Report No. 142

9.31. Commentary.-

It is necessary to make such a provision because very often the prosecuting agency mentions a more rigorous provision which constitutes a more serious or graver offence than the one which is spelt out by the facts and circumstances disclosed by the record even if the acts attributed to the offender and the material in support thereof is accepted at its face value. This is the desire of the prosecutor to bring the offence under a provision attracting a more severe punishment which often operates on the mind of the prosecuting agency and is in a way understandable even though one may not approve of it.

The prosecuting agency might well say it is the function of the court to decide whether the acts attributed to the offender constitute an offence of lesser gravity than the one with which he may be charged in the record. For the sake of fairness and with a view that the scheme may operate in a just manner, the judicial officer constituting the Competent Authority is, therefore, required to be empowered to act in a fair manner in exercise of this power. Of course, he would be expected to closely and carefully examine the material on record in order to satisfy himself that the offender does not get away lightly and secure an undue advantage by invoking this power.

Since the final opinion would be formed by the Competent Authority armed with his wide knowledge, experience and expertise with the assistance of the comments of the prosecuting agency as well as the offender as also the aggrieved party, there is sufficient assurance that this power will not be liable to be misused in an improper manner but will be exercised in a just and proper manner with the end in view to promote the ends of real justice as demanded by the facts and circumstances of each individual case.