PENAL CODE OF BRITISH INDIA. TO THE RIGHT HON. GEORGE LORD AUCKLAND, G. C. B, GOVERNOR-GENERAL OF INDIA IN COUNCIL. MY LORD: The Penal Code, which, according to the order of Government of the 15th of June 1835, we had the honour to lay before your Lordship in Council on the 2d of May last, has now been printed under our superintendence, and has, as well as the notes, been carefully revised and corrected by us, while in the press. The time which has been employed in framing this body of law will not be thought long by any person who is acquainted with the nature of the labour which such works require, and with the history of other works of the same kind. We should, however, have been able to lay it before your Lordship in Council many months earlier, but for a succession of unfortunate circumstances against which it was impossible to provide. During a great part of the year 1836, the Commission was rendered almost entirely inefficient by the ill-health of a majority of the members and we were altogether deprived of the valuable services of our colleague, Mr. Cameron, at the very time when those services were most needed. : It is hardly necessary for us to intreat your Lordship in Council to examine with candour the work which we now submit to you. To the ignorant and inexperienced, the task in which we have been engaged may appear easy and simple; but the members of the Indian Government are doubtless well aware that it is among the most difficult tasks in which the human mind can be employed; that persons placed in circumstances far more favourable than ours have attempted it with very doubtful success; that the best codes extant, if malignantly criticised, will be found to furnish matter for censure in every page; that the most copious and precise of human languages furnish but a very imperfect machinery to the legislator; that, in a work so extensive and complicated as that on which we have been employed, there will inevitably be, in spite of the most anxious care, some omissions and some inconsistencies; and that we have done as much as could reasonably be expected from us if we have furnished the Government with that which may, by suggestions from experienced and judicious persons, be improved into a good code. Your Lordship in Council will be prepared to find in this performance those defects which must necessarily be found in the first portion of a code. Such is the relation which exists between the different parts of the law, that no part can be brought to perfection while the other parts remain rude. The Penal Code cannot be clear and explicit while the substantive civil law and the law of procedure are dark and confused. While the rights of individuals and the powers of public functionaries are uncertain, it cannot always be certain whether those rights have been attacked, or those powers exceeded. Your Lordship in Council will perceive that the system of penal law which we propose is not a digest of any existing system, and that no existing system has furnished us even with a groundwork. We trust that your Lordship in Council will not hence infer that we have neglected to inquire, as we are commanded to do by Parliament, into the present state of that part of the law, or that in other parts of our labours we are likely to recommend unsparing innovation, and the entire sweeping away of ancient usages. We are perfectly aware of the value of that sanction which long prescription and national feeling give to institutions. We are perfectly aware that lawgivers ought not to disregard even the unreasonable prejudices of those for whom they legislate. So sensible are we of the importance of these considerations, that, though there are not the same objections to innovation in penal legislation as to innovation affecting vested rights of property, yet, if we had found India in possession of a system of criminal law which the people regarded with partiality, we should have been inclined rather to ascertain it, to digest it, and moderately to correct it, than to propose a system fundamentally different. But it appears to us that none of the systems of penal law established in British Asiat.Jour.N.S.VOL.26.No.101. L India has any claim to our attention, except what it may derive from its own intrinsic excellence. All those systems are foreign; all were introduced by conquerors differing in race, manners, language, and religion, from the great mass of the people. The criminal law of the Hindus was long ago superseded, through the greater part of the territories now subject to the Company, by that of the Mohamedans, and is certainly the last system of criminal law which an enlightened and humane government would be disposed to revive. The Mohamedan criminal law has, in its turu, been superseded, to a great extent, by the British Regulations. Indeed, in the territories subject to the presidency of Bombay, the criminal law of the Mohamedans, as well as that of the Hindus, has been altogether discarded, except in one particular class of cases; and even in such cases, it is not imperative on the judge to pay any attention to it. The British Regulations, having been made by three different legislatures, contain, as might be expected, very different provisions. Thus, in Bengal, serious forgeries are punishable with imprisonment for a term double of the term fixed for perjury; in the Bombay presidency, on the contrary, perjury is punishable with imprisonment for a term double of the term fixed for the most aggravated forgeries:+ in the Madras presidency, the two offences are exactly on the same footing. In the Bombay presidency, the escape of a convict is punished with imprisonment for a term double of the term assigned to that offence in the two other presidencies, § while a coiner is punishable with little more than half the imprisonment assigned to his offence in the other two presidencies. In Bengal, the purchasing of regimental necessaries from soldiers is not punishable, except at Calcutta, and is there punishable with a fine of only Rs. 50;§ in the Madras presidency it is punishable with a fine of Rs. 40; in the Bombay presidency it is punishable with imprisonment for four years.** In Bengal, the vending of stamps without a license is punishable with a moderate fine; and the purchasing of stamps from a person not licensed to sell them is not punished at all;ft in the Madras presidency, the vender is punished with a short imprisonment; but there, also, the purchaser is not punished at all; ‡‡ in the Bombay presidency, both the vender and the purchaser are liable to imprisonment for five years, and to flogging. §§ Thus widely do the systems of penal law now established in British India differ from each other. Nor can we recommend any one of the three systems as furnishing even the rudiments of a good code. The penal law of Bengal and of the Madras presidency is, in fact, Mohamedan law, which has gradually been distorted to such an extent, as to deprive it of all title to the religious veneration of Mohamedans, yet which retains enough of its original peculiarities to perplex and encumber the administration of justice. In substance it now differs at least as widely from the Mohamedan penal law as the penal law of England differs from the penal law of France; yet technical terms and nice distinctions, borrowed from the Mohamedas law, are still retained. Nothing is more usual than for the courts to ask the law officers what punishment the Mohamedan law prescribes in a hypothetical case, and then to inflict that punishment on a person who is not within that hypothetical case, and who, by the Mohamedan law, would be liable either to a different punishment, or to no punishment. We by no means presume to condemn the policy which led the British Government to retain, and gradually to modify, the system of criminal jurisprudence which it found established in these provinces; but it is evident that a body of law thus formed must, considered merely as a body of law, be defective and inconvenient. • Bengal Reg. XVII. of 1817, sec. ix. Madras Reg. VI. of 1811, sec. iii. ↑ Bombay Reg. XIV. of 1827, secs, xvi. and xvii. § Bombay Reg. XIV. of 1827, sec. xxiv. and Reg. V. of 1831, sec. i., Bengal Reg. XII. of 1818, sec. v. cl. 1, Madras Reg. VI. of 1822, sec. v. cl. 2. Bombay Reg. XIV. of 1827, sec. xvii., Bengal Reg. XVII. of 1817, sec. ix., Madras Reg. II. of 1822, sec. v. § Calcutta Rule, Ordinance, and Regulation, passed 21st August, registered 11th Nov. 1821. Madras Reg. XIV. of 1832, sec. ii. cl. 1. tt Bengal Reg. X. of 1829, sec. ix. cl. 2. ** Bombay Reg. XXII. of 1827, sec. xix. ‡‡ Madras Reg. XIII. of 1816, sec. x. cl. 10. The penal law of the Bombay presidency is all contained in the Regulations, and is almost all to be found in one extensive Regulation. The Government of that presidency appears to have been fully sensible of the great advantage which must arise from placing the whole law in a written form before those who are to administer, and those who are to obey it; and, whatever may be the imperfections of the execution, high praise is due to the design. The course which we recommend to the Government, and which some persons may perhaps consider as too daring, has already been tried at Bombay, and has not produced any of those effects which timid minds are disposed to anticipate even from the most reasonable and useful innovations. Throughout a large territory, inhabited to a great extent by a newly-conquered population, all the ancient systems of penal law were at once superseded by a code, and this without the smallest sign of discontent among the people. It would have given us great pleasure to have found that code such as we could with propriety have taken as the groundwork of a code for all India; but we regret to say, that the penal law of the Bombay presidency has, over the penal law of the other presidencies, no superiority, except that of being digested. In framing it, the principles according to which crimes ought to be classified, and punishments apportioned, have been less regarded than in the legislation of Bengal and Madras. The secret destroying of any property, though it may not be worth a single rupee, is punishable with imprisonment for five years.† Unlawful confinement, though it may last only for a quarter of an hour, is punishable with imprisonment for five years.‡ Every conspiracy to injure or impoverish any person is punishable with imprisonment for ten years;§ so that a man who engages in a design as atrocious as the gunpowder plot, and one who is party to a scheme for putting off an unsound horse on a purchaser, are classed together, and are liable to exactly the same punishment. Under this law, if two men concert a petty theft, and afterwards repent of their purpose, and abandon it, each of them is liable to twenty times the punishment of the actual theft. All assaults which cause a severe shock to the mental feelings of the sufferer are classed with the atrocious crime of rape, and are liable to the punishment of rape, that is, if the courts shall think fit, to imprisonment for fourteen years. The breaking of the window of a house, the dashing to pieces a china cup within a house, the riding over a field of grain, in hunting, are classed with the crime of arson, and are punishable, incredible as it may appear, with death. The following is the law on the subject: "Any person who shall wilfully and wrongfully set fire to or otherwise damage or destroy any part of a dwelling-house, or building appertaining thereto, or property contained in a dwelling-house, or building or enclosure appertaining thereto, or crops standing or reaped in the field, shall be liable to any of the punishments specified in section iii. of this Regulation."* The section to which reference is made contains a list of the punishments authorized by the Bombay Code, and at the head of that list stands death. But these errors, the effects probably of inadvertence, are not, in our opinion, the most serious faults of the Penal Code of Bombay. That code contains enactments which it is impossible to excuse on the ground of inadvertence; enactments, the language of which shows, that when they were framed, their whole effect was fully understood, and which appear to us to be directly opposed to the first principles of penal law. One of the first principles of penal law is this, that a person who merely conceals a crime after it has been committed, ought not to be punished as if he had himself committed it. By the Bombay Code, the concealment after the fact of murder is punishable as murder; the concealment after the fact of gang-robbery is punishable as gang-robbery :tt and this, though the concealment after the fact of the most cruel mutilations, and of the most atrocious robberies committed by not more than four persons, is not punishable at all. If there be any distinction which more than any other it behoves the legislator to Bombay Reg. XIV. of 1827. Reg. XIV. of 1827, sec, xxxiii. cl. 1. + Reg. XIV. of 1827, sec. i. cl. ↑ Reg. XIV. of 1827, sec. xlii. cl. 2. § Reg. XVII. of 1828. Reg. XIV. of 1827, sec. xxix. cl. i. ** Reg. XIV. of 1837, sec. xxxix, bear constantly in mind, it is the distinction between harm voluntarily caused and harm involuntarily caused. Negligence, indeed, often causes mischief, and often deserves punishment; but to punish a man whose negligence has produced some evil which he never contemplated as if he had produced the same evil knowingly, and with deliberate malice, is a course which, as far as we are aware, no jurist has ever recommended in theory, and which, we are confident, that no society would tolerate in practice. It is, however, provided by the Bombay Code, that "the unintentional commission of any act punishable by that code shall be punished according to the Court's judgment of the culpable disregard of injury to others evinced by the person committing the said act, but the punishment for such unintentional commission shall not exceed that prescribed for the offence committed."* We have said enough to show that it is owing, not at all to the law, but solely to the discretion and humanity of the Judges, that great cruelty and injustice is not daily perpetrated in the Criminal Courts of the Bombay presidency. Many important classes of offences are altogether unnoticed by the Bombay Code; and this omission appears to us to be very ill supplied by one sweeping clause, which arms the Courts with almost unlimited power to punish as they think fit offences against morality, or against the peace and good order of society, if those offences are penal by the religious law of the offender.† This clause does not apply to people who profess a religion with which a system of penal jurisprudence is not inseparably connected. And from this state of the law some singular consequences follow. For example, a Mahomedan is punishable for adultery: a Christian is at liberty to commit adultery with impunity. Such is the state of the penal law in the Mofussil. In the meantime, the population which lives within the local jurisdiction of the Courts established by the Royal Charters is subjected to the English Criminal law, that is to say, to a very artificial and complicated system-to a foreign system-to a system which was framed without the smallest reference to India-to a system which, even in the country for which it was framed, is generally considered as requiring extensive reform-to a system finally which has just been pronounced by a commission, composed of able and learned English lawyers, to be so defective, that it can be reformed only by being entirely taken to pieces and reconstructed. ‡ Under these circumstances we have not thought it desirable to take as the groundwork of the Code any of the systems of law now in force in any part of India. We have, indeed, to the best of our ability, compared the Code with all those systems, and we have taken suggestions from all; but we have not adopted a single provision merely because it formed a part of those systems. We have also compared our work with the most celebrated systems of Western jurisprudence, as far as the very scanty means of information which were accessible to us in this country enabled us to do so. We have derived much valuable assistance from the French Code and from the decisions of the French courts of justice on questions touching the construction of that code. We have derived assistance still more valuable from the code of Louisiana, prepared by the late Mr. Livingston. We are the more desirous to acknowledge our obligations to that eminent jurist, because we have found ourselves under the necessity of combatting his opinions on some important questions. The reasons for those provisions which appear to us to require explanation or defence will be found appended to the Code in the form of Notes. Should your Lordship in Council wish for fuller information as to the considerations by which we have been guided in framing any part of the law, we shall be ready to afford it. One peculiarity in the manner in which this Code is framed will immediately strike your Lordship in Council. We mean the copious use of illustrations. These illustrations will, we trust, greatly facilitate the understanding of the law, and will at the same time often serve as a defence of the law. In our definitions we have repeatedly Reg. XIV. of 1827, sec. i. cl. 3. * Reg. XIV, of 1827, sec. i. cl. 1. Letter to Lord John Russell, from the Commissioners appointed to inquire into the state of the sriminal law, dated 19th January 1837. found ourselves under the necessity of sacrificing neatness and perspicuity to precision, and of using harsh expressions because we could find no other expressions which would convey our whole meaning, and no more than our whole meaning. Such definitions standing by themselves might repel and perplex the reader, and would perbaps be fully comprehended only by a few students after long application: yet such definitions are found, and must be found, in every system of law which aims at accuracy. A legislator may, if he thinks fit, avoid such definitions, and by avoiding them he will give a smoother and more attractive appearance to his workmanship: but in that case he flinches from a duty which he ought to perform, and which somebody must perform. If this necessary but most disagreeable work be not performed by the lawgiver once for all, it must be constantly performed in a rude and imperfect manner by every judge in the empire, and will probably be performed by no two judges in the same way. We have, therefore, thought it right not to shrink from the task of framing these unpleasing but indispensable parts of a code; and we hope that when each of these definitions is followed by a collection of cases falling under it, and of cases which, though at first sight they appear to fall under it, do not really fall under it, the definition, and the reasons which led to the adoption of it, will be readily understood. The illustrations will lead the mind of the student through the same steps by which the minds of those who framed the law proceeded, and may sometimes show him that a phrase which may have struck him as uncouth, or a distinction which he may have thought idle, was deliberately adopted for the purpose of including or excluding a large class of important cases. In the study of geometry, it is constantly found that a theorem which, read by itself, conveyed no distinct meaning to the mind, becomes perfectly clear as soon as the reader casts his eye over the statement of the individual case taken for the purpose of demonstration. Our illustrations, we trust, will in a similar manner facilitate the study of the law. There are two things which a legislator should always have in view while he is framing laws: the one is, that they should be as far as possible precise; the other, that they should be easily understood. To unite precision and simplicity in definitions intended to include large classes of things, and to exclude others very similar to many of those which are included, will often be utterly impossible. Under such circumstances, it is not easy to say what is the best course. That a law, and especially a penal law, should be drawn in words which convey no meaning to the people who are to obey it, is an evil. On the other hand, a loosely worded law is no law; and to whatever extent a legislature uses vague expressions, to that extent it abdicates its functions and resigns the power of making law to the Courts of Justice. On the whole, we are inclined to think that the best course is that which we have adopted. We have, in framing our definitions, thought principally of making them precise, and have not shrunk from rugged or intricate phraseology when such phraseology appeared to us to be necessary to precision. If it appeared to us that our language was likely to perplex an ordinary reader, we added as many illustrations as we thought necessary for the purpose of explaining it. The definitions and enacting clauses contain the whole law. The illustrations make nothing law which would not be law without them. They only exhibit the law in full action, and show what its effects will be on the events of common life. Thus the Code will be at once a statute-book and a collection of decided cases. The decided cases in the Code will differ from the decided cases in the English lawbooks in two most important points. In the first place, our illustrations are never intended to supply any omission in the written law, nor do they ever, in our opinion, put a strain on the written law. They are merely instances of the practical application of the written law to the affairs of mankind. Secondly, they are cases decided not by the judges but by the legislature, by those who make the law, and who must know more certainly than any judge can what the law is which they mean to make. The power of construing the law in cases in which there is any real reason to doubt what the law is, amounts to the power f making the law. On this ground the |