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Report No. 156

Clause 31

12.23. Proposed new section 94.- The existing section 94 lays down that except murder and offences against the state Punishable with death, nothing is an offence which is done by a person who is compelled to do it by threats which at the time of doing it, reasonably cause apprehension that instant death to that person will otherwise be the consequence. However, a rider is there to the effect that the person doing the act did not of his own accord place himself in the situation.

This section embodies the principle that a person compelled by force or threat of force to do any act should not be punished for that act. However, two exceptions are also there. The Law Commission in its 42nd Report suggested that such defence of duress can be usefully extended so as to include the threats to "near relatives" enumerating them as parents, spouse, son or daughter. The two exceptions and also the embargo are provided for in the he new section.

A view has also been expressed that a person may not be close or near relative but may be one in whom a person compelled is very much interested and that the concept of "person interested in" is not new to the I.P.C. as we find the same embodied in section 97, I.P.C. We are of the view that such an inclusion of threats to any other person in whom the person committing the act is interested would be very wide and may not be an acceptable concept from the point of view of the principles of jurisprudence.

In view of the recent threats of kidnapping of children for ransom, advancing threats to cause the death or grievous bodily injury to the victim have become a common feature. Therefore, the inclusion of threats to near relatives like parents, son, daughter, etc. would adequately serve the purpose.

It may be noted that two exceptions in the existing section 97 are murder and offences against the state. Further the threat must be. of instant death to the person made to commit the offence. To that extent he gets the benefit under this provision. Section 99, I.P.C. enumerates the restrictions to the exercise of right of private defence.

Section 100 enumerates the circumstances under which the right of private defence of the body extends to causing the death. Exception 2 to section 300 is to the effect that culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence, exceeds the power given to him and commits the death of the person without pre-meditation and without any intention of doing more harm than is necessary.

A question may arise as to what would be the nature of offences when a person under threat causes death as contemplated under section 94 or under the new section to be substituted. Would it be culpable homicide not amounting to murder under certain circumstances? Causing death prima facie amounts to culpable homicide.

The question is whether it amounts to murder or not depends on the attendant circumstances. If they satisfy the requirements of section 300, then it would be murder. This aspect would be a matter for consideration of the court while extending the benefit of section 94. With these clarifications, we recommend substitution of section 94.

Proposed new sections 94A and 94B.-Under this clause two more new sections 94A and 948 are also sought to be inserted. Section 94A seeks to cast prima facie absolute and strict liability upon a company and punish the company concerned whenever any employee commits an offence in the course of furthering the affairs of the company.

It also specifies that any act constituting such offence must either be authorised, requested, commanded, ratified or facilitated by any violation of a duty to maintain effective supervision by the management, the board of directors or any other person who is placed in a position of control over other employees or in the evolution of company policy and affairs.

Section 94A(2) discusses the class of offences in which the existence of a culpable mental state is a condition and fixes absolute liability upon the company for the offence committed by an employee whatever his position may be.

Section 94B is supplementary to section 94A under which the persons who were in charge of or were responsible to the company for the conduct of the business of the company, are also made constructively liable for the offence committed by the employee and the whole concept underlying the two provisions is that the persons who are in charge or control of the company affairs and their employees should also be made constructively liable which denotes that they are expected to exorcise the duty of loyalty and the duty of care in managing the affairs of the company and if they in any manner authorise, request, command, ratify or facilitate an offence of that nature by an employee by violation of the duty, should be equally responsible.

We have gone through every limb of the two provisions carefully. In the several workshops, detailed discussions and deliberations were there about the desirability of incorporating these two new provisions in the Indian Penal Code which is substantive loss. It needs no mention that if any of the offences under I.P.C. are committed then the provisions of the I.P.C. may apply and the concept of constructive liability would be taken care of by the relevant provisions including abetment, attempt and conspiracy.

That apart, the offences that could be envisaged being committed with reference to the affairs of the company would be altogether of a different nature and some of them could be statutory. There are several other special enactments which to a large extent cover many such offences which could be capable of being committed by the companies.

Acts like MRTP Act, Essential Commodities Act, FERA Act, Prevention of Adulteration Act, Fertilizers Act, are some such. With regard to the employment there are other labour laws including Shops and Establishment Act, Factories Act etc. That apart, in the new emergence of globalisation, liberalisation of trade and commerce, insertion of such provisions in I.P.C. may prove to be counter-productive to the growth of business and any regulation that impedes the production and productivity and also creation of wealth should be discouraged as in the final analysis the overall growth of the nation's wealth would be impaired.

Therefore, we are of the view that sections 94A and 94B should be deleted from clause 31. If necessary we may add some of such provisions in the other enactments including the Companies Act, which may be strengthened to meet such a situation.

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