Report No. 42
Chapter 25
Summary of Recommendations
25.1. Summary.-
We have now come to the end of our detailed study of the Code. The recommendations which we have made for its improvement are numerous, ranging from verbal changes designed to remove ambiguities and clarify underlying ideas, to substantial changes with a view to its simplification and modernisation and also some additions to its provisions. We have given special attention to the extent and nature of the punishments prescribed in the Code for various offences and suggested modifications to bring them into accord with modern notions of penology.
We have indicated in each chapter of this Report, corresponding to a chapter of the Code, the provisions which should be made in lieu of, or in addition to, the existing provisions, and also the amendments, both major and minor, to be made in them. A brief summary of the principal recommendations made in each chapter is given below.-
I. (1) The extra-territorial application of the Code should be extended to any offence committed outside India by an alien whilst in the service of Government, when such offence is committed in connection with such service, or is punishable under Chapter VI, VII or IX of the Code. (Para. 1.17).
(2) Steps should be taken to extend the Code to Jammu and Kashmir. (Para. 1.5).
II. (1) The General Clauses Act should be made applicable to the Code and redundant definitions eliminated. (Para. 2.2).
(2) The chapter should be re-arranged giving simple definitions of words and expressions in alphabetical order. (Para. 2.82).
(3) The definition of "public servant" should be revised to include specifically any member of Parliament or of a State Legislature. (Para. 2.35).
(4) A clearer definition of "fraudulently" is proposed. (Para. 2.50).
III. (1) A system of corrective labour, without deprivation of freedom, should be introduced as a substitute for short-term imprisonment. (Para. 3.11).
(2) Provision should be made in the Code itself for orders to pay compensation out of fine to victim of the offence when the offence is punishable under Chapter XVI, XVII or XXI. (Para. 3.19).
(3) In regard to certain offences of an anti-social character committed for the second time, public censure should be provided as an additional punishment. (Para. 3.25).
(4) Death sentence on minors should be prohibited. (Para. 3.34).
(5) Besides laying down that life imprisonment shall be rigorous, the sentence should be retained for a few heinous offences only. (Paras. 3.35 and 3.40).
(6) Light labour should be permissible by law in simple imprisonment. (Paras. 3.41 to 3.44).
(7) Provisions relating to imprisonment in default of payment of fine should be made clearer by re-drafting. (Paras. 3.52 to 3.58).
(8) Solitary confinement as a form of judicial punishment should be abolished. (Para. 3.80).
(9) Section 75 which provides for enhanced punishment for repeated offences should be rationalised and liberalised. (Paras 3.82 to 3.89).
IV. (1) The minimum age of criminal responsibility should be raised from seven years to ten years. The further provision in section 82 for exempting a child between seven and twelve years if he has not attained maturity of understanding should be omitted. At the same time it is very necessary that Children Acts should be properly enforced in all States. (Paras 4.23 to 4.25).
(2) The defence of duress, now limited to threat of instant death to the person compelled, should be extended to threat of instant death or grievous bodily harm either to the person compelled or to his near relative. (Para. 4.45).
(3) The present restriction on the right of private defence in cases where there is time to have recourse to the protection of the public authorities should be omitted. (Paras. 4.54 and 4.55).
V. (1) Abetment by conspiracy should be omitted. (Para. 5.2).
(2) A revision of the definition of abetment contained in sections 107, 108 and 108A is recommended. (Paras. 5.4 and 5.13).
(3) Where the abettor of an offence is a public servant whose duty it is to prevent its commission, he should be punishable with the punishment provided for the offence. (Para. 5.21).
(4) Abetting the commission of an offence by a child under 15, whether or not the offence is committed, should be punishable with imprisonment for a term up to twice the maximum provided for that offence. (Paras. 5.23 and 5.24).
(5) Agreements to commit petty offences or non-criminal illegal acts should not be punishable as criminal conspiracies. (Para. 5.37).
(6) A definition of attempt is recommended. (Para. 5.54).
VI. (1) Treason, sedition and other offences threatening the security and integrity of India are not adequately dealt with in the Code. The strengthening, consolidation and review of this branch of the criminal law should, however, be taken up as a separate project. (Para. 6.4).
(2) Assisting India's enemies in any manner should be a specific offence punishable with rigorous imprisonment upto ten years. (Para. 6.7).
(3) Conspiracy to overawe Parliament or the Legislature of a State should be included in section 121A along with conspiracy to overawe the Government. (Para. 6.8).
(4) Section 124 should be expanded to cover assault etc. on (a) the Speakers/ Chairmen of the Legislatures and (b) Chief Justices. (Para. 6.10).
(5) The offence of sedition should be redefined, including within its purview the exciting of disaffection towards the Constitution, or the Government or Parliament of India, or the Government or Legislature of any State, or the administration of justice, as by law established, and expressing the mens rea as "intending or knowing it to be likely to endanger the integrity or security of India or of any State, or to cause public disorder". The present punishment for seditio.-imprisonment for life or imprisonment upto three year.-should be replaced by rigorous imprisonment upto seven years. (Para. 6.19).
(6) Deliberate insult to the book of the Constitution, the national flag, the national emblem or the national anthem, by burning, desecration or otherwise, should be made an offence. (Para. 6.20).
VII. (1) Chapter VII, now limited to offences relating to the regular Army, Navy and Air Force should be extended to all armed forces of the Union. (Para. 7.2).
(2) The important offence of inciting to mutiny or other act of insubordination by publishing statements, circulating rumours or otherwise (now included in section 505) should be put in this Chapter. (Para. 7.9).
(3) Similarly, dissuading persons from joining the armed forces, and instigating them to mutiny or insubordination after joining, which are now offences against the Criminal Law Amendment Act, 1938, should be dealt with in this Chapter. (Para. 7.10).
VIII. (1) Making any preparation for rioting should be made an offence (Para. 8.13).
(2) A person promoting enmity between different groups on grounds of religion, race, language, etc. should be punished only if it is done intentionally. Section 153A should be amended to make this clear. (Para. 8.25).
(3) As section 505, after excluding sub-section (i)(a) thereof, deals with offences against public tranquillity similar to the offence punishable under section 153A, its provisions should be transposed to this Chapter as a new section 153B. (Para. 8.26).
IX. (1) In order to check oppression, a public servant who wilfully conducts himself in the performance of his functions as such public servant with intent to cause injury to any person shall be punishable with imprisonment upto one year, or fine, or both. (Paras. 9.9 and 9.10).
(2) Another new section recommended is to punish a public servant who authorises payment on behalf of Government or other public authority for goods supplied or works done under any contract, when he knows that the goods or works are not in accordance with the contract. (Para. 9.12).
IXA. (1) The offence of undue influence at elections should be defined more closely on the lines of the British, Canadian and Australian definitions, by expressly mentioning use or threat of force, violence or wrongful restraint as an ingredient of the offence. (Paras. 9A.10 and 9A.11).
(2) Punishment for the offences of bribery, undue influence, personation and false statements should be enhanced. (Paras. 9A.6 and 9A.13).
(3) Sections 17IH and 171-I, which create two petty offences in .relation to elections, should be omitted. (Para. 9A.15).
X. (1) The punishments provided in this Chapter dealing with contempts of the lawful authority of public servants err on the side of leniency and should be increased. (Para. 10.1).
XI. (1) In order to check the growing malpractice of issuing and using false medical certificates, it is recommended that any medical practitioner who knowingly issues any false medical certificate or certificate of fitness, and any person who corruptly uses it as a true certificate, should be punishable with imprisonment upto one year, or fine, or both; and if the certificate is, or is to be used, in a judicial proceeding, the punishment could be upto three years. (Paras. 11.11 and 11.12).
(2) Harbouring of persons about to commit kidnapping or abduction should be included in section 216A. (Para. 11.27).
(3) Sections 221 to 225B relating to resistance to arrest, rescue from custody, omission to arrest, allowing escape etc. should be revised and re-arranged. (Para. 11.29).
(4) Three additional sections are proposed to punish (i) dissuading a witness by threats, bribes or other corrupt means from giving evidence, (ii) failure, without sufficient cause, by a person released on bail, to appear in court in accordance with the terms of the bond; and (iii) the ordering or conducting of vexatious searches without reasonable grounds. (Para. 11.36).
XII. (1) Provisions relating to the counterfeiting of currency notes and bank-notes, at present contained in Chapter 18, should be placed in Chapter 12 which deals with counterfeiting of coin and Government stamps. (Para. 12.3.).
(2) The present scheme of two sets of provisions for counterfeiting of foreign coins and counterfeiting of Indian coins should be done away with, and the number of sections reduced. These provisions should also be simplified on the lines of the corresponding provisions relating to counterfeiting of currency notes. (Paras. 12.9 and 12.10).
(3) The dishonest use of slugs in vending machines should be punished with imprisonment upto one year or fine or both. (Para. 12.23).
(4) A completely revised Chapter XII on offences relating to currency notes, coins and stamps is recommended.
XIII. (1) The maximum term of imprisonment for offences relating to weights and measures should be increased from one year to two years. (Para. 13.1).
XIV. (1) The punishments prescribed in this Chapter for various anti-social offences affecting public health, safety and convenience are generally low, and should be increased as indicated. (Para. 14.1).
(2) To the section dealing with the sale, publication, etc. of obscene books (as amended in 1969), a provision should be added to the effect that where the question is whether the publication of a book, pamphlet, etc., is in the interests of science, literature, art, learning or other objects of general concern, expert evidence on that question may be admitted. (Para. 14.13).
(3) Section 294A dealing with unauthorised lotteries should be more detailed as in some State Acts. It should contain broad guidelines for the State Government in the matter of authorising private lotteries. (Paras. 14.16 and 14.17).
XVI. (1) A re-drafting of the definitions of murder and culpable homicide not amounting to murder, contained in sections 299 and 300, is recommended to meet the criticism of obscurity and repetition of deads. It is desirable to have a self-contained definition of murder in section 299, and another of the lesser offence in section 300. (Paras. 16.6 and 16.7).
(2) Section 304 should be simplified by abolishing the distinction between the two parts of the section and prescribing a uniform punishment for culpable homicide not amounting to murder. (Paras. 16.18 to 16.20).
(3) For the offence of causing death by rash or negligent act, the maximum term of imprisonment under section 304A should be increased to five years. (Para. 16.27).
(4) Attempt to commit suicide should cease to be an offence. (Paras. 16.31 to 16.33).
(5) A person who, by persistent acts of cruelty, drives a member of his family living with him to commit suicide should be punished with imprisonment upto three years, or fine, or both. (Paras. 16.34 and 16.35).
(6) Miscarriage caused by a registered medical practitioner with the woman's consent, within three months of the commencement of the pregnancy, should not be punishable under section 312. (Paras. 16.45 and 16.46.).
(7) The offence of concealing the birth of a child by secret disposal of the dead body should be abolished. (Para. 16.52).
(8) It should be made an offence for a person who, being legally bound to provide the necessaries of life to another, fails without lawful excuse to do so, knowing that such failure will endanger the life or seriously impair the health of that person. (Para. 16.53).
(9) The offences of wrongful restraint and wrongful confinement, when jointly committed by ten or more persons, should be regarded as aggravated forms and be more severely punishable. (Paras. 16.74 and 16.75).
(10) The distinction between 'assault' and 'using criminal force' without any practical difference need not be maintained. There is also no need for elaborate definitions of 'force' and 'criminal force'. The expression 'assault' should be so defined and employed as to include what is now covered by 'criminal force'. (Paras. 16.78 to 16.80).
(11) A new offence of indecent assault on a minor under 16 years of age punishable with imprisonment upto three years should be created. (Para. 16.86).
(12) Kidnapping need be only of one kind, viz., kidnapping from lawful guardianship. Kidnapping out of India need not be treated as a separate species of kidnapping. (Para. 16.92).
(13) For the offence of kidnapping a minor for the purposes of begging, there should be a minimum sentence of three years' rigorous imprisonment. (Para. 16.98).
(14) Kidnapping or abduction for ransom should be an aggravated form of the offence of kidnapping or abduction, punishable with rigorous imprisonment upto fourteen years and fine. (Para. 16.100).
(15) Sexual intercourse of a man with his child wife, and illicit intercourse with a girl between twelve and sixteen with consent, both of which are statutory rape, should be taken out of the definition of rape and made specific offences. In regard to the latter, it should be a defence for the accused to prove that he, in good faith, believed the girl to be over sixteen years of age. (Paras. 16.115 to 16.120).
(16) Three other sexual offences are recommended for inclusion in this Chapter, (i) A public servant compelling or seducing to illicit intercourse any woman who is in his custody as such public servant, (ii) a superintendent or manager of a women's or children's institution compelling or seducing to illicit intercourse any female inmate of the institution, and (iii) a person on the management or staff of a mental hospital having illicit intercourse with a woman who is receiving treatment for a mental disorder in that hospital, should be punishable. (Para. 16.123).
XVII. (1) A person who, taking advantage of the occurrence of an accident in a public place or of a fire, flood, riot, earthquake etc., commits theft in respect of property affected by such accident or calamity, should be punishable with imprisonment upto seven years. (Para. 17.9).
(2) Blackmail, in the sense of dishonestly threatening one with publishing an imputation harmful to his reputation, should be made a separate offence. (Para. 17.13).
(3) Robbery with murder committed by two or more persons should be treated in the same way as dacoity with murder for purposes of punishment. (Para. 17.20).
(4) Property, the possession whereof has been transferred by cheating, should be included within the definition of "stolen property". (Para. 17.35).
(5) Cheating a public authority in the performance of a contract for the supply of goods or the construction of a building or execution of other work should be punishable with imprisonment upto ten years and fine. (Para. 17.50).
(6) Bribe taking by employees in the private sector of commerce or industry in respect of the employers' affairs or business should be punishable in the same way as bribe taking by public servants. A new section to deal with this type of commercial corruption is recommended. (Para. 17.53).
(7) Mischief in relation to aircraft, should be specifically dealt with as an aggravated form of mischief. (Para. 17.69).
(8) The aggravations of house trespass, which are at present described as "lurking house-trespass", "lurking house-trespass by night", "house-breaking" and "house-breaking by night", should be replaced by one aggravation to be called "burglary", and the sections numbering twenty, now dealing with trespass in great detail, reduced to nine. (Paras. 17.75 and 17.78).
XVIII. (1) The definition of forgery should be made self-contained, incorporating all that is now set out in sections 463 and 464. (Paras. 18.2 to 18.4).
(2) The numerous penal sections relating to forgery and allied offences should be simplified and reduced in number so as to remove unnecessary or over-lapping provisions. (Paras. 18.8 to 18.16).
XIX. (1) The existing provision punishing very lightly a breach of contract to attend on the wants of a helpless person unable to look after himself, should be repealed as being of negligible utility. (Para. 19.2).
XX. (1) The definition of "bigamy" should be revised. It should be made clear, in particular, that where the relevant divorce law prohibits re-marriage of the parties within a specified period after the decree of dissolution, such re-marriage would amount to bigamy. (Paras. 20.3 to 20.7).
XXI. (1) Where the offence of defamation has been committed by publishing an imputation in a newspaper, the Court convicting the offender should have power to order that its judgment shall be published in whole or in part in such newspaper as it may specify. (Para. 21.5).
XXII. (1) Intimidation, in the form of a threat to commit suicide with the object of coercing a public authority to pursue a course of action which it is not legally bound to do, should be made an offence. (Para. 22.3).
(2) Performing mock funeral of a living person with intent to cause annoyance to the public or to any person should be made an offence. (Para. 22.5).
XXIII. (1) There should be a chapter in the Penal Code dealing with violation of personal privacy. (Chapter 23).
(2) As a beginning, the use of artificial listening or recording apparatus to eavesdrop on private conversations, unauthorisedly taking photographs of a person without his consent or against his wishes, and the publication of any information gathered by such methods, should be made punishable. (Paras. 23.7 and 23.8).
XXIV. (1) The principle of limitation for taking cognizance of an offence should be introduced in regard to less serious offences punishable under the Code either with fine only or with imprisonment not exceeding three years. (Para. 24.14).
(2) Detailed provisions are recommended. (Para. 24.30).
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