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Report No. 42

10.21. Section 18.-amendment regarding punishment.-

The maximum punishment, now provided in section 186, three months' imprisonment, or fine upto Rs. 500, or both, may be increased to 'six months, or with fine, or with both'.

10.22. Section 18.-attendance at search and signature by witness.-

In connection with section 187, there is a suggestion1 to provide punishment for non-attendance by witnesses required to attend a search by the police. We may note that section 103(5) of the Criminal Procedure Code (as amended in 1923) specifically covers non-attendance at searches. What is not covered is failure to sign the memorandum of search. Signature of the search memorandum has been held to be not obligatory under the law as it now stands,2 but that provision need not be altered. An amendment providing that search witnesses are bound to sign the list may create practical difficulties. The law would then have to provide for a contingency where the witnesses find or allege that the search record is inaccurate. We do not consider that any amendment of section 186 is necessary on this point.

1. F. 3(9)/56-L.C., S. No. 108, p. 294 (Shri K. Rajah Iyer's suggestion).

2. Ram Prasad v. Emp., AIR 1938 Pat 403. (407, 408, 412) (FB) (Majority view).

10.23. Section 18.-amendment regarding punishment.-

The punishment provisions in section 187 may be amended as follows.-

(i) in the first paragraph, it may read 'punished with fine which may extend to one thousand rupees'; and

(ii) in the second paragraph, the words 'which may extend to five hundred' may be omitted.

10.24. Section 188.-

Section 188 provides for punishment of disobedience of orders promulgated by public servants. Prosecutions under this section are generally launched for violation of orders under section 144 of the Criminal Procedure Code. But this section is so worded that mere disobedience of such an order is not sufficient. The prosecution is required to show in addition that such disobedience causes or tends to cause (a) obstruction, annoyance or injury to any person lawfully employed, or (b) danger to human life, health or safety or (c) tends to cause a riot or affray. Thus, the effect of the disobedience of the order is made an essential ingredient of the offence.

10.25. Should production of harm be necessary for offence?.-

One of us was of the view, that in the penal section mere disobedience of a duly promulgated order should be made punishable, and that the effect of such disobedience need not be included as a necessary ingredient of the offence. An order under section 144, Criminal Procedure Code, will be a valid order only if the Magistrate considers that such an order should be promulgated for the purpose of preventing obstruction, annoyance or injury or risk of obstruction, annoyance or injury to any person lawfully employed or danger to human life, health or safety or a disturbance of public tranquillity or a riot or an affray.

In order to prove the validity of the order, it will always be necessary for the prosecution to show that there was such risk on the date of the promulgation of the order. But to require the prosecution to further prove, not only disobedience of a valid order under section 144, but also the effect or tendency of such disobedience will be putting an enormous burden on the prosecution, and may well result in the giving of perjured evidence. Moreover, such a provision is outside the scheme of the general provision dealing with disobedience of orders of public servants in Chapter 10, where the mere act of disobedience is made punishable.

Hence, though an accused prosecuted under section 188, I.P.C., will always have the right to show that the order was not validly made because the pre-existing conditions required for the promulgation of the order as specified in section 144, Cr.P.C., were not present when the order was promulgated, nevertheless the prosecution should not be required to further prove, after proving the disobedience of the order, that such disobedience either caused or had a tendency to cause the various risks mentioned above. Fie further pointed out that the circumstances, present on the date of the promulgation of an order under section 144, Cr.P.C., should be the main consideration, and not the circumstances present on the date on which the order was disobeyed.

In many instances, the mere promulgation of the order under section 144, Cr.P.C., may have the salutary effect in preventing the various risks mentioned in that section. If a person, therefore, disobeys such an order (which has proved to be effective for the purpose for which it was promulgated), it will be difficult for the prosecution to show that on the date of the disobedience the act of disobedience had any such tendency as is required in section 188. The person who deliberately flouts a lawful order should not benefit from its effectiveness.

Majority of us were, however, not in favour of this view. Section 188, though mainly referring to orders under section 144, Cr. P.C. is wide enough to include violations of some orders under special laws, and mere disobedience of even a valid order should not be made punishable unless it caused or had a tendency to cause one of the harmful effects mentioned in the section.

In view of the absence of agreement, we do not propose any amendment to the section of this point.

10.26. Minor amendments proposed.- The following minor amendments are recommended.-

(i) In the punishment provision, the limit of one thousand rupees for the fine may be removed by omitting the words "which may extend to one thousand rupees".

(ii) In the Explanation, the word 'contemplate' in the first sentence is imprecise and not in accord with the usual terminology. The second sentence is unnecessarily expository and also slightly misleading. The Explanation may be shortened to read:

"Explanation.-It is not necessary that the offender should intend to produce harm, or know that his disobedience is likely to produce harm."

(iii) The illustration does not elucidate any doubtful point; and in fact, the words "and thereby causes danger of riot" are not particularly apt. The illustration should be omitted.

10.27. Sections 189 and 190.- No changes are required in sections 189 and 190.

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