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Report No. 41

15.101. Section 195 as revised.-

Section 195 in so far as it applies to prosecution for certain offences against public justice may accordingly be revised as follows.-

"195. Prosecution for offences against public justice and offence relating to documents given in evidence.- (1) No Court shall take cognizanc.-

(a) of any offence punishable under any of the following sections of the Indian Penal Code, namely, sections 193 to 196, 199, 200, 205 to 211 and 228 when such offence is alleged to have been committed in, or in relation to, a proceeding in any Court, or

(b) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the same Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.

(2) In clauses (a) and (b) of su.-section (1), the term "Court" means a civil, revenue or criminal court and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.

(3) For the purposes of this section, a court shall be deemed to be subordinate to the court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of civil court from whose decrees no appeal ordinarily lies, to the principal court having ordinary original civil jurisdiction within the local limits of whose jurisdiction such civil court is situate:

Provided tha.-

(a) where appeals lie to more than one court, the appellate court of inferior jurisdiction shall be the court to which such court shall be deemed to be subordinate; and

(b) where appeals lie to a civil and also to a revenue court, such court shall be deemed to be subordinate to the civil or revenue court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.

(4) The provisions of su.-section (1) shall apply also to any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified therein as they apply to such offence.

15.102. Section 19.-

Prosecution of offences against the State.-Under section 196 a complaint made by order of, or under authority from, the State Government or some officer empowered by the State Government is necessary to initiate proceedings for a variety of no.-cognizable offences punishable under different sections of the Indian Penal Code. First come all the offences against the State punishable under sections 121 to 130, except section 127 which relates to receiving property taken by war or depredation against any power in alliance or at peace with the Government of India.

Though all these offences (except two) are triable only by a Court of Session and the minimum punishment is imprisonment for seven years or more, the offences are no.-cognizable under the Second Schedule to the Criminal Procedure Code and, at the same time, private complaints are shut out by section 196 of that Code. The object of this section which provides an exception to the general rule that a criminal prosecution can be initiated at the instance of any person is to prevent unauthorised persons from intruding in matters of State by instituting prosecutions and to secure that such prosecutions shall only be instituted under the authority of Government.1

We do not find any good reason for excluding only section 127 of the Penal Code from the purview of this section. Further, it seems to us that, in addition to the State Government, the Central Government also should have the authority to initiate prosecutions by ordering a complaint. It is conceivable that in some circumstances the Central Government might be more concerned with prosecuting the offender than a State Government. We note that until 1937 this authority was vested in the Governo.-General in Council, the Local Government or some officer empowered by the Governo.-General in Council.

15.103. Prosecution of election offence.-

history.-The second group of offences covered by section 196 are the offences, punishable under Chapter IX A of the Indian Penal Code except section 171F so far as it relates to personation. This Chapter was inserted in the Indian Penal Code by the Indian Election's Offences and Inquiries Act, 1920, and for the first time made various corrupt and illegal acts committed during elections, likely bribery, undue influence, making false statements, personation etc., punishable offences.

A wide definition of election as denoting an election for the purpose of selecting members of any legislature, municipality or other public authority of whatever character was inserted by the same Act in section 211 of the Penal Code. It was felt that the purity of all elections should be maintained by penalising various corrupt and illegal practices but at the same time in order to allay the apprehensions of several local governments that the new penal provisions were likely to be abused, specially in rural areas, for putting one's personal enemies into trouble by foisting false cases on them after an election, reference to this Chapter of the Penal Code was included in section 196 of the Criminal Procedure Code.

It was thought that this would give some discretion to the Government to determine whether criminal proceedings were warranted in the circumstances of each case so that vexatious proceedings instituted solely on the basis of political animosity by private individuals could be avoided. This secondary object was certainly achieved but it is doubtful whether the penal provisions ostentatiously put in the Penal Code, but effectively blunted by section 196 of the Procedure Code, helped to maintain the purity of elections to any appreciable extent.

1. See Explanation 3, section 6 makes the definition applicable to Chapter IXA of the Code also.

15.104. Personation excluded from section 196 in 1951.-

This difficulty was realised in some provinces in regard to the offence of personation punishable under section 171F of the Penal Code. Even a person blatantly committing this offence at the polling booth could not be arrested or otherwise proceeded against on the spot since the offence was no.-cognizable and the complaint of an empowered officer was required for prosecuting the offender in court. The Criminal Procedure Code was locally amended by four provinces excluding this offence from the scope of section 196 and making it cognizable. This lead was followed up in the Representation of the People Act, 1951, and the amendment became applicable throughout India.

15.105. Exclusion of all election offences recommended.-

The experience of the last 20 years in the field of countrywide democratic elections shows that unless these impediments to prosecution are removed, the mere fact that bribery, undue influence, character assassination etc., are punishable on conviction by a criminal court, makes little difference and these corrupt practices are indulged in with impunity. The number of complaints lodged by the Government or empowered officers in regard to election offences (apart from personation) is naturally very small. Under the party system of government prevalent throughout the country it will, no doubt, be embarrassing for the State Government to decide in the first instance whether a complaint ought to be lodged in a particular case.

Whichever way it decides this question it is most likely that political motives and prejudices will be attributed to it. It is possible that if the bar contained in section 196 of the Code is removed there will be a spate of private complaints, including quite a few vexatious ones for the sake of harassment, but we feel that this possibility must be faced in the interest of free and fair elections. We recommend that all election offences should be excluded from the purview of section 196. We would also recommend that neither illegal payments in connection with an election nor failure to keep election accounts need be offences punishable under the Penal Code and accordingly sections 171H and 17.-1 of that Code be repealed.

15.106. Abetment of extr.-territorial offences.-

The third item in section 196 is any offence punishable under section 108A of the Indian Penal Code. This section does not exactly create an offence but only explains that a person abets an offence who, in India, abets the commission of an act outside India which, if committed in India, will constitute an offence. It is a form of abetment which along with other forms is punishable under different sections of the Indian Penal Code. An abetment of the nature described in section 108A is cognizable or no.-cognizable according as the offence abetted is cognizable or no.-cognizable.

The object of a provision in section 196 that a court shall take cognizance of such abetment only on complaint made by order of the State Government appears to be to keep under control prosecutions which might impinge on foreign relations in general, and relations with the former Indian States in particular. (Incidentally, it should be noticed that when a person in Punjab abets the commission of an offence in Kashmir, the abetment falls under section 108A of the Penal Code and consequently attracts section 196 of the Criminal Procedure Code. In view of the external affairs aspect of the matter, proceedings for abetment of extr.-territorial offences should, in our opinion, require a complaint made by order of the Central Government or of the State Government.

15.107. Sections 153A, 295A and 505, I.P.C.-

The offences under section 153A, section 295A and section 505 of the Penal Code continue to be no.-cognizable, though by an amendment of that Code in 1961 the maximum punishment has been increased to three years. We recommend that, in regard to these offences also, proceedings should require a complaint made by order either of the Central Government or of the State Government.

15.108. Keeping lottery office.-

Section 294A of the Indian Penal Code makes it an offence to keep an office for, or to publicise, any unauthorised lottery and the offence is no.-cognizable. We see no reason why private complaints in respect of this offence should be shut out and recommend that the section should be left out of section 196.

15.109. Latter part of section 196 to be simplified.-

The latter part of section 196 is unnecessarily complicated. The complaint necessary for initiating proceedings may be made "by order of, or under authority from, the State Government or some officer empowered by the State Government in this behalf." We recommend that this should be simplified to complaint made by order of the Central Government or of the State Government. A simple provision of this type would avoid the tim.-consuming controversies that are frequently raised in the courts as to whether the officer has been duly empowered by the State Government, whether1 the authority to lodge the particular complaint has duly emanated from that officer or from the Government and so on.

1. Bhanwar Singh v. State of Rajasthan, AIR 1968 SC 709.

15.110. Criminal conspiracies also to be covered.-

Finally, we propose that any criminal conspiracy to commit any of the offences covered by section 196 should also be covered by that section, instead of by clause (1) of section 196A as at present.



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