Report No. 33
Appendix 3
List of Provisions Analogous to Section 45 of the Code of Criminal Procedure in Some Laws Relating to Police and Forests
(The list is illustrative only)
S. No. |
Act/Section |
Gist of section |
Remarks |
1. |
2 |
3 |
4 |
1. |
Bengal Village Chawkidari Act, 1870 (6 of 1870), sections 39 and 40. | Section 39 prescribes the duties of Chawkidars. He is required to give immediate information to the police about all offences committed or likely to be committed. He is also given the power to arrest. | Under section 40, the panchayat is given the power to control the chawkidar. |
2. |
Bombay Village Police Act, 1867 (8 of 1867), sections 6 to 13. | Information to officer-in-charge of District Police Station when criminal in village has escaped or is not known. | These sections impose duties on the Police Patel. Section 10 is important, and is quoted below:- " 10. If a crime shall have been committed within the limits of the village and the perpetrator of the crime has escaped or is not known, the Police-patel shall forward immediate information to the Police-Officer in charge of the District Police Station within the limits of which his village is situated, and shall himself proceed to investigate the matter, obtaining all procurable evidence relating to it which he shall forward to the said officer ." |
3. |
The Forest Act, 1927 (16 of 1927), section 79(1) and section 79(2). | Persons who have a right or interest in the forest property or in the employ of Government are required to give information about any forest offence (committed or likely to be committed) to the police, etc., and assist them. | For failure to do so, there are two provisions:- (1)Burden of proof lie on such person; (2) Punishable with imprisonment for one month or fine up to Rs. 200 or both. |
4. |
Madras Sati Regulation (10 of 1830) section 3. | Zamindars, Talukdars, etc., responsible for immediate communication to the police of intended sacrifice. | Punishment for neglect of duty is fine not exceeding Rs.200 or, in default, imprisonment not exceeding six months. |
5. |
Madras Regulation (11 of 1816), sections 8, (9, 11 and 18). | These sections are intended to establish a general system of police throughout the State. Heads of villages are required to communicate with each other about Robbers and other gangs who commit offences. They are also required to report about arrival of suspicious persons into the village. |
No punishment laid down in the Regulation. |
6. |
Madras Forest Act, (5 of 1882), section 23. | Persons having right or interest in forest property or in the employ of Government are required to give information to the police of any offence committed or likely to be committed, and to assist the police or forest officer in his duties. | No punishment in the Act. |
7. |
The Criminal Tribes Act, 1924 (6 of 1924), section 26. (Repealed). | The Act is repealed. | |
8. |
The Oudh Laws Act (18 of 1876), section 39. | This section refers to the duties of village and Head policeman. He has a duty to inform police of the offences that take place in his area and make a proper report. He is given the power to arrest proclaimed offenders. | Punishment for not discharging his duties is prescribed in section 3. Penalty is three months pay or three months imprisonment or both. |
9. |
Punjab Laws Act (Act 4 of 1872), section 39A. | The State Government is given the power to establish a system of village watchmen or municipal watchmen. Rules are to be made under this section. He is given some police powers also. | Punishment is provided for those who withhold assistance to the watchman or for those who connive with the offender. |
10. |
Punjab Laws Act (4 of 1872), section 39B. | A duty is imposed on every person to assist a village watchman or headman. | Regarding the watchman, if he fails to do his duty, fine up to Rs. 500 can be imposed. |
Law Commission Thirty-Third Report
on
Proposed New Section 44A
of
The Code of Criminal Procedure, 1898 Minute of Dissent
by
Shri Rama Prasad Mookerjee
Member, Law Commission
1. In view of the fact that I am not in agreement with the conclusion reached by the majority of the Commission it becomes necessary to indicate here, in short, the grounds why in my opinion, appropriate additional provision, though not exactly in the form as proposed should be made in the Code of Criminal Procedure for the detection of and investigation about bribery as an offence.
I may indicate immediately that in paragraph 6 of the Majority Report of the Commission it is accepted that "the offence of bribery is a serious one need not be disputed., if therefore by an amendment the offence can be inserted in section 44 (or in a provision similar to section 44 to be put immediately after section 44) and such amendment is not open to any serious objection then the proposal for amendment deserves consideration".
2. The question referred to the Law Commission originated on a proposal made by the Central Bureau of Investigation that every public servant on being aware of the commission of an offence of bribery should be required to give information to an authority competent in law to investigate such offence and to assist in its investigation. A new section 44A was accordingly proposed to be added in the Code of Criminal Procedure. The Central Bureau had also sent up for consideration their draft of the proposed new section.
3. The first question that arises in this connection is whether a person, becoming aware of the commission of or the intention of any other person to commit offences punishable under some or other of the provisions of the penal law of the land, should be legally bound to furnish information about it to a magistrate or a police officer. Had the soundness and efficacy of such principle been accepted in India and elsewhere?
If the answer be in the affirmative, is there any policy to be followed, for including or excluding particular offences for attracting the said principle? What are the draw-backs or objections, if any, which need consideration?
The next question for consideration will be whether bribery as a crime has become so widespread and has assumed such a magnitude as would justify inclusion of a special provision in the Code of Criminal Procedure for its detection and punishment.
Fourthly, whether such legal duty should be imposed on the public in general or only on the public servants.
If the answer to the questions above mentioned be in the affirmative, what would be the appropriate provisions which should be made in the Code of Criminal Procedure?
As regards the first of the above issues there is no doubt that the principle is well established that the responsibility, for the detection of or in the investigation about certain crimes, particularly which may be a social menace or has become a public necessity, is cast not only upon the police but on others as well-in some cases on citizens in general and in certain other cases on particular sections thereof-thus to discharge the duty resting upon all citizens to maintain the law of the land.
5. That such responsibility in some form or other had been cast not only on persons holding public offices but in some cases on the public also from early times and in other parts of the world will be apparent if reference be made to the two following as illustrative ones only:-
(i) As pointed out recently by Lord Denning in the House of Lords [Sykes v. D.P.P., (1961) 3 All ER 33 (HL)].
"Ever since the days of hue and cry, it has been the duty of a man who knows that a, felony has been committed to report it to the proper authority so that steps can be taken to apprehend the felon and bring him to justice".
At Common Law concealment of a treason or felony was an offence of "misprision of treason" and "misprision of felony". No doubt bribery is not a felony, but a misdemeanour, at common law.
In the recent Criminal Law Act, 1917 of England, however, all distinctions between felony and misdemeanour have been abolished. Section 5(1) of that Act provides penalties for concealing arrestable offences or giving false information under certain limited circumstances.
"5(1) When a person has committed an arrestable offence, any other person who, knowing or believing that the offence or some other arrestable offence has been committed, and that he has information which might be of material assistance in securing the prosecution or conviction of an offender for it, accepts or agrees to accept for not disclosing that information any consideration other than the making good of loss or injury caused by the offence, or the making of reasonable compensation for the loss or injury, shall be liable on conviction on indictment to imprisonment for more than two years."
The present provisions, therefore, are wider in respect of all "arrestable offences" but limited in the application.
(ii) Under section 104 of the New York Criminal Procedure a person refusing to aid public officers is guilty of misdemeanour.
6. So far as India is concerned, legal duty was imposed from an early period, under the Anglo Indian Law, on Zamindars, Village Headmen, Accountants, owners of lands in the village and others to give information or assist the police in certain cases. Reference may in this connection be made among others to the following Regulations:
Bengal Regulations - VI of 1810, 1 of 1811, 111 of 1812, VIII of 1814.
Madras Regulations - XI of 1811, 1 of 1830.
7. If reference is made to the provisions as now found in the Code of Criminal Procedure (Act V of 1898) it will appear that in Part 3 of the Code, Chapter IV is headed
"Of Aid and Information to the Magistrates, the Police and Persons making Arrests."
Sections 42 and 44 make provisions whereunder public in general are required to assist Magistrates and the Police and to give information of certain specified offences.
Under section 43 when a warrant is directed to a person other than a Police Officer any other person may be required to aid in the execution of such warrant.
Section 45, on the other hand, imposes on only certain specified groups of persons amongst the public the legal duty of reporting of certain matters to a Magistrate or officer in charge of the nearest Police Station. These specified categories of persons were regarded from the days of the Regulations to be public servants or quasi-public servants and some were even particularised sections or even members of the general public.
Section 187 of the Indian Penal Code makes punishable an omission to assist a public servant when bound by law of give such assistance.
8. It need be mentioned, at this stage, that the number or nature of offences included in the successive Codes of Criminal Procedure of 1861, 1872, 1882 and 1898 and various Amending Acts, so far as the above sections were concerned, had varied from time to time. The circumstances under which new offences were being added in these sections from after the early sixties will be considered later in this note.
9. The same principle has been accepted in a large number of legislative enactments in India-both Central and State, creating new offences-and imposing at the same time on public servants or quasi-public officers or sometimes on members of the public the legal duty not only to assist, on requisition made by a competent legal authority, but, also in a number of cases, to make voluntary and spontaneous reporting to the proper authority as soon as a person becomes aware of such an offence having been committed or likely to be committed or of an occurrence necessitating police or official action.
Reference may be made to the following as merely illustrative cases and it is by no means an exhaustive list:-
(1) Madras Regulation XI of 1816 (Sections 8, 9, 11 and 18).
(2) Madras Sati Regulation 1 of 1830 (Section 3).
(3) Bombay Village Police Act VIII of 1867 (Sections 6 to 13).
(4) Sarais Act XXII of 1867 (Sections 7, 8, 14).
(5) Bengal Village Chaukidari Act VI of 1870 (Section 39).
(6) Punjab Laws Act IV of 1872 (Section 39A).
(7) N.W.F.P. Village and Road Police Act XVI of 1875.
(8) Oudh Laws Act XVIII of 1876 (Section 39).
(9) Treasure Trove Act VI of 1878 (Section 20).
(10) Madras Forest Act V of 1882 (Section 23).
(11) Criminal Tribes Act VI of 1924 (Section 25) now repealed.
(12) The Forest Act XVI of 1927 (Section 79).
(13) Foreigners Act XXXI of 1946 (Sections 6, 7).
(14) Mines Act XXXV of 1952 (Sections 23, 70, 85A).
(15) The Railways Property (Unlawful Possession) Act XXIX of 1966.
10. Thus there is no escape from the conclusion that imposition of a legal duty in appropriate cases either on the public in general or on particular public officers or groups of persons to assist in the detection or investigation of offences is based on sound principles and has already been accepted and given effect to in different systems of law including the Penal Laws in India.
On this general question, the other members of the Commission do not appear to hold a different view.
11. The second question for consideration will be, is there any policy followed for including or excluding particular offences for attracting the application of this principle, and also what are the draw-backs or objections, if any, to be taken into account?
12. The Central Bureau of Investigation had, no doubt, proposed to introduce a new section 44A and that after section 44 of the Code of Criminal Procedure but to determine the policy to be followed for the inclusion of particular offences or for deciding whether any other new class of offences may be added in Chapter IV of the Code it will not by itself, be helpful, far less conclusive, to categorise the list of offences as now found to be listed in section 44 of the Code. As will be noticed later there is a fundamental difference between the scope of section 44 and that of the proposed new section.
Moreover, reference to the frame and contents of sections 44 and 45 as they stood in the earlier Codes (from 1861) and the attempts made by the Amending Acts from time to time will show that new offences were being added or the provisions were being made more stringent or scope was being extended according to the exigencies of the social or administrative requirements and sometimes on political considerations at the particular period.
13. I would first proceed to consider the changes made in the successive Codes and by some of the Amending Acts and see how the contents of the present section 44 were arrived at.
In 1861 all persons were required to give information about only crimes relating to theft, robbery, dacoity mischief by fire and house trespass to commit serious offences (Vide section 138 of Act XXV of 1861).
It is significant that while grave offences were not included-some only of the more common and the then prevalent crimes in the rural areas were included-police service also was so inadequate at that period.
In 1872 some, of the offences against the State (Viz. as under sections 121 to 126 and 130 of the Indian Penal Code and murder and culpable homicide not amounting to murder (sections 302 and 304) were added to the list.
Reference to the then political condition in the country and the administrative needs as felt by the British rulers will explain why these offences against the State were included and the opinion expressed by distinguished members of the Executive Service about the omission of Murder in the earlier Code are significant. (Vide section 89 of Act X of 1872).
One of such remarks was that one was "not aware on what principle the offences referred to in this section have been selected; I do not understand why a person is to be bound to give information of the commission of "theft but not of murder"
In 1882 though no new offences were added to the list the language was made more emphatic and the provisions made stringent (Vide section 44 of Act X of 1882).
In 1894 the scope of the section was first widened by Amending Act III of 1894 for including some only of the offences even when committed outside British India-to include for administrative reasons offences committed in the Native States.
One would not overlook the fact that some only of the offences listed were mentioned-the contemporary papers explain the reason.
In 1894, by another Amending Act (Act VIII of 1894) certain offences against public tranquility (sections 143, 144, 145, 146, 147, 148 of the Indian Penal Code) were included.
Political agitation and manifestations of the political consciousness of the people led the then rulers to introduce these provisions.
In the Code of 1898 (Act V of 1898) section 44 was retained substantially in the same form as in 1894.
In Act III of 1914 various provisions of the Penal Code about offences relating to coin, stamps, and currency notes were added. Proceedings of the Legislature explain the grounds for this important innovation from the policy previously followed.
Reference to the respective Objects and Reasons, Reports of Select Committees when appointed and particularly the discussions in the Legislative Council are instructive and explain the topical reasons for the changes made.
14. It should not also be lost sight of that there is a material point of difference between the scope and application of section 44 of the Code of Criminal Procedure and the proposal as made by the Bureau.
In section 44 the duty of giving information is on the public in general, while the proposal under consideration is to impose the legal duty on only public servants.
As already noticed by me, sections 44 and 45 of the Code also differ in the same way-the former fixes the duty on the public, the latter on certain ascertained groups or categories.
If, therefore, a comparison is to be made, reference to section 45 will be more apposite than to section 44.
Reliance may in this connection be placed on the observations of the Joint Select Committee which considered "the 1921 Bill (Vide paragraph 17 ante of the Majority Report).
It is from this stand point that my view is that it is not very relevant or helpful to categorise the offences included in section 44 and compare the same with bribery as an offence for determining whether public servants should be under a legal duty to report cases of bribery.
15. I would now proceed to examine the provision of section 45.
So far as section 45 is concerned it should be noticed that in Act XXV of 1861 there was no provision corresponding to the present section 45.
In 1872 (in Act X of 1872) section 90 modelled on the principle as in the old Regulations was introduced imposing onerous duties and responsibilities on some specified public and quasi-public servants and certain classes of owners or occupiers of lands in villages, etc., to report to the nearest Magistrate or the officer-in-charge of the nearest police station any information which such person may have about various offences or certain matters so as to enable the police to start prompt investigation.
Reference has already been made to the views-expressed among others by experienced District Officials-(as preserved in the Legislative Department Proceedings relating to the 1872 Code) about the absence of any avowed policy in including or excluding certain offences in sections 69 and 70 (which were the precursors of the present sections 44 and 45 of the Code of Criminal Procedure). I respectfully agree with the views so expressed that there could possibly be no logic or policy for including theft and excluding murder in section 138 in Act XXV of 1861 and of including in section 90 of Act X of 1872 trivial as well as serious cases and imposing an onerous duty, not only on village officers but even on owners or occupiers of lands in the villages and even their agents to report to the police commission or intention to commit any non-bailable offence at or near the village.
In 1882 no substantial alterations were made except that information about the commission of Sati was not required to be reported as under the 1872 Act (Vide section 45 of Act X of 1882).
In 1894 a new clause was added making it incumbent on the persons specified to report-
"any matter likely to affect the maintenance of order or the prevention of crime for the safety of persons or property respecting which the District Magistrate by general or special order with the previous sanction of the Local Government has directed him to communicate information."
It would be noticed how wide the scope of this section had been made as under section 2 of Act III of 1894.
Provision was also made for information being given when the commission of or the intention to commit, at any place outside British India near such village, offences under sections 302, 304, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 457, 458, 459 and 460 became known to a person.
It will be noticed that under section 45 a larger number of offences were required to be reported by the specified persons than under section 44 of the Act. This is principally because section 44 requires every member of the public to make the report whereas under section 45 the responsibility is imposed only on certain specified groups of persons.
Under Act V of 1898 the scope of this section was further extended.
Under Act III of 1914 various offences relating to coins, stamps, Bank Notes etc. were brought within the scope of section 45 as was being done in section 44 also noticed earlier.
In 1955 by Act XXV of 1955 after the establishment of Panchayats the category of persons required to give information was widened by including-
"every member of a Village Panchayat, other than, a judicial panchayat."
16. It may be noticed in passing that section 45 had been introduced in other areas also and keeping in view the special requirements of the area and the particular period, additional crimes or restricted provisions have been made. To illustrate the policy followed, reference may be made to one of such cases when the provisions of the Code of Criminal Procedure were extended to Upper Burma, then under British Rule.
In Upper Burma the following had been substituted for section 45 by Upper Burma Village Regulation XIV of 1887 -
"A headman appointed under the Upper Burma Village Regulation, XIV of 1887, shall forthwith communicate to the nearest Magistrate or to the officer in charge of the nearest Police Station or military post, whichever is the nearer, any information which he may obtain respecting-
(a) the permanent or temporary residence of any notorious receiver or vendor of stolen property in his village;
(b) the resort to any place within, or the passage through his village, of any person whom he knows, or reasonably suspects to be, a dacoit, robber, escaped convict or proclaimed offender;
(c) the commission of, or attempt or intention to commit, within his village any of the following offences, namely (i) murder, (ii) culpable homicide not amounting to murder, (iii) dacoity, (iv) robbery, (v) offence against the Indian Arms Act XI of 1878, and (vi) any other offence respecting which the Deputy Commissioner, by general or special order, made with the previous sanction of the Commissioner, directs him to communicate information;
(d) the occurrence in his village of any sudden or unnatural death or of any death under suspicious circumstances.
Explanation.-In this section, village has the meaning assigned to the word in the Upper Burma Village Regulation, 1887".
17. As noticed by the Joint Committee which considered the Amending Bill of 1921-
"when the obligation to give information to the police 's laid on a restricted class of persons".
The same considerations as in the case of section 44 are not attracted.
In my view therefore, unless there be any over-riding consideration we need examine less strictly the desirability of imposing on particular groups of persons in respect of any particular crime, the responsibility of informing the police on the happening or the possibility of occurrence of such a crime.
The principle or policy to be followed in deciding whether a particular offence should or need be included under any of the sections in Chapter IV in Part 3 of the Code of Criminal Procedure is whether that offence has assumed that magnitude or character that to detect it and to bring the offender to trial the Police or the Magistrate requires the assistance of the public. This is in conformity with the imposition of a duty-
"resting upon all citizens to maintain the law of the land". [Russell on Crime (1964) Vol. I-page 167].
18. The next branch of the enquiry is whether there are any serious objections or obstacles in imposing such an obligation even on a restricted group of persons.
The principal difficulty, according to the majority view of the Commission, is that on such a provision being made the persons concerned will be faced with the problem of resolving a conflict between the duty to report and not to malign one's neighbour-"a delicate choice which should not be forced on the informant".
I do not think a public servant should find it difficult or even embarrassing to make the proper choice discharging a public duty and rise above all other considerations. Public servants need, and should have the proper sense of public duty and it will be a sad commentary on, and estimate of, the morale and standard of our public servants if one thinks otherwise.
The next difficulty referred to by the majority is the risk which a person will have to face when a wrong assumption is made by the informant and he is subsequently proceeded against by the person maligned.
This argument also, if accepted, will cut at the root of all the provisions contained in Chapter IV of the Code of Criminal Procedure and the principle and policy under which not only particular groups of persons but even the public in general are enjoined to assist the Police in the detection of certain crimes.
Once we accept that principle and policy, an examination of or reference to the general question about the risk which an information runs is, in my view, with great respect; not pertinent for arriving at the final decision on this occasion.
It is neither suggested nor is it the general policy that in respect of the commission of every offence every member of the public should be fixed with the legal duty of informing the police. As pointed out already various considerations come into play before the Legislature can or should impose a legal duty on the public or particular sections thereof to assist the police.
I would not, in that view, enter into a discussion about the legal aspect as discussed in the main report or what is or should' be the test or safeguards which need be introduced.
I need only refer to the fact that the case law discussed with reference to the liability or risk which ensues when a report made to the Police turns out to be erroneous or false may not all be attracted in the present case. Sufficient safeguards may be provided to avoid harassment of bona fide information being given. The responsibility is to be cast on the Police for proper enquiry and investigation after the Police is alerted. The object of the section will be deemed to be fulfilled after information has reached the Police.
If the difficulties envisaged were to be accepted as a general principle over-riding the policy and principles underlying the sections in Chapter IV, the only logical conclusion will be to omit altogether the responsibility of the public or sections thereof, irrespective of the question whether the offence committed is serious or of a particular category.
Whether there may be any special difficulty or objection for including bribery, if it is decided to be included at all, will be considered later.
19. The next question for consideration is whether bribery has become so widespread and has assumed such magnitude as to warrant inclusion of a special provision requiring assistance of the public, or a particular section thereof, in the detection thereof.
It is not necessary for me to discuss this in great detail as in paragraph 6 of the Majority Report it has been accepted, as pointed out in the opening paragraph of this Minute. It is conceded that the legislature also has in recent times emphasised the seriousness of the position and introduced special and stringent provisions as in the Prevention of Corruption Act 1947. Since then the proposals for the appointment of Vigilance Officers and of Lokpals have gained acceptance by all sections.
20. It is therefore next for consideration whether the responsibility should be cast on the public in general or on public servants as proposed. At this stage the imposition of the duty may be on the public servants. If this can assist to control this widespread crime in the public administration that will be an example in other spheres. It is not necessary at the initial stage to include all members of the public.
21. We may now consider whether apart from the general objections adverted to already there are any special objections or difficulties in introducing bribery in the list.
It has been pointed out by the Majority that bribery is not analogous to the offences included under section 44. I have already noticed that in view of the material difference between section 44 and the present proposal such differentiation is not very apposite. If, however, the scope of the present proposal be compared with the offences included in section 45 of the Code, it will appear to be more relevant and further the offences included in section 45 are much wider and some of those are more trivial than the offence of bribery of the magnitude it has now assumed. References to analogous provisions in other laws demonstrate the position that such duty is not limited to the maintenance of order or security.
It is next noticed that it will be difficult for a layman to determine whether the offence of bribery has been committed-as a "host of ingredients" are required to prove bribery.
If the various sections of the Penal Code, dealing with each of the offences included in section 45 of the 'Code of Criminal Procedure', are analysed, it will be difficult to differentiate between the ingredients of bribery with those others. To a public servant, in my view, it is not difficult to know when bribes are being offered or being taken- it is the majority of cases so obvious.
22. When this proposal was before the Commission, references had been made to the different High Courts and Governments for expression of opinion on the draft as forwarded by the Bureau.
It is significant that most of them (twelve, including two High Courts, some of the Judges of two other High Courts, four Union Territories, two State Governments and two Public bodies) are in favour of some provision being made.
Three of the High Courts, some of the Judges of another Court, and one of the State Governments intimated that they had no comments to make.
Two other High Courts and some Judges of a High Court agree to the proposal subject to certain modifications in the form.
Two Judges of a High Court are in favour of the proposal provided public officers are not victimised for making disclosures against their superior officers.
Some of the Judges of two High Courts even propose that every member of the public should be brought under the proposed obligation.
If reference is made to the detailed opinions as indicated above it will appear that those in favour outweigh the objections raised by the majority of the Judges of only one High Court, or by the Administration of only one Union Territory, and only by two State Governments and the minority opinion expressed by one or more Judges in only two of the High Courts.
23. I am fortified in my view by the overwhelming majority of the opinions received by the Commission.
24. As I had indicated in the beginning, decision has to be made to include "bribery" in the category of one or other of the sections in Chapter IV.
The scope of our enquiry is not limited to the draft of the new section as proposed by the Bureau.
25. I should further point out that in the Majority Report also, safeguarding of the public Interest and the urgency created in the mind of public servant to treat corruption as a social evil it has not been disputed and lost sight of. But it is held that regard must be had to the various difficulties referred to in the earlier part of that report.
It is further, however, observed (paragraph 56 in the Main Report):-
"Notwithstanding this objection the proposal to add the offence of bribery and corruption would still deserve consideration, if there were counter-balancing considerations, such as a substantial advantage to be gained in practice. We are not sure, however, whether the obligation proposed to be imposed would actually be enforced in practice".
Reliance is placed on certain observations in Ram Balak Singh v. State, AIR 1964 Pat 62 (65).
To put it in other words it is held that the introduction of a provision as proposed was not likely to be of any practical benefit or serve the purpose as anticipated.
It should be pointed out that the relevant facts in the decision referred to were that a person had been mercilessly killed on a public road and two persons who subsequently deposed during the trial had not discharged the legal obligation cast on them under section 44 of the Code of Criminal Procedure and given information to the nearest Magistrate or Police Officer (the Police Office was very near) although they on their own admission had appeared immediately after the murder had taken place.
The learned Judges had criticised the inaction of the Police in not proceeding against the said two persons under section 202 of the Indian Penal Code. The Court further observed with reference to section 44 of the Code of Criminal Procedure.
"The provisions have been designedly made so that crimes are brought to book and not suppressed by persons knowing about them. The authority should make some use of the aforesaid provisions so that the object of the Legislature in enacting the provisions, is not lost completely".
The learned Judges did not question the necessity and the appropriateness of the provisions contained in section 44 of the Code. On the other hand the police was called upon to make use of the provisions made.
The inaction or the failure of the Police to make use of the provisions which were not only considered by the Legislature to be useful and beneficial but were considered to be sound from the juristic point of view did not justify the deletion of such a provision from the Code. Such failure or omission by the defaulting party should be avoided.
I do not share the view that the obligation proposed to be imposed on Government servants would not be enforced in practice in spite of the fact that there is a public demand for eradication of the evil of widespread bribery.
As I have indicated already, the proposal is not "a very wide provision" but a restricted one for making an attempt to check a public menace now admitted to be prevalent. Accordingly the limited provisions will not attract the criticism by the Court of Appeal in England (made in a different context) relied upon in paragraph 54 ante.
On analogous grounds the observations of the Criminal Law Commissioners in 1940 (also referred to in paragraph 54 ante) are not wholly apposite. The present proposal does not "require every one, without distinction, as to the nature and degree of the offences to become an accused".
As it has been noticed already the objections to and criticism based on the provisions as in the wide provision of section 44 of the Code should not by themselves be applied to negative the restricted and limited scope of the proposal as before the Commission. As I have pointed out already the provision in section 45 of the Code would support the acceptance of the proposal now made to include bribery within the limited scope of provision similar to section 45.
26. In addition to the proposal as discussed above a further suggestion has been made about the disclosure of facts in statements made in the course of investigations in respect of offences connected with bribery.
Whether section 161(2) needs any amendment may have to be considered only after the first part of the suggestion is accepted. I do not think that it is necessary to deal with that part of the suggestion at this stage.
27. To summarise the conclusion reached by me it may be stated that -
(i) bribery as a crime has become so widespread and has assumed such a magnitude that it would be proper to include a special provision in Chapter IV of the Code of Criminal Procedure for its detection and punishment;
(ii) the legal duty of informing the occurrence of such an offence should not at this stage be imposed on the public in general but only on the public servants;
(iii) awareness of the commission of offence should be the personal knowledge of the informant in course of his duties as a public servant;
(iv) from the category of public servants, Judicial Officers should be excluded (as has been, provided by the 1925 Amendment in the case of a Judicial Panchayat); and
(v) a modified draft should be circulated for eliciting public opinion before the present proposal can be rejected.
28. Before I conclude this Minute I would refer to the following observations by Vanderblt C. J. (in The Challenge of Law Reform, page 169).
"The reworking of our law must be based on present economic, political, social conditions and apparent trends into the future. To the analytical and historical study of the law must be added the Sociological approach and because experiments are not as available in the Law as they are in the natural sciences, we must resort to the comparative study of the law".
To meet the local or tropical social requirements the Law-Makers need not be circumscribed by-
"old modes of trial" or to have in mind so much the reliance in the early centuries".
While considering the necessity of reconsidering certain old rules of evidence, the observations by Lord Chief Justice Coleridge may also not be forgotten when modifications in or reform of law is being considered-
"Truth was investigated by rules of evidence so carefully framed to exclude falsehood, that very often truth was quite unable to force its way through the barriers erected against its opposite,......Non-suits were constant, not because there was no cause of action, but because the law refused the evidence of the only persons who could prove it".
(37 Contemporary Review, 798).
Rama Prasad Mookerjee
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