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Report No. 42

3.81. Consequential amendment of section 32, Criminal Procedure Code.-

It will be necessary, as a consequential amendment, to omit the words "including such solitary confinement as is authorised by law", occurring in clauses (a) and (b) of section 32(1), Criminal Procedure Code.

3.82. Section 75 and the problem of habitual offenders.-

Section 75 provides enhanced punishment for persons who commit offences against property or offences relating to coin and government stamps more than once. It is an attempt to deal with the problem of habitual offenders and recidivism. Other penal systems also have tried to grapple with this complex problem, but nowhere have the attempts met with marked success, perhaps because the causes of crime are themselves complex. Because the previous sentence has failed both in its object of reforming the offender and in its object of deterring him from crime, the law, as a measure of last resort, concentrates on protecting society from the offender by sending him to jail for a longer term than before.

The protection of society against the offender comes in the forefront "by reason of his previous conduct and of the 'likelihood of his committing further offences," as the latest English provision1 on the subject puts it. Based on this policy of protecting the public, section 75 enhances the powers of the court regarding the sentence to be imposed on the second or subsequent conviction for certain specified categories of offences. The necessity for such a provision in the Penal Code can hardly be disputed.

1. Section 37(2), Criminal Justice Act, 1967. The section is considered at length by the House of Lords in D.P.P. v. Ottewell, (1968) 3 All ER 153.

3.83. Offences to which section is applicable.-

We, however, see no reason why the section should be limited in its application to offences relating to coin and stamps and offences against property. Since protection of society is the primary object in authorising the court to pass long sentences, all serious offences under the Code, e.g. those punishable with imprisonment for 3 years or more, should logically fall within the purview of the section. Offences under other laws are governed by special considerations and, where necessary, provisions similar to section 75 have been made by the Legislature in those laws1. But, so far as offences under the Code are concerned, section 75 is the only place where a provision for enhanced sentence could be made.

Not only in the case of offences against the person (Chapter 16), but in the case of many other offences, there is need for special protection against persistent offenders, and there is no basis for making a distinction in this respect as between offences under the various Chapters. Even the present section does not require that the previous conviction should have been under the same Chapter; this shows, that it is not the policy of the law to place an emphasis on the repetition of the particular offence; rather, the policy is to have regard to the criminal tendency established by previous convictions.

We, therefore, recommend that section 75 should be extended to cover all offences under the Code which are punishable with imprisonment upto 3 years or more. We note in this connection that the corresponding provision in England2 is not confined to offences of a particular character, but applies to every offender convicted on indictment of an offence punishable with imprisonment for two years or more.

1. E.g., sections 3 to 9, Suppression of Immoral Traffic Act, 1955.

2. Section 37(2), Criminal Justice Act, 1967.

3.84. Maximum punishment on subsequent conviction.-

There is another point on which the section requires to be widened. The maximum punishment that can be awarded on a second or subsequent conviction under the section is imprisonment for life or for ten years. The period of ten years is, in our view, inadequate, since the longest period of imprisonment under the scheme of the Code is not ten years, but fourteen year. Even where the offender is convicted at the same trial of two offences, the Court is permitted to combine the imprisonment for the two offences, subject to a maximum of fourteen years.1 We, therefore, recommend that in place of "ten years", "fourteen years", should be substituted.

1. Section 35(2), Criminal Procedure Code.

3.85. Maximum interval between previous conviction and second offence desirable.-

While the section requires to be widened on the above points, it is also in need of being narrowed down on others. Even where the offender has, after his first conviction, led a blameless life for a long period but commits an offence thereafter, the relapse into crime entails liability to enhanced punishment. It is clearly desirable that the section itself should take notice of the interval between the previous conviction and the subsequent offence, and should not leave it entirely to the discretion of the Courts.

It may be that in practice the Courts do take the length of this interval into account and moderate the punishment for the subsequent offence under section 75. Nevertheless, there is room for giving some indication of the legislative policy in this respect. We think that, between the release from the imprisonment for the previous conviction (or the release from imprisonment for the last conviction, if there be more than one conviction) and the commission of the present offence, the interval should not exceed three years1, and recommend an amendment of the section to that effect.

1. Cf. section 37(4)(a), Criminal Justice Act, 1967.

3.86. Imprisonment on last conviction necessary.-

At present it is not necessary that, at the previous conviction, the offender should have been sentenced to any term of imprisonment. All that is required is that the previous offence must have been punishable with imprisonment for three years or upwards, and the subsequent offence must also have been so punishable. We regard this as insufficient. If, on the previous conviction, the offender was not sentenced to imprisonment, (for example, if he was sentenced to fine or released on probation), then, exhypothesi, the offender was, on that occasion, regarded as not suitable for the punishment of imprisonment because of the circumstances of the offender or of the offence.

The commission of another offence may, no doubt, show the desirability of prison treatment, but does not by itself demonstrate the need for an enhanced term of imprisonment. The maximum imprisonment provided in the particular section relating to the second offence should be more than sufficient. We recommend that section 75 should be amended requiring that, on the last occasion, the offender should, not only have been convicted, but also sentenced to imprisonment.

3.87. Conviction in foreign countries for certain offences.-

We considered the question whether, in view of the Convention relating to the Suppression of Traffic in Person (1950), previous convictions in foreign countries for offences of the type dealt with in that Convention should be taken into account. Such offences are punishable under sections 366A, 366B, 367, 370, 371, 372 and 373 of the Code, besides the Suppression of Immoral Traffic in Women and Girls Act, 1956. Since Article 7(1) of the Convention only provides that "previous convictions pronounced in foreign States for offences referred to in the present Convention shall, to the extent permitted by domestic law, be taken into account for the purpose of establishing recidivism", we do not consider it necessary to make arty such special provision in section 75 of the Code.

3.88. Other minor points considered.-

(i) It was suggested that the enhanced punishment of imprisonment for life provided under section 75 is rather harsh. Another point made was that the additional punishment should be relatable to the gravity of the second or subsequent offence. We think, however, that this part of section 75 has not created any difficulty, and the Courts should be left to exercise their discretion in the matter of sentence.

(ii) At present the section does not cover the case where the first conviction is for the abetment of or an attempt to commit, an offence punishable under Chapter 12 or 17 of the Code, and the offender is convicted of such an offence. Since we are proposing the extension of section 75 to cover all offences under the Code, including abetments and attempts, punishable with imprisonment for three years or more, this lacuna will disappear.

(iii) Under the section, the previous conviction must have been before a Court in 'India'. Since the Code does not extend to Jammu & Kashmir and 'India' excludes that State, a previous conviction in Jammu & Kashmir is not relevant for the purposes of section 75. This anomaly, which arises not out of section 75 but out of the extent clause, illustrates the need for extending the Code to Jammu & Kashmir1.

1. See paras. 1.4 and 1.5 above.

3.89. Recommended redraft of section 75.-

We recommend that section 75 may be revised as follows.-

"75. Enhanced punishment for certain offences after previous convictions.- Whoever, having been, convicted by a Court in India of an offence punishable under this Code with imprisonment of either description for a term of three years or upwards and sentenced to imprisonment on such conviction, commits, within three years from the date of his final release from prison after serving that sentence, any offence punishable under this Code with like imprisonment for the like term, shall be subject for every such subsequent offence to imprisonment for life, or to imprisonment of either description for a term which may extend to fourteen years."1

1. A corresponding amendment will be necessary in section 348(1) of the Code of Criminal Procedure, 1898.

3.90. In view of the numerous amendments proposed in this chapter it will be desirable to replace it by a completely revised chapter in which the sections also are re-numbered in continuation of the sections in the revised chapter 2. The necessary draft1 has been included in the Amendment Bill appended to this Report.

1. See the proposed draft of the Indian Penal Code (Amendment) Bill, clause 6.

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