Report No. 37
72. Section-wise discussion.-
We shall now proceed to an examination of the Act section by section.
73. Section 1.-
Under section 1 of the Code, the main question to be considered is the territorial application of the Code in relation to excepted persons. We do not recommend any changes in this respect although we examined the matter in some detail.1
1. For detailed discussion, see Appendix 2.
74. Sections 2 and 3.-Section 2 is already repealed.
Section 3 has two sub-sections, containing rules for the construction of certain expressions which are used in old enactments and which refer to Magistrates or Judges under the phraseology used in the pre-1898 Codes.
Since the nomenclature of Magistrates is proposed to be altered,1 it will be desirable to add a similar provision for the construction of expressions used in the existing enactments, where those expressions refer to Magistrates by their existing nomenclature.2
1. See section 6, as proposed and section 6A, as proposed.
2. See section 3, as proposed.
75. Section 4(1)-"Complaint".-
In view of the conflicting decisions and uncertainty prevailing1 in respect of certain matters relating to the definition of "complaint" and the connected provisions in sections 173, 190(1)(b), 207A, 251A, it is desirable to clarify the position as far as possible. (Some parts of the controversy are due to a misreading of the sections, and cannot be cured by amendment). The solution which we recommend is-
(i) to clarify in section 4 (in the definition of "complaint") that reports made by the police on an authorised investigation of non-cognizable cases are complaints, thus solving the points2 relating to the definition of "complaint" and section 200, and the points relating to section 190 in respect of non-cognizable offences;
(ii) to keep sections 251A and 207A as they are, as the observations in Pravin Chandra's case3 must be read along with the facts of that case; and
(iii) to amend section 190(1)(b) (if necessary) to cover specifically reports under other sections of the Code or under other laws.4
1. For detailed discussion, see Appendix 3.
2. For the various points, see Appendix 3.
3. Pravin Chandra v. State, AIR 1965 SC 1185.
4. To be considered under section 190(1)(b).
76. Section 4(1) and definition of Court.-
With reference to definition, the following suggestion1 has been made by the Bar Council, Madras:-
"The Indian Penal Code defines 'Court of Justice' and the Evidence Act defines 'Court'. The word Court occurs in section 195(1)(b) and (c). The question as to how far a tribunal created under various statutes is a court within the meaning of section 195 crops up quite often. In 1956 SCJ 155, the Supreme Court has given a judicial meaning of Court as a body which gives a definitive judgment. An offence of perjury or forgery of a document produced before a Tribunal in relation to a proceeding before it cannot be proceeded against by the Tribunal, but can be done only by the individual constituting the Tribunal.
"This anomalous position may be rectified by defining the word 'Court' in conformity with the definition in the Evidence Act."
1. F. No. F. 3(2)/55-L.C., Pt. III, S. No. 52.
77. We examined the case-law on the subject. The decisions of the Supreme Court on the point are noted below:-1-3
Certain decisions of High Court also review the case-law.4-5
Recently, the cases as to the expression 'Court' have been reviewed by the Supreme Court in the context of the Contempt of Courts Act.6
We think, that the definition in the Evidence Act may not be appropriate for the Code of Criminal Procedure. Case-law shows the elasticity of the expression 'Court'. A neat and precise definition may not be possible. No change is, therefore, recommended.
1. Brajnandan, (1955) 2 SCR 1955: AIR 1956 SC 68.
2. Jagan Nath, (1963) SCR 416.
3. Virender v. State of Punjab, (1955) 2 SCR 1013: AIR 1956 SC 153.
4. Haricharan, 44 CWN 536.
5. Emp. v. Hayat Fateh Din, AIR 1948 Lah 184 (189), para.
6. Jugal Kishore v. Sitamarhi Central Coop. Bank, AIR 1967 SC 1494 (October issue)
78. Section 4(1)(i)-"High Court".-
In section 4(1)(i) the definition of "High Court" expressly mentions the Calcutta High Court in relation to the Union Territory of Andaman and Nicobar islands. There are now, apart from those islands, many Union territories to which the jurisdiction of the High Courts of neighbouring states has been extended.1 It does not appear to be correct to mention only one Union territory, without mentioning the others. The portion referring to the Andamans should be omitted.2
The definition also includes such an "officer" as the State Government may appoint in this behalf, in areas in respect of which under law the highest court of criminal appeal has not been established. This part of the definition was added in 1882 to empower the Governor-General in Council to appoint such officers in outlying territories where no such court had been established by law.3 It does not appear necessary to disturb it.
1. Cf. 32nd Report of the Law Commission, para. 35, for details.
2. See section 4(1), definition of "High Court", as proposed.
3. Stokes Anglo-Indian Codes, (1888), Vol. 2, p. 5.
79. Section 4(1)(k),-"Inquiry".-
In section 4(1)(k) the definition of "inquiry" is slightly ambiguous. It is the word "inquiry" which should be linked with the words "conducted under this Code". The inter-position of the words "other than a trial" creates an ambiguity; these words require to be segregated, from the word "conducted", by a suitable amendment.1
1. See section 4(1) definition of "inquiry", as proposed.
80. Section 4(1)(1)-"Investigation".-
Section 4(1)(1) defines "investigation". It appears unnecessary to add the word "Judicial" before the word "Magistrate", in this definition.