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Report No. 156

Clause 17

12.12. The existing section 52 defines the word "good faith" and section 52A defines the word "harbour". As per this clause, these two sections are to be substituted by new sections. In the existing section 52 the definition of "good faith" is different from that which we find in the General Clauses Act. In the General Clauses Act the term ':good faith" is defined in the following terms-

"A thing shall be deemed to be done in good faith where it is in fact done honestly whether it is done negligently or not."

It can be seen that so far as the other laws are concerned, the definition in the General Clauses Act appears to lay down that honesty of purpose alone is sufficient to make an act bona fide. Under the Penal Code the emphasis is on due care and attention. The Supreme Court in Harbhajan Singh v. State of Punjab, 1965 SCR 235-243, while reversing the judgment of the Punjab High Court, however, observed "the element of honesty which is introduced by the definition prescribed by the General Clauses Act is not introduced by the definition prescribed by section 52 of the Code".

It can also be noticed that the language of the definition in section 52 is in the negative form as compared to the language in the General Clauses Act. From the observation of the Supreme Court it can be seen that the Code does not expressly exclude the requirement of honesty. However, the Code stresses the aspect of care and attention but honesty is implicit in the idea of good faith. Therefore, taking the overall view a substitution of section 52 is an appropriate one.

The existing section 52A was introduced in the year 1942 and lays down that except in sections 130 and 157 in the case in which the harbouring is given by the wife or husband of that person, the word "harbour" includes supplying a person shelter, food, drink, etc. The Law Commission noticed that special mention of sections 130 and 157 in the general definition is inappropriate and section 52A has to be revised. A new section sought to be introduced under this clause in the Bill reads as follows-

"52A. Harbouring - The expression 'harbouring' means giving shelter to a person, and includes supplying a person with food, drink, money, clothes, arms, ammunition or means of conveyance or assisting a person in any manner to evade apprehension."

It can be seen that the expression harbouring in the proposed section is clear and explicit. Therefore, we recommend a substitution of sections 52 and 52A.

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