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Report No. 37

171. Section 39.-

In section 39(1), mention of the High Court may also be added.1 Compare the Punjab amendment.

1. Cf. sections 36 to 38 (as proposed).

172. Section 40.-

In section 40, after the words "State Government" occurring for the second time, the words "or the High Court as the case may be" should be added, in view of separation. Compare the Punjab amendment.

173. Section 41.-

In section 41(1), the High Court has to be added. Compare the Punjab amendment.

In section 41(2), the mention of the Chief Judicial Magistrate subject to the control of the High Court should be added. Compare the Punjab amendment.

174. Section 42.- No change is needed in section 42.

175. Section 43.- No change is needed in section 43.

176. Section 44.-

Section 44 imposes an obligation to report certain offences. Following points require to be noted in connection with this section:-

(i) Regarding a proposal to insert a provision requiring reporting of offences relating to bribery, we have submitted a separate Report.1

(ii) The scope of the corresponding offence in England-misprision of felony-has been narrowed down by a recent Act.2-3.

(iii) Section 44 does not apply to the offender. The Madras decision4 apparently expressing a view to the contrary, can, in our view, be taken as confined to section 203, Indian Penal Code, though it refers to section 44, Code of Criminal Procedure, and section 202, Indian Penal Code.

(iv) It is unnecessary to accept the suggestion5 for extending section 44 so as to impose an obligation to report "loss of public property".

(v) Whether sections 431 to 433 and 437 to 439, Indian Penal Code should be added (in section 44) was considered by us. An objection was raised before us that sections 435-436, Indian Penal Code are mentioned in section 44 because they relate to mischief by fire where urgent action is required, while the other sections (now considered for inclusion) do not possess that feature.

We have, however, decided to add the above mentioned sections, (sections 431 to 434 and 437 to 439, Indian Penal Code), primarily with object of encouraging detection of offences of mischief in respect of embankments etc.

1. See the Report on section 44 of the Code of Criminal Procedure, 1898 (33rd Report).

2. The Criminal Law Act, 1967.

3. See the 33rd Report and Appendix 1 thereto.

4. China Gangappa (in re:), AIR 1930 Mad 870.

5. Suggestion made in the resolution of Shri Dwivedi, moved in the Lok Sabha in 1961; the point was referred for Law Commission's consideration. See F. 3(2)/55, Pt. IV, S. No. 69.

177. Section 44 and burden of proof.-

It has been suggested1 that the burden of proof under section 44 should be removed. We are not inclined to accept the suggestion. Ordinarily, only the accused will be aware of the existence of an excuse, and therefore the present provision is justifiable.

1. F. 27(5) 54-Judi. (Home Ministry file), Appendix III, Item (5).

178. Section 44(1) and offences under the Railway Act.-

With reference to section 44, the following suggestion has been made by a Public Prosecutor1 in Andhra Pradesh:

"In section 44(1), after the figures "400", the words "or any section of the Indian Railways Act", should be inserted.

The (proposed) amendment is intended to include persons who have knowledge of sabotage of railway tracks and other offences.

Sabotage of the railway tracks and other offences under the Indian Railways Act are on the increase."

We think, however, that this is a matter which can be more conveniently dealt with in the enactments relating to Railways.2

1. F. No. F. 3(2)/55-L.C., Pt. III, S. No. 50(v).

2. Cf. Law Commission's Report on section 44 of the Code of Criminal Procedure, 1898-Proposal to insert provision requiring reporting of bribery (33rd Report) and Appendices 2-3, thereto.

179. Section 45.-

It has been suggested1 that the words "non-bailable" in section 45(1) should be removed. We cannot accept this. That would unduly widen the scope of the section.

1. F. 3(2)/55-L.C., Pt. I, S. No. 72.

180. Under section 45, a number of other points were considered by us.

(i) In section 45(a), the words "or is a member of such village Panchayat" should be added, in view of the amendment already made in section 45(1), main part, in 1955.

(ii) The question whether the delegation of powers contemplated by section 45(1)(f)-particularly the words "prevention of crime"-confers (on the District Magistrate) too wide a power, was raised before us. Our view is, that the delegation is valid. No change is needed on this point.

Code of Criminal Procedure, 1898 (Sections 1-176) Back

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