Report No. 37

81. Section 4(1)(m)-"Judicial proceeding".-

Section 4(1)(m) defines a "judicial proceeding". The importance of this definition decreased after the deletion of the word "judicial" in section 476(1). (In the Code of 1872, section 297, it was used in relation to revision also.)

82. The expression "judicial proceeding" has again been used in section 479A(1). No change is necessary in this definition.

83. Section 4(1)(p)-"Officer-in-charge etc.".-

Section 4(1)(p) defines an "officer-in-charge of a police station". It has been suggested by the Inspector-General of Police of a State,1 that a proviso should be added to the effect-that a Sub-Inspector on duty in the interior (i.e., while he is away on tour from the police station) is an officer-in-charge. It appears to us, that such a change is not practicable, as it would mean duplication of "Officer-in-charge of police station". The scheme of the Code is, that there is only one officer-in-charge of the police station. As the scheme stands, when the officer-in-charge is out, some person must be in-charge of the police station. He has to maintain a record of the First Information Report2 and other records. Declaring some other officer as "officer-in-charge" might create complications.

We may also note, that the question of police strength was discussed in an earlier Report.3 But no legislative amendment is necessary.

1. F. 27/3/55-Judl. II, (Home Ministry), Appendix I, Item No. 1.

2. Section 154.

3. 14th Report, Vol. 2.

84. Section 4(1)(q)-"place".-

Section 4(1)(q) defines a "place" as including a house, building, tent and vessel.1 It does not include a vehicle. It has been held by the Supreme Court,2 that a motor vehicle is not a "place" within the meaning of sections 102 and 103 of the Code, so that the formalities laid down by those sections need not be observed when a motor vehicle is to be searched.

The decision has revealed a lacuna in the definition of "place", because, as a motor vehicle is not a place, the power of search under various other sections which authorise searches of a "place"3, would not authorise searches of motor vehicles. We, therefore, think that it is desirable to include vehicles in the definition of "place".4

1. As to "vessel", see section 48, Indian Penal Code.

2. Bhagwanbhai v. State, (1963) 3 SCR 386 (392).

3. For example, sections 98(1) and 165(1).

4. See section 4(1)(q), as proposed.

85. Section 4(1)(r)-"pleader".-

With reference to section 4(1)(r) which defines "pleader", a suggestion to prohibit unlicensed persons from "pleading"1 was considered by us. This does not require a change in the law. It is a question of enforcing the law as to Advocates and the law prohibiting touts.2

1. F. 27/3/55-Judl. II (Home Ministry File) Appendix 1, Item No. 2.

2. As to how far the definition of "pleader" in the Code applies to section 126, Evidence Act, see note in (1898) 2 CWN (Journal) 245, 246, discussing history of section 126 also.

86. The definition of "pleader" can, however, be simplified,1 it is unnecessary to enumerate the various classes of practitioners.

1. See section 4(1)(r), as proposed.

87. Section 4(1)(w)-"warrant case".-

Section 4(1)(w) defines a "warrant case" as a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding one year. Cases relating to other offences are summons cases. In an earlier Report,1 a recommendation was made for the substitution of "three years" for "one year" in this definition, that is to say, as a general rule, all offences which do not carry punishment of imprisonment for more than three years should (according to that recommendation) be triable under the summons case procedure.

1. 14th Report, Vol. 2.

88. The reasons for which this recommendation was made (as stated in that Report) can be thus summarised-

(i) The procedure of summons cases leads to expeditious disposal of cases.

(ii) The creation of numerous statutory offences during recent times which are, for the most part technical in nature and involve nothing more than a violation of or a non-compliance with a rule or regulation, calls for a speedier determination of those cases.

(iii) Even under the Indian Penal Code there are several offences of the same kind, but differing in degree, which at present have different modes of trial.

(iv) The distinction between summons cases and warrant cases is arbitrary. An example of this arbitrary distinction is the position regarding offences under sections 168 and 169, Indian Penal Code. Another example is furnished by section 342 on the one hand, and sections 343 and 344, Indian Penal Code, on the other. The essential ingredients of wrongful confinement are the same in all these cases; only the duration varies. Yet, the offence under section 342 is a summons case, while the offences under sections 343 and 344 are warrant cases.

(v) There is no prejudice to the accused by the expansion of the category of summons cases as recommended.

89. We have, however, reached a different conclusion. In the first place, expansion of category of summons cases, as recommended in the earlier Report, would bring in numerous offences, of which some are really serious,-for example, offences under sections 136, 153A, 295A, 419, 465 to Indian Penal Code-and we are not convinced that here will be no prejudice to the accused in such cases. Secondly, the objection that the division is at present arbitrary would survive even if the limit is raised to three years, because the dividing line will still be dependent on an arbitrary period (period of maximum imprisonment).

Thirdly, some of the offences-such as those under sections 153A, 295A and 465, Indian Penal Code-involve nice questions of intention or interpretation of facts, and the warrant case procedure, whereunder a precise charge is to be formulated, is, in our view, preferable for such offences. We are not, therefore, carrying out the recommendations made in the earlier Report.

90. Section 4(1)(w)-Definition of "Warrant case"-Suggestion of High Court.-

With reference to "warrant cases" following suggestion1 has been made by a High Court-

"The definitions of summons cases and warrant cases should be re-classified, bearing in mind the gravity of the offences in terms of punishment, and the extent to which the mens rea or moral turpitude is involved. (See the recommendations of the Law Commission)."

This point has already been considered.2

1. F. 3(2)/55-L.C., Pt. III, S. No. 31.

2. See discussion relating to section 4(1)(w) "Warrant cases".