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Report No. 47

IX. Amendments common to more than one Act1

(1)(a) Offences under the Acts in question-except the Wealth Tax Act and the Income-tax Act,-should be tried by Special Judges to be appointed under a special Act creating special courts for trying these offences.2

(b) In such trials, the Special Judge may, for reasons to be recorded, refuse to summon any witness, whose evidence will not be material.2

(c) If, in any trial for an offence under the Act, it is found that the accused has committed an offence whether or not such offence is directed to be tried by a Special Judge, or has been charged or not, the Special Judge may convict such person of such offence and pass sentence authorised by law,3 if satisfied that the accused has had a fair opportunity of defending himself with reference to that offence.

(2) The recommendation for the trial of these offences by special Judges to be appointed under a separate Act will render it necessary to make consequential charges in a few procedural provisions in the various Acts and some of them┬Če.g., the provisions as to summary trials-may even become totally obsolete, framed as they are with reference to trials before Magistrate. It has not been considered necessary to discuss all these changes in this report; but these will have to be carried out.4

(3) In all the Acts, except the Wealth Tax Act and the Income-Tax Act-a section should be inserted giving the Court power to implead or to direct investigation against another person, notwithstanding the absence of the requisite sanction or complaint, in relation to that person.5

(4) In respect of offences under the Excise Act, the Customs Act and the Gold Control Act, mens rea, should be presumed unless the accused proves its absence .6

(5) In respect of all the Acts, including the Wealth Tax Act and the Income-tax Act, probation should be excluded if the convicted person is above 18 years of age, thereby in effect modifying section 6 of the Probation of Officers Act, 1958.7

(6) In trials under all the Acts except the Wealth tax Act and the Income-tax Act, statements made in administrative proceedings under the respective Acts should be admissible in evidence, in certain circumstances.8

(7) In all the Acts except the Wealth Tax Act and the Income-Tax Act, wherever there are provisions relating to minimum punishment, it should be provided that the following are not, by themselves special and adequate reasons for awarding punishment below the minimum-

(a) first conviction;

(b) departmental penalty already awarded;

(c) youth;

(d) offender is a mere carrier etc.9

It should also be provided that the fact that the offence has caused no substantial harm to the society or to the individual is a special and adequate reason for awarding a punishment below the minimum.

(8) In trials under all the Acts except the Wealth Tax Act and the Income-tax Act, the court should call upon the accused to state his defence after the charge is framed. Where such examination is made by the court, it is not necessary for the court to examine the accused under section 342, Cr. P.C. except as regards matters which have arisen afresh10.

(9) In trials for offences under the Acts except the Wealth Tax Act and the Income-tax Act, the court should, before passing judgment, hear the prosecution as well as the accused, as to the sentence that would be appropriate11.

(10) In respect of trials under all the Acts except the Wealth Tax Act, the Income-tax Act, there should be provision for review of judgment12.

(11) In respect of all the Acts except the Wealth tax Act and the Income-tax Act, there should be a provision to the effect that absence of, or defect in, the requisite sanction or complaint should not invalidate the trial, unless a failure of justice has in fact been occasioned thereby13.

1. If a separate Act creating Special Courts is passed, the procedural amendments common to more than one Act could be included in that Act.

2. Chapter 9.

3. Chapter 9.

4. Chapter 9.

5. Para. 11.14.

6. Para. 7.12, read with para. 15.6 (Excise Act) and para. 15.30 and para. 15.83A (Customs Act) and 15.95 (Gold Control Act).

7. Para. 10.4.

8. Para. 14.4.

9. Para. 7.53.

10. Para. 9.20.

11. Para. 9.36A.

12. Para. 9.27.

13. Para. 11.13.



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