Report No. 47
9.36. Provision as to bail in major Acts.-
For ready reference, we give below the provisions as to bail as found in the major Acts:-
(1) Central Excises Act, 1944.-Section 20 deals with the procedure to be followed by the officer-in-charge of police station. The officer-in-charge of a police station to whom any person is forwarded under section 19 shall either admit him to bail to appear before the magistrate having jurisdiction, or in default of bail forward him in custody to such magistrate.
(2) Foreign Exchange Regulation Act, 1947.-Under section 19B(3), where any officer of Enforcement has arrested any person under sub-section (1), he shall, for the purpose of releasing such person on bail or otherwise, have the same powers, and be subject to the same provisions as the officer- in-charge of a police station has, and is subject to, under the Criminal Procedure Code.
(3) Essential Commodities Act, 1955.-Section 10A provides that notwithstanding anything contained in the Code of Criminal Procedure, 1898, every offence punishable under this Act shall be cognizable and bailable.1
(4), (5) and (6)-The Income-Tax Act, the Wealth Tax Act, 1957 and the Prevention of Food Adulteration Act, 1954.-These do not contain any specific provisions regarding bail.
(7) Customs Act, 1962.-Under section 104(3), where any officer of customs has arrested any person under sub-section (1), he shall, for the purpose of releasing such person on bail or otherwise, have the same powers and the subject to the same provisions as the officer-in-charge of a police station has and is subject to under the Code of Criminal Procedure, 1898.
(8) Gold Control Act, 1968.-Under section 68(2) of the Act, any officer who has arrested any person under this section shall, for the purpose of releasing such person on bail or otherwise, have the same powers and be subject to the same provisions as the officer-in-charge of a police station has, and is subject to, under the Code of Criminal Procedure, 1898.
1. As to amendment of section 10A, Essential Commodities Act, see Chapter 15, infra.
9.36A. Parties to be heard as to sentence.-
We consider it necessary that in trials for these offences, both the prosecution and the accused should be heard as to the sentence to be passed. The Criminal Procedure Code Bill1 provides for hearing the accused; but the provision in the present case should be as above.
1. Criminal Procedure Code Bill, 1970, clause 241(2) and 256(2).
9.37. Limitation for prosecutions.-
The question of having a period of limitation for prosecutions for the offences in question has been raised by some commercial bodies. The reasons in favour of and against prescribing limitation for criminal prosecutions, are well known. The Law Commission had also occasion1 to consider the question of limitation with reference to offences under the Penal Code.
1. See 42nd Report (Indian Penal Code), Chapter 24.
9.38. As one author has pointed out1, "at one time or another, approximately 91 per cent. of the adult population have committed crimes punishable with imprisonment. If they have escaped being convicted, it is due partly to their good luck and partly to other circumstances". If, after a specified period, they are immune from prosecution, they would have peace in mind. The main reasons for the existence of law of prescription for civil actions will apply with equal force for criminal proceedings also.
The Law of limitation is essentially a law of peace and repose. The person who has committed a crime and is not prosecuted for the crime for several years, must have mental peace and repose and should not be under continuous apprehension that at any time he may be criminally prosecuted. After some time, evidence in support of defence may also be lost.
1. James Brands Criminal Law in the Seventies- Some Suggestions, (June 1970) New York State Bar Journal.
9.39. At present, none of the major Acts with which this Report is concerned, contains a provision for limitation for prosecutions. Provisions as in section 40(2) of the Central Excise Act apply to suits challenging action under the Act, and not to prosecutions. The matters, however, is of some difficulty, and could be considered better after a decision is taken about amendment of the Penal Code1 in this respect, and after the working of the amended provisions is observed.
1. See 42nd Report Indian Penal Code, Chapter 24.
9.40. Tender of pardon and probation.-
Besides the above points, a few other questions of a procedural nature arise, which are discussed separately.1
1. (a) Probation, Chapter 10.
(b) Pardon, Chapter 13.
(c) Sanction or complaint, Chapter 11.