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Report No. 43

7.42. Question of capital punishment considered, with reference to sections 3 and 5.-

There is a suggestion that the maximum penalty for offences under sections 3 and 5 should be enhanced to include the death penalty, if the act relates to defence installations1. The suggestion raises important and controversial issues as to the desirability of capital punishment.

The Law Commission in the Report on "Capital Punishment", observed:2

"473. The offence of espionage should, it has been suggested, be made a capital one. It may be noted, that where espionage consists of acts which constitute an abetment of the waging of war against the State, the offence would be amply covered by section 121 of the Indian Penal Code, which allows the penalty of death. Other cases of collection and transmission of State secrets mostly fall under the Official Secrets Act3, section 3(1) of which provides the maximum punishment of imprisonment up to 14 years. In times of emergency, additional provisions are made by special legislation4.

474. Thus, under section 5(4) of the Official Secrets Act, 1923, as amended by the Defence of India Act5, a person guilty of an offence under section 5 of the Official Secrets Act shall, if such offence is committed with intent to wage war or to assist any country committing external aggression against India, be punishable with death, or imprisonment for life or imprisonment upto ten years etc.6

See also rule 34(6), rule 38(1)(a) and(b), rule 38(5),rule 39(1)(a) and rule 39(2), Defence of India Rules, 1962.

We think that the provisions of the law on the subject as they exist now are, in substance, adequate."

1. F. 1(1)/71-L.G., S. No. 21 (Suggestion forwarded by one Ministry).

2. 35th Report (Capital Punishment), paras. 473-474.

3. The Official Secrets Act, 1923 (19 of 1923).

4. See the Defence of India Act, 1962.

5. See section 6(1)(b), Defence of India Act, 1962 (51 of 1962).

6. See also rule 34(6), rule 38(1)(a) and (b), rule 38(5), rule 39(1)(a) and rule 39(2), Defence of India Rules, 1962.

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