LAW COMMISSION OF INDIA ONE HUNDRED FIFTY - SIXTH REPORT ON THE INDIAN PENAL CODE ( VOLUME I ) AUGUST, 1997.bre JAYACHANDRA REDDY ‘CHAIRMAN LAW COMMISSION GOVERNMENT OF INDIA SHASTRI BHAWAN NEW DELHI- 110 001 Tel, Off. : 3384475 Fes.: 3019465 D.0.No.6(3)(36)/95-LC(LSI ue! Dear Law Minister, I have pleasure in forwarding herewith the 156th Report on “Indian Penal Code" This brings to @ conclusion one of the maior tasks assigned to the Law Commission by the Government of India. 2. Pursuant :9 the reference made by the Government of Commission undertook a comprehensive revision of the Indiar Penal C. with special reference to the IPC (Amendment) Bill, 1978, immediacely after [assumed charge on July 15, 1995. 3. In order to elicit public opinion, the Commission circulated 2 Getaiied questionnaire and working paper setting out various aspects of the subject under study. The Commission organised workshops/seminars fat Chennai, Hyderabad, Visakhapatnam, Panjim. Shimla and New Desh The Commission also examined the provisions of the [PC {Amendment) Bill, 1978 while making its recommendations. 4, We have endeavoured to make the present report 3 comprehensive one, particularly after a careful scrutiny of ail the orovisions of the IPC (Amendment) ill, 1978, 5. The recommendations have been made with a view to olugging the Iccphoies and making the provisions of the Code more elfectiv We hope that the recommendations, if implemented. will make tne Code more comprehensive. With regards, Yours sincerely. eye oe / 7 ( K.Jayachandra Reddy Shri Ramakant D.Khalap. Hon'ble Minister of State for Law & Jus: Government of India, Shastri Bhavan, New Delhi.CHAPTER, CHAPTER CHAPTER CMAPTER CHAPTER CHAPTER CHAPTER CHAPTER, CHAPTER CHAPTER CHAPTER CHAPTER CHAPTER 1 VEL xaIr CONTENTS. VoLUME-T INTRODUCTION SENTENCES AND SENTENCING POLT! 2 PROCEDURES, DEATH PENALTY CRIMINAL CONSPIRACY FINANCIAL SCAMS ATTEMPT- INSERTION OF NEW SECTIONS 1200 & 1200 OFFENCES AGAINST “HE ST SUICIDE: ASETMENT AND ATTEMPT OFFENCES AGAINST NOMEN AND CHILOREN AQDUCTION INCIDENTAL TO HIJACKING DOCUMENT- SCOPE OF ITS DEFINITION THE INDIAN PENAL CODE (AMENDMENT) BILL, 1978 CONCLUSIONS ANO RECOMMENDATIONSANNEXURE ANNEXURE ANNEXURE ANNEXURE ANNEXURE ANNEXURE: ANNEXURE ANNEXURE, ANNEXURE I I IIL 1V VEIT Ix VOLUME-IT QUESTIONNAIRE ON THE INDIAN PENAL CODE, 1860. WORKING PAPER ON THE INDIAN PENAL cope. RESPONSES RECEIVED ON THE QUESTIONNAIRE AND OTHER RESPONSES/ CONNECTED MEMORANDA. RESPONSES RECEIVED ON THE WORKING PAPER. PROCEEDINGS OF THE WORKSHOP HELO AT SHIMLA, H.P. PROCEEDINGS OF THE WORKSHOP HELD AT PANJIM, GOA, PROCEEDINGS OF THE WORKSHOP HELD AT VISAKHAPATNAM, AP. PROCEEDINGS OF THE NATIONAL SEMINAR ON CRIMINAL JUSTICE HELD AT VIGYAN BHAVAN, NEW DELHT. PROCEEDINGS OF THE WORKSHOP HELD AT ANDHRA PRADESH JUDICIAL ACADEMY, SECUNDERABAD. PAGES 395-458 456-469 470-487 488-505 506-513 514-520 521-531 532-544 545-572CHAPTER - I INTRODUCTION The origin of Crimes and of Criminal Law lies in a primitive system, by which all wrongs were redressed by ec private revenge; a system of self-redress, based on the principle of Retaliation. “A system of self-redress” says Mr. Moyle, an eminent scholar, “in the form of private vengeance, preceded everywhere the establishment of a regular judicature; the injured person, with his kinsmen or dependents, made a foray against the wrong-doer, and swept away his cattle, and with them, perhaps, his wife and children or he threatened him with supernatural penalties by “fasting” upon him, as in the East even at the present day; or finally, he reduced his adversary to servitude, or took his life. Such savage retaliation did not constitute law, but it was the germ from which the Penal Law gradually developed, for the idea of such a procedure was not compensation but punishment. This system led naturally to terrible anarchy. The offender was often as strong, if not stronger than his adversary, and the assistance of the Kinsmen on each side created a blood feud, lasting perhaps for generations.”?1.02, Thus, there was no systematic criminal law in uncivilized society. Every man was liable to be attacked in his person or property at any time by any one. The person attacked either succumbed or overpowered his opponent. “A tooth for a tooth, an eye for an eye, a life for a life” was the forerunner of criminal justice. As time advanced, the injured person agreed to accept compensation, instead of killing his adversary. | Subsequently, a sliding scale came into existence for satisfying ordinary offences. Such a@ system gave birth to archaic criminal law. For @ long time, the application of these principles remained with the parties themselves, but gradually this function came to be performed by the State. In India anciently, the genesis of criminal jurisprudence can be traced to Smrtis but came into existence particularly from the time of ‘Manu’. In the category of ‘crimes’, Manu had recognized assault, theft, robbery, false evidence, slander, criminal breach of trust, cheating, adultery and rape. The king protected his subjects and the Subjects in return owed him allegiance and paid him revenue. The king administered justice himself, and, if busy, the matter was entrusted to a Judge. If a criminal was fined, the fine went to the king’s treasury, and was not given as compensation to the injured party.1,03. Vasco Da Gama, a subject of Portugal, first discovered the passage to India around the Cape of Good Hope, the southernmost point of Africa. Briefly stated, thereafter, the Portuguese began to carry on trade with India, and later, the Englishmen came on the scene and began’ to carry on trade with India. As they were very successful, Queen Elizabeth granted, in 1600, a Charter which incorporated the East India Company. The Charter also gave the power to the Company for making laws. In 1609, James I renewed the Charter, and in 1661 Charles II again gave similar powers while renewing it.? 1.04. The Charter of 1668 transferred Bombay to the East India Company, and directed that proceedings in the court should be like unto those that were established in England. The Court of Judicature which was established in 1672 sat once a month for its general sessions and cases that remained undisposed of were adjourned to “Petty Sessions” which were held after general sessions. This Court inflicted punishment of slavery in cases of theft and robbery. In ordinary cases of theft the offender had to pay monetary compensation, or else he was forced to work for the owner of the article stolen.? In 1683, Charles II granted a further Charter for establishing a Court of Judicature at such places as the Company might decide. In 1687, another Charter was grantedby which a Mayor and Corporation were established at Fort St. George, Madras, in order to settle emall disputes. By these Charters Englishmen who came to India were entrusted with administration of justice, both civil as well as criminal. In these Courts the powers exercised by the authorities were very arbitrary. Strange charges were framed and strange punishments were inflicted.‘ In 1726, the Court of Directors made a representation to the Crown for proper administration of justice in India in civil and criminal matters. Thereupon, Mayors’ Courts were established for proper administration of justice. But the laws administered were arbitrary because the Mayor and Aldermen were the Company’s mercantile servants, and they possessed very little legal knowledge. The law that was administered was utterly incapable of suiting the social conditions of either the Hindus or the Mohammedans. In 1753, another Charter was passed under which Mayors were not empowered to try suits between Indians; and no person was entitled to sit as a judge who had an interest in the suit. English law was no more applicable to Indians, and they were left to be governed by their own laws and customs, In 1765, Robert Clive came to India for the third time and succeeded in obtaining the grant of the Dewani from the Moghul Emperor. The grant of the Dewani included not only the holding of Dewani Courts, but the Nizamat also, i.e. the right of superintending the whole administration in Bengal, Bihar and Orissa.*In 1772, Warren Hastings took steps for prope’ administration of criminal justice. A Fouzdari Adalat was established in each district for the trial of criminal offences. With these Courts the Company’s European subjects, had no connection, nor did they interfere with their administration. The Kazi or Mufti sat in these Courts to expound the law and determine how far criminals were guilty of the offence charged. The Collector of each district was ordered to exercise a general supervision over their work. In addition to District Courts a Suddar Nizamat Adalat was also established. This Court was to revise and confirm the sentences of Fouzdari Adalat in capital cases and offences involving fines exceeding one hundred rupees. The officers who presided over these Courts were assisted by Mohammedan Law officers. The scheme of justice adopted by Warren Hastings had two main features. First, he did not apply English law to the Indian provinces; and, secondly, Hindu and Muslim laws were treated equally. The administration of criminal justice remained in the hands of Nawabs, and therefore, Mohammedan criminal law remained in force. These were the Courts in the capital. In the rest of the country the administration of justice was in the hands of Zamindars. In Bengal and Madras, Muslim criminal law was in force. In Bombay Presidency, Hindu criminal law applied to the Hindus, and Muslim criminal law to the Muslims. The Vyavahara Mayukha was the chief authority in Hindu law. But the Hinducriminal law was a system of despotism and priestcraft. It did not put all men on equal footing in the eye of law, and the punishments were discriminatory.® In 1773, the Regulating Act was passed, which affected the administration of criminal justice. Under that Act a Governor-General was appointed and he was to be assisted by four Councillors. A Supreme Court of Judicature was established at Fort William, Bengal. This court took cognizance of all matters - civil, criminal, admiralty and ecclesiastical. An appeal against the judgement of the Supreme Court lay to the King-in-Council. All offences which were to be tried by the Supreme Court were to be tried by a ‘jury of British subjects resident in Calcutta. Any crime committed either by the Governor-General, a Governor, or a judge of the Supreme Court, was triable by King’s Bench in England. The Charter of Justice that laid the foundations of the jurisdiction of the Supreme Court was dated March 26, 1774, and the justice administered in Calcutta remained so until the establishment of the High Court under the Act of 1861. In 1781, amending Act was passed to remedy the defects of the Regulating Act. This Act expressly laid down and defined the powers of the Governor-General in Council to constitute provincial Courts of Justice and to appoint a Committee to hear appeals therefrom. The Governor-Generalwas empowered to frame regulations for the guidance of these Courts. Muslim criminal law was then applicable both to the Hindus and Muslims in Bengal. In 1793, towards the close of Lord Cornwallis’ Governor-Generalship, fresh steps were taken to renew the Company’s Charter. Accordingly, the Act of 1793, which consolidated and repealed certain previous measures, was passed. 1.05. In the mofussil towns in Bengal, the law officers of the Zilla and City Courts, who were Suddar Ameens and Principal Suddar Ameens, were given limited powers in criminal offences. They could fine up to Rs.50 and award imprisonment, with or without labour, upto one month only. An appeal from their decision lay to the Magistrate or Joint Magistrate. Offences for which severe punishment was prescribed were tried by Magistrates, who were empowered to inflict imprisonment extending to two years with or without hard labour. There were also Assistant Magistrates and Deputy Magistrates but they had not full magisterial powers. Offences requiring heavier punishment were transferred to the Sessions Judge. Death sentence and life imprisonment , awarded by Sessions Judges, were subject to confirmation by the Nizamat Adalat. An appeal from the decisions of Sessions Judges lay to the Nizamat Adalat. Such was the criminal administration in 8engal up to 1833.In Madras, District Munsiffs had limited criminal jurisdiction, They could fine up to Rs.200 or /and award upto one month's imprisonment. © By regulation Xx of 1816, Magistrates were empowered to inflict imprisonment upto one year. There were also Suddar Ameens who tried trivial offences. Offences of heinous nature were forwarded for trial to the Sessions Judge, Offences against the State were referred to the Fouzdari Adalat. The Fouzdari Adalut was the Chief criminal court in the Madras Presidency, and was vested with all powers that were given to the Nizamat Adalat in Bengal. The administration of criminal justice in Bombay was on the pattern of Bengal and Madras presidencies with certain minor changes. The practice and procedure in Courts in Bengal, Madras and Bombay were prescribed by Regulations which were passed from time to time. In Bengal 675 Regulations were passed from 1793 to 1834; in Madras 250 Regulations were Passed from 1800 to 1834; and in Bombay 259 Regulations were passed during the same period. 1.08. The History of the Indian Penal Code, or the Code of Criminal Law prevailing in British India, commences with the year 1833, the year which followed the Reform Bill, a Period which was full of the subject of Law Reform, and of the Reform of Criminal Law in particular. Indirectly the Indian Penal Code owed its origin to Bentham, the mostconspicuous writer of the day on the subject of Law Reform, whose death had occurred only in the previous year. James Mill, Bentham’s favorite disciple, had written the History of British India under the influence of Bentham's ideas. Thus, owing, in a great measure, to the influence of these two authors, the necessity for extensive legislation for India was keenly and widely felt. 1.07. In 1833, Macaulay moved in the House of Commons to codify the whole criminal law in India and bring about uniformity. Lord Macaulay, while speaking on the Bil] in the British Parliament, said - “I believe that no country ever stood so much in need of a Code as India, and I believe also that there never was a country in which the want might be so easily supplied. Our principle is simply this - uniformity when you can have it; diversity when you must have it; but in all cases, certainty. Lord Macaulay also told the House of Commons that. Mohammedans were governed by the Koran and in the Bombay Presidency Hindus were governed by the institutes of Manu. Pandits and Kazis were to be consulted on points of law, and in certain respects, the decisions of Courts were arbitrary. Thus the year 1833 is a great landmark in the history ofcodification in India. The Charter Act of 1833 introduced a single Legislature for the whole of British India. The Legislature had power to legislate for Hindus and Mohammedans alike for Presidency towns as well as for mofussil areas. 1,08. Accordingly, the Charter Act of 1833 (3 and 4 Will. IV.c. 85) was passed, by which the Governor-General of India, was empowered to legislate for the whole of India. To assist this project a Commission under the Chairmanship of Lord Macaulay was constituted which consisted of himself and two members namely, - Mr. Millet and Sir John M’Leod. During the years 1834-38 the Commission drafted what afterwards became the Indian Penal Code. From 1838 to 1860 the draft Code remained in the form of a mere draft. After undergoing elaborate revision by the Legislative Council, Under the supervision of late Sir Barnes Peacock the Bil] concerning the Penal Code was passed into law and became Act XLV, of 1860. 1,09. The Title of “Indian Penal Code” given by the Law Commission to the basic criminal law aptly describes its contents. The word “penal” no doubt, emphasizes the aspect of punishing those who transgress the law and commit offences, but it could hardly be otherwise, so long aspunishment and the threat of it are the chief methods known to the State for maintaining public order, peace and tranquillity. 1.10. In June 1971, the Law Commission had submitted its 42nd Report for revision of the Indian Penal Code. Accordingly, the Government had introduced a 8i11, namely, the Indian Penal Code (Amendment) Bi11, 1978 in Rajya Sabha. That Bill was passed by the Rajya Sabha. However before passing the Bi11, the then Lok Sabha was dissolved and the said Bill could not find a place in the book of statutes. Since then much water has flown and a number of new problems and issues have come to light, which gave rise to the necessity of undertaking a further comprehensive revision of the Indian Penal Code, with special reference to the provisions of the Indian Penal Code (Amendment) 8i11, 1978. It was precisely for that purpose that the Government of India requested the Law Commission to undertake revision of the Indian Penal Code, with special reference to the aforesaid 8111, in the light of current socio legal scenario In this background, a comprehensive study for revision of the Indian Penal Code, particularly with reference to the Indian Penal Code (Amendment) Bill, 1978 was undertaken.1a In order to elicit public opinion on the relevant issues the Commission circulated a detailed questionnaire and also working paper in respect of the main issues to all the State Governments, Director-Generals of Police of all States, Supreme Court and High Court Judges, Bar Associations, Professors of law, Advocates and_—-Non-Governmental Organisations. Various responses were taken — into consideration ( vide Annexures). The Commission organised several workshops at Hyderabad, Vishakhapatnam, Goa, Shimla and a National Seminar was held at Delhi. At all these places the Commission had the benefit of discussion with judges, senior lawyers, police officers, legal academicians and non-governmental organisations, 11 the clauses of the I.P.0. (Amendment) 8111, 1978 were discussed thread-bare in all these workshops. After making an intensive study, the Commission apart om focussing on the important issues, has in a separate chapter discussed every clause of the 811) and has made the necessary recommendations keeping in view the new trends since 1978, and they have to be duly considered before introduction of a fresh Bill. However, at this stage, we may also mention that under Clause 197 of the Bill, for the existing Chapter XIX, a Rew Chapter bearing the same number (Chaoter XIX) is sought to be inserted to deal with "Offences against Privacy”. In the existing Chapter XIX, three sections namely, sections 480, 491 and 492 are mentioned. But out of them sections 490 and 492 are repealed and the only remaining section 491 dealswith “Breach of Contract” to protect the contractual rights of helpless persons. In the proposed new Chapter XIX which is sought to be substituted in place of the existing Chapter, sections 491 to 492 are mentioned and they deal with “offences against Privacy" like use of artificial listening or recording apparatus either to listen or to record conversation of person or persons without their knowledge or consent or making unauthorised photographs, etc. We have dealt with this clause in detail in Chapter XII after duly referring to the contents of 42nd Report as well as the concept of right to privacy as extended under Article 21 of the Constitution and also various reports of foreign Law Commissions and ultimately recommended that these offences cannot appropriately be incorporated in the Indian Penal Code and that a separate legislation should be there to comprehensively deal with such offences against privacy, It is also mentioned that Law Commission is proposing to take up a comprehensive study on this subject separately as early as possible.Nelson, “Indian Penal Code", (1897) p.4 Ratanial & Dhirajlal, “The Indian Penal Code", (1982) p.i. Id. p.iie Ibid. Ibid. toe Bali Diwan Anil, “Indian Advocates”, Vol. XV, p.8+CHAPTER - IT SENTENCES AND SENTENCING - POLICIES & PROCEDURES A healthy administration of criminal law is essential for a proper functioning of the constitutional democracy. It is the criminal law that protects the society from the intentional and culpable acts of individuals or group of individuals. Criminal law also prescribes ny preventive measures for, it is well-settled that prevention is better than cure. However, we have to refresh our views on the problems of crime and its punishment keeping abreast. with the fast developments all around. 2.02. The purpose which punishment achieves or is required to achieve are fourfold.' First, tribution; f.e. taking of eye for eye or tooth for tooth. The object behind this is to protect the society from the depredations of dangerous persons; and so, if somebody takes an eye of another, his eye is taken in vengeance. This form of Punishment may not receive general approval of the society in our present state of social conditions and understanding of human psychology.The other purpose of sentencing is preventive. We are sure that the sentence of imprisonment suffered would be an eye opener to the convict and he would definitely not venture to rey t the illegal act again. Deterrence is another object which punishment is equired to achieve. Incarceration of sentence undergone by the convict and'upholding of his conviction by Court is likely to have its effect, and should deter others from indulging in similar illegal acts. As against the retributive, deterrent and preventive theories of punishment, the reformative approach to punishment as a measure to reclaim the offender lays emphasis on rehabilitation so that the offenders are transformed into good citizens. The various theories have been reviewed from time to time. The theory of expiation and the theory of retribution have faded out. Some jurists also have their own doubts about the theory of deterrence. They doubt whether there ie something inherent in it which is aimed at the Protection of society. Fe.oa. Coming to the question of abolition of death Mentence which we will examine in the next chapter, it is MEpesonably felt that the deterrence does work in appropriate Mees depending on circumstances and it cannot altogether beeliminated in the administration of criminal Justice. There are certain types of offences for which deterrent sentence is necessary. The growing menace of economic offences does warrant awarding deterrent sentence and a minimum sentence of imprisonment should be made compulsory. We find such provisions in certain enactments dealing with economic offences. But at the same time there are certain offences which, when examined in the background of circumstances, do not attract deterrent sentence. In the case of juvenile delinquency, it is the reformative theory that has gained significant recognition. By a syetematised reformation, the juvenile offenders can successfully be prevented from resorting to criminal activities and the tendency towards crime can be curbed. If they are left untouched they may Prove to be greater menace to the society by becoming hardened criminals as they get mentally developed. It is on the mental development that the reformative theory lays its stress. 2.04. Now coming to the other types of offences against Person and property, the provisions of the Indian Penal Code have fairly stood the test of time in the matter of awarding Bunishment. Depending upon the gravity of the offence the Bunishment varies. It is generally felt that too lenient a Sentence does not meet the ends of justice. But the courtsare seen generally reluctant to award always a severe sentence. Therefore, it is well ttled that the punishment is an art which involves the balancing of several factora. It is accepted that punishment is only the manifestation of crime, the second half of which is necessarily pre-supposed in the first, and the deed of the criminal Judgés itself. The State as the punishing authority never thinks in terms of retribution and old notion of retribution has no place in the modern world. Our penal laws, particularly the Indian Penal Code, gives latitude to the court in awarding the prescribed sentence. In the matter of infliction, the punishment as a deterrent is expected to serve twofold purpose -- individual and general. The object is to teach the offender a lesson and at the same time to demonstrate to the public that such offences would attract a severe punishment. Deterrence does work, but it may not be correct to presume that it works well in all circumstances and in all cases. 2.05. Our system recognises reformative theory also. The 1 : wenil. etic Probati f__Of fender: are some of the enactments which reflect the reformative approach. Caldwell observes thus:“punishment is an art which involves the balancing of retribution, deterrence and reformation in terms not only of the court and the offender but also of the values in which it takes place and in the balancing of these purposes of punishment, first one and then another, receives emphasis as the accompanying conditions change. "? It is generally felt that punishment under the Indian Penal Code needs review. The sentence of 14 years as it works out ultimately in the case of sentence for murder, is considered to be low and lenient. Likewise, the sentences in respect of certain offences against property are considered to be not commensurating with the degree of crime Vike cheating and forgery, particularly committed in respect of the public institutions. So far as the economic offences are concerned, it is universally accepted that severe and deterrent sentences should be awarded. = Illogical and unreasonable variations in punishment have brought the courts under criticism, To enable the court to arrive at a correct determination of punishment, it is essential that all the information about the antecedents of the accused should be there. There are so many relevant factors in determination ©f the quantum of sentence. So far as habitual offenders are _€0ncerned, section 75 of the I.P.c. provides for enhanced [Punishment of imprisonment. Many eminent jurists have Pointed out that when the discretion is given to the judges jin the matter of awarding punishment and for an effectiveexercise of such a discretion, the judge has to resort to the additional fact-finding processes. Therpfore, a time ha come to coneider whether an independent authority like Probation Officer should be required to gather the necessary information about the accused and which information should be made available to the judge before awarding punishment to that individual accused. Having regard to the fast change in the society and social thinking, it has also become necessary to modify the provisions of the Borstal Schools Act, 1926, Juvenile Justice Act, 1986 and Probation of Offenders Act, 1958 suitably. 2.06. A survey of the provisions of the Indian Penal Code reveals that out of 511 sections in the Indian Penal Code, 330 are punitive provisions, the remaining being definitions, exceptions and explanations. The offences covered by tht punitive provisions are broadly divided into two categories (4) cognizable and (ii) non-cognizable on the lines of arrestable and non-arrestable. In our Jaw the Police are prohibited from investigating the non-cognizable offences mainly on the ground that most of them are trivial. The offences are then further divided into bailable and non-bailable depending upon athe gravity of the offence. About 120 offences in the Indian al Code are non-cognizable. In many workshops it was Bointed out that thie division requires to be re-examined in E context of rapid social changes and that some of themshould be made cognizable. It is voiced that some trivial offences affecting public order also can lead to serious developments if they are not dealt with promptly and, therefore, it is desirable that such offences are made liable for public intervention. We are of the view that such a re-examination is necessary and the offences punishable under sections 290, 298, 431, 432, 434, 504, 506 and 510 should be made cognizable. In section §3 Indian Penal Code, the punishments that can be imposed are mentioned. Section 53 is in the following terms: “53, Punishments.- The punishments to which offenders are liable under the provision of this Code are - First,- Death; Secondly,- Imprisonment for life Thirdly,- (Replaced by Act 17 of 1949); Fourthly, which is of two descriptions, namely:— (1) Rigorous, that is, with hard labour; (2) Simple; Fifthly,- Forfeiture of property; Sixthly,- Fine”2.07. The Law Commission in its 42nd Report considered the question whether any changes are necessary but did not recommend any change regarding the types of punishment. It, however, recommended certain changes only in sections 64 to 69, 71 and 75. The Commission also recommended that a new section 55 should be inserted with effect that the imprisonment for life shall be rigorous. To the same effect are the recommendations made by the Law Commission in its g9th Report regarding the punishment of imprisonment for life. In the Indian Penal Code (Amendment) 9111, 1978, however, certain other types of punishments are proposed to be added in section 52 and these are community service, disqualification from holding office, order for payment of compensation and public censure. In the various workshops held it is highlighted that the punishment of community service is not practicable. It is also voiced that the fine amount fixed many years ago have no relation to the realities to the present changed economic scenario and therefore, an upward revision is necessary, Doubts have been expressed Whether the respective punishments, namely, disqualification from holding office and public censure should be included in Section 53, It is said that when there is conviction and Punishment is awarded, disqualification from holding office should automatically be called for by virtue of the service Frutes or in view of the regulations governing the management ker corporations. Likewise, it was voiced that public censuredoes not relate to the concept of punishment and, therefore. it would be out of place to include the same in section 53. The National Commission for Women recommended that more severe punishment should be awarded under section 376. At this stage it is necessary to consider a few important criteria in the assessment of the value and impact of punishment. It has to be borne in mind that crime ie a phenomenon of time and an opportunity to which the need and compulsion are to be added. These factors reflect the problems ike environmental, social, psychological and economic, in the society. The ultimate object of criminal law is to prevent crime. Regarding the determination of what should be the proper sentence in a particular case should necessarily be left to the court except in respect of the offences where minimum sentences are prescribed, and where the discretion of the court is curtailed. The Law Commission in its 14th Report observed: “The determination of what should be the proper sentence in a particular case has always been left to the court for the very weighty reason that no two cases would ever be alike and the circumstances under which the offence was committed and the moral turpitude attaching to it would be matters within the special knowledge of the court which has tried the case. There can be no rule of general application laying down a specific quantum of =punishment that should be inflisted in the case of a particular offence. A sound judicial discretion on the part of the trial judge in awarding punishment can alone distinguish between case and case and fit the punishment to the crime in each individual case. 2.08. The Law Commission in its 42nd Report also considered the position whether the present distinct‘on between simple and rigorous imprisonment should be done away with and all offenders deserving jail sentence should be simply sentenced to imprisonment for a specified term, leaving it to the jail authorities and the prison rules to regulate the kind of work to be taken from particular classes of prisoners. The Commission, however, ultimataly recommended that the legislative policy underlying the classification is sound and should be maintained. It may be mentioned that under the Indian Penal Code the majority of the offences are punishable with “imprisonment of either description", and only few with simple imprisonment thereby leaving it to the discretion of the court. No doubt the court while awarding sentence has to take into consideration the nature of the offence, the motive, state of mind, the extent of breach of duty, the manner of commission of a jerime, the means employed in its commission, the age and ben ecedents of the perpetrators, etc. In view of the changes ES social eet up that have taken, a fresh look to sider the efficacy of punishments have become necessary.A serious study on the question of revising the list of offences and also ‘of describing punishments is felt necessary. Then the time scale and the system of punishment has to undergo a change. Taking up the justification of deterrent punishment, we find that the objective aimed at the protection of the society, and the expectation that people will refrain from committing the offence for fear of deterrent punishment have not resulted in refraining the people from committing offences. However, in the matter of infliction, the deterrent punishment is expected to serve twofold purpose individual and general. A survey of the system of punishment obtaining in various countries would show that the concept of deterrence cannot be entirely eliminated from the present day policy of criminal law. However, the reformative theory of punishment has gained considerable importance and it aims at reformation by stressing that the offender should while being punished by detention, there is a need to expose him to educative, healthy and ameliorating influences. If the offender can be re-educated and traits of his character can be re-shaped, he can be put once again in the mainstream. 2.09. Now coming to the sentencing, policy in the various workshops it is voiced that the amounts of fine to be imposed should considerably be enhanced ‘and it should, as far as Possible, be substitute for short-term imprisonment. It is also expressed that the poor victims of uses and abuses of Criminal law should be compensated by way of reparation andthat the amounts of fine prescribed long age have lost their relevance and impact in the present day and the fines imposed have no relation to the economic structure of society and necessary element of deterrence is generally absent. An examination of the various sections in the Code where sentence of fine, is provided for, reveals that from a minimum fine of Re.100/- it varies up to Re.1,000/-. In respect of most of the offences it is below Rs.500/-. Therefore, a change regarding the quantum of fine should be made in all those sections correspondingly, at Teast by 20 times and make a provision in the Code of Criminal Procedure regarding the powers of the First Class Magistrates to impose such a fine. The main problem with the fine is in respect of the defauiter. In this context, the financial status of the offender also becomes relevant. A rich man can pay the fine and avoid being imprisoned in default whereas a poor man who sannot. afford to pay the fine has to undergo the imprisonment. 2.10. A statistical survey shows that imposition of fine by the criminal courte is much more frequent than before. To ameliorate the problem regarding payment of fine by an Andigent accused it would be salutary to make him pay the ‘fine in instalments, namely, a gradation between different Penalties corresponding to the resources of the offender.ome of the eminent jurists have observed that a provision of instalment payment of fines besides saving the tax-payer's money and the prisoner from an unwholesome experience and incidental demoralisation, creates a wholesome effect on the family of the offender. In the case of defaulters, even where such benefit is given, some other course can also be evolved. He can be put on compulsory work outside the prison, e.g., ‘on public projects like dams, roads or rural construction. Thus there are so many advantages of fine being the punishment as far as possible besides the same having a reformatory treatment. The fines thus collected can usefully be utilised by the State. Of course, there are certain disadvantages noticed. One of them is that fines in practice are adjusted to the offence and therefore bear unequally on the rich and the poor. The fear of fine does not stop rich people from committing certain offences. No doubt some of the objections are of some importance; but taking an overall view it cannot be denied that fines have an important role to play in law enforcement but they must be imposed with the sound discretion and understanding particularly the means to pay. They, however, should not be used in dealing with habitual offenders, prostitutes, drug addicts, etc. since imposition of fine on them cannot have any expected reformative results. With this background, we propose to examine the Frricus types of punishment proposed in the Bill.2.11. Section 63 to 7 in Chapter III of the Code deal with punishments that can be awarded under the Code. Clause 18 of the Bill provides for substitution of section 63 by a new section which is as follows: “53. Punishments. The punishment which may be imposed on conviction for any offence are - @ death; (ii) imprisonment for life which shall be rigorous, that is, with hard labour; it) imprisonment. for a term which may be ~ (a) rigorous, that is, with hard labour, or (b) simple, that is, with light Jabour; ay) Community servic ww) Disqualification from holding office; (vi) order for payment of compensation; (it) forfeiture of property; (iit) fine; (ix) public censure.” We find that in the proposed section the imprisonment for Tife shall be rigorous, that is, with hard labour. This Nescription of imprisonment is not there in the existing Mection. Likewise simple imprisonment can be with light febour.Four new types of punishments are included, namely, (i) community service, (ii) disqualification from holding office, (iii) order for payment of compensation and (iv) public censure. In section 53 the punishment, namely, “transportation for life” was substituted by the words “imprisonment for life" by Act 26 of 1969, Section 53A which has been added by Act 26 of 1959 states that in every case in which a sentence of transportation for a term has been passed, the sentence shall be dealt with in the same manner as rigorous imprisonment for the same. Questions often arose before the courts whether the punishment “imprisonment for life" means “rigorous imprisonment for life". The Law Commission in its 39th Report noted that there is no clear provision as to how the person sentenced to imprisonment for life should be dealt with under the law as it now stands, namely, whether it should be same as sentence of rigorous imprisonment for life or simple imprisonment for life and whether it is a punishment different in quality despite being different in duration when the sentence of imprisonment of either description or for a specified term and whether it is Jlegally permissible for a court passing a sentence to 1 How Bimple. Since there is no clear provision, a new section 56 that the imprisonment for life shall be rigorous or Bs sought to be inserted in the Code of Criminal Procedure to Bhe effect “imprisonment for life shall be rigorous with a Btew to resolve the doubts". Correspondingly, the proposed HBendment making imprisonment for life rigorous is necessary.The other change, namely, that simple imprisonment as compared to rigorous imprisonment can be with a light labour is also a desirable change. 2.12. Now coming to the “community service” by way of punishment, the question is whether it is practicable. The punishment by way of community service is a new concept and closely connected with reformative theory. In “Declaration of Principles of Crime and Punishment of the Cincinnati, Ohio meeting of the First Congress in 1880", it was observed, “the supreme aim of present discipline is the reformation of criminals, not the infliction of indigent suffering”. On these lines the All India Jail Manual Committee has also suggested the system of open jails for the rehabilitation and pre-release preparation of the prisoners. It is an accepted principle that the ultimate object of punishment is to make the anti-social person a good citizen. The open air jail system is recommended to achieve this object of rehabilitation and pre-release of the prisoners by giving them necessary training and adopting correctional methods. It is recognised that with a view to rehabilitate the Prisoners socially, they should be employed in work which Will prepare them for useful and remunerative employment after release. However, it is to be borne in mind that in this open air prison system the prisoner enjoys a degree of freedom but not fully. The community service no doubt isanother innovation in the direction of correctional methods put as voiced in many workshope it may not be practicable to give an effect to and also may not amount to a punishment. Clause 27 of the Bill provides for insertion of a new section 74A exclusively to deal with punishment of community service and is in the following terms: “74a. (1) Where any person not under eighteen years of age is convicted of an offence punishable with imprisonment of either description for a term not exceeding three years or with fine, or with both, the court may, instead of punishing him as aforesaid or dealing with him in any other manner, make an order (hereinafter in this section referred to as the Community Service Order) requiring him to perform, without any remuneration, whether in cash or in kind, such work and for such number of hours and subject to such terms and conditions, as may be specified in the said Order: Provided that the number of hours for which any such person shall be required to perform work under a Community Service Order shall be not Jess than forty hours and not more than one thousand hours:Provided further that the court shalt not make a Community Service Order in respect of any such person, unless- (a) such person consents in writing to Perform the work required of him under such Order: (b) the court is satisfied that such person is a suitable person to perform the work required of him and that for the purpose of enabling him to go such and such work under proper supervision, arrangements have been made by the State Government. or any local authority in the area in which such person is required to perform such work. (2) Every Community Service Order made under "sub-section (1) shall specify the nature of the work to be performed by such person which shall be of general benefit to the community. (3) Where the court by which any Community Service Order was made is satisfied at any time that- (a) any person against whom a Community Service Order has been made under sub-section (1 has failed, without reasonable cause or excuse, t comply with any of the terms and condition specified in such Order: or(b) having regard to the circumstances that exist subsequent to the date of making the Community Service Order, it is necessary or expedient in the interests of justice so to do, it may- a) ina case falling under clause (a), modify or revoke the Community Service Order and deal with the person convicted of the offence in such manner as he may have been liable to be dealt with for the offence in relation to which such order was made or, without prejudice to the continued operation of the Community Service Order, impose on him a fine not exceeding one hundred rupees; or qi) in a case falling under clause (b), modify or revoke the Community Service Order and deal with the person convicted of the offence in such manner as he may have been liable to be dealt with for the offence in relation to which such Order was made. (4) Where a court makes two or more Community Service Orders against a person convicted of two or more offences at the same trial, it may direct that the hours of work required to be done under any Community Service Order shall be concurrent with or in addition to the hours of workunder ‘any ‘Gf’ the Cominuiiity service Orders made “by ‘the court’ at the ‘same trial, subject to the condition that the total number of hours of work to bejdone by such person under al] or any atch Community Service Orders shall not exceed one thousand hours.” 2.13 A careful reading of this.new section shows that the punishment of community service can be awarded to any person above eighteen years of age convicted of an offence punishable with imprisonment of either description for a term not exceeding three years or with fine or with both and the court instead of sending him to the prison or dealing with any other manner make an order, namely, “community service order” requiring the said convict to perform without any remuneration such work for such number 7 hours subject to certain terms and conditions. In other words, an order called community service order is passed after conviction by way of punishment with all those conditions mentioned in the Proposed section 74a. The implementation part of is Provided in sub-section 14 and 18 and work is to be performed under proper supervision as per the arrangements to be made by the State Government or any local authority. sub-section (2) lays down that the nature of the work to be performed by the convict has to be specified. The object underlying in awarding this kind of punishment though outwardly appears to be attractive, but there are any number of difficulties in enforcing the same. A mere reading of sub-section (3) makesthe point clear. This section contemplates a supervisory authority to see whether the convict is working and rendering service for the number of hours specified and if he fails to do $0 by way of default, he has to be sentenced thereafter. We think an open air prison system is better suited from the point of view of the correctional measures rather than the proposed punishment of community service. 2.14, The next aspect is whether the punishment “disqualification from holding office” should be incorporated in section 53 of the Indian Penal Code. In some types of cases particularly involving public servants and other persons holding office in corporations, companies, registered societies, etc., ending in conviction should necessarily entail with the disqualification from holding office, but such a course is intrinsically connected with their respective service rules and regulations. It is a matter of common knowledge that in almost all such service rules we find some provision or other disqualifying such a person after conviction, from holding the office. Therefore, it would be appropriate to leave the issue to be decided by the concerned authorities under all those rules and regulations + because incidentally some other questions pertaining to the Service conditions may also arise which warrant a further inquiry.B15. Coming to the payment of compensation by way of punishment, the Supreme Court in Shri Bodhisattawa Gautan v kraborty.? citing its earlier decision in Peihi Domestic Working Women’s Ferum v Union of India* Boserved: “It is necessary, having regard to the Directive Principles contained under Article 38(1) of the Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss. Some, for example, are too traumatised to continue in employment. Compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy as a result of the rape." jThe court added: “The decision recognises the right of the victim for compensation by providing that it shall be awarded by the Court on conviction of the offender subject to the finalisation of Scheme by the Central Government. If the Court trying an offence of the rape has jurisdiction to award the compensation at the final stage, there is no reasonto deny to the Court the right to award interim compensation which should also be provided in the scheme." On the basis of principles set out in the aforesaid decision in Delhi Domestic Working Women’s Forum, the jurisdiction to pay interim compensation shall be treated to be part of the overall jurisdiction of the Courts trying the offences of rape which, as pointed out above is an offence against basic human rights as also the Fundamental Right of Personal Liberty and Life.” 2.16. The Law Commission in its 154th Report on the Code of Criminal Procedure has recommended insertion of a new provision, namely, 357A providing for framing victim compensation scheme by the respective State Governments under which the compensation can be awarded to the victims on the lines indicated therein wherever it is found to be necessary apart from the compensation awarded by the court under section 357 out of the fines. We may also indicate that awarding sufficient compensation depends upon = many circumstances which require some inquiry. Further in some cases an order for payment of compensation need not necessarily be by way of punishment. Therefore, we are of the view that it is not appropriate to include order for Payment of compensation in section 53 by way of punishment.Another punishment which is sought to be included jn section 53 is ‘public censure’, namely, publication of the name of the offender and details of the offence and sentence. The proposed Section 74¢ provid for imposition of the punishment by way of public censure in addition to the substantive sentence under sub-section (3) and this is limited to offences mentioned in chapters XII, XIII, sections 272 to 276, 383° to 389, 403 to 409, 416 to 420 and offences under chapter XVIII of the case as offences under proposed new Sections 420A and 462A under the Indian Penal Code (Amendment) Bill. These are all offences where persons entrusted with some public duties commit offences. such a punishment has great relevance in respect of anti-social offences, economic offences, otherwise called white-collar offences particularly committed by sophisticated persons. It is of common knowledge that while these offences affect a large number of people, the offenders are not readily booked. However at least in such cases which end in conviction, the punishment of public censure is likely to act as a greater deterrence because of the fear of infamy resulting from the publicity and consequent repercussions like lose of business etc. Such a censure is one of the prescribed punishments in USSR, Columbia and other countries. In India such form of Punishment is included in the Prevention of food Adulteration Act and Income-tax Act. The Law Commission in its 42nd Report considered the inclusion of such a punishment and recommended that such additional punishment would be useful in the case of persons convicted for the second time of anyof the offences under chapter XII and XIII, 1ike extortion, criminal misappropriation, cheating and of offences relating to documents. We are also of the view that such public censure by way of an additional punishment should be there and accordingly be included in section 53 of the Indian Penal Code and it should be left to the discretion of the court regarding imposition of the same in selective cases. ne There are only few sections in the Indian Penal Code which prescribe death as penalty. They are sections 121, 132, 194, 302, 305, 2nd part of 307 and 396. However, by virtue of Criminal Law Amendment Act of 1983, minimum sentence in respect of offence of rape has been prescribed under section 376 (1) & (2). A question whether there should be such minimum sentence in respect of some more offences was debated and ultimately consensus is that restrictions on judicial pronouncements in the matter of award of sentence on principle is not a healthy practice. There may be instances occasionally where judges have failed to award proportionate sentences, but that cannot, however, be a factor to assume that the judges as a whole have failed to award adequate sentences. In the 14th Report as well as in the 42nd Report, The Law Commission examined this question and took the view that except in exceptional cases there should not be any provision for a minimum sentence. We agree with this viewIn respect of number of offences the punishment F prescribed is “imprisonment or with fine or with both". It _ 1s voiced in various workshops that in view of the changes in | tne modern society, the type of crimes and the repetition of " ehose crimes or the frequent occurrence of certain types of ; crimes, it is necessary that the punishment should be imprisonment and in addition fine also. Having examined various provisions in the IPC and the modern trends of crime, we are of the view that in respect of the offences under sections 153, 153A, 160, 166 to 175, 177, 182, 221, 269 to 291, 292, 294 to 298, 336, 465 and 477A, the punishment should be imprisonment as well as fine. Incidentally, we also suggest that the extent of imprisonment should be enhanced suitably in respect of these offences.Or.Jacob George v. State of Kerala, 1994(2) Crimes 100 Caldwell, Criminology, p.403 cited by R.C.Nigam. “Law of Crimes in India"- Principles of Criminal Law, Vol.I, p.232. JT 1995(9) Sc 509 JT 1994(7) SC 183CHAPTER - IIT DEATH PENALTY Clause 125 of the Bill seeks to substitute existing Section 302 by’ inserting the following provisions: “302(1) Whoever commits murder shall, save as otherwise provided in sub-section (2), be punished with imprisonment for life and shall also be liable to fine. (2) Whoever commits murder shall ~ (a) if the murder has been committed after previous planning and involves extreme brutality; or (b) if the murder involves exceptional depravity; or (c) if the murder is of a member of any of the armed forces of the union or of a member of any police force or of any public servant and was committed -(4) while such member or public servant was on duty; or (41) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was member or public servant, as the case may be, or had ceased to be such member or public servant; or ' (ad) if the murder is of a person who had acted in the lawful discharge of his duty under section 43 of the Code of Criminal Procedure 1973, ‘or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under section 37 or section 129 of the said Code; or (e) if the murder has been committed by him, while undergoing sentence of imprisonment for life, and such sentence has become final, be punished with death or imprisonment for life, and shall also be liable to fine.(3) Where a person while undergoing sentence of imprisonment for life ie sentenced to imprisonment for an offence under clause (e) of (2), such sentence shall run consecutively and not concurrently.” The basic issue which needs consideration is whether the capital punishment should be abolished? 3,02. The framers of the Bill intended to list out the eases when death sentence should be awarded. The question is whether such categories can be or may be prescribed thereunder. We would like to examine the punishment as death penalty in detailed manner and give our conclusions. However, before taking up the examination of the relevant Provision, it would be desirable to refer to the development. and the judicial response on the subject. The controversy of capital punishment is an age old Phenomenon. For the past few decades there has been a move ‘to abolish death sentence. There has been a growing public Opinion in favour of it. Some countries have even abolished the death penalty. In Britain, there has been a move for restoration of death penalty supported by substantial Sections of public opinion.There has been a worldwide feeling of humanistic Fyroach to the criminals and punishment. Efforts have been and are being made to make punishment liberal and reform lg prisons. For quite some time, there has been a move to lish death sentence. There has been a growing public inion in favour of it. Though it has not been abolished so r, the law has growingly become liberal in this respect. In all the offences failing under sections 121, $32, 194, 302, 305, Second part of 307 and 396 of the Indian Penal Code provide for punishment of death or in the alternative, imprisonment for life. Thus, it is seen that all grave offences are made punishable with death sentence. peach sentence is executed in India by hanging by a rope juntil the person is declared dead. 3.03. In India the constitutionality of death penalty for lmurder provided under Section 302 of the Indian Penal Code fand the sentencing procedure embodied in Sec.354(3) of the ode of Criminal Procedure, 1973 was challenged in the bbuorone Court on the ground that they are violative of Wrticles 14, 19 and 21 of the Constitution of India. The Bnajority view of the Constitution Bench, to whom the matter Pras referred, held that the provisions of death penalty as an Blternative punishment for murder and also the sentencing Brocedure in sec.383(3) Code, did not violate Articles 14, 19and 21 of the Constitution of India. | The Supreme Court, however, upheld the constitutional validity of a death penalty. Thus, in Jagmohan Singh v. State of Punjab! the Supreme Court was invited to dwell upon the constitutiona validity of such a wide, unguided and uncontrolled judicial discretion to’ make a choice between “death” and "lif ofa convict. It was forcefully argued before the five-member Bench that such a discretion results in discrimination and involves arbitrariness violating article 14 of the Constitution. The Court rejected the argument and justified such a wide judicial discretion owing to impossibility of laying down sentencing norms as facts and circumstances of no two cases are alike and, wrong discretion in matter of sentence, if any, ie liable to be corrected by superior courts. 3.04. Again in Bachan Singh v. State of Punjab? the Supreme Court reacting to the argument that the sentencing Procedure embodied in section 354(3) of Cr.P.c. allowing death sentence only in undefined and unguided “special reasons” is unfair, unreasonable and unjust, and is, therefore, violative of articles 14, 19 and 21 of the Constitution, showed its reluctance to formulate rigid standards to determine what could be “special reasons”. But it advised the courts to pay due regard to the crime and criminal, and weigh relatively the aggravating and mitigatingfactors and to resort to the death sentence in the most exceptional class of cases - “the rarest of rare cases” - when the alternative option is unquestionably foreclosed. Section 354(3) is in the following terme: “When the conviction is for an offence punishable with death or, in the alternative with imprisonment 4 for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded and, in the case of sentence of death, the special reasons for such sentence”. From a reading of section 354(3) of Cr.P.c. and other related provisions it is clear that for making the choice of punishment or for accepting the existence in that context, the court must pay due regard both to the crime and the criminal, The relative weight that can be given to the aggravating and mitigating factors depends on the facts and circumstances of the particular case. In imposing sentence the main aspects of the character and magnitude of the offence and the court has to keep in view the proportion which must be maintained between offence and the penalty and the other attendant circumstances that exist in the case. The Supreme Court in a series of cases ruled that death penalty be awarded in “rarest of rare” cases.In Machhi Singh v. State of Punjab? a Bench of three Judges of the Supreme Court having noted the princip) Jaid down in Bachan Singh case (supra) regarding the formula of ‘rarest of rare cases’ for imposing death sentence, observed that the guidelines indicated in Bachan Singh’s case will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. It was further observed as under: "If upon taking an overall global view of all the circumstances in the light of the aforesaid Proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so”- Likewise in Allauddin Mian and Others v. State of Biher* the same view has been reiterated thus: “However, in order that the sentences may be Properly graded to fit the degree of gravity of each case, it is necessary that the maximum sentence prescribed by law should, as observed -in Bachan Singh's case (A.I.R. 1980 S.C. 898), be reserved for the rarest of rare cases which are of a exceptional nature. Sentences of severity are imposed to reflect the seriousness of the crime, to Promote respect for the law, to provide justpunishment for the offence, to afford adequate deterrent to criminal conduct and to protect the community from further similar conduct. It serves a three-fold purpose (i) punitive, (ii) deterrent and (iii) protective, That is why this Court in Bachan Singh's case observed that when the question of choice of sentence is under consideration the court must not only look to the crime and the victim but also the circumstances of the criminal and the impact of the crime on the community. unless the nature of the crime and the circumstances of the offender reveal that the criminal is a menace to the society and the sentence of life imprisonment would be altogether inadequate, the Court should ordinarily impose the Jesser punishment and not the extreme punishment of death which should be reserved for exceptional cases only.” In Mithu v. ts " abs the Constitution Bench, held:~ “The gravity of the offence furnishes the guidelines for punishment and one cannot determine how grave the offence is without having regard to the circumstances in which it was committed, the motivation and its repercussions. The legislature cannot make relevant circumstances irrelevant,deprive the courts of their legitimate jurisdiction to exercise their discretion not to impose the death sentence in appropriate cases, compel them to shut their eyes to mitigating circumstances and inflict upon them the dubious and unconscionable duty of imposing a preordained sentence of death. Equity and good conscience are the hallmarks of justice" In Kehar Singh v. Delhi Administration® similar rinciples are reiterated and it is further observed "it is a ruesome murder committed by the accused who was employed as ecurity guard to protect the Prime Minister. It is one of he rarest of the rare cases in which extreme penalty is ‘alled for". The aforesaid principles have been approved in many ater cases’. 4.05, The campaign against capital punishment no doubt vas gained momentum in recent years. In 1962, a resolution fas moved in the Lok Sabha for the abolition of capital dunishment. The Government assured the House to refer the watter to the Law Commission of India and consequently the Matter was referred to the Law Commission. The Law Jommission after considering the matter thoroughly, felt that §n the particular circumstances existing in India, it cannotrisk the experiment of abolition of capital punishment. In its 35th report the Commission has elaborately dealt with the retention of death penalty and ultimately observed as under: “The issue of abolition or retention has tc be decided on a balanctng of the various arguments for and against retention. No single argument for aboTftion or retention can decide the issue. In arriving at any conclusion on the subject, the need for protecting society in general and individual human beings must be borne in mind. It is difficult to rule out the validity of the, or the strength behind many of the arguments for abolition. Nor does the Commission treat lightly the argument based on the irrevocability of the sentence of death, the need for a modern approach, the severity of capital punishment and the strong feeling shown by certain sections of public opinion in stressing deeper questions of human values. Having regard, however, to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount need formaintaining law and order in the‘ country at the Present juncture, India cannot risk the experiment of capital punishment. Arguments which would be valid in respect of one area of the world may not hold good in respect of another area, in this context. Similarly, if abolition in some parts of India may not make a material difference, it may be fraught with serious consequences in other parts. On a consideration of all the issues involved, the Commission is of tha opinion that capital Punishment should be retained in the present state of the country.” 3.06. However, the Law Commission has recommended that children below 18 years of age at the time of the commission of the offence should not be sentenced to death. The Criminal Procedure Code, 1973 made a further progress in the direction of liberalisation. The shift towards liberalisation in imposing life imprisonment as against death Sentence in capital offences has also been highlighted by the Supreme Court in Sarweshwar Prasad Sharma V. State of HU ‘in the following words:“The recent benign direction of the penal law is towards life sentence as a rule and death as an exception, awarding of which must be accompanied by recorded reasons." Thus in cases where there are extenuating circumstances, the accused is punished with life imprisonment. In the absence of extenuating: circumstances and in the “rarest of rare cases", capital punishment is awarded. 3.07 We have carefully considered the question from several angles after making comparative study of the law in other countries and after examining various judgments till date rendered by the apex court, we reiterate the recommendation of Law Commission in its 35th Report for retention of the capital punishment, but to be awarded in accordance with the guidelines laid down by the Supreme Court. PART - 12 Specification of categories of awarding death penalty - not necessary 3.08. We now turn to examine the second issue arising out ‘Proposed sub-section (2) of Section 302 occurring under {Slause 125 of the bi11, namely, whether categories of cases ishould be specified for awarding death penalty. The categories specified in the proposed sub-section (2) of Section 302 is not exhaustive. Section 354(3) of the Code of Criminal Procedur 1973, as has been seen earlier, mandates the judge called upon to exercise his choice between the alternative sentence of death and imprisonment for life to state "special reasons” for the death sentence awarded. The provision, in the Jight of its legislative history, in unmistakable terms makes it evident that imprisonment for life is a rule in c of offences punishable with death or in the alternative imprisonment for life and it is only in exceptional cases, for special reasons to be recorded, death sentence can be imposed. But it is nowhere indicated in either the Code of Criminal Procedure or any other statutory instrument as to what constitutes the so-called “special reasons” justifying imposition of sentence of death. This is, again, entirely left to the discretion of the court! 3.09, Before the amendment of section 367(5) of the Criminal Procedure Code, 1898 by Act 26 of 1955, the normal rule was to impose the sentence of death on a person convicted of a capital offence and if a lesser sentence was to be imposed, the court was required to record reasons in writing. But by the aforesaid amendment, the provision in Section 367(5) was omitted and consequently, the court becamefree to award either death sentence or life imprisonment and no longer death sentence was the rule and life imprisonment the exception. Interpreting the liberal provision brought about by Jegislation, Justice Krishna Iyer in E.,Annemma v. State of Andhra Pradesh'®, observed: “That the disturbed conscience of the State on the vexed question of legal threat of the life by way of death sentence has set to express itself legislatively. The screen of tendency being towards cautious, partial abolition and a retreat from total retention.” Justice Krishna Iyer, admitted the impossibility to “feed into a judicial computer” all the situations warranting life imprisonment or death sentence” He, however, suggested factors to be taken into consideration while making a choice between death sentence and life imprisonment like personal, social, motivational and physical circumstances: horrendous features of the crime; hapless and helpless state of the victim, intense suffering endured by prison, torture, and excruciating death penalty hanging over head of the convict consequent of the legal Process.One can also visualise even in cases falling under the proposed sections 302(2)(a) or (b) (c) or (d), that there may be extenuating, mitigating circumstances which may deter imposition of death sentence, and thus again the principle jaid down in. Jagmohan Singh v. State of UP'' and Bachan singh’s case!? as discussed earlier comes into play. This is even statutorily recognised in section 354(3) of Code of Criminal Procedure 1973 which enjoins that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts. Therefore, in spite of the proposed amendment in the Ipc Bill under section 302(2), the situation will be virtually be the same. 3.10. Therefore, we are of the view that it is better to retain section 302 as it is instead of reading any limitations into the same regarding imposition of death sentence for the reason that it is impossible to put them in any straight jacket for the reason that what circumstances make a case a ‘rarest of rare one’, cannot be fixed by way of a legal provision. | Therefore, we would not recommend any change in section 302 as is proposed in clause 125 of the Bin. PART - IIT Proposed clause (3) of section 302 in Ip¢ Bill 3.11, We now turn to examine the sub-clause (3) of clause 125 of the Bill which provides:“Where a person while undergoing sentence of imprisonment for life is sentenced to imprisonment. for an offence under clause (e) of sub-secton (2), such sentence shall run consecutively and not concurrently.” We wish to examine the aforesaid provisions of the Bill in the light of recent legislative and judicial policy. Under the Code of Criminal Procedure, 1898 if a person undergoing the sentence of transportation for life for another offence, the latter sentence was to commence at the expiration of the sentence of transportation to which he was previously sentenced, unless the court directed that the subsequential sentence of transportation was to run concurrently with the previous sentence of transportation. 3.12. It was in 1955 that section 307 of the Code of Criminal Procedure of 1898 was replaced by a new section 397 ection (2) by Amendment Act 26 of 1955. Under the new sub-: ef section 397 which came into force on January 1, 1966 if a Person already undergoing a sentence of imprisonment for life was sentenced on a subsequent conviction to imprisonment for life, the subsequent sentence had to run concurrently with the previous sentence. Section 427(2) of the Code of Criminal Procedure, 1973 is to the same effect.Further in Bhagirath v. Delhi Adminiatrationt?, (Constitution Bench), it was held: “Graver the crime, longer the sentence, greater the need for set offs and remissions. Punishments are no longer retributory. They are reformative.” We feel that clause (3) of section 302 of IPC 8117 providing for running of sentence of life imprisonment consecutively instead of concurrently, will be a retrograde step in accord with deterrent and retributive theories of the past as observed by the Supreme Court. In view of this, we do not approve the proposed clause (3) of section 302 in the Bill. for vi wic 3.13. Section 303 of the Indian Penal Code provid “whoever being under sentence of imprisonment of life commits murder shall be punished with death.” The Law Commission in its 42nd Report did not "recommend any change in the aforesaid section since it is “very rarely applied”.The Supreme Court in Mithuy v. State of Punjab'* declared that the aforesaid provisions of Section 303 violate the guarantee of equality contained in Article 14 as also the right conferred by Article 21 of the Constitution. Chinnappa Reddy J in his concurring opinion observed: it is impossible to uphold section 303” as valid as it excludes judicial discretion. He added that “the scales of justice are removed from the hands of the judge as soon as he pronounced the accused guilty of the offence. So final, so irrevocable and so irrestitutable (sic irresuscitable) is the sentence of death that no Jaw which provides for it without involvement of the judicial mind can be said to be fair, just and reasonable. Such a law necessarily be stigmatised as arbitrary and oppressive. Section 303 is such a law and it must go the way of all". Clause 126 of the Bi11 seeks to omit Section 303 of ‘the Indian Penal Code. Beta, We have carefully considered the various provisions lof the Bi11 and feel that if section 303 is omitted the Becond part of section 307 which provides that “when a person Bffending under this Section is under sentence of Eborisonment for life, he may, if hurt is caused, be punishedwith death" cannot be retained, on the same analogy and principles which hold section 303 to be arbitrary and oppressive and violative of Articles 14 and 21 of the Constitution. We accordingly recommend deletion of the cond part of Section 307.10. We 12. 13. 14, 1973(2) SOR 541 AIR 1980 SC 898 1983(3) Sc 470 1983(3) scc & 1983(2) SCC 277 1988 SCC 389 See K.J.Chatteriee v. State (1994(2) SCC p.220), Bhairon Singh State of Rajasthan (1994(2) scc p.467). Gauri Shankar & Ors. v. tate 1 Nadu (JT 1994(3) SCC 54); utlal hwar Jos v. State of Maharashtra (1994(3) Crimes 197). AIR 1977 SC 2423 Balwant Singh v. State of Puniab, AIR 1976 SC 28 AIR 1976 SC 2196; AIR 1977 SC 2423. AIR 1974 SC 799 1973 (2) SCR 541 1980(2) SCC 684 1986(2) SCC 580 (1983) 2 sce 277.CHAPTER - IV CRIMINAL CONSPIRACY So long as a crime generates in the mind, it is not punishable. Thoughts even criminal in character often involuntary are not crimes, But when the thoughts take the concrete shape of an agreement to do cr cause to be done an illegal. act or an act which is not i}legal by illegal means then even if nothing further is done, the agreement is designated as criminal conspiracy. However, the proviso to section 120A makes it clear that except on agreement to commit an offence, a bare agreement of the aforementioned nature would not amount to an offence of criminal conspiracy unless some act besides the agreement is done by one or more parties to the @reement in pursuance thereof. It is the next overt step which may otherwise be of a preparatory nature such as buying arms to implement the criminal conspiracy that makes it punishable. The act of purchasing arms pursuant to an agreement to do an illegal act or an act thich is not illegal by illegal means shall constitute an affence. Section 120A of the IPC is as follows:- “120A. Definition of criminal conspiracy.- When two or more persons agree to do, or cause to be done,(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement ie done by one or more parties to such agreement in pursuance thereof, Explanation- It is immaterial whether the 11legal act is the ultimate object of such agreement, or is merely incidental to that object.” 4.02. The offence of criminal conspiracy was introduced in the Penal Code by the Criminal Law Amendment Act of 1913, which inserted a separate Chapter VA consisting of only two sections 120A and 120B. Despite the obvious and considerable overlapping between the provisions of these two sections and the provisions governing abetment of an offence by conspiracy Contained in Chapter V, the legislature did not think it Necessary to amend the earlier Chapter in any way. Now Whether or not some act or illegal omission takes place, he is guilty of a criminal conspiracy as soon as he becomes a | Party to the agreement to commit the offence and ispunishable under sub-section (1) or sub-section (2) of section 1208, as the case may be. So far as conspiracies to commit serious offences are concerned, section 1208 (1) puts a party to the conspiracy in exactly the same position as an abettor of the offence for the purpose of punishment. Although it ie theoretically possible to charge a person with conspiring to commit an offence even where no overt act in pursuance of the conspiracy has been done, it seldom, if ever, happens that two or more persone are prosecuted for a criminal conspiracy merely on the strength of evidence proving the agreement and nothing more. 4,03. However, that may be, there is no doubt that, after the enactment of Chapter VA, abetment by conspiracy is of little practical use, and is redundant as a criminal law concept. It may be noted, that in England there is no separate mention of conspiracy as a species of abetment. Therefore, in the 42nd report, the Law Commission had recommended the omission of the second paragraph of section 107 and all subsequent references in Chapter V of the Code of abetment by conspiracy. One is struck by the wide sweep of the definition of criminal conspiracy in section 120 A. It covers not only (i) an agreement to commit an offence, but also (i4) an agreement to commit an illegal act, and (iii) an agreement to commit an act not illegal by illegal means. This distinction between achievement of any object by illegal means must65 involve the doing of something illegal, i.e. the committing of an illegal act. The act which is an offence punishable ection (2) of section 1208 is under sub-section (1) or sub-' being a party to a criminal conspiracy as defined in section 120A. In other words, now criminal conspiracy is not an offence ancillary to another offence, but an independent and substantive offence by itself. 4.04. In fact, the modern crime of conspiracy is almost entirely the result of the manner in which a conspiracy wae treated by the Court in the doctrine of conspiracy which does not commend itself to jurists of civil law countries, despite universal recognition that an organised society must have legal weapons for combating organised criminality. Most other countries have devised what they consider more discriminating principles upon which to prosecute criminal gangs, secret associations, and subversive syndicates. According to the definition of criminal conspiracy two or more persons musibe parties to such an agreement and one person alone can never be held guilty of criminal conspiracy for the simple reason that one cannot conspire with oneself.! The offence of criminal conspiracy consists in the very agreement between two or more persons to commit a criminal offence irrespective of the further consideration whether or not those offences have actually been committed.The very fact of the conspiracy constitutes the offence and it is immaterial whether anything has been done in pursuance of the unlawful agreement.? Thus, even if there is concurrence in the intention of the accused persons to do an illegal act it is not enough for the purpose of establishing a charge of conspiracy. In other words, where there is no meeting of minds there cannot be a conspiracy.? 4.05. It is not an ingredient of the offence under this ection that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. Where the accused are charged with having conspired to do three categories of illegal acts, the mere fact that all of them could not be convicted separately in respect of each of the offences has no relevancy in considering the queation whether the offence of conspiracy has been committed. They can all be held guilty of the effence of conspiracy to do illegal acts, though for individual offences all of them may not be liable.‘ It is not necessary that each member of the conspiracy must know all the details of the conspiracy.$ An offence under this section consists in the conspiracy without any reference to the subject-matter of the conspiracy and it is not necessary to establish the offence that there must have been definite purpose about which the parties are Negotiating or which they have conspired.4.06. The Law Commission in its 42nd report was of the view that there is neither theoretical jurisdiction nor practical need for punishing agreements to commit petty offences or non-criminal illegal acts. In practice, few private prosecutions of such petty conspiracies are sanctioned by the State government or its officers under the criminal Procedure Code. Therefore, it was recommended that section 120A which defines criminal conspiracy should be vised as follows:- "120A, When two ore more persons agree to commit an offence punishable with = death, imprisonment for life or imprisonment of eithe: description for & term of two years or upwards or to cause such an offence to be committed, the agreement is designated a criminal conspiracy. Explanation 1. - It is immaterial whether the commission of the offence is the ultimate object of such agreement or is merely incidental to that object. Explanation 2. - To constitute a criminal conspiracy, it is not necessary that any act or {legal omission shall take place in pursuance of the agreement.”4.07. It may be mentioned that the IPC (Amendment) 8111, 1978 is silent and has not indicated any change about the offence of criminal conspiracy. But the then Law Commission in its 42nd report was of the view that criminal conspiracy for petty offences should not be covered under this chapter. In this context, it is submitted that a petty offence may lead to an offence of serious nature and it would not be easy to separate such crimes as per doctrine of Res-gestae. Moreover, the crime of criminal conspiracy differs from other offences. In other offences, the intention to do a criminal act is not a crime in itself until something is done amounting to the doing or the attempting to do some act to carry out the intention. On the other hand conspiracy consists simply in the agreement or confederacy to do some act, no matter whether it is done or not. Further, section 120A does not just contain a principle of constructive liability, therefore, if an accused is found guilty of criminal conspiracy, may be for a petty offence, he should be convicted under this section. 4.08. Therefore, it is suggested not to disturb this section as the same is working well. “1208. Punishment of criminal conspiracy.- (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment fora term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.” 4.09. This section is the supplement of previous section and provides punishment for the crime committed thereof. It will be noticed that, for the purposes of punishment, section 120B divides criminal conspiracies into two classes. Where the conspiracy is to commit a serious offence, i.e. an offence punishable with imprisonment for two years or upwards, a party to the conspiracy is punished in the same manner as if he had abetted the offence. In the second category there are included conspiracies to commit any other offence (including offences punishable only with fine) and conspiracies to commit illegal acts other than offences; and for these, sub-section (2), provides a uniform punishment, viz. imprisonment of either description upto six months or fine or both. Recognistng that it would be dangerous to leave these petty conspiracies to be alleged before courts by any person so provision is made in the Criminal ProcedureCode, that no court shall take cognizance of them except upon complaint made by order or under authority from the State Government or some officer empowered in this behalf. In other words, the punishment for a criminal conspiracy is more severe if the agreement is one to commit a grave offence; and less severe if agreement is to commit an act, which although illegal, is not an offence punishable with death, imprisonment for life or rigorous imprisonment for more than two years. This section applies where no offence has been actually committed by the members of the conspiracy who are parties during the period of conspiracy for which they are charged under this section. 4.10, In England the law of conspiracy is not so widely drawn as in India. Conspiracy is a common Jaw misdemeanour punishable with fine or imprisonment at the discretion of the court, except in the case of murder where by statute there is ists in the a maximum punishment of ten years. It con agreement between two ore more persons to effect some -“unlawful” purpose. While the commission of a crime, even a non-indictable crime, is naturally recognised as an unlawful Purpose, there are no precise or clear rules in regard to Ron-criminal unlawful purposes of an indictable conspiracy. Conspiracies to defraud, to commit a tort involving malice or to commit a public mischief, are, broadly speaking, indictable. A conspiracy to commit or induce breach of contract is probably not indictable at the present d4aaate Though the present sub-section (1) of section 120B only refers to offences punishable with rigorous imprisonment for a term of two years or upwards, the offences which are punishable with imprisonment of either description for a term of two years or upwards, should be brought within the definition of criminal conspiracies. The second Explanation as suggested by the Law Commission in its 42nd Report is on the same lines as the explanation to section 121A; though not strictly necessary, it seems desirable to have it in this section also. Under sub-section (1) of seation 1208 a party to a criminal conspiracy is liable to be punished in the same manner as if he had abetted the intended offence. This means that, in every case of conspiracy, the appropriate provision contained in Chapter V will have to be found out and applied. It would obviously be preferable to make the section 1#-contained. Therefore, in the 42nd report, the then Law Commission had recommended that section 1208 should be revised as follows:"1208. Whoever is a party to a criminal conspiracy shall, where no express provision is made for the punishment of such a conspiracy, - (a) if the offence which it is the object of the conspiracy to commit or cause to be committed is committed in pursuance of the conspiracy, be punished with the punishment provided for that offence; and (b) if the offence is not committed in pursuance of the conspiracy, be punished with imprisonment of any description provided for that offence for a term which may extend to one-half of the longest term provided for that offence, or with such fine as is provided for that offence, or with both.” 4.12, It appears that the Law Commission made the recommendation for the revision of section 1208 with the intention to make the section self-contained. But the recommendation will make the language ambiguous. Therefore, this recommendation could not find a place in the IPC (Amendment) 8111, 1978 which is silent about this section.This section, no doubt, is very important as it provides a punishment only for criminal conepiracy where no «express provision is made in the Code for the punishment of .Such a conspiracy. Where, therefore, a criminal conepiracy amounts to an abetment under section 107, it is unnecessary to invoke the provisions of this section, because the Code has made specific provisions for the punishment of such a conspiracy. Now it 48 well settled that a criminal conspiracy is a separate offence, punishable separately from the main offence.® AA3, In the light of the above discussion, we are of the view that our recommendation in the matter is same for both the sections for the reasons mentioned earlier. In other words, there is no need to disturb Chapter VA as it works like residuary provision for the crime of conspiracy.Topandas Vs. State, (1955), 25 SCR at. Noor Mohammad Ve. State, (1970) scc(cri) 274, Union of India Vs. Prafulla K. Sonal, (1978) scc(cri) 609. Major EG Barsay Vs. State. AIR 1961 SC 1762. Dalmia R.K. Vs. — DeThi Administration (1962) IT Cr.L.J 808. Mahesh Chand, 1986 (1) Crimes 63. Also “Hazari Baria,1928, 30 Cr. L.J 473.CHAPTER - V FINANCIAL SCAMS CONSPIRACY TO DEFRAUD PUBLIC INSTITUTIONS There are various serious economic offences which are damaging the society. It is needless to say that the motive for commission of these crimes is the greed of the person and the method employed is nothing short of fraud. The Union Government appointed a Committee known as “Santhanam Committee"! in the year 1962 which, after a careful survey, categorised @ kinds of Socio-Economic offences such as, inter alia , i) Offences calculated to prevent or obstruct the economic development of the country and endanger its economic health, ii) Evasion and avoidance of taxes, and 4ii) Profiteering, black-marketing and hoarding. 5.02 Recently, various sort of scams in various fields, e.g., banks, hospitals, investment of public shares involving crores of rupees have surfaced. In Shiv Sagar Tiwari v Union of India,? the Supreme Court has also observed that there are various scams in the country. 5.03 Apparently, financial scams have the genesis of committing fraud with the public money running into crores and crores of rupees. The nation’s economy is put indoldrums when such colossal amount is pocketed in by vested interests through fraudulent means leaving the poor citizen’s hard earned money which he invested for his prosperity or to cater for his evenings of his life, for being siphoned off by few culprits. Above all, if such culprits go scot free after even a protracted trial, or are mat with punishments similar to an accused of fraud of insignificant amount as compared to those of scams, people start loosing faith in the jurisprudence of justice prevailing in the country. This has the direct inroad into the confidence of democratic set up of the country and the very existence of an orderly society is put at stake. In A.Jayaram and Another v. State of Andhra Pradesh by CBI, the Supreme Court deprecated that officials involved in a fertilizer scandal of large scale went scot free because of tardy inquiries made by State Police. It held:~ rtilizer "It is really unfortunate that in scandal of such magnitude, appropriate steps at the right time had not been taken and for want of the accused convincing and unimpeachable evidenc: who were government officials have been acquitted by giving them benefit of doubt. It appears to us that such Jarge scale scandal in transporting imported fertilizer would not have occurred if larger number of government officials and other than prosecuted were not involved. It is not unlikely that the superior government officials had also played a vital role in perpetrating the saidfraud or concealing the same. The tardy enquiries made by the State Police thereby necessitating an enquiry by the CBI at a belated stage is only a sad commentary on the efficiency of the police administration. In Delhi Development Authority vy. Skipper Construction Company (p) Ltd. , it was held:- “The concept of corporate entity was evolved to encourage and promote trade and commerce but not to commit illegalities or to defraud people. Where, therefore, the corporate character is employed for the purpose of committing illegality or for defrauding others, the court would ignore the corporate character and will look at the reality behind the corporate veil so as to enable it to pass appropriate orders to do justice between the parties concerned...” “We feel impelled to make a few observations. What happened in this case is illustrative of what is happening in our country on a fairly wide scale in diverse forms. Some persons in the upper strata (which means the rich and the influential class of the society) have made the ‘property career’ the sole aim of their life. The means have become irrelevant - in a land where its greatest son born in this century said “means are more important thanthe ends". A sense of bravado prevails; everything can be managed; every authority and every institution can be managed. All it takes is to “tackle” or “manage” it in an appropriate manner. They have developed an utter disregard for law nay, a contempt for it; the feeling that law is meant for lesser mortals and not for them. The courts in the country have been trying to combat thie trend, with some success as the recent events show. But how many matters can we handle. How many more of such matters are still there? The real question is how to swing the polity into action, a polity which can has become indolent and soft in its vital the courts alone do it? Even so, to what extent, in the prevailing state of affairs? Not that we wish to launch upon a diatribe against anyone in particular but Judges of this Court are also permitted, we presume, to ask in anguish, “what have we made of our country in less than fifty years"? Where has the respect and regard for law gone? And who is responsible for it?” Thus no more support is required to conclude that scams of diverse forms cited above, have to be very effectively tackled. most of the frauds 5.04 Needless to say that thi generally are not committed individually but with the aid and assistance of others in an organised manner.5.05 The Law Commission (UK) in its report’ on “Criminal Law: conspiracy to defraud" (LAW COM No.228) has considered conspiracy to defraud, which remains a common law offence. The scope of conspiracy to defraud is extremely wide. As its name indicates, it cannot be committed by one person acting alone. The Commission (UK) explained the conspiracy to defraud as follows:- e207, The decision of the Court of Appeal in Moses (1991) Crim LR 617, provides a recent illustration of the use of conspiracy to defraud to deal with an agreement to deceive a public official into acting contrary to his public duty. The defendants conspired to facilitate applications for work permits by immigrants who were barred by a passport stamp from obtaining such permits. The deception consisted in the withholding from departmental supervisors of information about the applicants, which increased the likelihood of a national insurance number being issued to them. 2.8 The extent to which a conspiracy to use non-economic loss extenda beyond thia category ie unclear. The authorities conflict. Different Judicial views were expressed in the House of Lorde3.16. 5.06 =: 80 :- ‘in Withers (1975 AC 842). the narrower view, that this type of case was the only form of non-economic loss covered by conspiracy to defraud, was also expressed by Lord Diplock in Scott (1975) Ac 819, 841 B-C. The wide views expressed in Welham ((1961) AC 103) by Lord Radcliffe and Lord Denning were specifically approved by the Privy Council in Wai Yu-tsang ((1992)1AC 269,) in which Lord Goff of Chieveley, who delivered the Board’s opinion, said that the cases concerned with public duties did not comprise a special category, but merely exemplified the general principle that conspiracy to defraud need not involve an intention to cause economic loss.” There is, however, a significant distinction in this respect between conspiracy to defraud and a conspiracy to commit an offence. Where the parties to a statutory conspiracy have carried out their scheme, they are not normally charged with conspiracy as well. On the other hand, whether or not the plan of conspirators to defraud has succeeded, they can be convicted only of conspiracy.” Analysis of above position particularly the Observations of the Supreme Court made in Skippers case clearly indicate a need to carve out an aggravated form ofconspiracy particularly in cases when fraud is committed against Government, Public Sector Banks or Public Financial Institutions, local authority, or any State Undertaking or Agency. In the Skipper’s case,® the offence was committed by the Skipper’s Construction Company (P) Ltd. in collusion with DOA officials. We are of the view that this problem can be tackled if the following new section, namely Section 120BB, is inserted in IPc:- "120BB. Criminal conspiracy to defraud public institution, etc. When two or more persons agree to defraud a public institution or a local authority, fraudulently or dishonestly, to cause, or cause to be done, wrongful gain to themselves or to any person, or to cause or cause to be done, wrongful loss to such public institution or local authority, such an agreement is designated a criminal conspiracy to defraud and whoever is a party to such criminal conspiracy shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine: Provided that no agreement shal] amount to a criminal conspiracy to defraud unless some act besides the agreement is done by one or more Parties to such agreement in furtherance thereof.Explanation - Any bank or financial organisation or company or body or body corporate, which is owned or controlled by the Government, shall be deemed to be a ‘public institution’ for the purposes of this section”.FOOTNOTES Committee on Prevention of Corruption, 1962 Report, headed by Chairman Shri K.Santhanam 1996(9) SCALE 680. 1996(4) SCALE 393. AIR 1996 SC 2008. The Law Commission (UK) (LAW COM, = NO.228) ‘criminal Law Conspiracy to defraud’ Item 5 of the Fourth Programme of Law Reform: Criminal Law. Supra note 4.CHAPTER - VI ATTEMPT - INSERTION OF NEW SECTIONS 120 C & 120 BY WAY OF NEW CHAPTER VB IN THE BILL The IPC (Amendment) Bi11, 1978 made a provision for 4% this new Chapter under Clause 45. Also by mistake, clauses 46 to 51 of the 8111 were incorporated in this Chapter which, in fact, constitutes an independent Chapter, i.e., Chapter VI as per IPC contents. Therefore, this new Chapter is confined to sections 120 C and 120 D only which are dealing with the “attempt”. 6.02 The subject of attempt has already been incorporated in the last Chapter i.e. XXIII (containing only one section 511 of the Code as a residuary provision. However, in the 8111 it is inserted just after Chapter VA, perhaps, in view of the importance of the concept and its close connection with abetment and conspiracy. In the Bill, section 511 has been omitted by inserting this new Chapter which has only two sections, namely sections 120 ¢ and 120-0. 6.03 It may be mentioned that numerous sections in the Code, while defining the acts which constitute particular offence, place attempts to do those acts at par with doing the acts themselves and make’ them punishable to the same extent. Such provisions of the Code may be summed as under:-(1) Under section 121, with which the next chapter begins, waging war against the Government of India and any attempts to wage such war are both capital offences. (2) Section 124, attempt wrongfully to restrain the President and other high officials with intent to induce or compel them to exercise or refrain from exercising any of their lawful powers. (3) Section 125, attempt to wage war against the Government of an Asiatic Power in alliance or at peace with the Government of India. (4) Under section 130, one who attempts to rescue a prisoner of war is punished to the same extent as one who actually rescues a prisoner of war. If one were to construe section 511 strictly as a residuary provision, none of the ideas contained therein would be applicable for interpreting what constitutes an attempt to wage war under section 121 or an attempt to rescue aprisoner of war under section 130. These sections themselves do not furnish any guidance for this purpose. (5) Section 153A - attempt to promote feelings of enmity, etc.(8) Section 161 - attempt by a public servant to obtain an illegal gratification. (7) Section 162 - attempt to obtain a gratification in order by corrupt or illegal means to influence a public servant. (8) Section 163 - attempt to obtain a gratification for exercising personal influence over a public servant. (9) Section 165 - attempt by public servant to obtain a valuable thing without consideration from a person concerned in proceeding or business transacted by the public servant. (10) Section 196 - attempt to use as true, evidence known to be false. (11) Section 213 - attempt to obtain a an . offender — from gratification to ser punishment. (12) Sections 239 and 240 - attempt to induce a person to receive a counterfeit coin.(13) Section 241 - attempt to induce a person to receive as genuine a counterfeit coin which, when the offender took it into his possession, he did not know to be counterfeit. (14) Section 307 which, without using the word attempt except in the margin, defines attempt to murder. (18) Section 308 which similarly defines attempt to commit culpable homicide not amounting to murder. In the preceding last two sections, the attempt consists in doing any act with such intention or knowledge, and under such circumstances, that if the actor by that act caused death, he would be guilty of murder or, as the case may be, culpable homicide not amounting to murder. The hypothetical condition if he by that act caused death is not easy to apply in cases where the act done was physically incapable of causing any one’s death. The question whether there could be an attempt to murder not falling within section 307, or an attempt to commit culpable homicide not falling within section 308, but punishable ae such under section 511, the residuary section, is not entirely theoretical as it has been raised before the courts fairly often. (16) Section 309 - attempt to commit suicide.6.04 (17) Section 385, 387 and 389 - attempt to put a person in fear of injury or accusation in order to commit extortion. (18) Section 391 - conjoint attempt of five or more persons to commit a dacoity. (19) Sections 393, 394 and 398 - attempt to commit robbery. (20) Section 460 - attempt by one of many joint house-breakers by night to cause death or grievous hurt. Finally, there is section 511 which runs as under:- “511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.-~ Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does not act towards the commission of the offence, shall where no express provision is made by this Code for the punishment such attempt, be punisned with imprisonment for any description provided for the offence, for a term which may extend toone-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both. Illustrations (a) A makes an attempt to steal some jewels by breaking open a box and finds, after so opening the box, that there is no jewel in it. He has done an act towards the commission of theft, and therefore is guilty under this section. (b) A makes an attempt to pick the pocket of Z by thrusting his hand into Z’s pocket. A fails in the attempt in consequence of Z’s having nothing in his pocket. A is guilty under this section.” 6.05 However, the Law Commission in its 42nd report (para 5.43) found that the language used in section 511 is very confusing. It was also mentioned that section 309 defines attempt to commit suicide in the same way “Whoever attempts to commit suicide and does any act towards the commission of such offence...” Therefore, to constitute a criminal attempt two requirements are apparently to be satisfied, namely-(1) The offender must first attempt to commit an offence, which presumably he can only by doing some act, but that apparently is not sufficient. (ii) He must, in doing that act which is the attempt, also do something else towards the commission of the offence. 6.06 The crux of the problem of defining attempt seems to lie in stating with precision a test as to when the act has travelled beyond the preparatory stage. There are two tests to determine the “attemp (i) First test is of proximity. The much-quoted dictum is that acts remotely leading towards the commission of an offence are not to be considered as attempts to commit it, but acte immediately connected with it are, states the Proximity rule. In other words, to constitute an attempt, the act done must be immediately, and not merely remotely, connected with the commission of the offence. (ii) Secondly, test is known as the test of last act. Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are.But this test of last act has, however, obvious flaws. It cannot be applied to a situation where the accused intends to accomplish hie object by degrees, such as, murder by slow poisoning. Moreover, the act which remains to be done by the offender puts poison in a glass and also intends to pour wine in it, but the wine is actually poured by the victim. Here the “last act” which the offender wished to do was not, in fact, done by him, but that need not prevent the act from being an attempt. 6.07 In order to constitute an attempt, the acts of the accused must be such as to clearly and unequivocally indicate of themselves, the intention to commit the offence.: Salmond, whose view is most frequently quoted, observed, (') “an act done with intent to commit a crime ie not a criminal attempt unless it is of such a nature as to be in itself sufficient evidence of the criminal intent with which it is done. A criminal attempt is an act “which shows criminal intent on the face of it....An act.....which in its own nature and on the face of it innocent.....cannot be brought within the scope of criminal attempt by evidence aliunde as to the criminal purposes with which it is done.”6.08 It is, therefore, suggested that a practical test for the actus reus in attempt is that the prosecution must prove that the steps taken by the accused must have reached the point when they themselves clearly indicate what was the ‘end towards which they were directed. In other words, the steps taken must themselves be sufficient to show, prima facie, the offender’s intention to commit the crime which he 46 charged with attempting. It is also to be mentioned that the actus reus necessary to constitute an “attempt” is complete if the accused does an act which is a step towards the commission of the specific crime, which is immediately and not merely remotely connected with the commission of it, and the doing of which cannot reasonably be regarded as having any other purpose other than the commission of ‘specific crime. é The Supreme Court had expressed its view regarding an attempt as under ? - “A person commits the offence of attempt to commit a particular offence when (4) he intends to commit that particular offence; and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence.”Eminent Jurist Sir James Stephen, in his Digest of Criminal Law, Article 50, defines an attempt as follows:— "an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted. The point at which such a series of acts begins cannot be defined, but depends upon the circumstances of each particular case.” 6.09 After having a glance of juristic interpretation of an “attempt”, it is crystal clear that for an “attempt”, a futile act of the accused is a must. Had he been successful, the same would have been a crime. But his failure for the same converts the crime into an “attempt”. Similar approach was taken in both the illustrations of section 511, where it is stated that a person during the futile act is guilty of attempting to commit theft. 6.10 The Law Commission in its 42nd report had recommended that the last Chapter of the Code containing only section 511 be omitted and, instead, a new chapter vV-B entitled “Attempt” consisting of two sections 120C and 1200 be inserted after Chapter VA as follows:~m2 94 rH 120¢. Definition of attempt:- A person attempts to commit an offence punishable by this Code, when ~ (a) he, with the intention or knowledge requisite for committing it, does any act towards its commission; (b) the act so done is closely connected with, and proximate to, the commission of the offence; and (c) that act fails in its object because of facts not known to him or because of circumstances beyond his control. L1lustrations (a) A, intending to murder Z, buys a gun and Joads it. A is not yet guilty of an attempt to commit murder, A fires the gun at Z, he is guilty of an attempt to commit murder. (b) A, intending to murder Z by poison, purchases poison and mixes the same with food which remains in A’s keeping; A is not yet guilty of an attempt to commit murder. A places the food on 2’etable, or delivers it to Z's servant to place it on Z's table. A is guilty of an attempt to commit murder. (e) A, with intent to steal another person's box, while travelling in a train, takes a box and gets down. He finds the box to be his own. As he has not done any act towards the commission of the offence intended by him, he is not guilty of an attempt to commit theft. (d) A, with intent to steal jewels, breaks open Z’s box, and finds that there is no jewel in it. As his act failed in its object because of facts not known to him, he is guilty of an attempt to commit theft.” “1200. Punishment for attempt; Whoever is guilty of an attempt to commit an offence punishable by this Code with imprisonment for life or with imprisonment for a specified term, shall, where no express provision ie made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life, or, as the case may bi=: 96 r= one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.” 6.11 In view of this definition of attempt, which could be applied in relation to murder and culpable homicide not amounting to murder without any serious difficulty, the Law ~s ‘Commission in 42nd report did not consider it necessary to have a different formula to define attempt to commit eithe of these offences. It was also recommended to revise Sections 307 and 308 as follows: “307 .Attempt to murder:~ Whoever attempts to commit murder shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender may - (a) if under sentence of imprisonment for life, be punished with death; and (b) in any other case, be punished with imprisonment for life "308. Attempt to commit culpable homicide:Whoever attempts to commit culpable homicide not amounting to murder shall be punished with imprisonment of either description for a term which may extend tothree years, or with fine, or with both; and if hurt ie caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Illustration A, on grave and sudden provocation, fires a pistol at Z, under such circumstances that if he thereby caused death he would be guilty of culpable homicide not amounting to murder. A has committed the offence defined in this section.” 6.12 In the IPC (Amendment) 8i11, 1978, the recommendations made by the Law Commission were incorporated with minor amendments like - (1) Illustration (c) to section 120C was dropped and illustration (d) was made illustration (c). (ii) At the end of section 307 (b), the following words were inserter “or with rigorous imprisonment for a term which may extend to ten yearseo 98 In the Bill, the texts of sections 120-c and 120-D runs as under. 120-¢, Definition of Attempt:- A person attempts to commit an offence, when - (a) he, with the intention or knowledge requisite for committing it, does any act towards its commission; (b) the act so done is closely connected with, and proximate to, the commission of the offence; and (c) that act fails in its object because of facte not known to him or because of circumstances beyond his control. (a) A, intending to murder Z, buys a gun and loade it. A is not yet guilty of an attempt to commit murder. A fires the gun at Z, he is guilty of an attempt to commit murder. (b) A, intending to murder Z, by poison, purchasea poison and mixes the same with food which remains in A's keeping; A ie not yet guilty of an attempt to commit murder.A places the food on Z's, table, or delivers it to Z’a servant to place it on Z’s table. A is guilty of an attempt to commit murder. (ce) A, with intent to steal jewels, breaks open Z's box, and finds that there is no jewel in it. Ae hie act failed in its object because of facts not known to him, he is guilty of an attempt to commit theft. 1200. Punishment of attempt:~ Whoever is guilty of an attempt to commit an offence punishable with imprisonment for life or with imprisonment for specified term, shall, where no express provision is made for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both” 6.13 After examining the suggestions of the Law Commission in its 42nd report, judicial as well as academic interpretation pertaining to “attempt”, it has become clear that there are four distinct stages through which an act ordinarily passes before it becomes a crime punishable by the Code. The first stage is described as intention to commit a crime i.e.‘mens rea’. The intention, however, criminalitself, without anything more is not punishable. The next stage is described as preparation and excepting a few exceptional categories, preparation is not punishable. Section 511 of the Code deals with the third stage, namely, the stage of attempt. One who commits offence firet intends to commit an offence, then prepares for committing offence and then attempts to commit offence and when succeeds, he is said to have committed an offence. This third stage is made punishable under section 611. No doubt that this is a general and residuary provisicn dealing with attempts to commit offences not made punishable by any other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not those punishable with death only. An “attempt” ie made punishable, because every ‘attempt’, although it fails in achieving the result, must create alarm, which of itself is an injury, and the guilt of the offender is the same as if he had succeeded. Guilt must be related to injury in order to justify punishment; when the injury is not as great as of the act committed, only upto half the punishment prescribed is awarded. However, preparation to commit an offence is not punishable except when the preparation is to commit offences under section 122 (waging war against the Government of India) and section 399 (preparation to commit dacoity).6.14 It is very vital to note that the offence of an “attempt” leaves untouched attempts to commit, or to cause to be committed offences under special or local laws which also are not offences under the Code. No criminal liability can be incurred under the Code by an attempt to do an act which, if done, will not be an offence under the Code. To constitute a crime of an attempt under the Code, the offender’s intention to commit a complete offence is necessary. The very wording in section 511 that “To cause such an offence to be committed” will include an attempt to abet an offence. So it has been held that it is not legally possible to attempt the abetment of an offence, the abetment of an offence being itself an offence. A common form of such attempt is the soliciting of another to commit an offence. The act done towards the commission of the offence consists in the solicitation itself. It will not affect the offence though the person solicited declines the persuasion, Similarly, the wording of section 511 “Does any act towards the commission of the offence” are also vital words “Intention alone, or intention followed by preparation are not sufficient to constitute an attempt. But intention followed by preparation, followed by any act done towards the commission of the offence, are eufficient.” In each of the two illustrations given under thia section there is not merely an act done with the intention to commit an offence,which act is unsuccessful because it could not possibly result in the completion of the offence, but an act is done “towards the commission of the offence,” that is to say, the offence remains incomplete only because something yet remains to be done, which the person intending to commit the offence is unable to do by reason of circumstances independent of his own volition, Thus, in illustrations the act of breaking open the box is done towards the commission of the theft of the jewels. The theft itself, that is, actual removal of the jewels, still remains to be done and it remains undone only because it turns out that there are no jewels to remove. (b) Z fails to comply with the essentials of theft simply because there is nothing in the pocket. For the conviction under this section it is not cessary that the accused should complete the stage in the actual offence except the final stage. it is enough if in the attempt he did any act towards the commission of the offence.103 :- 6.15 Section 511 was never meant to cover only the penultimate act towards completion of an offence and not the preceding acts. If such acts are done in the course of the attempt to commit the offence, then they are done towards ite commission. It appears from the above discussion, that it would be most difficult to frame a satisfactory and exhaustive where definition which shall lay down for all cas preparation to commit an offence ends and where attempt to commit that offence begins. The question is not one of mere proximity in time or place. Many offences can easily be conceived where, with all necessary preparations made, a long interval will still elapse between the time when the attempt to commit the offence commences and the time when it ts completed. The offence of cheating and inducing delivery is an offence on point. The time that may elapse between the moment when the preparations made for committing the fraud are brought to bear upon the mind of the person to be deceived and the moment when he yields to the deception practised upon him may be a very considerable interval of time. There may be the interposition of inquiries and other acts upon his part. The acts whereby those preparations may be brought to bear upon the mind may be several in point of number, and yet the first act after preparations completed will, if criminal in itself, be beyond al! doubts, equally an attempt with the ninety ninth act in the series.Moreover, the definition in section 511 uses the word ‘attempt’ in a very large sense; it seems to imply that such an attempt may be made up of a series of acts, and that any one of those acts done towards the commission of the offence is itself punishable, and, though the sections does not use the words, it can mean nothing but punishable as an attempt. It does not say that the last act which would form Sno tinal part of an attempt in the larger sense is the only act punishable under the section. The words, “whoever attempts to commit an offence” obviously have the larger meaning to cover any act, done towards the commission of the offence. The term ‘any act’ excludes the notion of the final act. 6.16 In the light of above discussion, it is very clear that section 511 is working well and there is no need to omit r Y it. Therefore, no need to introduce a new Chapter V-B containing sections 120 C and 1200. Nonetheless, if need be, the language of section 511 may be amended.=: 108 :- Russell on Crime, (1964) Vol.1 page 184, (Edited by Dr.Turner). Abhayanand Mishra Vs. State of Bihar, (1962) 2 SCR 241.=: 106 : CHAPTER - VII OFFENCES AGAINST THE STATE Offences against the State are included in this chapter. It has the flavour of the approach of Empire builders. The chapter has undergone very little amendment save for the introduction of section 121A by the Act XXVII of 1870 and section 1244 by the Act IV of 1898. These additional sections were introduced to plug a loophole because of an inadvertent omission of a special provision for the punishment of the offence of abetment of rebellion, to protect at the relevant time the Empire builders However , no Government can afford to allow a threat to develop to its existence by a small coterie of people. There is no country on earth in which there is not a small minority group commoniy known as terrorists which is always up in arms against the established Government. The secessionist activity has reared its ugly head even in countries which appeared to have an integrated personality. It has become necessary to provide permissible norms of political behaviour, violation of which must be punishable. This chapter provides for punishment of those engaged in waging a war against the Government of India, conspiracy to commit such offences, preparation to commit such offences such as collecting arms etc. with intention ofwaging war and concealing the existence of a design to wage war. Section 124A which provides punishment for sedition was described by the Father of the Nation as the prince amongst the political sections of the Indian Penal Code. It may be mentioned that such renowned personalities as Mahatma Gandhi, the Father of the Nation, and Bal Gangadhar Tilak were also tried and punished during the heyday of British Empire under section 124 A. The line dividing preaching disaffection towards the Government and legitimate political activity in a democratic set-up cannot be neatly drawn. Where legitimate political criticism of the Government in power ends and disaffection begins, cannot be ascertained with precision. The demarcating line is thin and wavy. What was sedition against the Imperial rulers may today pass off as a legitimate political activity in a democratic set-up under our libertarian Constitution. The interpretation of the relevant sections in this chapter will have to be moulded within the letter and spirit of the Constitution. In this chapter, the first five sections deal with what may be called acts of high treason waging war against the Government of India, conspiring to wage war, preparation to wage war, facilitating of such activities and overawing the Government or the Head of State by force.=: 108 :~ Next section is the punishing one of sedition, Then three sections aim at preserving friendly relations with foreign States by punishing those who attempt to prejudice those relations by unwarranted aggressive action. The last three sections of the chapter, which relate to prisoners of war and state prisoners, are not of much practical importance during peace time, especially since the category referred to “state prisoners" during the British regime no longer exists, having given place to the less dignified appellation of “persons under preventive detention”. 7.02 With this chapter begins the definition of particular offences which the makers of the Code thought fit to include in it. Despite the large number - about 400 - of such offences for which the punishment is prescribed in the Code, the compilation cannot in the nature of things be exhaustive. Other types of wrongful, injurious or anti-social conduct made punishable under other special laws like Army Act, Air Force Act, and 8o on. The Law Commiseion in its 42nd report observed that while an enlargement of the scope of the Penal Code by including therein some of the offences now punishable under a special or local law may be esirable, it is neither necessary nor practicable to attempt to make the Code an absolutely complete law of crime. However, in brief some of these special laws which are dealing treason, sedition and other kindred offences against the security and integrity, may be mentioned as under ~109 :- (1) The Foreign Recruitment Aot, 1874 (4i)The Indian Criminal Law Amendment Act, 1908 (4ii)The Official Secrets Act, 1923 (iv) The Criminal Law Amendment Act, 1938 (v) The Criminal Law Amendment Act, 1961 (vi)The Unlawful Activities (Prevention) Act, 1967; and so on 7.03 It is clear that treason, sedition and cognate offences which may be classified as offences against the security of the state, are dealt within codes of other countries in much greater detail! than in our Pena) Code. In particular, it is noticeable that treason and treagonable activities are spelt out elaborately, and not limited to waging war against the Government and assaulting the head of State. On a preliminary study of the problem it appears that the strengthening, consolidation and revision of some of the provisions of this important branch of criminal law would be necessary. However, in the Amendment 8111 only two change: are proposed, namely, insertion of a new section 123A and substitution of section 124A and changing the nature of sentence to rigorous imprisonment under sections 122 and 123. Having regard to the importance of the Penal provisions inthis regard, we would also examine the question whether any changes are necessary in these existing provisions, namely, section 121 and 121A. 7.04 Section 121 prescribes the punishment, namely death or imprisonment for life, for the principal offence of waging war against the Government of India and for abetting that offence or attempting to commit that offence. Neither 42nd Faoort nor 1PC (Amendment) Bi11, 1978 has suggested any change. Therefore, this section does not require any change. 7.05 Section 121A provides as under:— “121A. Conspiracy to commit offences punishable by section 121- Whoever within or without India conspires to commit any of the offences punishable by section 121, or conspires to overawe, by means of criminal force or the show of criminal force, the Central Government or any State Government, shall be punished with imprisonment for life, or with imprisonment of either description which may extend to ten years, and shall also be liable to fine.Explanation: To constitute a conspiracy under this section, it is not necessary that any act, or illegal omission shall take in pursuance thereof.” Section 121A punishes two different kinds of conspiracy. The first is a conspiracy to wage war against the Government of India, and the second is a conspiracy to overawe by force the Central Government or any State Government. In view of section 120 B, there is hardly any need for a separate section to deal with the first kind of conspiracy. If any such conspiracy actually results in the waging of war against the Government of India, or even an attempt to wage such war, the conspirators will be punishable with death or imprisonment for life under section 121 read with section 120 8; and the conspiracy is infructuous, they will be punishable with half the longest term of imprisonment. provided for the offence, that ten years, which may be sufficient. 7.06 On reading, it looks difficult that purpose is served at present by the words “within or without India” which appear at the beginning of the section. When it was enacted in the last century, the extra-territorial application of the Code was limited during colonial days, to offences committed by Government servants in the territory of any Indian State. 8y referring to conspiracies entered into “without British India", the section was apparently intended to cover British subjects and not foreigners.a2 2 i In view of sections 1 and 4 of the Code as they stand at present, it is fairly clear that section 121A cannot apply to the acts of foreigners committed outside India, It was also considered by the Law Commission in its 42nd report that the words “within or without India” are of no practical consequence and should be omitted. 1.07 In the 42nd report, it was also recommended to ‘extend the idea to overawe by criminal force or by show of criminal force, the Parliament of India or the legislature of any State in addition to overawing the Central Government or any State Government as an offence of conspiracy. at present, the award of simple imprisonment is permissible under the section, which in view of the gravity of the offence is not appropriate. It was accordingly proposed by then Law Commission that section 121A may be revised ae follows :— "121A. Conspiracy to overawe the Parliament or Ir 9 4 1 Government of any State:Whoever conspires to overawe, by means of force or show of force, the Parliament or Government of India, or the Legislature or Government of any State, shall be143 t= punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. Explanation:- To constitute a conspiracy under this section, it is not necessary that any act or illegal omission shall take place in pursuance thereof." The Law Commission observed in its 42nd report that since this offence is akin to the one described in section 124, it would be logical to bring it after the three sections dealing with waging war and the proposed new section about assisting India’s enemies, and to number it 1238. 7.08 Pertaining to the second kind of conspiracy (para 05 above), in the 42nd report it was recommended that section 121A may be amended but in the IPC (Amendment) 8111 1978, the same was not accepted. Also in the proposed amendment, the idea to overawe by criminal force as an offence was extended to the Parliament or the State's On the other hand, the original text of section 121A (which was inserted by the Act 3 of 1951) provides general and wide scope to cover all types of conspiracy for the offence mentioned in section 121 of the Code. Needless to mention that the words,co” conspires to overawe, by means of criminal force or the show of criminal force the Central Government or any State Government, shall be punished. re sufficient to cover the words, “Parliament or the State Legislature” as the legislative is an essential part/wing of every democratic government. About the said recommendations nothing has been mentioned in the Amendment Bi11. 7.09 Having earnestly considered in the aforesaid manner these provisions, namely, section 121A, we are of the view that no changes are necessary and we endorse that the absence of any major policy changes in the Bill is of no consequence. Likewise, having examined sections 121, 122, 123 and also having noted that the Law Commission in its 42nd Report did not suggest any amendment, and these sections will remain as they are except that the words “imprisonment of either description” being substituted with “rigorous imprisonment”. 7.10 The Law Commission in its 42nd Report recommended for inserting a new section 123A and the same finds place in the Amendment Bill. The New Section 123A as recommended by the Law Commission reads as follows: "123A. Assisti : ies: Whoever assists in any manner an enemy at war with India, or the armed forces of any gountry against whom themr 116 ro armed forces of India are engaged in hostilities, whether or not a state of war exists between that country and India, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.” The above recommendation for inserting section 123-A got a place in the IPC (Amendment) Bill. a new But in the Bill, an Explanation was added in the proposed section. The said Explanation may be read as unde! “Explanation - In this section - (i) “Armed forces of India” means the military, naval and air forces, and includes any other forces of the Union; (44) “enemy” includes any person or armed country committing external aggression against the Union, or any person belonging to such country.” Ta Proposed section 123A in the Bill is based on the recommendation of the Law Commission in its 42nd Report. An Explanation is, however, added in the 8111 which explains the expressions ‘armed forces of India’ and ‘enemy’ context of the offence covered by the main section recommended by the Law Commission. Therefore, there harm in having this Explanation. in the 123A as 1 noTAZ The existing section 124A defines the offence of sedition. Despite the umbra of repression which a mention of this section is likely to evoke in one’s mind, it is a provision which has to find a place in the Penal Code for the reason that every State, whatever its form of Government, has to be armed with the power to punish those who by their conduct, jeopardise the safety and stability of the State, or disseminate such feelings of disloyalty as have the tendency to lead to the disruption of the State or to public disorder. 7.13 In England, the crime of sedition is a crime against society nearly allied to that of treason, and it frequently precedes treason by a short interval. The objecte of sedition generally are to induce discontent and insurrection and stir up opposition to the Government, and bring the administration of justice into contempt; and the very tendency of sedition is to incite the people to insurrection and rebellion. Sedition has been described as disloyalty in action and the law considers as sedition all those practices which have for their object to excite discontent or dissatisfaction, to create public disturbanc: or to lead to civil war; to bring into hatred or contempt the Sovereign or the Government, the laws or Constitution of the realm, and generally all endeavours to promote public disorder.mp IT re rata It may be observed that criticism on political natters is not of itself seditious. The test is the manner in which it is made. Candid and honest discussion is yermitted. The Jaw only interferes when the discussion yasses the bounds of fair criticism. More especially will his be the case when the natural consequence of the orisoner’s conduct is to promote public disorder. It may be mentioned that the definition of sedition in the existing section 124A is limited to exciting Jisaffection towards the Government established by law. Exciting disaffection towards the Constitution or Parliament or the administration of justice is mot mentioned as a seditious activity. On the other hand, while promotion of sublic disorder in some form or other is considered an assential ingredient of seditious conduct in England, this idea is not brought out in the wording of section 124A. 7.15 In view of the controversy which has raged round section 124A for all this time, it is clearly necessary to revise the formulation of the offence so as to make it a patently reasonable restriction under Article 19 (2) The elements mentioned in this Article which are relevant to the offence of sedition are integrity of India, security of the State and public order. The section has been found to be defective because “the pernicious tendency or intention” underlying the seditious utterance has not been expressly related to the interests of integrity or security of India orof public order. The Law Commission in its 42nd report observed that this defect should be removed by expressing "mens rea” as “intending or knowing it to be likely to endanger the integrity or security of India or of any State or to cause public disorder." 7.16 Another defect already noticed in the definition of sedition is that it does not take into account disaffection towards (a) the Constitution, (b) the Legislatures, and (c) the administration of justice, all of which would be as disastrous to the security of the State as disaffection towards the executive Government. These aspects are rightly emphasised in defining sedition in other Codes and section 124 A should be revised to take them in The punishment provided for the offence is very odd. It could be imprisonment of life, or else, imprisonment upto three years only, but nothing in between. The Law Commission observed that there is a need to give a firmer indication to the Courts of the gravity of the offence by fixing the maximum punishment at seven years rigorous imprisonment and fine. That is why, the Law Commission in its 42nd report asked that this section be revised as follows :~ “124A. Sedition - Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise,119 excites, or attempts to excite, disaffection towards the Constitution, or the Government or Parliament of India, or the Government or Legislature of any State, or the administration of justice, as by law established, intending or knowing it to be likely thereby to endanger the integrity or security of India or of any State, or to cause public disorder, shall be punished with rigorous imprisonment for a@ term which may extend to seven years, and shall also be liable to fine. Explanation 1: The expression “disaffection” includes feelings of enmity, hatred or contempt. Explanation 2: Comments expressing disapprobation of the provisions of the Constitution, or of the actions of the Government, or of the measures of Parliament or a State Legislature, or of the provisions for the administration of justice, with a view to obtain their alteration by Jawful means without exciting or attempting to excite disaffection, do not constitute an offence under this section.”120 nar This recommendation found a place in the IPC (Amendment) Bi11, 1978 under the heading “sedition”. Clause 48 of the Bill is substituting a new section for section 124-A as was originally proposed by the Law Commiasion in its 42nd report. 7.18 For the reasons discussed above, the section 124-A fay be substituted. 7.19 The then Law Commission had suggested in its 42nd report that the Code should contain a provision for punishing insults to the book of the Constitution, the national flag, the national emblem and the national anthem. Burning of the copies of the Constitution, desecration of the national flag or national emblem and offering deliberate insults to the national anthem, are not only unpatriotic acts but are also likely to cause a disturbance of public order. As such, they pare reprehensible enough to be made offences in the Penal Code. Legislative competence of Parliament in the matters is derivable from the entry relating to criminal law in the Concurrent List and from the residuary entry in the Union List. It could hardly be said that such a provision curtails the freedom of expression unreasonably, and the restriction would be clearly in the interests of public order.7.20 The Law Commission had already recommended that a new section be inserted after section 124 8, as followe:- "1248. Insult to th of the i ati f1 Jem_or national - Whoever deliberately insults the book of the Constitution, the national flag, the national emblem or the national anthem, by burning, desecration or otherwise, shall be punished with imprisonment of either description for a term which may extend up to three years, or with fine, or with both.” The above recommendation was incorporated in clause 48 of the IPC (Amendment) Bill, 1978. 7.24 Under this clause a new section 124B is also sought to be inserted. Under this new section, whoever deliberately insults the Constitution of India or any part thereof, the national flag, the national emblem or the national anthem, by burning the national flag etc., shall be punishable. The Law Commission in its 42nd Report observed that there should be a provision for punishment for insults to the Constitution, national flag, emblem and the national anthem which may include burning of the Constitution and deliberate insults to the national anthem which are unpatriotic. Therefore, they recommended the insertion of this naw section. However, on122 the basis of those recommendations, Prevention of Ineulte to National Honour Act, 1971 has been enacted. Therefore, this new section 124B need not be inserted again in IPC and the same may be deleted from clause 48 of the Bi11. 7.22 The existing section 125 r "125. Waging war against any Asiatic Power in alliance with the Government of India - Whoever wages war against the Government of any Asiatic Power in alliance or at peace with the Government of India or attempts to wage such war, or abets the waging of such war, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment of either description for a term which may extend to seven years, to which fine may be added, or with fine.” 7.23 Section 125 makes it an offence to wage war against the Government of any Asiatic Power in alliance or at peace with the Government of India. The reference to ‘Asiatic Power’ is now meaningless, and the words “in alliance or” are unnecessary. It would be sufficient to refer to the Government of any foreign State at peace with India. The punishment of life imprisonment for the offence is unduly severe; on the other hand, if ever the offence is committed, the offender ought not to be let off with a finem1 123 io as now provided in the section. The Law Commission had already proposed that the punishment should be imprisonment of either description not exceeding ten years, and also fine. 7.24 The section may accordingly be revised as follows:— "125. Waging war against any foreign state peace with India, - Whoever wages war against the Government of any foreign State at peace with India, or attempts to wage such war, or abets the waging of such war, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” The same recommendation was incorporated in the IPC (Amendment) 8111, 1978. Clause 49 of the Bill runs as under: “4g. In section 125 of the Penal Code, for the words “any Asiatic Power in alliance or at peace with the Government of India”, the words any foreign State at peace with India: shall be substituted.” Thus the recommendation for reducing the quantum of the punishment was not accepted. It may be mentioned that in the existing provision the punishment is prescribed “with124 imprisonment for life to which fine may be added, or with imprisonment of either description for a term which may extend to seven years.....” When there is already a provision for reducing the Punishment, then there is no need to reduce expresely the upper limit of the punishment. 7.25 In view of the above, section 125 may be amended Proposed in the IPC (Amendment) Bi11, 1978.a1 126 r= CHAPTER-VIIT SUICIDE : ABETMENT AND ATTEMPT Section 306: Abetment of Suicide Section 306 of the Indian Penal Code penalises abetment of suicide. It reads as : "306. Abetment of Suicide.- If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term not exceeding ten years, and shall also be liable to fine.” 8.02. The constitutionality of section 306 was challenged in Smt.Gian Kaur v State of Punjab-' Upholding the constitutionality of section 306, the Supreme Court held that section 306 enacted a distinct offence which is capable of existence independent of section 309. The Court observed:? “Section 306 prescribes punishment for ‘abetment of suicide’ while Section 309 punishes ‘attempt to commit suicide’. Abetment of attempt to commit suicide is outside the purview of section 308 and it is punishable only under section 309 read with section 107, IPC. In certain other jurisdictions, i126 :- even though attempt to commit suicide is not @ penal offence yet the abettor is made punishable. The provision there provides for the punishment of abetment of suicide as well as abetment of attempt to commit suicide. Thus even where the punishment. for attempt to commit suicide is not considered desirable, its abetment is made a penal offence. In other words assisted suicide and assisted attempt to commit suicide are made puni ble for cogent reasons in the interest of society. Such a provision is considered desirable to also prevent the danger inherent in the absence of such a penal provision.” 8.03. In England and Wales, the Suicide Act of 1961 has abrogated the rule of law whereby it is a crime for a person to commit suicide (S.1). Section 2(1) of the Act imputes criminal liability for complicity in another's suicide. It reads: "2(1).- A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years.”mt VT rm 09 — a.04, Section 309 of IPC punishes attempt to commit suicide with simple imprisonment for a term which may extend to one year or with fine or with both. 8.05. The Law Commission in its Forty Second Report had examined whether attempt to commit suicide be retained as a penal offence. The Commission referred to the Dharma Sastras which legitimised the practice of taking one’s life in certain situations? and also referred to the provisions of Suicide Act, 1961 in Britain which decriminalised the offence of attempt to commit suicide. After examining these views, the Commission recommended that section 309 is harsh and unjustifiable and it should be repealed. 8.06. In pursuance of the recommendations of the Law commission, clause 131 of the B11] omite section 309 from IPC. 8.07. Subsequently, there have been significant judicial developments. The Delhi High Court in State v Sanjay Kumar Bhatia’ speaking through Sachar J, as he then was, for the Division Bench observed that the continuance of section 309 is an anachronism and it should not be on the statute book. However, the question of its constitutional validity was not considered in that case.= 128 i 8.08. Soon thereafter the Bombay High Court in Maruti v Shripati Dubal v State of Maharashtra’ speaking through Sawant J., as he then was, examined the constitutioni validity of Section 309 and held that the section is violative of Article 14 as well as Article 21 of the Constitution. The Section was held to be discriminatory in nature and also arbitrary and violated equality guaranteed by Article 14, Article 21 was interpreted to include the right to die or to take away one’s life. Consequently it was held to be violative of Article 21. 8.09. The Andhra Pradesh High Court also considered the constitutional validity of section 309 in Chenna Jagadeeswar v f Andhra Pradesh.’ Amareshwari J., speaking for the Division Bench, rejected the argument that Article 21 includes the right to die. The court also held that the courts have adequate power to ensure that “unwarranted harsh treatment or prejudice is not meted out to those who need care and attention”. The court also negatived the violation of Article 14. 8.10, The Supreme Court examined the constitutional validity of section 309 in P.Rathinam v Union of India® with reference to Articies 14 and 21, The Court considered the decisions of the Delhi, Bombay, and Andhra Pradesh High Courts and disagreed with the view taken by Andhra Pradesh-1 129 r= High Court on the question of violation of Article 21. Agreeing with views of the Bombay High Court, the Supreme Court observed:* “On the basis of what has been held and noted above, we state that section 309 of the Per Code deserves to be effaced from the statute book to humanise our penal laws. It is @ cruel and irrational provision, and it may result in punishing a person again (doubly) who has suffered agony and would be undergoing ignominy becauee of his failure to commit suicide. Then an act of suicide cannot be said to be against religion, morality or public policy, and an act of attempted suicide has no baneful effect on society. Further, suicide or attempt to commit it causes no harm to others, because of which State’s interference with the personal liberty of the persons concerned is not called for. We, therefore, hold that section 309 violates Article 21, and so, it is void. May it be said that the view taken by us would advance not only the cause of humanisation, which is a need of the day, but of globalisation also, as by effacing section 309, we would be attuning this part of criminal law to the global wavelength”.130 But this view of Supreme Court wae overruled by a larger Bench in Smt. Gian Kaur v. State of Punjab'? wherein ferma J.,(as he then was) speaking for the Court, held that 2,Rathinam’s case was wrongly decided. The Court observed:'' nen a man commits suicide he has to undertake certain positive overt acts and the genesis of those acts cannot be traced to, or be included within the protection of the ’right to life’ under Article 21. The significant aspect of ‘sanctity of life’ is also not to be overlooked. Article 21 is a provision guaranteeing protection of life and personal liberty and by no stretch of imagination can ‘extinction of life’ be read to be included in ‘protection of life’. Whatever may be the philosophy of permitting a person to extinguish his life by committing suicide, we find it difficult to construe Article 21 to include within it the ‘right to die’ as a part of the fundamental right guaranteed therein. Right to life is a natural right embodied in Article 21 but suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of ‘right to life’. With respect and in all humility, we find no similarity in the nature of the other rights, such as the right to ‘freedom of speech’ etc. to provide a comparable basis to hold that the ‘right to life’ also includes the‘right to die’. With respect, the comparison is inapposite, for the reason indicated in the context of Article 21. The decisions relating to other fundamental rights wherein the absence of compulsion to exercise a right was 1d to be included within the exercise of that right, are not available to support the view taken in P.Rathinam gua Article 21. To give meaning and content to the word ‘life’ in Article 21, it has been construed as life with human dignity. Any aspect of life which makes it dignified may be read into it but not that which extinguishes it and is, therefore, inconsistent with the continued existence of life resulting in effacing the right itself. The ‘right to die’ if any, is inherently inconsistent with the ‘right to life’ as is ‘death with life’ 8.12, On the question of violation of Article 14, the Court agreed with the view taken by Hansaria J. in P.Rathinam’s case. 8.13. Verma J. further observed that the arguments “on the desirability of retaining such a penal provision of punishing attempted suicide, including the recommendation for its deletion by the Law Commission are not sufficient to indicate that the provision is unconstitutional being violative of Article 14, Even {f those facta are ta waigh,<2 132: the severity of the provision is mitigated by the wide discretion in the matter of sentencing since there is no requirement of awarding any minimum sentence and the sentence of imprisonment is not even compulsory. There is algo no minimum fine prescribed ae sentenc + which alone may be the punishment awarded on conviction under Section 309, IPC. This aspect is noticed in P,Rathinam for holding that article 14 is not violated. "12 8.14, The Supreme Court’s decision in Smt. Gian Kaur has thus categorically affirmed that right to life in Article 21 does not include the right to die, Consequently section 309 which penalises attempt to commit sucide is not unconstitutional. 8.15. There is a school of thought which advocates the decriminalisation of the offence of attempt to commit suicide. They plead for a compassionate and sympathetic treatment for those who fail in their attempt to put an end to their lives. They argue that deletion of section 309 is not an invitation or encouragement to attempt to commit suicide. A person indulges in the act of attempt to commit suicide for various reasons some of which at times are beyond hie control.'$ 8.16. On the other hand, certain developments such as rise in narcotic drug-trafficking offences, terrorism in different parts of the country, the phenomenon of humanbombs, etc. have led to a rethinking on the need to keep attempt to commit suicide an offence. For inetance, a terrorist or drug trafficker who fails in his/her attempt to consume the cyanide pill and the human bomb who fails in the attempt to kill himself or herself along with the targets of attack, have to be charged. under section 309 and investigations be carried out to prove the offence. These groups of offenders under section 309 stand under a different category than those, who due to psychological and religious reasons, attempt to commit suicide. 3.17. Accordingly, we recommend that section 309 should continue to be an offence under the Indian Penal Code and clause 131 of the Bill be deleted.We 12. 13. 194: FOOTNOTES. 1996 (2) Scale 881. Id at 891. Law Commission, Forty Second Report. para 16.31, page 243. Id, para 16.32, page 243. (1985) Cri.t.J. 931. (1987) Cri. Lid. 743. (1988) Cri. L.J. 549. (1994) 3 scc 394. Id at 429. Supra note 1. Id at 888. Id at 890. Justice R.A. Jahagirdar Suicide - A Crime or_a cry’ (Retd.), (1996). Attempt at71136 i= CHAPTER-IX OFFENCES AGAINST WOMEN AND CHILDREN T._RAPE. The Law Commission in its Eighty-fourth Report on Rape and Allied offences : some Questions of substantive Law, Procedure and Evidence has defined rape as “the ultimate violation of the self. It is a humiliating event in a woman's life which leads to fear for existence and a sense of powerlessness".' Other scholars have described rape as an internal assault or sexual invasion which is characterised by violent taking away of control over the sexual autonomy of the woman. Rape is an act of violence affecting the physical and emotional integrity and dignity of th® victim.? 9.02, The Law Commission in its Forty Second Report had recommended certain changes in Section 375 which deals with the offence of rape. The following were the changes recommended by the Commission to Section 375. Clause ‘Thirdly’ of Section 375 defines sexual intercourse as rape with the woman's consent when it has been obtained by putting her in fear of death or of hurt. The Commission had recommended that the words “either to herself or to anyone else present at the place” be added after the word. “hurt”.On the question of consent, the Commission had pointed out that section 90 of IPC includes the term “injury” which is of wider import. | Injury includes any injury to mind, body, reputation or property. The Commission, however, did not recommend any amendment on this count. 9.03. The Commission also recommended that marital rape should be removed from the scope of Section 375 and placed as a separate offence. The Commission observed:? "The exception in Section 375 provides that sexua intercourse by a man witn his own wife, the wife not being under 15 years of age is not rape. The punishment for statutory rape by the husband is the same when the wife is under 12 years of age but when she is between 12 and 15 years of age the punishment is mild, being imprisonment upto two years, or fine or both. Naturally, the prosecutions for thie offence are very rare. We think, it would be desirable to take this offence altogether out of the ambit of section 375 and not to call it rape even in a technical sense. The punishment for the offence also may be provided in a separate section.”9.04. separated observed: 9.05. <2 137 r=) The Commission considered the position of legally wife vis-a-vis the offence of rape. It was “Under the exception, a husband cannot be guilty of raping his wife if she is above fifteen years of age. This exception is to take note of one special situation, namely when the husband and wife are living apart under a decree of judicial separation or by mutual agreement. In such a case, the marriage technically subsists and if the husband has sexual intercourse with her against her will or without her consent, he cannot be charged with the offence of rape. This does not appear to be right. We consider that, in such circumstances, sexual intercourse by a man with his wife without her consent will be punishable as rape.”* Explanation II as recommended by the Commission is as follows: 9.06. in Section 375 on the following 1 ine: “A woman living separately from her husband under a decree of judicial separation or by mutual consent shall be deemed not to be his wife for the purpose of this Section.” The Forty-Second Report had recommended amendment7188 2 “Section 375 - Rape - A man is said to commit rape who has sexual intercourse with a woman other than his wife - (a) against her will ; or (b) without her consent; or (c) with her consent when it has been obtained by putting her in fear of death or of hurt, either to herself or to anyone else present at the place; or (d) with her consent, knowing that it is given in the belief that he is the husband. Explanation I. - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Explanation II. - A woman living separately from her husband under a decree of judicial separation or by mutual agreement shall be deemed not to be his wife for the purpose of this section."* 9.07. The existing Section 375 stipulated a maximum sentence of life or imprisonment of either description for 10 years for rape. The Commission suggested that it should be rigorous imprisonment for a term upto 14 years. 9.08, The Commission recommended the incorporation of Sections 376A and 3768. Section 376A distinguished sexual intercourse between a wife of 12 to 18 years of age and a fe of less than 12 years of age, sexual intercourse withthe wife over 15 years of age without her consent not being an offence. The Commission recommended rigorous imprisonment upto 7 years if the wife was under 12 years and in any other case, imprisonment upto 2 years of either description. 9.09. Section 376B made illicit intercourse with a girl under 16 years but not under 12 years of age even with her consent punishable with imprisonment of either description upto 7 years. 9.10. The Commission added that it shall be a defence to a charge under this section for the accused to prove that he, in good faith, believed the girl to be above sixteen years of age.® 9.11, The Forty-Second Report’s signal” contribution to the reform of rape laws was the introduction of the concept of custodial rape. The Commission recommended the addition of sections 376C,376D and 376E dealing with custodial rape by a public servant or by a superintendent etc. of a women’s or children’s institution, and by a manager of a hospital with a woman patient suffering from mental disorder respectively.‘ 9.12. The provisions on rape law remained unamended, ae the Indian Penal Code Amendment Bill could not be passed due to the dissolution of the Lok Sabha in 1979.<1 140 2— 9.13. In the interregnum the Supreme Court of India decided some cases which took a restricted view of the scope of the offence of rape and acquitted the accused. The relevant decisions are Pratap Misra v. State of Orissa’ and Tuka Ram v. State of Maharashtra.* The latter case popularly known as the Mathura Rape case involved the rape of a young girl aged between 14-16 years of age by two police constable in the police station. The Bombay High Court ri ‘sed the order of acquittal of the accused by the Session Court and sentenced them to rigorous imprisonent of varying terms. The High Court came to the conclusion that the policemen had aken advantage of the fact that Mathura was involved in a complaint filed by her brother, and she was alone in the dead hour of the night “ in a police station. This proved that she could not in any probability, have consented to intercourse. The Supreme Court after assessing the evidence on record concluded that the circumstantial evidence was such that it did not lead to “reasonable evidence of guilt” and reversed the Bombay High Court decision and acquitted the accused. This led to four law teachers writing an Open Letter to the Chief Justice of India criticising the judgment. The Open Letter generated nationwide protests from women’s organisations and different sections of the Indian Society.* Their collective demand was for reform of on rape. The Union Government responded to the campaign and referred the matter of reforming rape the Law Commission.- Ati | 9.14. The Law Commission sent its 84th Report on “Rape and Allied Offences; Some Questions of substantive Law, Procedure and Evidence” to the Government in 1980. 9.15. The Commission gave particular attention to the definition of consent and to rape of girls below the minimum It also took into account some of the recommendations incorporated in the Forty Second Report. The Commission had dispensed with the suggestions in the earlier Report which had characterized rape as - 1. rape proper; 2. rape with child-wife and 3. Rape i.e. sexual intercourse with the girl between 12-16 years of age, with her consent. The reasons given by the Commission for discarding the above categorisation were:1° the Commission now feels that such a restructuring would be out of tune with the current thinking on the question of trial of offenders for rape and, therefore, structure of Section 378 should not be altered. Since the making of the recommendation by the Commission in its earlier Report, there has been a radical and revolutionary change in the approach to the offence of rape; its enormity is frequently brought into prominence andheightened by the revolting and gruesome circumstances in which the crime is committed; the case law has blurred the essential ingredients of the offence and introduced instability into the previously well established law bearing on the offence of rape. The Commission feels that restructuring will produce uncertainty and distortion in section 375, which should in ite opinion, retain its present logical and coh nt structure.” Consequently, the Commission recommended the omission of Section 375A and Section 375B. Instead, the Commission recommended leaving rape of child-wife (S.375A) in the general Section 375 instead of placing it in a separate section. Section 375B which dealt with rape on a girl between 12-16 years of age with her consent was omitted altogether. Further, the Commission retained Sections 376C,376D and 376E which dealt with custodial rape; but renumbered them as Sections 376A,376B and 376C. 9.16. On the question of consent, the Commission observed that they would not only include the suggestions made in the earlier Report but suggested further amendments which would strengthen the concept of “free consent” for the purposes of Section 375. The Commission felt that the term “consent” wat inadequate and should be substituted by the phrase “free and voluntary consent”. The Commission observed:'*<2 143 r= “The substitution of the expression “free and voluntary consent” for the word “consent” in the second clause makes it clear that the consent should be active consent as distinguished from that consent which is said to be implied by silence.” The Commission proceeded to say: “Under the amendment as recommended, it would not be open to the Court to draw an inference of consent on the part of the woman from her silence due to timidity or meekness or from such circumstances without any more,- as that the girl meekly followed the offender when he pulled her, catching hold of her hand, or that the woman kept silent and did not shout or protest or cry out for help.” The Commission further stated:'? “The modifications recommended by us in the third clause vitiated consent not only when a woman is put in fear of death or hurt, but also when she is put in fear of any "injury" being caused to any person (including herself) in body, mind, reputation or property and also when her consent is obtained by criminal intimidation, that is to say by any words or acts intended or calculated to puther in fear of any injury or danger to herself or to any person in whom she is interested or when she is threatened with any injury to her reputation or property or to a reputation of any one in whom she is interested. Thus, if the consent is obtained after giving the woman a threat of spreading false and scandalous rumours about her character or destruction of her property or injury to her children or parents or by holding out other threats of injury to her person, reputation or property, that consent will also not be consent under the third clause as recommended to be amended.” 9.17, The Commission made significant recommendations on age of consent. The age of consent as applicable to the offence under Section 375 has been amended several times since the framing of IPC. The 84th Report has graphically presented in the form of a chart which is given below:'3 CHART Age of Age men- Minimum consent tioned in age of under the Exception marriage Year 8.375, to 8.375, under 5th T.P.C. the Child clause, Marriage THBEGs Restraint Act, 1929 7860 10 yrs. 10 yrs. — 1891 12 yrs 12 yrs. - (Act 10 of 1891) (after the amendment. of Ipc) t1925 14 yrs. 13 yrs, - Feartor the amendment fof IPC) 1929 14 yrs. 13 yrs. 14 yrs. (after the passing of the Child Marriage Act) 1940 16 yrs. 15 yrs. 18 yrs. (after the amendment of the Penal Code and the Child Marriage Act) 1978 sere 16 yrs 15 yrs. 18 yrs. 9.18. As may be seen from the chart, the minimum age of marriage for girls has been increased to 18 years after the amendment of the Child Marriage Restraint Act, 1929 in 1978. The Commission recommended that “since marriage with a girl below eighteen years is prohibited ... sexual intercourse with a girl below eighteen years should also be prohibited.” 9.19. The 84th Report did not recommend any changes in section 376 which provides punishment for the offence of rape. The Commission was of the view that judicial discretion be not fettered by prescribing a minimum sentence. 9.20. The 84th report by introducing a broader concept of “misconception of fact" has eliminated any examination of morality or the sexual antecedents of the victim of rape. Section 375, fourthly (b) allows this under a broader misconception of fact which includes the narrower mistake of identity.= 1460: 9.21. Consequent on the recommendations of the Law - Commission in its 84th Report, the Government introduced in the Lok Sabha the Crimini amend, inter alia, the Indian Penal code The Government Law (Amendment) Bi11, 1980 to accepted the following recommendations of the Law Commissior 1. Accepting the concept of consent as free and voluntary consent; 2. making a distinction between judicially separated wife and wife; and 3. accepting the three concepts of custodial @ as recommended in the Commission’s 42nd Report. 9.22, The Bill made a significant addition by introducing the separate offence of gang rape by two or more persons. 9.23. The Bill was sent to the Joint Committee of the Parliament. The changes made by the Committee were: a It reduced the age of marital rape. The exception to Section 375 stated that sexual intercourse by a-man with his own wife, the wife not being under 15 years of age, is not rape. The Committee reduced this age to 12 years.2 A new section, section 376A was incorporated, which deals with sexual intercourse with judicially separated wife without her consent. The Committee Provided a lower punishment for rape of a judicially separated wife 3 The Committee did not accept the expanded concept of free and voluntary consent in Section 375. 9.24, In the Draft Bill reported by the Joint Committee, one change was made in its final reading stage. The age above which sexual intercourse with the wife is not rape was retained at 15. 9.25. The Parliament enacted the Criminal Law (Amendment) Act,1983. The chief features of which, so far as the offence of rape in IPC was concerned, were: a Increase in the punishment of rape; a distinction between gang rape. and custodial rape and stiffer penalties for the same; 3. separate category of rape on pregnant womar 4. distinguishing rape on a judicially separated wife and provision for a lower=P 148 ro punishment for it than in other instances of rape; 5. reduction in the punishment of rape on wife between 12 and 15 years of age; distinguishing rape on woman of unsound mind or one who is intoxicated. 9.26. Accordingly sections 375 and 376 were amended and new sections 376A,376B and 376C were inserted. All the important recommendations of the Law Commission have been ‘incorporated. The provisions read as follows: "975.Rape.- A man ie said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstance falling under any of the six following descriptions:— First:- Against her will. Secondly.-Without her consent. Thirdly .-With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly.-With her consent, when the man knows that he is not her husband, and that her consent is149 2 given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.-With her consent, when at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwhelesome substance she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.-With or without her consent, when she is under sixteen years of age. Explanation.-Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception.-Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” "3768. Punishment for rape.- (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term