the offence of sexual assault be added to the
existing offence of outraging the modesty of women in Section
354 and punishment be increased from two years to five years.
Accordingly, Section 354 be amended on the following lines:
"354. Assault or criminal force to woman with
intent to outrage her modesty.· whoever assaults or
uses criminal force to any woman, intending to
outrage her modesty or to commit sexual assault to
her or knowing it to be likely that he will thereby
outrage her modesty or commit sexual assault’Lo‘
her, shall be punished with imprisonment of either
description for a term which may extend to five
years and shall also be liable to fine."
Expanding the scope of Section 354 in the above manner, would
in our view, cover the varied forms of sexual violence other
than rape on women and female children.
(Para 9.35)
—: 357 :— __
3. The Law Commission is further of the view that the
offence of eve teasing falls within the scope of Section 509
and there is no need for a new section 376F as recommended by
the National Commission for women. However, the Law
Commission feels that the quantum of punishment be increased
from one year to three years and fine.
Accordingly, we recommend that Section 509 be
amended in the following manner:
"Seotion 509: whoever, intending to insult the
modesty of any woman, utters any word, makes any
sound or gesture, or exhibits any object, intending
that such word or sound shall be heard or that such
gesture or object shall be seen, by such woman, or
intrudes upon the privacy of such woman, shall be
punished with imprisonment of either description
for a term which may extend to 3 years and shall
also be liable to fine."
(Para 9.35)
4. we recommend that another Explanation, Explanation
3 be added to section 494 which reads as under:—
—: 358 :- _
Q
"Explanation 3: The offence of bigamy is committed
when any person converts himself or herself to
another religion for the purpose of marrying again
during the subsistence of the earlier marriage."
(Para 9.42)
5. About Adultery, the IPC (Amendment) Bill, 1978 has
brought in the concept of equity between sexes in marriages
vis—a—vis offence of adultery in the subsequent section 497.
However, the Law Commission recommends that tkéw
phraseology of clause 199 has to be modified on the following
lines to reflect the concept of equality between sexes.
Accordingly clause 199 shall be amended as under:
"497.Adultery.— whoever has sexual intercourse with
a person who is, and whom he or she knows, or has
reason to believe, to be the wife or husband, as
the case may be, of another person, without the
consent or connivance of that other person, such
sexual intercourse not amounting to the offence of
rape, commits adultery, and shall be punished with
imprisonment of either description for a term which
may extend to five years, or with fine or with
both."
(Para 9.46)
—: 359 :- i
6. If section 497 is amended on the lines indicated
above, sub—section (2) of section 198 of the Code of Criminal
Procedure,1973 would also need to be suitably amended.
(Para 9.47)
7. We recommend that in view of the growing incidence
of child sexual abuse in the country, where unnatural offence
is committed on a person under the age of eighteen years,
there should be a minimum mandatory sentence of imprisonment
of either description for a term not less than two years, but
which may extend to seven years. The court shall, however,
have discretion to reduce the sentence for adequate and
special reasons to be recorded in the judgment. Consequently
section 377 be amended on the following linesz-
“377. Unnatural offences.- whoever voluntarily has
carnal intercourse against the order of nature with
any man or woman shall 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, he shall be punished with
imprisonment of either description for a term which
shall not be less than two years but may extend to
seven years and fine. _ 7 _~“r
— : 36 O : —
Provided that the court may for adequate and
special reasons to be recorded in the judgment,
impose a sentence of imprisonment of either
description for a term of less than two years.
Explanation — Penetration is sufficient to
constitute the carnal intercourse necessary to the
l _ offence described in this section."
· (Para 9.52) ""'
8. In the opinion of the Law Commission, the existing
Section 376(2)(f), and the Law Commission's recommendations
for amendment of Sections 354 and 377 are adequate to deal
with child sexual abuse.
The Law Commission, therefore, does not recommend
the incorporation of a new Section 354A as suggested in
clause 145 of the IPC (Amendment) Bill, 1978.
_ (Para 9.59)
13.13. CHAPTER X
A_B.iL®II.QN__IN.C_I.QEN1A1._I
-: 381 :-
51. Clause 137 - Under this clause, the existing
Section 328 is sought to be substituted by a new Section. In
content, both the Sections are same except in the new Section
in place of "unwholesome drug or other thing" the words
“unwholesome substance" are inserted which are of same effect
but little wider.
(Para 12.52)
52. Clause 144 — Under this clause, the existing
Sections 341 to 344 are sought to be substituted.
We are of the view that the number of persons on
the basis of constructive liability can be limited to two or
more persons as we find in the proposed amendment in Sections
34, 35 and 38 IPC. Therefore, the proposed clause may be
amended accordingly.
(Para 12.53)
53. Clause 146 — Under this clause, a new Section
354A dealing with offence of indecent assault on a minor is
sought to be inserted.
we are of the view that this clause has to be
omitted.
(Para 12.54)
54. Clause 149 — Under this clause, the existing
Section 352 is sought to be substituted by the new Section.
—: 382 :-
we are of the view that the proposed change may
enlarge the meaning of abduction and the same may be carried
out.
(Para 12.55l
55. Clause 151 — under this clause, a new Section
354A dealing with offences of kidnapping is sought tc be
` inserted.
Having regard to the present crime scenario ot this
nature, the new Section is a salutary one and, the came is
inserted in the Code.
Ceara *2.?5`
55. Clause 152 — Under this clause, the e *3i`°;
Section 355 and 355A are sought to be substituted by ihe ie+
Section.
we are of the view that the change is cn`;
consequential and we endorse the same.
(para *2.5*`
57. Clause 155 — under this clause the e=*sii";
Section 358 is sought to be substituted.
We endorse the substitution.
{Para l2.??`
3 —: 383 :-
59. Clause 159 — Under this clause, the existing
Sections 375 and 376 are sought to be substituted by new
Sections 375, 376A to 3760.
We are of the view that this clause may be omitted.
However, We recommend a modification in clause 3 of Section
375 by inserting the word "injury".
(Para 12.59)
59. Clause 160 — Under this clause, the existing
Section 377 is sought to be substituted by a new Section.
we endorse the substitution on the lines suggested
in Chapter IX.
(Para 12.60)
60. Clause 161 — (i) Under this clause, the
existing Sections 390 and 391 are sought to be substituted.
Also a new Section 390A is proposed to be inserted.
The changes may be carried out.
(Para 12.61)
—: 384 :—
(ii) Similarly, a new Section 381A needs to be inserted
in the Code.
(Para 12.62)
61. Clause 162 · Under this clause, a new Section
385A is sought to be inserted. The proposed Section is
intended to cover an offence of blackmailing with the
dishonest intention.
we are of the view that the new Section dealing
with such offences is very necessary and insertion may be
carried out.
(Para 12.63)
62. Clause 163 — Under this clause, the words
"may be punished with imprisonment for life" occurring in
Sections 388 and 389 are sought to be substituted with
imprisonment of lesser periods.
we are of the view that the substitution of the ww
words "may be punished with imprisonment for life" with
"lesser periods of sentence" is called for.
(Para 12.64)
63. Clause 164 — Under this clause, Section 396
is sought to be substituted.
—: 385 :—
we are of the view that no change in this Section
is necessary.
(Para 12.65)
64. Clauses 165 & 166 — Under these clauses, the
words "uses any deadly weapon, or" in Section 397 is sought
to be omitted and in Section 398 after the words "at the time
of" the words "committing or" are sought to be inserted and
for the words "seven years", the words "five years" are
sought to be substituted.
wg are of the view that it is better to retain the
existing words and the said clauses may be omitted.
(Para 12.66)
65, Clause 167 — Under this clause, in Section
399 for the words "ten years",the words "seven years" are
S sought to be substituted.
we are of the view that as the offence in this
Section is with reference to making preparation, making the
sentence lesser appears to be proportionate.
(Para 12.67)
66. Clause 168 — Under this clause, a new Section
399A is sought to be inserted.
-: 386 :~
We agree to the proposal and the required change
may be carried out.
(Para 12.68)
67: Clauses 169 and 170 — By virtue of these
Clauses, a Few words in Section 400-402 are sought to be
substituted.
The proposed changes are only consequential and we
are of the view that the same may be carried out.
(Para 12.69)
68. Clause 171 — A new Explanation I is sought to
be added in Section 403.
We are of the view that the proposed changes may be
brought about.
(Para 12.70)
69. Clause 172-173 — Under these clauses, some minor
changes are proposed in Sections 404 and 408.
We are of the view that the proposed changes may be
carried out.
(Para 12.71)
70. Clause 174 — Under this clause, the word
"factor" occurring in Section 409 is sought to be omitted HDR
—: 387 :·
We are of the view that there is no harm ir
retaining this word. Accordingiy, this clause may be
omitted.
(Para 12.72)
71. Ci@U3S_I75mf Under this ciause, the existing
Section 410 is sought to be substituted.
we are of the view that the proposed new Section is
appropriate and may be carried out. »
(Para 12.73)
72, Clause 176 ~ By this ciause, the existing Sections
411 and 41A are sought to be amended.
we agree to the amendments in both the Sections.
(Para 12.7A)
73. Ciause 177 — Under this ciause, the existing
Section 415 is sought to be substituted.
we are of the view that the substitution may be
carried out but we may aiso mention that it wouid be better
to retain the existing iiiustrations in the Section.
(Para 12.75)
‘Z JOO L'
74, Clause 178 — Under this clause, Section 420
is sought to be substituted. New Sections namely, Section
42OA, 42OB and 42OC are also sought to be inserted.
The proposed changes may be carried out.
(Para 12.76)
75. Clause 179 - Under this clause, the existing
Sections 426 to 432 are sought to be substituted by new
Sections covering in general the offence of mischief.
(i) we have examined new Sections 426 to 431 and
recommend that the sentence of "three years" prescribed under
each of these Sections may be enhanced to "five years".
(ii) About Section 432, it may be mentioned that after
the IPC (Amendment) Bill, 1978, special legislations were
brought in 1982 which were amended in 1994, as mentioned in
Chapter X. We recommend deletion of new Section 362A.
For the same reasons, we recommend that Section 3A
of the Suppression of Unlawful Acts Against Safety of Civil
Aviation Act, 1982(SUACA) may be amended. If amendments tc
Section 3A of this Act is not to be carried out in the same
manner, then the proposed Section 432 may be retained in the
clause, but the sentence under Section 432 may be brought in
accordance with Section 3A of the said Act.
(Para 12.77)
—} aes ;—
T6. Clause 180 - Under this clause, the new
Sections 434 to A60 are sought to be substituted.
(i) We recommend that the word "Aircraft" occuring in
the proposed Section 434 may be omitted in view of our
suggestion made in Chapter X.
(ii) In respect of other types of mischief regarding
aircraft, Section 3A of the SUACA is to be amended. if not,
the Section as proposed may be retained and the sentences be
brought in accordance with Section BA of the SUACA Act.
(iii) In the proposed Section 438, the sentence of three
years may be enhanced to five years.
(Para 12.78}
77. Clause 181 — Under this clause, Section 4Ai
is sought to be substituted.
However, it may be mentioned that the oroposed
amendment does not carry any substantial change.
(Para #2.79)
78. Clause 182 — Under this clause, Sections
443—4SO are sought to be substituted.
-1 390 :—
we have considered this provision and we think that
such substitution in the place of the existing Section will
be salutary.
(Para 12.80)
79. Clause 183 — Under this clause, Chapter XVIIA
is sought to be introduced by way of inserting Section 462A.
we are of the view that this new Chapter dealing
with offences relating to private employment is not
necessary. So consequently this clause may be omitted.
(Para 12.81)
80. Clause 184 — By this clause, an amendment is
sought to be inserted in Section 484 of the IPC.
We recommend that an Explanation 3 in Section 464
of the IPC on the following lines may also be added~
"Explanation 3. — Knowingly committing forgery of
a copy of a document or knowingly making a false
copy of a document or copying a false document
which he knows or believes to be a false document,
with the intention that he or another shall use it
to induce somebody to accept it as a copy of a
genuine document to do or not to do some act to his
—: 391 :-
own or any other person’s prejudice, will amount to
making a false document." g —w
(Para 12.82)
81. Clause 187 — Under this clause, Section 467
is sought to be amended.
We agree to this change.
(Para 12.83)
82. Clause 188 — By this clause, substitution of
new Sections for existing Section 470 and 471 is sought.
We recommend that the changes may be carried out.
(Para 12.84)
83. Clause 190 — Under this clause, the existing
Section 474 is sought to be substituted.
The change suggested is only peripheral and the
same is endorsed.
(Para 12.85)
84. ClauS0_J94_; By virtue of this clause,
certain amendments are sought to be made under the
Explanation part of Section 489A of the Code.
—: 392 :—
Since the proposed changes are clarificatory in
nature, the same may be carried out. .
(Para 12.86)
85. Clause 196 — By this clause, a new Section
489F is sought to be inserted.
we agree to the insertion of the proposed Section.
(Para 12.87)
86. Clause 197 — Under this clause, the existing
Chapter XIX is sought to be substituted regarding offence
against privacy.
(i) Since there is a need to have separate legislation
on the subject, the proposed substitution may not be carried
out.
(ii) we further recommend that existing Section 491 IPC
may be retained and the punishment therein may be enhanced
from "three months" to "one year" and the existing limit of
imposing fine of Rs.200/: may be substitued by the words
"fine only". And the offence be made cognizable.
(Para 12.88)
87. Clause 198 — Under this clause, the existing
Section 494 is sought to be substituted.
-: 393 :—
we think that the proposed new Section may be
substituted but as already mentioned, the Explanation 3
should be added in accordance with the principle laid down by
the Supreme Court.
(Para 12.89)
88. Clause 199 ~ Under this Clause, the existing
Section 497 is sought to be substituted.
we have already suggested some changes in Chapter
IX. In the proposed Section, the words "by the man" have to
be omitted. *
(Para 12.90)
89. Clause 201 — Under this clause, the existing
Section 500 is sought to be substituted.
we recommend that the changes be carried out.
(Para 12.91)
90. Clause 203 — By this clause, the omission oF
Section 505 is sought.
A perusal of the proposed Section 153C under clause
58 of the Bill shows that these provisions are on the lines
of the proposed Section 1588 recommended under para 8.25 of
the 42nd Peport which incorporates the provisions of Section
505 (2) and (3) with certain modifications.
—: 394 :-
Thus the provisions under the existing Secté
may be omitted since these are covered and transposedgg
proposed provisions as stated above.
(Para 12.;z
91. Clause 204 — By virtue of this clause, a gngwl _.»A
·‘
Section 507A is proposed to be inserted. ig} I
We endorse the proposal.
(Para 12.93)
92. Clause 206 — V By this clause, it is sought
that Chapter XVII, containing only Section 511, of the Indian
Penal Code shall be omitted.
We are of the view that Section 511 is working well
and there is no need to omit it. A
we recommend accordingly.
1.
/? /— M AW "` I!. C 27
(JUSTICE K. JAYACHANDRA REDDY) g
( . cHAiRMAN
/ , ~ _ ,1 ' _
`,\\\\-‘<"\ V `J t L A _ ;4`v - K U L- A- ~\' / ’/"J t
(UUSTICE R.L.GuPTA) (CH.G.KRISHNAMURTHY) (MRS ALICE JACOB?
MEMBER MEMBER _TT MEMBER
(R . L. @5
MEMBER-SECRETARY I