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Report No. 277

C. Previous Reports of the Law Commission

(i) The 1st Report on 'Liability of State in Tort' (1956)

1.10 The Commission looked into the question of a specific law with respect to citizen claims based on tort against the Union and the States, and if so, what should be the extent of State liability. It recommended the enactment of a suitable law to define the position on Government's tortious liability, stating that it "is necessary that the law should, as far as possible, be made certain and definite." On the extent to which such law should make the state liable for tortious acts, the Commission recommended that this issue requires "undoubtedly, a nice balancing consideration so as not to unduly restrict the sphere of activities of the State and at the same time to afford sufficient protection to the citizen."

1.11 The Commission also considered the scope of the immunity of the State for the tortious acts of its officials and recommended the relaxation of the rule of state immunity, and that "the old distinction between sovereign and non-sovereign functions should no longer be invoked to determine the liability of the State."

(ii) The 78th Report on 'Congestion of Under-trial Prisoners in Jails' (1979)

1.12 The Commission in this report dealt with the issue of substantial number of undertrial prisoners in jails and the need for legal reforms required to deal with the same. The Commission noting that the jails should primarily be meant for lodging convicts and not for persons under trial, recommended that the two categories of inmates be housed separately, that there should be a separate institution for the detention of undertrial prisoners. The report also contained other recommendations on disposal of cases (delay and arrears in trial courts); amount of bond; release on bond without surety etc.

(iii) The 113th Report on 'Injuries in Police Custody' (1985)

1.13 The Commission in this report dealt with the issue of burden of proof in prosecution of a police officer for an alleged offence of having caused bodily injury to a person in custody. It recommended insertion of a Section 114B in the Indian Evidence Act, 1872 to provide that in the aforesaid cases of prosecution of a police officer, if there was evidence that the injury was caused during the period when the person was in the custody of the police, the Court may presume that the injury was caused by the police officer having custody of that person during that period.

1.14 The Commission further recommended that the Court, while considering the question of presumption in the said cases, should have regard to all relevant circumstances including the period of custody, statement made by the victim, medical evidence and the evidence which the Magistrate may have recorded. The report also recommended shifting of burden of proof in offences relating to custodial violence and tortures.

(iv) The 152nd Report on 'Custodial Crimes' (1994)

1.15 The Commission in this report dealt with the issue of arrest and abuse of authority by the police officials. Referring to the concerned Constitutional and statutory provisions, the report recommended many amendments on the subject matter. One of the amendments recommended was with respect to the Indian Evidence Act, 1872- reiterating insertion of section 114B (as was recommended in the 113th report). The recommendations made hereunder also suggested amendments to the Criminal Procedure Code, 1973, adding of a section 41(1A) for recording the reasons for arrest, and a section 50A to inform the nominated person about the arrest, among others.

(v) The 154th Report on 'The Code of Criminal Procedure, 1973' (1996)

1.16 The Commission undertook a detailed examination of the Code 1973 "so as to remove the germane problems leading to consequential delay in disposal of criminal cases". It made comprehensive recommendations including amendments in the Code, 1973, the Police Acts, amongst others. One of these recommendations was to separate the investigating police force from the law and order enforcement police force: to inter alia increase the expertise of the investigating police; make investigations efficient which will reduce the possibility of unjustified and unwarranted prosecutions. The investigating police force was recommended to be placed under the supervision of higher authorities.

(vi) The 185th Report on the 'Review of the Indian Evidence Act, 1872' (2003)

1.17 The Commission while reviewing the Act 1872, once again looked into section 114B (as recommended in the 113th report and reiterated in the 152nd report). Along with recommending amendments to other sections of the Act 1872, the Commission reiterated the aforesaid recommendation of section 114B, but with a modification to provide the meaning of the expression 'police officer' for the purpose of the section. The said expression was recommended to include "officers of the para-military forces and other officers of the revenue, who conduct investigation in connection with economic offences".

(vi) The 273rd Report on 'Implementation of 'United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment' through Legislation' (2017)

1.18 The Commission in this report, looking into the issue under consideration, made several recommendations. One of these was endorsing the views expressed in the 113th, 152nd and 185th 9 reports with respect to insertion of section 114B in the Indian Evidence Act, 1872. The Commission noted that this provision will ensure that in a case where a person in police custody sustains injuries, it is presumed by the Court that those injuries have been inflicted by the police, and the burden of proof shall lie on the concerned police officer to explain such injury.

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