Report No. 42

11.21. Ambiguous wording of section.-

The wording of section 211 is not as clear and unambiguous as could be desired. For instance, does "intent to cause injury to any person" govern also the act of falsely charging any person with an offence? Should those two persons be the same, or would it also be an offence where the intent is to injure X but Y is falsely charged with committing an offence? The two limbs of the section viz., instituting criminal proceedings and falsely charging with an offence, are somewhat confusingly mixed up.

Incidentally, we also considered a suggestion that it would be worthwhile adding an Explanation to section 211 to indicate the scope of the expression 'criminal proceeding' with reference to proceedings under sections 107 to 111, 133, 144, 145, 488 etc. of the Code of Criminal Procedure. We do not, however, consider the matter as of sufficient importance to require clarification. The case-law also does not reveal any serious difficulty in this respect.

11.22. Punishment to be increased.-

The maximum punishment provided in the first paragraph of section 211 should be increased from two years to three years.

11.23. Section 211 revised.- In the light of above discussion, section 211 may be revised as follows.-

"211. False charge of offence made with intent to injure.-Whoever, with intent to cause injury to any person.-

(a) institutes or causes to be instituted in a Court of Justice any criminal proceeding against that person, knowing that there is no just or lawful ground for such proceeding against that person; or,

(b) falsely charges that person in a Court of Justice with having committed an offence, knowing that there is no just or lawful ground for such charge against that person, 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 such criminal proceeding be instituted on a false charge of an offence punishable with imprisonment for seven years or a more severe sentence, he shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

11.24. Section 212.-

Section 212 deals with harbouring an offender. The punishment varies with the gravity of the offence. No change is required in this section.

11.25. Sections 213 and 21.-Explanations recommended.-

Sections 213 and 214 deal with unlawful compounding of offences and make culpable the giving or taking of a gift for such compounding; and again, the punishment varies with the nature of the offence compounded. If the offence is legally compoundable, these provisions do not, of course, apply.

The language of the sections leaves little doubt that the offence is complete once a person agrees to give or take a gift for concealing an offence or screening the offender, and it is not necessary that he must actually screen the offender. But, as some doubt has been expressed in this connection, we propose to add an Explanation in each section to make this clear.

(i) To section 213, the following may be added.-

"Explanation.- It is not necessary to the commission of an offence under this section that the offender should have done, or desisted from doing, what he undertook to do, or to desist from doing.

Exception.-The provisions of this section do not extend to any case in which the offence may lawfully be compounded."

(ii) In section 214, the existing exception may be omitted and the following may be added:

"Explanation.- It is not necessary to the commission of an offence under this section that the other person should have done, or desisted from doing, what he undertook to do, or to desist from doing.

Exception.- The provisions of this section do not extend to any case in which the offence may lawfully be compounded."

11.26. Sections 215 and 216.-

Section 215 punishes the taking of a gift to help in the recovery of stolen property without exposing the offender. Section 216, which is supplementary to section 212, deals with harbouring an escaped convict or a person ordered to be arrested. Neither section requires to be changed.

11.27. Section 216.-amendment recommended.-

Section 216A was added to the Code in 1894 specially to deal with the harbouring of persons who are about to commit, or have recently committed, robbery or dacoity; and it extends to robberies and dacoities contemplated or committed outside India. Harbouring a person who has committed an offence is already provided for in section 212, and we do not think it necessary to provide for it again in section 216A. At the same time, we feel that kidnapping and abduction could be usefully included. The section may be amended to read.-

"216A. Penalty for harbouring persons about to commit kidnapping, abduction, robbery or dacoity.- Whoever, knowing or having reason to believe that any persons are about to commit the offence of kidnapping, abduction, robbery or dacoity, harbours them or any of them, with the intention of facilitating the commission of such offence, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.

Explanation.- For the purposes of this section, it is immaterial whether the offence is intended to be committed within or without India.

Exception.- This section does not extend to the case in which the harbour is by the husband or wife of the person about to commit the offence."

11.28. Sections 217 to 220.-

The next four sections, 217 to 220, are designed to punish certain illegal acts of public servants done with corrupt or malicious intention. A question was raised whether the expression 'legal punishment' in sections 217 and 218 covers preventive action under sections 107 to 110, Criminal Procedure Code. Though it may be said that such section is, in a sense, imposing a punishment, we are of the view that it need not be regarded as "legal punishment" for the purposes of this section. However that may be, we propose that the reference to "legal punishment" may be replaced by "punishment for an offence" which will make the position absolutely clear. No change is needed in sections 219 and 220.

11.29. Sections 221 to 225B.-

Seven sections, 221 to 225B, deal with two connected situations, namely, failure to apprehend a person required by law to be apprehended, and escape of a person from lawful custody, and describe in detail the various forms in which the two situations arise. The commonest and most readily understandable is the case of a person resisting his own arrest or escaping from custody after arrest. Similar is the case of a person helping another to resist his arrest or helping him to escape from lawful custody.

Much more serious is the case of a public servant omitting to arrest a person whom he is by law bound to arrest, and perhaps even more serious is the case of a public servant who, intentionally or through criminal negligence, permits a person in his lawful custody to escape. These acts are reprehensible and have rightly been made punishable. Further, the punishment is graded according to the seriousness of the offence, and, broadly speaking, the grading is as it should be.

11.30. Formal revision and re-arrangement proposed.-

Since, however, some of these acts were not made punishable when the Code was first enacted, there has come to be a certain want of neatness in the arrangement of the various sections. Thus, omission to apprehend a person liable to be apprehended was first confined to persons liable to be apprehended for any offence punishable with imprisonment. Later on, a provision had to be made for cases where a person was liable to be apprehended but not for an offence punishable with imprisonment, and section 225A had to be enacted.

Similarly, resistance to the lawful apprehension of another person was, at first, punishable only if the arrest was for an offence, and other cases were later provided for by section 225B. We also find that in some of these sections, too many ideas are introduced at one place, which is avoidable. We, therefore, propose to re-arrange this set of seven sections in such a way that, as far as possible, one section would express one idea, as follows.-

(i) Redraft of section 221, combining with it sections 222 and 225A(a).-

"221. Public servant intentionally omitting to arrest or permitting escape.- Whoever, being a public servant legally bound to arrest any person or to keep him in custody, intentionally omits to arrest him or intentionally aids him in escaping or attempting to escape from such custody or intentionally permits him to escape from such custody, shall.-

(a) if that person is to be arrested or kept in custody by reason of a conviction or charge or suspicion of a capital offence, be punished with rigorous imprisonment for a term which may extend' to ten years, and shall also be liable to fine;

(b) if that person is to be arrested or kept in custody by reason of a conviction or charge or suspicion of any other offence punishable with imprisonment for life or for ten years or upwards, be punished with rigorous imprisonment for a term which may extend to five years, and shall also be liable to fine;

(c) in any other case, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."

(ii) Redraft of section 223, combining with it section 225A(a).-

"222. Public servant negligently omitting to arrest or suffering to escape.- Whoever, being a public servant legally bound to arrest any person or to keep him in custody, negligently omits to arrest him or negligently suffers him to escape from such custody, shall be punishable with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

(iii) Redraft of section 225, combining with it part of section 225B:

"223. Rescue from lawful custody.- Whoever rescues, or attempts to rescue, any other person from lawful custody shall.-

(a) if such person is in custody by reason of conviction or charge or suspicion of a capital offence, be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine;

(b) if such person is in custody by reason of a conviction or charge or suspicion of any other offence punishable with imprisonment for life or for ten years or upwards, be punished with rigorous imprisonment for a term which may extend to five years, and shall also be liable to fine;

(c) in any other case, be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

(iv) Redraft of section 225B, combining with it part of section 225:

"224. Resistance to arrest of another person.- Whoever offers resistance or illegal obstruction to the lawful arrest of another person shall be punished with the punishment provided in section 223."

(v) Redraft of section 224, combining with it part of section 225B:

"225. Escape from lawful custody.- Whoever, being in lawful custody, intentionally escapes or attempts to escape from such custody shall.-

(a) if he is in custody by reason of a conviction or charge or suspicion of an offence, be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;

(b) in any other case, be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

Explanation.- The punishment in this section is in addition to the punishment for which the person in custody was liable for the offence of which he was convicted, or would have been liable on a conviction for the offence with which he was charged or of which he was suspected, as the case may be."

(vi) Redraft of section 225B, combining with it part of section 224:

"226. Resistance to arrest.- Whoever intentionally offers resistance or illegal obstruction to his lawful arrest shall be punishable with the punishment provided in section 225."

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