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Report No. 42

3.71. Supreme Court decision.-

In a recent case1 where section 71 of the Code did not fall to be considered, the Supreme Court has held that section 26, General Clauses Act, is conditioned by the identity of the two offences which form the subject of the prosecution or prosecutions. Though in its opening words this section refers to the act or omission constituting an offence under two or more enactments, the emphasis is not on the facts alleged in the two complaints, but rather on the ingredients which constitute the two offences with which a person is charged, as is made clear by the concluding portion of the section, which contains the words "punished twice for the same offerice". Therefore, the Court said, the ban imposed by section 26 could not be invoked where the offences are not the same, but are distinct.2

1. State of Bombay v. S.L. Apte, (1961) 3 SCR 107: AIR 1961 SC 578 (581, para. 13) (583, para. 16) (on appeal from ILR 1956 Bonn 685).

2. See also Manipur Administration v. Bira Singh, AIR 1965 SC 87 (90), para. 6: (1964) 7 SCR 123.

3.72. Two different situations considere.-(i) where ingredients of the two offences are identical.-

It is necessary to consider the applicability of section 26 of the General Clauses Act and section 71 of the Penal Code to two different situations. First, where an act made penal by two or more statutory provisions ("enactments" as the General Clauses Act calls them) really constitutes the "same offence.-that is to say, though the legal labels are different, the ingredients are identical. It is by reason of the accidents of legislation that the act happens to fall under two enactments.

Such cases, though infrequent, can arise because of the fact that one aspect of the act is dealt with more prominently in one enactment, while another enactment gives prominence to another. Essentially, there is only one culpable act, and though different legal labels lead to two different "offences", the offender should not receive punishment for more than one of them. In this situation, the latter half of section 26, General Clauses Act, should override section 71, Indian Penal Code. Though charges may be framed for each such offence under section 235(2), Criminal Procedure Cod.-such a course would facilitate consideration of legal aspects separately.- punishment should be for one offence only.

1. Cf. section 221, Criminal Procedure Code.

3.73. (ii) where offences are not the same.-

The second situation is where acts made penal by two more statutory provisions constitute distinct offences. The nearness of the ingredients is there, but they are not identical. The offences being not the same, it is logical to permit separate punishments, as the existing law also does. At the same time, to avoid oppressiveness, the aggregate of such punishments should not exceed the maximum prescribed for any of the offences of which he is convicted.

3.74. Section 71, last paragraph.-

While this is in fact the effect of the last paragraph of section 71, the wording is not unambiguous. It provides that "the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences". It implies, without expressly saying it, that separate punishments can be awarded for each of the offences. We think it is desirable to bring out this idea clearly. Secondly, it is not appropriate to refer to the punishing power of the particular Court which tries the offender since section 71 is concerned with the general limitation on punishment in two classes of cases.

3.75. Re-draft of section 7.-suggested.-

In the light of the above discussion, we propose that section 71 may be split into two and revised as follows.-

"71. Punishment of offence made up of parts.- Where anything which is an offence is made up of parts, any of which parts is itself an offence of the same kind, the offender shall not, unless expressly so provided, be punished separately for such parts.


(a) A beats Z twenty times with a stick. His offence of voluntarily causing hurt to Z is made up of the twenty strokes given, each of which is itself an offence of voluntarily causing hurt. A is liable only to one punishment for the whole beating.

(b) While A is beating Z, Y intervenes, and A intentionally strikes Y. As this is no part of the acts whereby A voluntarily causes hurt to Z, A as liable to one punishment for voluntarily causing hurt to Z and to another for voluntarily causing hurt to Y.

71A. Punishment of offence made up of several offences.- (1) Where an act constitutes an offence under two or more enactments but the offences are the same, the offender shall not be punished for more than one of such offences.

(2) Where an act constitutes an offence under two or more enactments and the offences are not the same, or where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence, the offender may be punished separately for each of such offences, but shall not be punished in the aggregate with a more severe punishment than could be awarded for any one of such offences."

3.76. Section 72.-

Section 72 relates to "cases in which judgment is given that a person is guilty of one of several offences specified in the judgment but that it is doubtful of which of these offences he is guilty." If in such a case, the same punishment is not provided for all the offences, the offender has to be punished for the offence for which the punishment provided is the lowest. The corresponding procedural provisions are to be found in sections 236 and 367(3) of the Criminal Procedure Code.

3.77. Consonance with section 367(3), Criminal Procedure Code.-

It appears that the framers of the Draft Penal Code intended to deal in section 72 with doubts of fact1, but in most of the reported cases2, the section has been interpreted as dealing with doubts about application of the law. We considered a suggestion that, in conformity with the original intention, section 72 might expressly refer to the cases where "the evidence does not enable the Court to pronounce with certainty of which of these offences the offender is guilty" but came to the conclusion that it would be better to relate the wording of section 72 more clearly with the situation referred to in section 367(3) of the Criminal Procedure Code, namely, where the Court passes judgment in the alternative. At the stage of punishment to which section 72 relates, the aspect of doubt loses its importance. Once the Judgment in the alternative is passed under section 367(3), Criminal Procedure Code, the only matter that requires to be provided for in section 72 is the limitation on punishment.

1. Draft Penal Code, 1837, Note A, pp. 13, 14.

2.Queen v. Jamurha, (1875) 7 NWPHCR 137; Khan Muhammad v. Empress, 1887 Punj Rec. No. 11 (Cr) 19; Partap v. Emperor, AIR 1914 Lah 549 (550); Maktar Ali v. Emp., AIR 1945 Cal 421 is a case to the contrary.

3.78. Applicability to offences under other laws.-

According to the definition in section 40, "offence" in section 72 is now confined to offences under the Code. If the definition is omitted as suggested by us, the wider definition of "offence" as given in the General Clauses Act will become applicable. We see no objection, and indeed consider it desirable, that the principle underlying section 72 should apply, not only to Penal Code offences, but also to other offences.

3.79. Amendment proposed.-

In the light of the above discussion, we propose that section 72 may be simplified as follows.-

"72. Punishment where judgment in alternative.- In all cases in which judgment is givenin the alternative that a person is guilty of one of several offences "specified in the judgment and if the same punishment is not provided for all of them, the offender shall be punished for the offence for which the lowest punishment is provided."

Section 367(3) of the Criminal Procedure Code' which is now limited to offences under the Penal Code will require to be amended as follows.-

"When a person is convicted and it is doubtful under which of two or more enactments the offence falls, the Court shall distinctly express the same, and pass judgment in the alternative."

3.80. Omission of sections 73 and 7.-relating to solitary confinement recommended.-

Sections 73 and 74 provide for solitary confinement. We are of the view that this punishment is out of tune with modern thinking and should not find a place in the Penal Code as a punishment to be ordered by any Criminal Court. It may be necessary as a measure of jail discipline which is an entirely different matter, not governed by the same considerations that apply to punishments in the Code. We recommend that sections 73 and 74 may be omitted.

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