Report No. 156
12.10. The existing section 43 defines the expressions "illegal" - "legally bound to do" and lays down that the word "illegal" is applicable to everything which is an offence or which is prohibited by law or which furnishes ground for a civil action and a person is said to be "legally bound to do whatever is illegal in him to omit." Under this clause in the Bill, this section is sought to be substituted by a new section having two clauses. The proposed section is in the following terms-
"43.(1) A thing is "illegal" if it is an offence or is prohibited by law or furnishes ground for a civil action.
(2) A person is "legally bound to do" a thing when he is bound by law to do that thing or when it is illegal in him to omit to do that thing."
It can be noticed that according to the definition in the existing section a person is legally bound to do only what is "illegal" in him to omit and the word "illegal" is applicable to everything which is an offence or which is prohibited or which furnishes ground for civil action.
The Law Commission also noticed that these definitions are in a circle and have led to some difficulties as is seen from decisions rendered by the courts including the privy council in Ali Mohomed Adamalli v. Emperor, AIR 1945 PC 147, it was recommended by the Law Commission in the 42nd Report to omit the definition of the expression "offence" in the Penal Code and go by the wider definition of the word in the General Clauses Act as it would obviate the difficulty pointed out by the courts.
However, there may be situations creating difficulties if the omission to do what is enjoined by law is not made an offence under the particular Act in question. The Law Commission in its 42nd Report observed in other words under the present definition of the term "legally bound to do" unless a law which enjoins a person to do a particular thing also lays down, in so many words, that the person shall not omit to do that thing, then the person cannot be considered "legally bound to do" that thing. In this view a new section is sought to be substituted which appears to be sound.