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Report No. 43

III. Duty to Prevent The Commission of The Crime

Under our penal law there are some provisions casting a duty on a person to give information in his possession to the proper authorities regarding the commission of or intention to commit some offences. (See section 44 of the Cr. P.C. and clauses 39 and 42 of the Bill). But there is no provision casting a positive duty on a person to prevent the further progress in the commission of any treasonable activity, if he could prevent the same without danger to himself. In a few instances, such as sabotage, espionage, etc., the mere giving of information to the appropriate authorities may not suffice.

The Austrian Penal Code, section 60, contains the following interesting provision: "He who intentionally fails to prevent, the further progress of an undertaking which is included in the definition of high treason, although he could have done so easily and without danger to himself, his relatives or to those persons who are by law under his protection, becomes an accessory to the felony and shall be punished by severe imprisonment of from five to ten years."

It may be useful to have a similar provision in the proposed Bill also. It is true that occasions for prosecution of a person for contravention of that provision may be very rare indeed. But if a person without danger to himself or his near relatives can prevent the commission of an offence and yet fails to prevent the same, there is no reason why he should not be held punishable under the law for an offence involving national security. To cite an extreme case, suppose an expert on explosives notices that a time bomb has been laid by some unknown culprits to blow up an installation which is vital to national security.

At present the only duty cast on him by law is to report the matter to the authorities. There is no duty on him to remove or defuse the bomb or otherwise render it harmless, though he could easily have done so without danger to himself in view of his expert knowledge. The consequences may be very serious. But by the time the authorities, on receiving the information, rush to the spot, the installation may be blown up. There is no reason why the law should not punish that citizen for his grievous sin of omission. Instances of this type can be given for the offence of espionage also.

I notice that in the French Penal Code (Article 62) and in the Draft German Penal Code (Article 233) there are provisions making it penal if a person omits to prevent the commission of some offences if such prevention could be done without danger to himself. I am not, however, in favour of extending this rule for all classes of offences under the Penal Code. It will be sufficient if this rigorous rule is applied for offences involving national security alone.

R.L. Narasimham

Offences Against the National Security Back

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