Introduction
The Penal Code was enacted as back as far in 1860 being Act No. XLV of
1860.The Penal Code has defined the offences and prescribed separate punishment
for each offence. Minor amendments have been made in the Penal Code according
to necessity from time to time, but no substantial change has been made in the
Penal Code. Due to the enormous increase of crime during the last few years with
the change of techniques of crime, we, in the Law Commission have taken up a
few sections of the Penal Code for our examination with a view to finding out the
need for amendment in these sections, if any. By an examination of certain
provisions of the Penal Code relating to offences against the state, adulteration of
food, drink and drugs and causing of death by rash and negligent driving on the
public roads, extortion, and insulting the modesty of a woman, we think that under
the changed circumstances and in view of the increase of such crimes in our
country, there is a need for amendment of the sections relating to such offences.
Section 121 of the Penal Code prescribed a punishment of death or
imprisonment for life with fine for the offence of waging war or attempting to
wage war or abetting waging of such war against Bangladesh. Considering the
circumstances of violence created by some militant people in the country causing
rampant bomb blast by explosive substances, we are of the opinion that this
punishment should be increased. We, therefore, recommend that the words “and
shall also be liable to fine” should be substituted by the words “and shall forfeit all
his property.”
Section 121A prescribed a punishment for imprisonment of life or
imprisonment which may extend to ten years with fine for an offence of
conspiracy to commit any of the offences punishable by section 121 or for a
conspiracy to deprive Bangladesh of her sovereignty or to overawe the
Government, by means of criminal force or by show of criminal force.
Considering the present volatile situation prevailing in the country, we
think that this punishment for life or imprisonment of ten years is not enough to
cope with the present situation. We, therefore, recommend that this punishment
should be enhanced to a punishment of death or imprisonment for life with further
recommendation for substitution and addition of certain words in the section
.
Section 122 deals with the collection of man, arms or ammunitions with
intention of either waging or preparing to wage war against Bangladesh. In view
of huge collection of explosive substance and of causing bomb blast resulting in
the death of innocent people in our present day society, we think that after the
word “ammunition” the words “or explosive substance” should be added and after
the words “to wage war against Bangladesh” the words “ for the purpose among
others of breaking the constitutional and legal structure of the country” should be
added.
Section 124A deals with sedition against the Government established by
law and the punishment prescribed for sedition is imprisonment for life or
imprisonment, which may extend to three years or with fine. The punishment of
three years imprisonment as an alternative to life imprisonment appears to be quite
inconsistent and “or with fine” only, appears to be further inconsistent. We further
think that this punishment of three years imprisonment as alternative to life
imprisonment is also quite inadequate. We, therefore, recommend that the
alternative prescribed punishment of three years imprisonment be enhanced to
fourteen years in section 124A and the words “or with fine” should be omitted.
Section 272 has prescribed a punishment for six months imprisonment or a
fine of taka one thousand or with both for an offence of adulteration of food or
drink. This punishment was prescribed in 1860 under the circumstances of the
society prevalent at that time. But since thereafter a period of more than a century
and a half has passed away and things have undergone much changes during this
period with a tendency amongst dishonest traders to earn more profit by selling
adulterated food or drink. In view of the deteriorating business ethics and morale,
we think that this punishment of an imprisonment for six months or a fine of taka
one thousand only is not enough to check adulteration of food or drink. Moreover,
the value of taka one thousand has diminished to the lowest level. Accordingly, we
recommend for enhancement of the punishment of six months to a punishment of
three years and the fine of taka one thousand to a fine of taka fifty thousand in
section 272.
Section 273 similarly prescribed a punishment of six months imprisonment
or a fine of taka one thousand or both for the offence of sale of adulterated food or
drink. In view of the reasons as we have discussed in respect of section 272 above,
we recommend for enhancement of the punishment of six months imprisonment to
an imprisonment of three years and the fine of taka one thousand to a fine of taka
fifty thousand in section 273.
Sections 274, 275 and 276 have dealt respectively with adulteration of
drugs, sale of adulterated drugs, and sale of drugs as a different drug or medical
preparation prescribing a punishment of six months imprisonment or with fine of
taka one thousand only or with both in each section. But the largely altered fact in
the field is that since the enactment of these provisions, the adulteration of drugs
has increased enormously and the value of money has depreciated to a very great
extent. For the purpose of checking the adulteration of drugs and sale of
adulterated drugs, we are of the opinion that the punishment as prescribed in 1860
should be enhanced. We, therefore, recommend for enhancement of punishment of
six months imprisonment to an imprisonment of three years and the fine of taka
one thousand to a fine of taka fifty thousand in section 274, 275 and 276.
Section 278 relates to the offence of making atmosphere noxious to the
health of persons in general dwelling and other places and the punishment
prescribed for such offence is a fine of taka five hundred only. But at present such
kind of offence of vitiating the atmosphere in many places making it noxious to
the public health has been increased seriously and the value of taka five hundred at
the time of 1860 has come down to a zero level. In such a position, we recommend
that section 278 be amended making the amount of fine to the extent of at least
taka ten thousand.
Section 304B has prescribed a punishment of three years imprisonment or
fine or both for an offence of causing death of any person by rash and negligent
driving of any vehicle or riding on any public way. It may be mentioned here that
there was no provision like 304B in the original Penal Code. During the last
several years, rash and negligent driving of motor vehicles on public roads by
reckless drivers has been causing many tragedies including many deaths of
innocent persons causing irreparable loss to their families and dependants. All
such tragedies had become a cause of concern for the Government and as such, a
new section being section 304B was inserted in the Penal Code by Ordinance No.
X of 1982 making the cause of death by rash and negligent driving on any public
road punishable with fourteen years imprisonment and the offence was made nonbailable.
An agitation by Bus owners, Truck owners, and drivers followed this
enactment and hence the punishment of fourteen years imprisonment was
substituted by seven years imprisonment by another enactment being Ordinance
No. XXI of 1984.Thereafter by a further amendment of the Penal Code by
Ordinance no XLVIII of 1985 the punishment of seven years imprisonment was
brought down to three years imprisonment and the offence was made bailable. But
it appears that at present the incidence of death by rash and negligent driving of
the reckless drivers has increased alarmingly on the public roads. Such kind of
death by negligent and reckless driving is taking place everyday on the public
roads causing irreparable loss to the families and dependants of large number of
victims of death and injuries.
In such a prevalent situation, we recommend that this punishment of three
years under section 304B should be enhanced to at least seven years with fine and
the offence be made non-bailable.
Section 384 relates to punishment for extortion to the extent of three years
only. But in the present day society extortion has increased to a very great extent.
We, therefore, recommend that the punishment of three years be enhanced to at
least five years.
Section 385 also deals with extortion by putting a person in fear of injury
punishable with imprisonment of fourteen years, which shall not be less than five
years, or with fine, or with both. The word “or with fine, or with both” appears to
be inconsistent where it is stated that the imprisonment for this offence may
extend to fourteen years and shall not be less than five years. We, therefore,
recommend that the words “ or with fine, or with both” be substituted by the
words “and shall also be liable to fine”.
Section 386 similarly deals with extortion by putting any person in fear of
death or of grievous hurt punishable with imprisonment of ten years with fine.
This punishment of ten years under section 386 again appears to be inconsistent
with section 385 although the degree of offence of 386 is more than that of 385.
We, therefore, recommend that the punishment of ten years under section 386 be
enhanced to the extent of fourteen years.
Section 509 deals with insulting the modesty of a woman by gesture and
posture or by uttering words or exhibiting any object and the punishment is
prescribed for one year only. Such kind of offence has increased now a days. We,
therefore, recommend that the punishment of one year under this section be
enhanced to the extent of three years.
It may be mentioned here that if our recommendations as made above are
accepted by the Government, then a corresponding amendment shall be necessary
to be made in the schedule II of the Code of Criminal Procedure, 1898 (Act V of
1898).
In the light of our above recommendations, we are enclosing herewith a
draft bill for the proposed amendment of the Penal Code, 1860 (Act XLV of 1860)
as annexure “A” for convenience and ready reference.
(Dr. M. Enamul Hoque) (Justice Md. Sirajul Islam)
Member-2 Member-1
(Justice Mustafa Kamal)
Chairman
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