Report No. 42
2.71. Section 4.-"illegal" and "legally bound".-
Section 43 defines the expressions "illegal" and "legally bound" as follows.-
"The word 'illegal' is applicable to everything which is an offence, or which is prohibited by law, or which furnishes ground for a civil action; and a person is said to be 'legally bound to do' whatever it is illegal in him to omit".
According to the section a person is legally bound to do only what is "illegal" in him to omit and what is "illegal" is by definition what is an offence, or what is prohibited or what is actionable under civil law. The definitions are, as it were, in a circle and have led to difficulties.
2.72. Privy Council view.-
In a case1 which went up to the Privy Council, the question whether a person failing to furnish information required by a Wakf Committee under section 3 of the Mussalman Wakf Act, 1923, (as amended in Bombay) could be proceeded against in the High Court for contempt under the Contempt of Courts Act, 1926. The objection taken was that, under section 2(3) of the latter Act, the High Court could not take cognizance of the contempt of a subordinate court, where such contempt is an offence punishable under the Indian Penal Code. It was argued, that the failure to furnish the information in question was an offence under section 176, Indian Penal Code. This argument was rejected by the Privy Council on the following chain of reasoning.-
(i) section 176 applies only where a person is "legally bound" to furnish information;
(ii) a person is "legally bound" to do only what is "illegal" for him to omit;
(iii) it is "illegal" for a person to omit that which is an "offence"; and
(iv) an "offence" in section 43 is only that which is punishable under the Indian Penal Code.
It was therefore held that section 176 applied only to a failure which is an offence under some section of the Indian Penal Code and not an offence under the Wakf Act.
"If no other section of the Penal Code dealt with the matter, then, one must conclude that the particular crime, though punishable under some other enactment, is not punishable under the Code, and would not fall under section 176. Therefore, the High Court was not prohibited from dealing with it under the Contempt of Courts Act."
In other words the Privy Council was of the view, that, in order to take action under the Penal Code against a person for not having done something he is "legally bound to do", it is necessary to show that the omission to do that thing amounts to an offence and further such "offence" should come within the definition of that expression in the Penal Code.
1. Ali Mohemed v. Emp., AIR 1945 PC 147.
2.73. Amendment recommended.-
Our recommendation to omit the definition of the expression "offence" in the Penal Code, whereby the wider definition of the word in the General Clauses Act will come into operation, will obviate the difficulty pointed out by the Privy Council in taking action under the Code for "offences" under other Acts. However, difficulties would still arise if the omission to do what is enjoined by law is not made an offence under the particular Act in question. In other words, under the present definition of the term "legally bound", unless a law which enjoins a person to do a particular thing also lays down, in so many words, that the person shall not omit to do that thing, then the person cannot be considered "legally bound" to do that thing.
The Law Commission had occasion to consider the matter in connection with the Commission of Inquiry Act, 1952, and a provision by way of clarification was recommended to be added to section 5 of that Act.1 The matter, however, is of wider importance as similar difficulties may arise in respect of provisions in other laws. We therefore recommend that the definition of the expression "legally bound" be widened so that it covers its primary significance of being bound by law to do a thing. Section 43 may be revised as follows.-
"43. (1) A thing is illegal if it is an offence, or is prohibited by law, or furnishes ground for a civil action.
(2) A person is legally bound to do a thing, when he is bound by law to do that thing, or when it is illegal in him to omit to do that thing".
1. 24th Report.
2.74. Sections 44 to 47.-
No change is needed in sections 44 to 47 which define the expressions "injury", "life", "death" and "animal".
2.75. Sections 48 to 5.-omitted.-
The words "vessel", "year", "month" and "section" are defined in the General Clauses Act1 and the definitions can well apply where the words are used in the Code. Sections 48, 49 and 50 are accordingly unnecessary and may be omitted.
1. General Clauses Act, 1897, section 3, clauses (63), (66), (35) and (54) respectively.
2.76. Section 5.-"oath".-
Section 51 defines "oath" as including "a solemn affirmation substituted by law for an oath, and any declaration required or authorised by law to be made before a public servant or to be used for the purpose of proof whether before a Court of Justice or not". So far as solemn affirmation are concerned, the definition1 in the General Clauses Act is sufficient to cover them. The second part of section 51 relating to various declarations does not seem to be appropriate or necessary. Most of the sections of the Code (sections 21, 178 and 181) where the expression "oath" occurs, use it in the context of the administration of the oath by a Court or public servant, and this part of the definition is hardly applicable to those sections.
Even as regards section 191 which punishes false statements made on "oath", this part of the definition relating to declarations is not needed, as there are, in various special laws2, provisions for punishing false statement in declarations. Further, there is a provision in section 199 of the Code which specifically covers false statements in statutory declarations. We consider that this definition of "oath" in the General Clauses Act is sufficient and that section 51 may, therefore, be omitted.
1. Section 3(37), General Clauses Act, 1897, is quoted below.-
"(37) Oath shall include affirmation and declaration in the case of persons by law allowed to affirm or declare instead of swearing."
2. See, for instance, section 45 of the Special Marriage Act, 1954; section 277 of the Income-tax Act, 1961 and section 12(1) of the Passport Act, 1967.
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