Report No. 42
2.77. Section 5.-"good faith.-definition in the General Clauses Act.-
Section 52 defines the expression "good faith" as follows.-
"Nothing is said to be done or believed in 'good faith' which is done or believed without due care and attention".
The definition of "good faith" in the General Clauses Act is very different. For purposes of laws other than the Indian Penal Code, "a thing shall be deemed to be done in 'good faith' where it is in fact done honestly, whether it is done negligently or not". When the two definitions are viewed in juxtaposition, it may appear that just as honesty of purpose alone is sufficient to make an act bona fide under other laws, due care and attention are necessary and sufficient under the Penal Code. The two definitions seem to approach the question from two different standpoints and to have nothing in common between them. As one writer has expressed it "while the general definition condones negligence and carelessness, if only there was honesty, the Code regards honesty as immaterial, and the presence of care and attention as all in all."1
1. Gour Penal Code, (1961), Vol. 1, p. 193.
2.78. Is honesty of purpose immaterial.-
There is also an observation by the Supreme Court which may appear to support this view. In a case of defamation, the High Court of Punjab, rejecting the plea of good faith put forward by the accused, held 1.-
"Good faith therefore implies, not only an upright mental attitude and clear conscience of a person, but also the doing of an act showing that ordinary prudence has been exercised according to the standards of a reasonable person. 'Good faith' contemplates an honest effort to ascertain the facts upon which exercise of the power must rest. It must, therefore, be summed as an honest determination from ascertained facts. 'Good faith' precludes pretence or deceit and also negligence and recklessness. A lack of diligence, which an honest man of ordinary prudence is accustomed to exercise, is, in law, a want of good faith."
On appeal, the Supreme Court took a different view on the facts, and set aside the conviction. Though the judgment did not turn on the presence or absence of honesty of purpose, it contains the observation that "the element of honesty which is introduced by the definition prescribed by the General Clauses Act is not introduced by the definition of the Code and we are governed by the definition prescribed by section 52 of the Code"2. By this observation, the Supreme Court did not, we feel sure, intend to lay down a rule different from what was enunciated in the High Court as to the meaning of "good faith". It only wished to point out that the Code does not express the requirement of honesty.
It appears to us that the definition in the Code is merely emphasising the need for care and attention while not excluding the need for honesty of purpose, since honesty is implicit in the concept of good faith. It is difficult to imagine how a dishonest act can be said to be done in "good faith". The Code stresses the aspect of care and attention, because under the Code the fact that an act was done in good faith constitutes a defence either generally as regards criminal liability or specifically as regards particular offences. Even an act done with an honest purpose will, if done rashly and negligently, amount to an offence.
1. Harbajan Singh v. State of Punjab, AIR 1961 Punj 215.
2. Harbajan Singh v. State of Punjab, 1965 SCR 235 (243).
2.79. View taken by the Privy Council.-
The view that honesty is implicit in the idea of good faith receives support from a number of reported decisions. In a case where section 499, ninth exception, was at issue, the Privy Council observed:
"it was accordingly this question, and this question only, which the jury charged by Sir Charles Fox had to try, namely, whether in publishing the libels admitted to be false, Mr. Arnold did so in good faith because he believed them to be true, having given due care and attention to seeing that they were so. If the jury were satisfied that he did give that due care and attention and that he acted in good faith, then the exception formed a good defence, and the accused would be found not guilty."
2.80. Amendment proposed.-
It is therefore quite clear that the definition in the Code does not intend to exclude honesty. However, in view of the possibility of the observation by the Supreme Court noted earlier being taken as an expression of a different view of the matter, we feel that it would be better to make the definition more explicit. We therefore recommend that section 52 may be revised as below.-
"52. Good faith.- "A thing is said to be done or believed in good faith when it is done or believed honestly and with due care and attention".
2.81. Section 52.-"harbour".- Section 52A defines the expression "harbour", as follows.-
"Except in section 157, and in section 130 in the case in which the harbour is given by the wife or husband of the person harboured, the word 'harbour', includes the supplying a person with shelter, food, drink, money, clothes, arms, ammunition or means of conveyance, or the assisting a person by any means, whether of the same kind, as those enumerated in this section or not, to evade apprehension."
Though the expression occurs only in six sections of the Code (sections 130, 136, 157, 212, 216 and 216A), the definition does not apply to all of them. As is indicated by the opening portion, it does not apply to section 157, and in regard to section 130, it is inapplicable in certain cases. In these two contexts, the meaning to be assigned to the expression "harbour" would apparently be the dictionary meaning, i.e. "to provide for, to shelter, to lodge, to entertain."
Now, if the meaning to be assigned to the expression in sections 130 and 157 is its dictionary or non-statutory meaning, then, it would be better to provide for it in those two sections rather than make a clumsy exception in the general definition. Section 52A may be revised as follows.-
"52A. Harbouring.- The expression 'harbouring' means giving shelter to a person, and includes supplying a person with food, drink, money, clothes, arms, ammunition or means of conveyance, or assisting a person in any manner to evade apprehension."
2.82. Revision of whole Chapter recommended.-
It will be noticed that this chapter of general explanations is lacking in systematic arrangement. Simple definitions of words like "animal", -Injury", "life", "man" etc., are interspersed between elaborate explanations of basic concepts of the criminal law. There does not seem to be any logical, or even alphabetical, order in setting them down. With the application of the General Clauses Act for the interpretation of the Code and the consequent omission of a number of sections, the chapter will have even more gaps and less orderliness than it has at present. We, therefore, recommend a revised and rearranged Chapter 2 in which the amendments proposed by us in particular sections have been incorporated and other formal or verbal changes, not affecting the substance, have also been made.1
1. See the proposed draft of the Indian Penal Code (Amendment) Bill, clause 5.