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Report No. 42

16.71. Sections 336 to 33.-Recommendation for increase in punishment.-

The punishment under sections 336 to 338 are not adequate, and should be increased as follows.-

(i) Section 336: Substitute "six months" for "three months", and "five hundred rupees" for "two hundred and fifty rupees".

(ii) Section 337: Substitute "one year" for "six months" and omit the words "which may extend to five hundred rupees".

(iii) Section 338: Substitute "three years" for "two years" and omit the words "which may extend to one thousand rupees".

16.72. Section 339.-

There has been a controversy as to whether the offence under section 339 is made out if a person is prevented from proceeding in a particular vehicle (say, a car), but is allowed to proceed on foot. A narrow view was taken in an early Bombay case1 and in two Calcutta cases.2 But later decisions of both these High Courts3 have taken a wider view which appears to us to be correct. We considered whether an explanation should be inserted that where a person has a right to proceed in any direction in a vehicle, then voluntarily obstructing him so as to prevent him from proceeding in that direction in that vehicle amounts to an offence under section 339, but in view of the later decisions mentioned above, decided that this was unnecessary.

1. Emperor v. Rama Lal, (1912) 15 Born LR 103 (DB).

2. Durga Prasad v. Nilman, AIR 1935 Cal 252; and Mtihendra Nath, ILR 62 Cal 629.

3. Emperor v. Lahanu Manali, AIR 1926 Born 118; and Madhab Chandra v. Nalini, AIR 1964 Cal 286.

16.73. Section 340.- No change is needed in section 340 which defines wrongful confinement.

16.74. Section 341.-

For wrongful restraint under section 341, a sentence of imprisonment is unnecessary but fine may be up to rupees one thousand. Where, however, the offence is jointly committed by ten or more persons, it should, in our opinion, be more severely punishable e.g., with imprisonment of either description up to one year, or fine, or both.

Section 341 may accordingly be revised as follows.-

"341. Punishment for wrongful restraint.- Whoever wrongfully restrains any person shall be punished with fine which may extend to one thousand rupees; and, if the offence is jointly committed by ten or more persons, every one of them shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both."

16.75. Section 34.-Recommendation regarding punishment.-

Imprisonment upto one year, or unlimited fine, or both, should be the punishment under section 342 for wrongful confinement. Here again, if the offence is committed by ten or more persons, the punishment should be heavier. In recent years, it has been a feature of agitational propaganda and demonstration for a large number of persons to "gherao" officials and others. The views received in response to our Questionnaire1 show a very substantial support for providing a severe punishment for this offence. We propose that the maximum punishment for wrongful confinement by a group of ten or more persons should be imprisonment for three years and fine.

Section 342 may accordingly be revised as follows.-

"342. Punishment for wrongful confinement.- Whoever wrongfully confines any person shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both; and, if the offence is jointly committed by ten or more persons, every one of them shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine."

1. Question 7(b) was, "Should 'gherao' (wrongful confinement by a large group of persons) be made a separate offence with a severe punishment.

16.76. Sections 343 and 344 to be replaced by one section.-

Sections 343 and 344 prescribe a heavier punishment for wrongful confinement according to its duration. If it lasts for three days or more, the offence is punishable with two years' imprisonment; and if it lasts for ten days or more, then it is punishable with three years' imprisonment. We do not think two gradations are necessary. We propose, instead, one section for this aggravated form of wrongful confinement, reading as follows.-

"343. Wrongful confinement for days or more.- Whoever wrongfully confines any person for five days or more, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine."

16.77. Sections 345 to 348.- No change is needed in sections 345 to 348.

Criminal force and Assault

16.78. Section 34.-omission recommended.-

We have next a group of ten sections dealing with criminal force and assault. The first three sections define 'force', 'criminal force' and 'assault', respectively. The definition of 'force' in section 349 is very complicated and the language reminds us of the definitions given in the science of mechanics. Considering that no other penal code has found it necessary to define the expression and that there is nothing abstruse in the concept requiring definition, we think that section 349 could be safely omitted.1

1. The expression "force" occurs in section 146, 350, 362, 366, 366A and 366B of the Indian Penal Code, and in section 46, 128 and 352 of the Criminal Procedure Code.

16.79. Sections 350 and 35.-definitions to be combined.-

After defining the expression 'to use criminal force' in section 350, and the expression 'to commit an assault' in section 351, all the seven penal sections that follow equate the two acts and refer to "whoever assaults or uses criminal force". There is thus practically no difference between assault and using criminal force from the point of view of punishment. It is apparent that, in keeping the two ideas distinct, the Code merely follows the distinction between 'assault' and 'battery' under the common law of England.

"Assault and battery are two distinct crimes at common law; but it is common in ordinary usage, and even in statutes, to use the term 'assault' to cover both."1 We think that, so far as the Code is concerned, it is needless to maintain the distinction between assault and using criminal force, and that it would be simpler to refer to the offensive act merely as "assault". The definition of assault should, however, comprise the ideas set out in section 349 and those set out in section 350.

1. Smith and Hogan Criminal Law, 2n Edn., p. 249.

16.80. "Criminal force" to be defined in section 141.-

Apart from this Chapter, the expression 'criminal force' is to be found only in three sections of tte Code, viz., sections 121A, 141 and 152. In section 121A, as already indicated,1 the word 'criminal' is not required in the context and could be omitted. We have also proposed2 the addition of an explanation in section 141 to indicate when force will be regarded as criminal for the purposes of that section, and the same explanation will be sufficient for interpreting section 152.

1. See para. 6.8, above.

2. See para. 8.9, above.



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