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Report No. 156

Clause 14

12.09. Under this clause it is proposed to substitute section 40 by another section. The existing section 40 has three clauses giving three different definitions of the expression "offence". The first clause provides that except in the chapters in sections mentioned in clauses 2 and 3, the word "offence" denotes "a thing made punishable by the Code". Clause 2 lays down that the offences covered by Chapters IV and VA and also several sections enumerated therein, the word "offence" denotes "a thing punishable under the Code or under any special or local law".

According to clause 3, the word "offence" in respect of the eight sections mentioned therein has "the same meaning when the thing punishable under the special or local law is punishable under such law with imprisonment for a term of six months or upwards, whether with or without fine."

It has to be noted that the expression "offence" has a definite meaning. The existing section lacks clarity nor is it conducive. The Law Commission in its Report pointed out that whenever a question arises as to the meaning of the word "offence" appearing in a particular section of the Code, one has to go to section 40 and go to the clauses to find out where the section in question is mentioned. In the General Clauses Act, section 3(38) says that "offence" shall mean any act or omission made punishable by any law for the time being in force.

The language in this definition is precise and would be sufficient to cover all the offences under the Penal Code since they are a result of an act or omission made punishable under the court. However, there are some sections having the expression "offences punishable with death or imprisonment for life". The Law Commission suggested that there should be a separate definition for capital offence incorporated in section 40 which has to substitute the existing section. The expression "offences punishable with death or imprisonment for life" occur in many sections like 115, 118, 120B, 388, 389, 506, etc.

It was suggested by the Law Commission and as proposed in the Bill, a new section 40 shall contain the definition of capital offence wherever the expression "offences punishable with death or imprisonment for life" occurs. Even this expression has to be substituted by the words "capital offence" which would be more specific and from the Bill we find in all those sections the expression "capital offence" had been used. The amendment by way of substitution of section 40 as proposed under clause 14 defining capital offence is an appropriate change.

In our considered view and as noted already, to make I.P.C. as a self-contained Code, it would be better to have the definitions of the relevant words in I.P.C. itself. The section 40 as mentioned above is sought to be substituted on the ground that the word "offence" is clearly defined in the General Clauses Act and the definition of offence in the existing section 40 defining offence lacks clarity.

In that view of the matter and to provide a definition in respect of the offences punishable with imprisonment for life and death, section 40 is to be only substituted by the new section defining capital offences. Thereby if one want to know the section, one has to refer to the General Clauses Act which in the process while adopting may not be necessary. Therefore, it is better to have the meaning of the offence as defined in the General Clauses Act also incorporated in that new section 40 which shall read as follows:-

"Section 40 - Offences which mean any act or omission made punishable by any law for the time being in force and "capital offence" means offence for which death is one of the punishments provided by the law."

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