Report No. 42
7.6. Section 13.-formally amended.-
Section 136 which punishes the harbouring of a deserter from the armed forces, requires only a formal amendment. It may be amended to read as follows.-
"136. Harbouring deserter.-Whoever, knowing or having reason to believe that an officer or member of any of the armed forces has deserted, harbours such officer or member shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Exception.-This .provision does not extend to the case in which the harbour is given by a wife to her husband."
7.7. Section 13.-omitted.-
Section 137 makes the master or person in charge or a merchant vessel, on board of which any deserter is concealed, liable to a "penalty" not exceeding five hundred rupees, even when he is ignorant of such concealment, if he might have known of such concealment but for some neglect of duty on his part. It is curious that the section uses the word "penalty" instead of the usual word "fine". The object is presumably to debar the court convicting the offender from imposing any sentence of imprisonment in default of payment of the "penalty". However that may be, the section does not appear to be of any consequence, and we suggest that it may be omitted.
7.8.Section 138 revised .-
Section 138 deals with abetment of an act of insubordination by an officer or member of the armed forces, but only if the act of insubordination is committed in consequence of the abetment. The section should also provide for cases where the act of.insubordination is not committed in consequence of the abetment. Considering that an act of insubordination is punishable with seven years' imprisonment under section 42 of the Army Act (and if such insubordination consists in disobedience of a superior officer, punishable with fourteen years' imprisonment), the punishment provided in section 138 appears to be low. It should, we think, be increased to two years when the abetment is successful and to six months when it is not. It may be revised as follows.-
"138. Abetment of an act of insubordination.-Whoever abets what he knows to be an act of insubordination by an officer or member of any of the armed forces, shal.-
(a) if such act of insubordination be committed in consequence of that abetment, be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; and
(b) in any other case, be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both."
7.9. We notice that an important offence relating to the armed forces which could appropriately have been included in this Chapter has been put along with certain other, not very closely connected, matters in section 505(1)(a) of the Code. Making, publishing or circulating a statement, rumour or report with intent to cause the armed forces to mutiny or otherwise fail in their duty is more germane to this Chapter than to Chapter 22 dealing with miscellaneous things like criminal intimidation, insult and annoyance. We, therefore, propose to add here a new section 138A as follows.-
"138A. Incitement to mutiny or other act of insubordination.-Whoever makes or publishes or circulates any statement, rumour or report, with intent to cause, or which is likely to cause, any officer or member of any of the armed forces to mutiny or otherwise disregard or fail in his duty as such officer . or member, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Explanation.-A person making, publishing or circulating any such statement, rumour or report, who has reasonable grounds for believing that such statement, rumour or report is true and makes, publishes or circulates it in good faith and without any such intent as aforesaid, does not commit an offence under this section."
The offence should be cognizable.
7.10. Dissuasion from recruitment to armed forces.-
In the previous Chapter we have referredl to the Criminal Law Amendment Act, 1938, which punishes a person who, with intent to affect adversely the recruitment of persons to the armed forces, wilfully dissuades persons from entering such forces, or instigates persons to enter an armed force and then commit acts of mutiny and insubordination from within. Considering that the offence is clearly one relating to the armed forces of the Union and of the type dealt with in Chapter 7 of the Penal Code, it is difficult to understand why a separate Act was considered necessary for the purpose in 1938. We propose, by way of consolidation, that the following section may be added in the Code.-
"138B. Dissuasion from enlisting and instigation to mutiny or insubordination after enlistment.- Whoever
(a) with intent to affect adversely the recruitment of persons to serve in the armed forces of the Union, dissuades or attempts to dissuade the public or any person from entering any such forces, or
(b) without dissuading or attempting to dissuade from entering such forces, instigates the public or any person to do, after entering any such force, anything which is punishable as mutiny or insubordination under the law relating to that armed force, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Explanation.- The provisions of clause (a) do not extend to comment on, or criticism of, the policy of the Government in connection with the armed forces, made in good faith without any intention of dissuading from enlistment, or to advice given in good faith for the benefit of the individual to whom it is given, or of any member of his family, or of any of his dependants."
The offence is, in our opinion, serious enough to merit a substantial sentence of imprisonment up to three years, instead of one year as at present provided in the Act. It is also desirable to make the offence cognizable. The Act requires the previous sanction of the State Government to any prosecution of the offence under the Act. After the offence is included in the Penal Code and made cognizable, we do not consider that any previous sanction for prosecution is necessary.
7.11. Section 13.-revised formally.- Section 139 requires to be formally revised as follows.-
"139. Persons subject to certain laws, not to be punished under the Chapter.- No person subject to the Army Act, 1950, the Navy Act, 1957, the Air Force Act, 1950, or any other law relating to the armed forces of the Union is subject of punishment under this Code for any of the offences defined in this Chapter."
7.12. Section 140 revised.-
In regard to section 140, we considered a suggestion that it is only when the person wearing a garb, or carrying a token, resembling that used by a soldier etc., has a fraudulent intention, he should be punished under the section. As at present worded, mere intention that it may be believed that he is a soldier is sufficient to make him punishable. We do not think it is necessary to introduce the element of fraud in the mens rea necessary for the offence.
The section does not apply to wearing an officer's uniform, which appears to be an omission. There is no reason why a person who, not entitled to wear such uniform, wears it with the intention mentioned in section 140, should not be punishable. The punishment may also be increased to six months and unlimited fine.
The section may accordingly be revised as follows.-
"140. Wearing garb or carrying token used by officer or member of the armed forces.-Whoever, not being an officer or member of the armed forces, wears any garb, or carries any token, resembling any garb or token used by such an officer or member, with the intention that it may be believed that he is such an officer or member, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both."