Report No. 42

17.11. Section 38.-punishment to be reduced to seven years.-

Section 382 should be amended by substituting "seven years" for "ten years", as we have already indicated that imprisonment for seven years is enough1 for any aggravation of theft.

1. See para. 17.5, above.

Extortion

17.12. Sections 383 to 385.-

Extortion is the dishonest obtaining of property by putting any person in fear of injury, i.e., any harm illegally caused in body, mind, reputation or property, and the maximum punishment is three years' imprisonment. Even if property is not obtained, the mere threat of injury for committing extortion, is punishable with two years' imprisonment.

17.13. Blackmai.-new section recommended.-

Some doubt has arisen whether the definition of extortion covers every case of blackmail, as, for instance, where money is obtained by threatening to expose something true but unsavoury about a person. Such conduct is, of course, reprehensible; but we are not clear if such a threat would amount to threat of injury in the sense of illegally causing harm. We feel, however, that the law of extortion should, as far as practicable, make such infamous conduct punishable.

The question whether a person actually offended by some wrongful act of X can demand money from X with the threat that otherwise he will expose the conduct of X, was considered by us. Most of us were of the view that, it would be covered by the draft proposed below, though one of use had a doubt on the point.

The question was also considered whether in the proposed section, threat of injury, other than harm to reputation, should be included. But the essence of blackmail is harm to reputation. If, for example, the act threatened is prosecution, it is a species of harm to reputation. Hence other harm need not be covered.

We recommend the insertion of the following new section.-

"385A. Blackmail.- Whoever dishonestly threatens any person with the making or publication of any imputation which is likely to harm his reputation or the reputation of any other person, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Explanation.- Where the threat is to accuse a person of the commission of an offence, it is immaterial whether the accusation is true or false."

1. See para. 17.5, above.

2. Shri R.L. Narasimham.

17.14. Blackmail in English Law.-

We note that section 21 of the (English)1 Theft Act, which relates to blackmail, is wider than the section proposed above, and practically covers the entire ground covered by the offence of extortion as defined in the Code. But this is obviously unnecessary in India, as we have a specific offence of extortion, and only extortion by libel is to be covered.

A question which looms large in English cases is how far the belief of the accused that the demand was justified renders the act non-punishable. Initially, a real and honest belief that the accused had good and probable cause for the demand was regarded as a sufficient excuse by the courts.2 This view was later overruled.3 With the passage of time, however, it came to be realised, that there are two aspects to the question, namely, (i) the honest belief in the legal demand and also, (ii) the honest belief in the legitimate character of the means employed, that is, the threats or menaces.

These considerations seem to have weighed with Parliament in England while enacting the new Act. The accused must believe that he is "warranted" (or in the old language, has a reasonable and probable cause), (i) in demanding the property etc. (ii) in demanding the particular thing demanded, (iii) in demanding it with menaces, and (iv) in demanding with the particular kind of menace which he has used.

It may also be added that the English section brings in the test of propriety of the threats, while we propose to use the word "dishonestly", which is defined in the Code and is well understood. In England, the matter was left elastic, so that the jury could decide the issue as one of fact.

1. Section 21(1), Theft Act, 1968 (English) defineg the offence thu.-"A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belie.-

(a) that he has reasonable grounds for making the demand, and

(b) that the use of the menaces is a proper means of reinforcing the demand."

2. R. v. Miard, (1844) (Northampton Assize) 1 Cox CC 22 (Tindal C.J.).

3. R. v. Diamond, (1920) 2 KB 260: 1920 All ER Rep 259 (CCA) considered in Hardie v. Chilian, 1928 All ER Rep 36 and in R. v. Bernhard, (1938) 2 All ER 140.

17.15. Sections 386 and 387.- Sections 386 and 387 need no change.

17.16. Sections 388 and 38.-amendment recommended.-

Both in section 388 and in section 389 the special reference to section 377 should be deleted, as we are reducing1 the punishment for an "unnatural offence".

1. See para. 16.127 above.

Robbery and Dacoity

17.18. Section 390 to 393.-

Robbery and dacoity are dealt with together, and rightly, as the only difference between them lies in the number of offenders. A suggestion was made that robbery when committed by three or more persons, instead of five or more persons should be called 'dacoity', but this suggestion did not find favour with us. The definition of "robbery" under section 390 is satisfactory, and the punishment provided adequate.

17.18. Section 39.-Amendment recommended.-

We suggest only a small change in section 394, which punishes robbery accompanied by hurt with imprisonment for life or imprisonment extending to 10 years. We have elsewhere suggested an alteration in this kind of alternatives, and recommend that the offence should be punishable with imprisonment for a term upto 14 years.

17.19. Section 395.-

The maximum punishment under section 395 for dacoity is imprisonment for life, which needs no change.

17.20. Section 39.-Amendment recommended.-

If one of the dacoits commits murder, each one of them is liable to death sentence under section 396. There can be no doubt that the need for imposing this vicarious liability exists and we do not suggest any relaxation.1 We would go further, and recommend that this kind of liability should be extended to robbers irrespective of their number. We propose that section 396 should be amplified to rea.-

"396. Robbery or dacoity with murder.- If any one of two or more persons who are conjointly committing robbery, commits murder in so committing robbery, or if any one of five or more persons who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death or imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."

1. Retention of death penalty for this offence was favoured in the Law Commission's 35th Report on "Capital Punishment".

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