Report No. 41

24.61. Remand under section 344(1A) only after taking cognizance.-

In order to make it very clear that remands under section 344(1 A) can only be given after cognizance has been taken of the offence and not at the stage of investigation, we recommend that the opening words of this section should be altered to read.-

"If the Court, after taking cognizance of an offence finds it necessary or advisable to postpone etc."

24.62. Adjournment costs.-

Under this section the Court has the power to impose "such terms as it thinks fit" on either party while granting an adjournment or postponement at its instance. The power to impose "terms" would, in theory, seem to include a power to direct the payment of costs by a party whose conduct has necessitated the adjournment. We find, however, that Courts are reluctant to award costs against the prosecution, even where the adjournment is due to serious laches on its part like delay in producing important witnesses, delay in giving necessary documents to the defence, etc.

While the power to award costs as a part of the "term" which can be imposed is not denied, the courts do not seem to exercise that power with a view to speeding up the inquiry or trial. We would therefore draw pointed attention of the Courts to this power by adding another explanation to section 344.

24.63. Amendment of section recommended.-

Su.-section (2) of section 344 appears to us to be practically unnecessary. The requirement in su.-sections (1) and (1A) that reasons shall be recorded should be quite sufficient. There is also considerable verbiage in su.-section (1A) which could be cut out. We recommend that in place of the existing su.-sections (1A) and (2) and explanation, the following su.-section and explanation may be substituted.-

"(2) If the Court, after taking cognizance of an offence, finds it necessary or advisable to postpone the commencement of or, adjourn, any inquiry or trial it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:

Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time:

Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded.

Explanation 1.- If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.

Explanation 2.- The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused".

24.64. Section 345.-

Section 345 deals with the compounding of offences. Su.-section (1) lists 22 Penal Code offences which may be compounded by the specified aggrieved party without the permission of the court and su.-section (2) lists 32 other Penal Code offences which also may be compounded but with the permission of the court.

24.65. General rule for determining compoundable offences suggested.-

It was suggested before us that instead of having two such long lists, some simple general rule should be evolved to determine which offences are compoundable, e.g., by relating them to the punishment provided for the offence. The theory that the offences at present listed as compoundable are those in which the individual aggrieved person is much more concerned than the community as a whole was said to be not very convincing. It was. also said that withdrawal of the prosecution under section 494 was often resorted to for securing the same result after privately compounding the offence.

24.66. Not feasible.-

We have, however, come to the conclusion that it is not feasible to formulate any general rule for determining compoundable offences. The broad principle that forms the basis of the present scheme is that where the offence is essentially of a private nature and relatively not serious, it is compoundable. It is, in our opinion, better to have clear and specific provisions such as those contained in section 345 than a general rule which is likely to lead to different interpretations. A rule to the effect that an offence will be compoundable if the maximum punishment provided for it is not more than three years' imprisonment will, no doubt, be definite but will not, in our opinion, be suitable.

24.67. Court's permission necessary in some cases.-

It was further suggested that, even if the existing section is maintained, the distinction between offences compoundable with the permission of the Court and offences without such permission should be abolished and that the law should be simplified requiring permission in every case. This suggestion, however, did not appeal to us. The safeguard of the Court's permission is to prevent an abuse of the right to compound and to enable the court to take into account the special circumstances of the case which may justify composition. It is not in every case that such a safeguard is required.

24.68. Offences under special laws not compoundable.-

Under the Second Schedule to the Code all offences under special laws are at present no.-compoundable. It was suggested that if such an offence is punishable with fine or with imprisonment not exceeding one year, it should be compoundable. We think that this should be left to the l6gislature concerned to decide as a matter of policy whether and to what extent offences under the special laws should be compoundable. It is not desirable to make any general provision in the Code touching this point.

24.69. Addition to the two lists considered.-

Various suggestions have been received by us to add some more Penal Code offences in su.-section (1) or in su.-section (2) of section 345. The additions suggested are: being member of an unlawful assembly (section 143), rioting (section 147), false claim in a court of justice (section 209), fraudulently obtaining decrees (section 210), driving or riding on a public way so rashly or negligently as to endanger human life (section 279), causing death by rash or negligent act (section 304A), causing grievous hurt by dangerous weapon (section 326), wrongful confinement for extortion (section 347), theft in a building (section 380), lurking hous.-trespass or hous.-breaking by night (section 456), the same in order to commit an offence (section 457) and bigamy with concealment (section 495).

We do not consider that any of these offences should be compoundable. Public peace, order and security are matters in which society is vitally interested and offences which jeopardize them ought to be suitably punished by the courts. They should not be left to be compounded by the person directly aggrieved by the offence.

24.70. Three additions in su.-section (2) recommended.-

We, however, agree with the suggestion that the offence under section 354, Indian Penal Code1, should, with the permission of the court, be compoundable by the woman on whom the assault is committed or to whom criminal force is used. We also recommend that the offences under section 411 (receiving or retaining stolen property) or under section 414 (assisting in the concealment or disposal of stolen property) should be compoundable with the permission of the court, if the value of the property does not exceed Rs. 250.