Report No. 33
8. History of section 44.-
Some idea of the original object of the section can be obtained from the corresponding section in the 1861 Code, which is quoted below1:-
"138. All persons to give information of offences. It shall be the duty of every person who is aware of the commission of any offence made punishable under section, 382, 392, 450, 456, 457, 458, 459, or 460, of the Indian Penal Code, to give information of the same to the nearest Police Officer, whenever he shall have reason to believe that if such information be withheld, the person who committed the offence may not be brought to justice, or may have his escape facilitated."
In the latter half of the section, the words "if such information be withheld the person may not be brought to justice or may have his escape facilitated" seem to show the dominant consideration.
1. Section 138, Code of Criminal Procedure, 1861 (25 of 1861).
9. This is borne out by the history of the offence in England. As was observed by Lord Denning1 -
"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.".
1. Sykes v. D.P.P., (1961) 3 WLR 371 (377) (HL).
10. When the Code of 1872 was under consideration offences under sections 302, 303, 304, Indian Penal Code were discussed. The proposal to add these offences seems to have been made after suggestions were received by the Legislative Department. Offences under sections 121 to 126 and 130, Indian Penal Code were also added in 1872. The Select Committee, in its Report dated 12th March, 1872,1 stated:-
"We have added murder and offences against the State to the list of offences which, it is the duty of the public to report.".
1. Report of the Select Committee dated 12th March, 1872; Proceeding of the Legislative Department regarding the 1872 Code, Appendix P, para. 22.
11. Some of the important comments1 made in 1872 may be quoted.
(i) Officiating Judicial Commissioner, Oudh
(Mr. C. Currie, S. No. 251 in the file, para. 31).
"It is suggested that sections 302, 304, 306, 308, 311, 317, 400 and 401 be added to the list in this section. Mr. Sparks observes that he is not aware on what principle the offences referred to in this section have been selected; but in his opinion murder should be one of those offences regarding which any person acquainted with the fact would be bound to give information. I certainly think that sections 302 and 304 should be added; for I do not understand why a person is to be bound to give information of the commission of a theft but not of a murder. The other sections could not in my opinion, be advantageously included.".
(ii) Dr. C.D. Field,2 Esq., LL.D. Barrister-at-Law, Officiating Judge of Chittagong suggested as follows:-
"Section 69.-I would add to this list sections 302 and 304 of the Penal Code. I would also incorporate the old Bengal Regulations which make it incumbent on Zamindars, etc., to give information in certain cases. See Regulations VI of 1810, I of 1811, III of 1812 and VIII of 1814....".
(iii) Mr. Barkley3 (paragraph 20 of his letter, quoted by the committee appointed by the Punjab Government to report on the Revised Bill, in its letter dated 25th May, 1871): "Section 69 appears unduly to limit the obligation of members of the general public. For example, murder is not one of the offences enumerated.".
1. Legislative Department, Proceedings regarding the 1872 Code, Nos. 141 to 346 (National Archives).
2. No. 262 in the Legislative Department Proceedings relating to the 1872 Code.
3. Legislative Department Proceedings relating to the 1872, Code, Appendix II.
12. Section 44, as it stood in 1882, was as follows:-
"44. Public to give information of certain offences.- Every person, whether within or without the Presidency-towns, aware of the commission of, or of the intention of any other person to commit, any offence punishable under the following sections of the Indian Penal Code, namely, 121, 121A, 122, 123, 124, 124A, 125, 126, 130, 302, 303, 304, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 456, 457, 458, 459, and 460, shall, in the absence of reasonable excuse, the burden of proving which shall lie upon the person so aware, forthwith give information to the nearest Magistrate or police officer of such commission or intention."
13. By Act 3 of 18941, the following amendment was made in sections 44 and 45.
1. The Indian Criminal Law Amendment Act, 1894 (3 of 1894).
'Code of Criminal Procedure, 1882.-1. Addition to section 44 of Code of Criminal Procedure, 1882.--To section 44 of the Code of Criminal Procedure, 1882, the following shall be added, namely: -
"Any act committed at any place out of British India which, if committed in British India, would be punishable under any of the following sections of the Indian Penal Code, namely, 302, 304, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 457, 458, 459 and 460, shall be deemed to be an offence for the purposes of this section.".'
2. Addition to section 45 of same code.- In section 45 of the Code of Criminal Procedure, 1882 (X of 1882), the following shall be added after clause (d) and substituted for the explanation, namely: -
"(e) the commission of, or intention to commit, at any place out of British India near such village any act, which, if committed in British India, would be an offence punishable under any of the following sections of the Indian Penal Code, XLV of 1860 namely, 302, 304, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 457, 458, 459 and 460.".
In this section -
(i)"village" includes village-lands; and
(ii) the expression "proclaimed offender" includes any person proclaimed as an offender by any Court or authority established or continued by the Governor-General in Council in any part of India in respect of any act, which, if committed in British India, would be punishably under any of the following sections of Indian Penal Code (XLV of 1860), namely, 302, 304, 382, 392, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 457, 458, 459 and 460.".
By Act 10 of 18941 the following amendments were made to sections 44 and 45: -
1. The Code of Criminal Procedure (Amendment) Act, 1894 (10 of 1894).
"1. Amendment of section 44, Act X, 1882.- In section 44 of the said Code the figures "143, 144, 145, 147, 148" shall be inserted between the figure "130" and the figure "302".
2. Amendment of section 45, Act X, 1882 and addition of a section thereafter.- (1) For the part of section 45 of the said Code beginning with the words "Every village-headman" and ending with the words "under suspicious circumstances" the following shall be substituted, namely:-
"45. Village-headman, accountants, land-holders, and others bound to report certain matters.- Every village-headman, village-accountant, village-watchman, village-police-officer, owner or occupier of land, and the agent of any such owner or occupier, and every officer employed in the collection of revenue or rent of land on the part of Government or the Court of Wards, shall forthwith communicate to the nearest Magistrate or to the officer in charge of the nearest police-station, 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 any village of which he is headman, accountant, watchman or police-officer, or in which he owns or occupies land, or is agent or collects revenue or rent;
(b) the resort to any place within, or the passage through, such village of any person whom he knows or reasonably suspects, to be a thug, robber, escaped convict or proclaimed offender;
(c) the commission of, or intention to commit, in or near such village any non-bailable offence or any offence punishable under sections 143, 144, 145, 147, or 148 of the Indian Penal Code XLV 1860.
(d) the occurrence in or near such village of any sudden or unnatural death or of any death under suspicious circumstances;".
(2) In the same section, after clause (e), added by section 2 of Act III of 1894, the following shall be inserted, namely:-
"(f) any matter likely to affect the maintenance of order or the prevention of crime of the safety of person or property respecting which the District Magistrate, by general or special order made with the previous sanction of the Local Government, has directed him to communicate information."
14. In the Bill of 1897 as introduced, the only change proposed in section 44 was the addition of sub-clause (2), as follows:-
"(2) For the purposes of this section, the term "offence" includes any act which would constitute an offence if committed in British India.".
In the statement of Objects and Reasons1 under clause 44, the following reasons were given:-
1. Statement of Objects and Reasons, dated 14th October, 1897.
"Clause 44.-The new clause is necessary in regard to the giving of information of offences committed of intended to be committed in Native States, especially on the border land of British India.".
15. In the Report of the Select Committee, on the 1897 Bill, this change was maintained (with certain verbal alterations). Clause 44(2) as approved by the Select Committee for the 1897 Bill, stood as follows:-
"(2) For the purposes of this section, the term "offence" includes any act committed at any place out of British India which would constitute an offence if in British India.".
In the Code as passed in 1898, section 44(2) was enacted in the form in which it was approved by the Select Committee.
16. It may be of interest to note that clauses 7 and 8(i) and (iv) of the Amendment Bill1 of 1914 proposed the addition of several offences to section 44 and section 45(1)(e), including, (in both cases) section 489A to 489D, Indian Penal Code and offences under Chapter 12, Indian Penal Code (Stamps and Coins), excluding sections 239, 240, 250, 251 and 254, Indian Penal Code. The reasons were thus given:-
"Clause 7 (section 44).-It is considered desirable to place upon the public obligation to give information regarding the more serious offences relating to coin and government stamps and the counterfeiting, etc., of currency and bank notes."
"Clause 8 (section 45).-The second and fourth amendments are similar to those covered by clause 7."
1. Clauses 7 and 8, Code of Criminal Procedure (Amendment) Bill, 1914 "Gazette of India", March 28, 1914, Pt. V, pp. 101-102, 119 [Clauses 7 and 8 (1) (iv)].
17. The Lowndes Committee (which scrutinised the 1914 Bill) retained these particular amendments1. But the Joint Committee which examined the 1921 Bill made these observations on clauses 9 and 10 of the 1921 Bill (pertaining to sections 44 and 45)2 -
"Clauses 9 and 10 (sections 44 and 45).-Some of our non-official members deprecated any extension of the scope of section 44, and on the whole, in view of the fact that prosecutions for contravention of the provisions of the section are rare, we thought that the matter was not one of great importance. We have, therefore, deleted clause 9.
We are agreed, however, that the same considerations do not apply to section 45 where the obligation to give information to the police is laid on a restricted class of persons, and we have maintained the additions made to clause (e) of sub-section (1)
1. Report of the Lowndes Committee (23rd December, 1915), Appendix B, Notes on clauses 7 and 8, [Government of India, Legislative Department, Assembly and Council-Proceedings, October 1923, Nos. 1- 54, (National Archives of India)].
2. Report of the Joint Committee (26th June, 1922), Government of India, Legislative Department, Assembly and Council-A, Proceedings, October, 1923, Nos. 1-54, (National Archives of India).
Back
