Report No. 41
47.7. Offence under section 498 should be non-cognizable.-
The offence of enticing away a married woman for illicit purposes punishable under section 498 of the Indian Penal Code is, in our view, quite rightly a non-cognizable offence. It stands on a different footing from kidnapping or abduction which are cognizable offences.
47.8. Offence under section 509 to be cognizable.-
A State Government has suggested that the offence of intentionally insulting the modesty of a woman by word or gesture punishable under section 509 of the Penal Code, should be made cognizable so that in the changed social circumstances of the day, when women are coming out in larger numbers and taking greater part in various professional and business activities, they may have a sense of security. The States of Madhya Pradesh, Maharashtra and Mysore have already amended this item in the Second Schedule making the offence cognizable. We agree that the amendment should be made in the Code so as to be of all-India application.
47.9. No change in column 5.-
The classification in column 5 of the Second Schedule is of bailable and non-bailable offences. We do not think that any changes are required in this column.
47.10. Nature of changes proposed in column 8.-
The last column of the Schedule shows the Court by which an offence is triable. It will be noticed that against a number of offences, the entry in column 8 reads, "Court of Session, Presidency Magistrate or Magistrate of the first class", and even "Court of Session, Presidency Magistrate or Magistrate of the first or second class". Since it is clear from section 28 that any offence under the Indian Penal Code may be tried by the Court of Sessions, whether it is expressly mentioned in column 8 or not, it is sufficient to mention the Court of Session in that column against those offences which are triable exclusively by that Court.
After a careful scrutiny of the Schedule we have considerably reduced the number of entries in which the Court of Session figures in the last column. This will have the effect of transferring some of the work which now goes up to the Sessions Court on commitment to the Courts of Magistrate which, under our proposals, will have enhanced powers of punishment. We have also deleted all references to Presidency Magistrates, since in metropolitan areas, the Metropolitan Magistrates will be competent to try all offences triable by any Judicial Magistrate, whether of the first class or of the second, in a district.
47.11. The changes proposed by us are indicated below:
Section 120.- The first entry in column 8 should read, "Court by which abetment of the offence which is the object of conspiracy is triable"; and the second entry should read "Magistrate of the first class".
Section 124.- Since the offence of sedition is not only serious but also likely to involve complicated questions of law and fact, we propose that it should be triable exclusively by the Court of Session.
Sections 161 to 16.- All these offences may be triable by a Magistrate of the first class. It is not necessary to bring the Court of Session for offences under sections 161 to 164. A second class Magistrate should not be authorised to try offences under sections 165 and 166.
Section 19.- First part triable by Magistrate of the first class and second part by any Judicial Magistrate.
Sections 196 to 20.- Triable by "the Court by which the offence of giving or fabricating the false evidence is triable".
Section 201, 3rd paragrap.- Triable by the Court by which the offence i5 triable. "Presidency Magistrate or Magistrate of the first class" to be omitted.
Sections 212 to 21.- May be triable by a Magistrate of the first class in all cases Even where a capital offence is involved, since the maximum punishment for the offence is 7 years, it need not be triable exclusively by the Court of Session.
Sections 246 to 26.- Court of Session may be omitted for offences in this grout where the maximum punishment is 7 years. The offence under section 251 which is punishable with 10 years' imprisonment may be triable exclusively by ail Court of Session.
Section 263.- May be triable by any Magistrate since the offence is Punishable with fine of Rs. 200.
Section 29.- Any Magistrate should have jurisdiction to try this offence. No doubt, it is sometimes difficult to decide whether a publication is obscene; but the bulk of cases instituted there is no doubt about the nature of the publication.
Section 29.- Any Magistrate should have jurisdiction to try this offence which is punishable with 2 years imprisonment.
Section 295.- At present, triable by "Court of Session or Presidency Magistrate". Should be triable by "Magistrate of the first class."
Sections 317 and 31.- These may be triable by Magistrate of the first class. Reference to the Court of Session be omitted.
Sections 335, 345 and 34.- Considering the nature these offences and the punishment provided for them triable by Magistrate of the first class only.
Section 363A, first par.- Court of Session may be omitted, and the offence may be triable by Magistrate of the first class.
Section 36.- Court of Session or Magistrate of the first class according as the offence of kidnapping or abduction is triable should have jurisdiction.
Section 372 and 37.- These two grave offences should be triable exclusively by the Court of Session.
Section 376, first par.- The offence should be made triable exclusively by the Court of Session (like the offence under the second and third parts of the section), even though the maximum punishment is 2 years only.
Section 37.- Court of Session may be omitted. Though the maximum punishment is 10 years, only a light punishment is awarded in practice.
Section 386 to 38.- These are non-cognizable offences, and although the punishment is 7 years or 10 years and in two instances may be imprisonment for life, we propose that they may be tried by Magistrate of the first class (ordinarily the Chief Judicial Magistrate) instead of the Court of Session.
Sections 406 and 40.- Should be triable by Magistrate of the first class only.
Sections 429 and 43.- Should be triable by Magistrate of the first class only, second class Magistrates may be omitted.
Section 45.- First part should be triable by any Magistrate and second part for which the punishment may go up to 10 years by Magistrate of the first class.
Section 457, second par.-Second class Magistrate may be omitted, in view of the gravity of the offence.
Sections 465 to 477.- Most of the offences are triable exclusively by the Court of Session, but they are non-cognizable. In order to reduce the pressure on the Court of Session, we propose that all offences under this Chapter may be triable by Magistrate of the first class. Serious or complicated cases will be tried by the Chief Judicial Magistrate.
Section 50.- May be triable by any Magistrate, since the punishment is only 2 years.
Section 50.- As the maximum punishment is one year, any Magistrate should be competent to try it.
1. In Diwan Chaman Lal's Bill, as reported by the Select Committee, Rajya Sabha and Select Committee, Lok Sabha (1st May, 1969) punishment under section 292 is proposed to be raised to 2 years for the first conviction and 5 years for a subsequent conviction. The offence will be exclusively triable by the High Court or Court of Session. The Bill is pending.
47.12. Offences under other laws.-
The latter part of the Schedule dealing with offences under other laws puts them in four groups according to the severity of the punishment prescribed for the offence. Since the third class of Magistrates is to be abolished, the last two groups will have to be combined. In the third group, offences punishable with more than one year but less than three years' imprisonment, the Court of Session is mentioned as one of the Courts competent to try the offence. We propose to omit the mention of Court of Session here. Under section 28, the Court of Session does not get automatic jurisdiction so far as offences under other laws are concerned, but this would not be material in practice.
In the first group, we propose, to exclude offences punishable with imprisonment which may extend to seven years. These would go into the next group, so that they might be triable either by a Court of Session or a Magistrate of the first class. The last group of offence.-those punishable with imprisonment for less than 3 years or with fine onl.-would be triable by any Magistrate.
In the second group of offences under column 5 (whether bailable or not), we propose to omit the exception which reads "except in cases not relating to fire arms under the Indian Arms Act, 1878, section 19, which shall be bailable". The proper place for this exception is in the Arms Act, 1959, which has replaced the Arms Act of 1878.
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