Report No. 29
38. Correct approach.-The correct approach to the problem seems to us to have been well expressed in a comment which we received from one of the High Courts on the proposals under consideration. We quote the relevant portion in extenso1:-
"In their Lordships' opinion, the proposal of the Committee to include these anti-social offences in the Indian Penal Code does not appear to be practicable, and, if followed, will create innumerable difficulties, apart from marring the structure of the Penal Code.
Their Lordships further observe, that the Indian Penal Code deals with such acts against persons and their property as are universally accepted as injurious in all civilized societies and (with) acts which offend against the fundamental principles on which (the) existence of human beings as a society rests. These fundamentals are more or less of a permanent nature, and will endure for a long time to come. In their Lordships' view, the offences dealt with in the Indian Penal Code are of a different nature, and have a different content, from social offences, and it would not be proper to include anti-social offences in the Indian Penal Code.
The Preamble of the Indian Penal Code also shows that it was intended to be a general Penal Code for India. It was never intended, as section 5 of the Act shows, to affect any special or local law by the enactment of the Penal Code. The Opium Act, the Gambling Act and a number of special and local laws were and are in force, which not only constitute but also punish some types of acts under circumstances mentioned therein, and that method of dealing with offending acts of a special nature or acts which require to be specially considered and dealt with, has been found to be working satisfactorily. Sometimes, while dealing with particular offences, it has been found necessary to provide for particular procedure or special rules of evidence also.
Provisions for special sanction before starting investigation and prosecution, for raising presumption of guilt, for awarding minimum sentences, etc., have been made in some special enactments, e.g. Prevention of Corruption Act, Prohibition laws, etc. The Penal Code, besides giving its own general explanations, definitions and general exceptions, divides into and deals with; categories of acts constituting offences on their basic nature, e.g. offences against the State, against public tranquility, offences relating to public servants, affecting public health and morals, affecting the human body, offences against property, etc. Most of the principal offences defined and made punishable under the Penal Code have, unfortunately, continued to be committed and punished, but, except in a few cases (almost negligible), the occasion to delete any of them as obsolete has so far not arisen.
On the other hand, offences of new and complex types have come to the forefront, the nature and the number of the offences constituting the basic structure of the Penal Code remaining unaffected. These offences have now assumed such proportions that it has become necessary to deal with them on a more scientific basis and to incorporate them into the penal law of the land. But, as stated before, such offences require special treatment and procedure in their trial, and, in their outer forms, are short-lived, though they reappear in different and perhaps more complicated guises later on. These offences being the outcome of changed and changing social conditions would require repeated legislative attention, and therefore, it would be appropriate if they are made the subject-matter of special legislation while the penal law of the land, i.e. the Indian Penal Code, should be left substantially in its present form."
1. Punctuation marks have been added at a few places.