Report No. 47
3.21. Chief Justice Cooley's observations.-
Departures from the common-law tradition, mainly under statutes in the nature of police regulations were reviewed and their rationale apprised by Chief Justice Cooley1, in these terms:-
"I agree that as a rule there can be no crime without a criminal intent; but this is not by any means a universal rule Many statutes which are in the nature of police regulations, as this, impose criminal penalties irrespective of any intent of violate them; the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible."
1. People v. Robby, 52 Mich 577, 579:L (1884) 18 NW 365 (366) cited in Morrissette v U.S., (1951) 342 US 246 (257).
3.22. In the English Court of Criminal Appeal, Donovan J. had the following observations to make while dealing with the Hire-Purchase and Credit Sale Agreement (Control) Order, 19562:-
"The object of the order was to help to defend the currency against the peril of inflation which, if unchecked, would bring disaster on the country.
There is no need to elaborate this. The present generation has witnessed the collapse of the currency in other countries and the consequent chaos, misery and widespread ruin. It would not be at all surprising if Parliament, determined to prevent similar calamities here, enacted measures which it intended to be absolute prohibition of acts which might increase the risk in, however, small a degree. Indeed, that would be the natural expectation. There would be little point in enacting that no one should breach the defences against a flood, and at the same time excusing anyone who did it innocently. For these reasons we think that Article 1 of the order should receive a literal construction and that the ruling of Diplock, J. was correct."
3.23. Chief Justice Taft's view.-Again, Chief Justice Taft, in overruling a contention that there can be no conviction on an indictment which makes no charge of criminal intent but alleges only making a sale of a narcotic forbidden by law, wrote1:
1. United States v. Balint, 258 US 250 (251-252).
"While the general rule at common law was that the scienter was a necessary element in the indictment and proof of every crime, and this was followed in regard to statutory crimes even where the statutory definition did not in terms include it has been a modification of this view in respect of prosecutions under statutes the purpose of which would be obstructed by such a requirement. It is a question of legislative intent to be construed by the Court."
Of course, he referred to 'regulatory measures' in the exercise of what is called the police power where the emphasis of the statute is evidently upon achievement of some social betterment rather than the punishment of the crimes as in cases of crime 'mala in se'. But the common element between regulatory offences (on the one hand) and the offences with which this Report is concerned (on the other hand) is that of public welfare.
3.24. Increase in maximum punishment.-
Consistently, with our approach in dealing with the menace to social health and wealth posed by socio-economic offences, we are also recommending an increase in punishment for the principal offences under most of the Acts. In doing so, our main object is to give adequate expression to the social disapproval of such crimes. One of the objects of punishment is the emphatic denunciation of the crime by the community, and we believe that this denunciation could be achieved only if the gradation of punishments is so devised as to evoke in the public mind an intelligent reaction, and this in its turn would be facilitated if the scales of punishment exhibit a modicum of uniformity based on rational considerations. Too many scales and variations in the quantum of punishment lead to a failure of this object. The increase of the maximum punishments will also make the offence cognizable and non-bailable and that we regard as a welcome consequence.
3.25. Minimum punishment and appeal on the question of sentence.-
There is a complaint that courts are not awarding adequate punishment for many of these offences. This complaint has taken two shapes. First, it is stated, that though imprisonment is awarded, the term awarded is not appropriate to the gravity of the crime, so that a small period (say six months) is mechanically regarded as sufficient. Secondly, it is stated, that the discretion to award fine only or to award imprisonment below the minimum, is improperly exercised, so that in a very large number of cases the offenders are let off with a fine or with a short term of imprisonment below the minimum. As our Report will indicate, this complaint cannot be rejected as totally baseless.
3.26. Several possible alternatives could be thought of to solve this problem. For example,-
(i) increase of the maximum punishment;
(ii) increase of the minimum punishment;
(iii) removal of the relaxing power of the court;
(iv) imposition of restrictions on the discretion of the court to relax without totally removing it;
(v) provision for appeal on the ground of inadequacy of the sentence.
We have made certain proposals in the nature of (iv) above. Further, in our view, the solution at (v) above, though it may appear to be mild, is worth trying. No doubt, even after the insertion of such a provision, appeals praying for enhancement of sentence under the amended provision may not necessarily be successful in every case. The very existence of such a provision, is however, likely to keep in check any tendency of the lower magistracy to be unduly liberal in sentencing. We are, therefore, reiterating1 the recommendation made in this behalf by the previous Commission.
1. Para. 7.48, infra.
3.27. Special courts.-
Our next important recommendation is to provide for the trial of these offences by Special Judges of a senior cadre, and it is further our intention that such cases should be assigned only to one particular Judge in an area, so that he may develop the expertise necessary for the purpose, also require familiarity with the special features of these offences. The administration and enforcement of these offences requires much more than a knowledge of general criminal law and procedure. It presupposes an acquaintance with some of the nuisance, a grasp in depth of the under currents of the world of racketeers and other special features of organised crime.
3.28. Appeals to lie to the High Court.-
Appeals from convictions by these courts should lie to the High Court1. Our object is to secure the speedy disposal of the appeals, as well as to ensure uniformity in the interpretation of the relevant laws.
1. This is achieved once the offences are brought within the Criminal Law Amendment Act, 1952. (See section 9 of that Act).