Report No. 41
15.131. Section 19.-
deletion of reference to Chapter XIX of I.P.C. recommended.-
Section 198 deals with the cognizance of offences falling under section 491, sections 493 of 496 and sections 500 to 502 of the Indian Penal Code. These three groups of offences have nothing in common, but under section 198, proceedings can be initiated only on complaint made by some person aggrieved by the offence. The first offence mentioned in the section, namely, breach of contract to attend on or to supply demands to helpless persons, hardly ever comes before the courts. It seems to us to be wholly unnecessary to hedge it in with the procedural restriction that only some person aggrieved by the offence can lodge a complaint against an offender. We recommend the deletion of the reference to Chapter XIX of the Indian Penal Code in section 198.
15.132. Offences against marriag.-
consolidation of provisions in sections 198, 199, 199A and 199B.-The second group of offences covered by the section are the first four offences in Chapter XX of the Indian Penal Code. The other two offences in the same Chapter, namely, adultery and enticing or taking away a married woman with criminal intent, are dealt with mainly in section 199. Certain procedural aspects which are common to sections 198 and 199 are dealt with in sections 199A and 199B. It would be conducive to clarity and ease of reference if the cognizance of all offences relating to marriage (sections 493 to 498 of the Indian Penal Code) and matters connected therewith are dealt with in a single section. A draft is proposed below.
15.133. New section to apply to attempts and abetments.-
In this draft section, we have made two minor modifications of substance. There is at present a conflict of decisions as to whether sections 198 and 199 apply to attempts and abetments of the offences. One view is that any abetment or attempt to commit the offence, say of bigamy, could be regarded as an offence "falling under" section 494 of the Penal Code. The proposed draft makes this clear.
15.134. Modifications relating to serving soldiers.-
Clause (b) of the second proviso to section 198 and the second proviso to section 199 which are in identical terms, relate to offences under sections 494, 497 and 498 of the Penal Code. In the circumstances envisaged in the proviso, it hardly seems necessary that the person duly authorised by the husband serving in the Armed Forces should be required to obtain leave of the Court to make the complaint on his behalf. There is also no reason why the proviso should not apply to the other offences relating to marriage in the same Chapter.
15.135. Revised section 198.-
The revised section 198 dealing with prosecutions for offences against marriage may be as follows.-
"198. Prosecution for offences against marriage.- (1) No court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence:
(a) Where such person is under the age of eighteen years, or is ah idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who according to the local customs and manners, ought not to be compelled to appear in public, some other person may with the leave of the Court, make a complaint on his or her behalf;
(b) where such person is the husband and he is serving in any of the armed forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of su.-section (4) may make a complaint on his behalf;
(c) where the person aggrieyed by an offence punishable under section 494 of the Indian Penal Code is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's brother or sister.
(2) For the purposes of su.-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said code:
Provided that, in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf
(3) When in any case falling under clause (a) of the proviso to su.-section (1) the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.
(4) The authorisation referred to in clause (b) of the proviso to su.-section (1) shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be countersigned by his Commanding Officer, and shall be accompanied by a certificate signed by that officer to the effect that leave of absence for the purpose of making a complaint in person cannot for the time being be granted to the husband.
(5) Any document purporting to be such an authorisation and complying with the provisions of su.-section (4), and any document purporting to be a certificate required by that su.-section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence.
(6) The provisions of this section apply to the abetment of or attempt to commit, an offence as they apply to the offence."
15.136. New section regarding prosecution for defamation.-
So far as. offences falling under Chapter XXI of the Indian Penal Code, i.e., defamation, are concerned, the provision in section 198 may be put in a new section 198AA consisting only of the main clause and the first proviso. The provision contained in section 199A is hardly necessary in defamation cases and can safely be dispensed with. The section will read as follows:
"198AA. Prosecution for defamation.- No Court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence:
Provided that where such person is under the age of eighteen years, or is an idiot or lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf."
15.137. Section 198.-
omission of spent clause.-
Section 198A lays down a suits of limitation in regard to the offence of rape where it consists of sexual intercourse by a man with his own wife, the wife being under fifteen years of age. Clause (ii) of the section is obviously spent and may be omitted. The revised section will read.-
"198A. Prosecution for offence of marital misbehaviour.- No Court shall take cognizance of an offence under section 376 of the Indian Penal Code, where such offence consists of sexual intercourse by a man with his own wife, the wife being under fifteen years of age, if more than one year has elapsed from the date of the commission of the offence."
15.138. Section 19.-Introduction.-
Section 198B, which was introduced by the Amendment Act of 1955, deals with prosecution for the offence of defamation where such offence is committed against certain high dignitaries and public servants in respect of their conduct in the discharge of public functions. The section lays down a special procedure. for such cases. The Court of Session is empowered to take cognizance of such offence, without the accused being committed to it for trial, upon a complaint in writing made by the Public Prosecutor. It is not necessary1 for the aggrieved person to sign the complaint under this section, but the complaint has to be made with the previous sanction of a specified authority. There are also distinctive features which will be discussed below.
1. P.C. Joshi, AIR 1961 SC 387: (1961) 2 SCR 63. See also su.-section (14) inserted by Act 40 of 1964.
15.139. Legislative history.-
The legislative history of the section is interesting and instructive. In the Code of Criminal Procedure (Amendment) Bill of 1954 as introduced in Parliament, it was proposed that the offence of defamation of public servants should be made cognizable on the ground that1 "often grossly improper, unfounded and defamatory allegations and charges are made against public servants in regard to their actions in the discharge of their official duties. It is desirable, in the public interest, that inquiries should be made into such charges. Therefore, such cases are being made cognizable, so that they may be brought before a court by the police after proper investigation. Such cases are being made triable exclusively by a Court of Session."
1. Statement of Objects and Reasons attached to the Bill: note on clause 25.
15.140. Views of the Press Commission.-
There was strong opposition to this proposal, particularly from the Indian Federation of Working Journalists. The Press Commission1 which reported on 12th July, 1954, made the following points against the Bill.-
"We think that it would not be altogether safe to make such offences cognizable with all the consequences flowing from such a provision. It would enable the police to arrest the alleged offender without a warrant, to take preventive action contemplated under Chapter XIII of the Criminal Procedure Code and to conduct searches under sections 165 and 166 of the Criminal Procedure Code. The defamatory allegation may be so vague that it would be impossible to secure a conviction.
These allegations may vary in gravity; some may be serious while others may be so inconsequential that no one would take serious notice of them. Yet to invest police officers with power to take action in all these cases might well constitute an instrument of oppression, x x x x it would depend upon the subjective appreciation by the police officer as to what constitutes defamation. xxx. Even if ultimately no case is sent up by the police, the ignominy involved in an arrest is not wiped out. '
On the other hand, we realise that there would be some cases where serious allegations are made which would require police investigation. There may also be public servants, perhaps with guilty conscience who would not be willing to bring cases into courts and to clear themselves of the defamatory allegations. The police cannot take any action because the offence is a no.-cognizable one, and under section 198 of the Criminal Procedure Code, no court can take cognizance of the offence of defamation (an offence falling under Chapter XXI of the Indian Penal Code) except upon a complaint made by a some person aggrieved by such offence.
A procedure has, therefore, to be devised which will strike a balance between those two considerations, viz., (1) frivolous action by the police and the consequent harassment of the alleged offender, and (2) the desirability of police investigation or magisterial inquiry in some cases where it is necessary that the public servant should clear himself of the defamatory allegations."
1. Report of the Press Commission (12 July, 1954), paras. 172 to 175.