Report No. 35

Topic Number 30

Other offences-whether to be made capital

462. Other offences whether to be made capital.-

We may now consider the question whether any other offences under the Indian Penal Code or any other law should be made capital. We shall consider only those offences in respect of which such a suggestion has been made in the replies received to our question1 on the subject. Mainly, the offences covered in those suggestions are-adulteration of food and drugs, offences against the Army, arson, espionage, kidnapping and abduction, homicide by negligence, rape, sabotage, smuggling and treason.

1. Question 3(b) of our Questionnaire.

463. Adulteration.-

So far as adulteration of food and drugs is concerned, it is true that such offences endanger the lives of numerous persons. We are not, however, satisfied that strict enforcement of the existing law would not be enough to check serious offences of adulteration. We may also point out, that adulteration has several aspects-

(1) Adulteration may fall under sections 299 and 300, Indian Penal Code, if death is caused thereby, and if the conditions of those sections (particularly as to mens rea) are satisfied.

(2) If death is not caused, then to regard adulteration as a capital offence would not be in symmetry with the scheme of the Indian Penal Code. It may be noted, that a person throwing a bomb into a crowd is not punished with death, if none is killed. He may be guilty of an attempt to murder, but not of murder.

464. Armed forces.-

Regarding offences against the law relating to Armed Forces, we think that, so far as civilians are concerned, the existing provision in section 132 of the Indian Penal Code is adequate for ordinary situations. If, in circumstances requiring special provisions, need for imposing any drastic penalties is felt, suitable action could be taken for the duration of the particular situation.

465. Arson.-

The offence of arson is one offence in respect of which suggestions have been received to make it a capital one. At present, there are provisions in the Indian Penal Code, sections 425 to 440, dealing with various forms of the offence known as "mischief" and these comprise certain provisions dealing particularly with mischief by fire or explosive substance,-sections 435 to 438; but the emphasis in all these provisions is on damage to property and not on the loss or possible loss of human life. Where arson actually causes death, the case can be dealt with under sections 299 and 300, Indian Penal Code. What remains is the case of arson not causing death, and we have to consider whether such arson should be visited with death penalty on the ground that one or more lives are put in danger by the act constituting the arson.1-2.

1. See also Analysis of case-law, case No. 14.

2. See also section 39, illustration, Indian Penal Code.

466. Arson under English Law.-

In certain countries1, arson, wilful inundation, sabotage, and dynamiting causing death, fall under the category of capital offences. In England, arson is dealt with as follows:-

(i) At common law, wilfully and maliciously burning the dwelling house of another is a felony, and the punishment for such arson is imprisonment for not more than seven years2.

(ii) By statute, certain specific kinds of arson are punishable in England with imprisonment for life or a shorter terms3.

(iii) Setting fire to the Queen's ships or arsenals or dockyards, or aircraft factories and other buildings and military, etc. stores is a felony punishable with death4-5. But, there again, the offence is treated as a grave one because of its effect on security and the damage to property, and is a species of "malicious damage to property6".

1. See U.N. Publication. Capital Punishment (1962), Table of Capital Offences at the end.

2. Halsbury, 3rd Edn., Vol. 10, p. 876, para. 1698.

3. Malicious Damage Act, 1861 (24 and 25 Vict., C. 97).

4. Dockyards, etc., Protection Act, 1772 (12 Geo, 3, C. 24).

5. See Archbold Criminal Pleadings, etc., (1962), para. 2272.

6. It is so treated in Halsbury, 3rd Edn., Vol. 10, p. 874, et seq.

467. Arson by explosives.-

So far as explosives are concerned, there are specific provisions in the Indian statutes on the subject, which (i) regulate the manufacture, possession, use, etc., of explosives1, and also (ii) punish persons who unlawfully and maliciously cause, by any explosive substance, an explosion likely to endanger life or likely to cause serious injury to property, irrespective of whether an injury to person or property has been actually caused or not. The punishment in the latter case can extend up to imprisonment for life2-3.

1. Indian Explosives Act, 1884 (4 of 1884).

2. Explosives Substances Act, 1908 (6 of 1908), sections 3 and 4.

3. Section 5(2)(b), Defence of India Act, 1962 (52 of 1962) punishes with death, inter alia, any person who contravenes, in a notified area, a notified provision of or a notified rule under the Arms Act, 1959, the Indian Explosives Act, 1884, the Explosive Substances Act, 1908, or the Inflammable Substances Act, 1952.

468. Bengal Act (12 of 1932).-

We may also refer to the Bengal Amendment to the Explosive Substances Act.1 Sections 5A and 5B (as inserted in that Act by the Bengal Amendment) run as follows:-

"5A. Enhanced punishment for all offences under sections 3, 4 and 5 in certain cases.-Notwithstanding anything contained in section 3, section 4, or section 5, if an offence under any of these sections is tried by Commissioners appointed under the Bengal Criminal Law Amendment Act, 19252 or by a Special Magistrate under the Bengal Suppression of Terrorist Outrages Act, 1932 any person found guilty of such offence shall be punished with transportation for life or any shorter term, to which fine may be added, or with imprisonment for a term which may extend to fourteen years, to which fine may be added."

"5B. Enhanced punishment in certain cases. Notwithstanding anything contained in this Act, any person who makes or has in his possession any explosive substance under circumstances indicating that he intended that such explosive substance should be used for the commission of any offence of murder shall, if he is tried by Commissioners appointed under the Bengal Criminal Law Amendment Act, 1925, be punished with death, or with transportation for life or any shorter term, to which fine may be added, or with imprisonment for a term which may extend to fourteen years, to which fine may be added.".

1. Explosive Substances Act (6 of 1908), as amended by Bengal Acts (21 of 1932) and (7 of 1934), i.e., the Bengal Criminal Laws (Arms and Explosives) Act, 1932, and the Bengal Criminal Law Amendment Act, 1934.

2. No number was given to the 1925 Act. It was made by the Governor of Bengal (under section 72E, Government of India Act), See West Bengal Code, (1964 Edn.), Vol. 4, p. 739.

469. Where there is a deliberate intention to cause death by arson or explosives, but the object of causing death is not successful, the offence would be an attempt to murder. This is separately dealt with in the Indian Penal Code.1 The English law also does not provide for the punishment of death in such cases, as would be apparent from the statutory provisions dealing with attempt to murder.2

1. Section 307, Indian Penal Code.

2. Sections 11 to 15, Offences against the Person Act, 1861 (24 and 25, Vic. C. 100); Russell on Crime, (1964), Vol. I, p. 615.

470. It may also be noted, that by a Bengal amendment1 to the Indian Arms Act, 1878, an enhanced punishment was provided for certain offences relating to arms, in these terms:-

"20A. Enhanced punishment in certain cases.-Notwithstanding anything contained in this Act, whoever goes armed with a pistol, revolver, rifle or other fire-arm in contravention of the provisions of section 13, or has any such fire-arm in his possession or under his control in contravention of the provisions of section 14 or section 15, under circumstances indicating that he intended that such fire-arm should be used for the commission of any offence of murder shall, if he is tried by Commissioners appointed under the Bengal Criminal Law Amendment Act, 1925, be punished with death, or with transportation for life or any shorter term or with imprisonment for a term which may extend to fourteen years, to which fine may be added."

1. Section 20A, inserted in the Indian Arms Act, 1878 (11 of 1878); Bengal Criminal Law Amendment Act, 1934 (7 of 1934); West Bengal Code (1964); Vol. 4, p. 598.

471. We do not think that the sentence of death should be provided for arson (except, of course, where the case falls under one or other of the four clauses of section 300, Indian Penal Code).

472. Black marketing.- As to black marketing, separate discussion may be seen.1

1. See discussion as to hoarding and profiteering; para. 476, infra.

473. Espionage.-

The offence of espionage should, it has been suggested, be made a capital one. It may be noted, that where espionage consists of acts which constitute an abetment of the waging of war against the State, the offence would be amply covered by section 121 of the Indian Penal Code, which allows the penalty of death. Other cases of collection and transmission of State secrets mostly fall under the Official Secrets Act1 section 3(1) of which provides the maximum punishment of imprisonment up to 14 years. In times of emergency, additional provisions are made by special legislation.2

1. The Official Secrets Act, 1923 (19 of 1923).

2. See the Defence of India Act, 1962.

474. Thus under section 5(4) of the Official Secrets Act, 1923, as amended by Defence of India Act,1 a person guilty of an offence under section 5 of the Official Secrets Act shall, if such offence is committed with intent to wage war or to assist any country committing external aggression against India, be punishable with death, or imprisonment for life or imprisonment upto ten years etc.2-3

We think that the provisions of the law on the subject as they exist now, are, in substance, adequate.

1. See section 6(1)(b), Defence of India Act, 1962 (51 of 1962).

2. See also rule 34(6), rule 38(1)(a) and (b), rule 38(5), rule 39(1)(a) rule 39(2), Defence of India Rules, 1962.

3. See also discussion relating to "treason", para. 532 et seq.

475. Espionage in other countries.-

In some countries, spying (disclosure of national defence secrets) is a capital offence.1 These are China (Taiwan), Dahomey, Spain, some States of U.S.A., France,2 Greece, Iran, Luxembourg (Abolitionist de facto), Poland, United Arab Republic, Central African Republic, South Africa, El Salvador, Somalia (Northern), Czechoslovakia, Togo, Turkey, U.S.S.R. and Yugoslavia.

1. See U.N. Publication on Capital Punishment, 1962, Table at the end.

2. Provisions of the French Penal Code are of particular interest.

476. Hoarding and profiteering.-

We have considered the question whether hoarding and profiteering should be made capital offences. Without a detailed study of the working of the relevant Acts and of the difficulties felt in their enforcement by reason of the existing penal provisions, and in the absence of specific proposals of a precise nature, we do not consider it safe to make a recommendation in this respect.

The cardial principle of wilful disregard of human life, which is the foundation of the sentence of death for the existing capital offences,1 will have to be borne in mind, and the question examined whether the existing law is not adequate. If it is found to be inadequate, then before embarking on an amendment, it will have to be considered whether a precise formula could be evolved which, while conforming to this principle, can define clearly the scope of the acts of hoarding or profiteering that are to be made capital.2

1. See discussion relating to existing capital offences; para. 77-80, supra.

2. From the U.N. Publication on Capital Punishment 1962, Table at the end, it would appear, that" aggravated hoarding and unlawful raising of prices, etc., are capital offences in China (Taiwan), Spain, Republic of Vietnam, and Czechoslovakia.