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Report No. 43

10.9. Provisions as to cognizability of certain offences and courts competent to try them.-

One point regarding cognizability of certain offences and the courts competent to try them requires to be mentioned. Offences under chapters 6 and 7 of the Penal Code are to be transferred to the new law. Now, the position as regards bailability, cognizabillty and courts competent to try them is, at present, governed by specific items in Schedule II to the Code1 of Criminal Procedure, 1898. On the transfer of those offences to the new law, those specific items will cease to apply, and the provision in the said schedule relating to offences against other laws will become applicable. Where the position so resulting would be different from the present one, it will obviously be necessary to consider if a specific provision is required for maintaining the present position. We deal below with this matter.

(1) Assaulting the President etc., with intent to compel or restrain the exercise of any lawful powers2.-This offence (punishment-imprisonment for 7 years, and fine) is under the specific entry in the Schedule to the Cr. P.C.3, triable by the Court of Session4 Under the part of the Schedule applicable to offences under other laws, the offence would be triable by a Magistrate of the First Class. We are of the view that this change may stand. Though the offence involves high dignitaries, it can cover a variety of acts, and there is no harm if it is triable by a Magistrate of the First Class. Serious cases can be committed to the Court of Session. Hence no special provision is required.

(2) Public servant negligently allowing prisoner of war to escape5.-This offence (punishment-imprisonment for 3 years, and fine) is, under the specific provision in the Schedule, non-cognizable.6 It would now become cognizable. We are of the view that the offence should be cognizable. Hence no special provision need be recommended.

(3) Sedition7.-This offence (proposed punishment-imprisonment for seven years, and fine) is, under the Schedule, non-cognizable, non-bailable and triable exclusively by the Court of Session8. It would now become cognizable, non-bailable and triable by a Magistrate of the first class which, in our opinion would not be desirable. Hence it will be necessary to provide that the offence is non-cognizable and triable by the Court of Session.

(4) Committing depredation on territories of foreign State at peace with India9.

(5) Receiving property taken by means of such waging war or depredation10.-These two offences (punishment for each-imprisonment for 7 years and fine, and forfeiture of certain property) are, under the Schedule, triable by a Court of Session11. They will now become triable by a Magistrate of the First Class. To avoid that result, it will be necessary to provide they are triable by the Court of Session.

(6) Abetment of desertion.-There are two situations:

(a) Abetment of desertion from armed forces, if the desertion be committed12.-This offence (punishment-imprisonment for 5 years, and fine, or both) is, as proposed13, cognizable, non-bailable and triable by a Magistrate of the First Class. This position remains unaltered, and no special provision will be required for this offence. But, a special provision is needed for situation (b) below.

(b) Abetment of desertion from armed forces in other cases14.-This offence (punishment-imprisonment for 2 years or fine, or both) is, under the Schedule cognizable. It will now become non-cognizable. It is therefore, necessary to provide that it is cognizable.

(7) Harbouring a deserter15.-This offence (punishment- imprisonment for 2 years, or fine, or both) is, under the Schedule cognizable16. It would now become non-cognizable. It is, therefore, necessary to provide that the offence is cognizable.

(8) Abetment of an act of insubordination17:

(a) if such act be committed;

(b) in any other case.-This offence (punishment for situation under (a)-imprisonment for two years, or fine, or both and for situation under (b)-imprisonment for 6 months, or fine, or both) is, under the Schedule, cognizable18. It would now become non-cognizable. Hence, it would be necessary to provide that it is cognizable.

(9) Wearing garb or carrying token used by officers or member of the armed forces19.- This offence (punishment20-imprisonment for 6 months, or fine or both) is, under the Schedule, cognizable21. It would now become non-cognizable. Hence, it is necessary to provide that it is cognizable.

We accordingly recommend a special provision as follows:-

"Notwithstanding anything contained in the Code of Criminal Procedure, 1971,

(a) offences under sections 21, 22, 23 and 27 shall be cognizable;

(b) the offence under section 39 shall be non-cognizable; and

(c) offences under sections 15, 16 and 39 shall be triable only by the Court of Session."

1. First Schedule to the Cr PC Bill, 1970.

2. Section 124, IPC; section 8, National Security Bill, 1971.

3. The reference throughout is to the First Schedule to the Cr PC Bill, 1970.

4. Appendix 3 to the 42nd Report does not alter this position.

5. Section 129, IPC; section 13, National Security Bill, 1971.

6. Appendix 3 to the 42nd Report has not altered this position.

7. Section 124A, IPC; section 39 of the National Security Bill, 1971.

8. Appendix 3 to the 42nd Report has not altered this position.

9. ,Section 126, IPC; section 15, National Security Bill, 1971.

10. Section 127, IPC; section 16, National Security Bill, 1971.

11. Appendix 3 to the 42nd Report has not altered this position.

12. Section 135(a)(new), as proposed by the 42nd Report, section 21(a), National Security Bill, 1971.

13. Schedule to the Cr PC, as amended by 42nd Report, Appendix 3.

14. Section 145, IPC; section 21(b), National Security Bill, 1971.

15. Section 136, IPC; section 22, National Security Bill, 1971.

16. Appendix 3 to the 42nd Report has not altered this position.

17. Section 138, IPC; section 137(a) and (b) as proposed m the 42nd Report, section 23(a) and (b), National Security Bill 1971.

18. Appendix 3 to the 42nd Report has not altered this position. See section 137(a) and (b), of the Schedule appended thereto.

19. Section 140, IPC; section 27, National Security Bill, 1971.

20. As proposed in the 42nd Report.

21. Appendix 3 to the 42nd Report has not altered this position.



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