The Indian Penal Code (Act XLV Of 1860)
GENERAL INTRODUCTION
Origin of criminal law
There was no criminal law in uncivilised 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 a long time, the application of these principles remained with the parties themselves, but gradually this function came to be performed by the State.
The germs of criminal jurisprudence came into existence in India from the time of Manu. In the category of crimes, Manu has recognised 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.
In western jurisprudence, the real notion of crime percolated from the Roman law. In modern times, crimes have multiplied in an extraordinary degree. It has revolutionised the concept of criminal law. Various statutes have been enacted imposing different kinds of duties, liabilities and restrictions on the individuals.
Development of modern criminal law in India.
Vasco De Gama, a subject of Portugal, first discovered the passage to India around the Cape of Good Hope, the southernmost point of Africa. Thereafter, the Portuguese began to carry on trade with India. The Portuguese were followed by the Dutch. Subsequently, the English 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 gave the Company exclusive right of trading to all parts of Asia, Africa and America, beyond the Cape of Good Hope, eastward to the Straits of Magellan. It also gave the Company power to make laws.
In 1609, JAMES I renewed the Charter, and in 1661 Charles II gave similar powers while renewing it.
The Charter of 1668 transferred Bombay to the East India Company, and directed that proceedings in 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 of 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 placca the company decide. In 1687, anotherche Madras, granted by at such places as the Company might established at Fort St. George Madras, in order to settle small 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 administration of justice in Inddministration 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 unsuited to 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 also the Nizamat, i.e., the right of superintending the whole administration in Bengal, Bihar and Orissa.
In 1772, Warren Hastings, took steps for proper 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 по connection, nor did they interfere with their administration. The Kazi or Mufti 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 procedure. In addition to District Courts a Sudder Nizamat Adalut was also established. This Court was to revise and confirm the sentences of Fouzadari Adalut in capital cases and offences involving fines exceeding Rs. 100. 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, second, Hindu and Muslim laws were treated equally. The administration of criminal justice remained in the hands of the Nawab, 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, Mohammedan criminal law was in force.
In the Bombay Presidency, Hindu criminal law applied to the Hindus, and Mohammedan 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 priest craft. 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 judgment 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 by either the Governor-General, a Governor, or a Judge of the Supreme Court, was triable by the King's Bench in England.
In 1781, an 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 Thionstitute provincial Courts of justice and to appoint a Committee to hear appeall therefrom. The Governor-General was empowered to frame regulations for the guidance th these Courts. Mohammedan criminal law was then applicable to both Hindus and Mohammedans 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.
In the mofussil towns in Bengal the law officers of the Zilla and City Courts, who were Sudder Ameens and Principal Sudder Ameens, were given limited powers in criminal cases. They used to decide petty theft cases and criminal offences. They could fine up to Rs 50 and award imprisonment, with or without labour, for 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 Mag 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 Adalut. An appeal from the decisions of Sessions Judges lay to the Nizamat Adalut. Such was the criminal administration in Bengal up to 1833.
In Madras, District Munsiffs had limited criminal jurisdiction. They could fine up to Rs 200 or award one month's imprisonment. By Regulation X of 1816, Magistrates were empowered to inflict imprisonment for one year. There were also Sudder Ameens who tried trivial offences. Offences of heinous nature were forwarded for trial to the Sessions Judges. Offences against the State were referred to the Fouzdari Adalut. The Fouzdari Adalut was the chief criminal Court in the Madras Presidency, and was vested with all powers that were given to the Nizamat Adalut 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 as Madras.
In 1833, Macaulay moved the House of Commons to codify the whole criminal law in India and bring about uniformity. He 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. Indeed, laws were often uncertain and differed widely from province to province. 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.
Accordingly, the first Indian Law Commission was constituted in 1834 under the Charter Act of 1833 to investigate into the jurisdiction, powers, rules of the existing Courts and police establishments and into the laws in operation in British India; and make reports thereon and suggest alterations having due regard to the distinction of castes, religions and opinions prevailing among different races and in different parts of the country. Mr (afterwards Lord) Macaulay was the President and Macleod, Anderson, and Millet were the of the Commission. Elucidating the task before the Commission Lord Macaulay observed.
I believe that no country ever stood so much in need of a code of law as India believe also that there never was a country in which the want might be Our principle is simply this-uniformity when you can have it; have it; but, in all cases, certainty diversity when you must have it; but, in all cases, certainly.
In preparing the Penal Code they drew not only upon the English and the Indian lawy and regulations, but also upon Livingstone's Louisiana Code and the Code Napoleon. A October 14, 1837.1 of the Crown. On April 26, 1845, another Draft Code was submitted to the Governor-General in Council on s and lase the Code. This Commised remained pigerenon in was circulated to the Judges and law advisers Commission was appointed two parts, one in 1846 and the other in 1847. The Bill so revised Subsequently, it was cut it was presented to the Regulations, and Orders, of and it revised by Bethune and Peacock, who were Law Governor October 6, 1860. It superseded all Ruler Reine the passed Indian and provided a uniform criminal law for all the people in the then British India irrespective of caste, creed or religion.
It must be said to the credit of Lord Macaulay and his colleagues that in spite of trelt endous difficulties, they firmly laid the foundations of the Indian criminal law and did an excellent pioneering work. The Indian Penal Code has stood the test of more than a century and still largely meets the needs of present-day society. In days when the concept of individualisation of punishment was totally unconceived, it defined offences and prescribed separate punishment for each. This indeed, is a monument to the law making capacity of the First Law Commission, especially when one recalls to one's mind the criminal law of England which still divides offences only into four broad categories of murder, manslaughter, felony and misdemeanour.
This is, however, not to say that the Indian Penal Code is a modern Code in every sense of the term and requires little change to meet the aims and aspirations of contemporary society. With emphasis of penology having shifted from punitive deterrence to reformation and correction, the Penal Code though considered as an advanced Code a century ago, now appears to be an archaic Code by the standards of modern Social Defence. Extra- mural treatments like probation, parole, compulsory aftercare, attendance at work sheds, attendance at psychiatric centres, compensation to victims of crime, free or partly paid Community Service etc., are totally not provided for in the main penal law of India, and had to be brought into existence to some extent through piecemeal legislation like the probation of offenders Act and the like. It is hoped, as and when, the Code is revised these modern concepts of Social Defence would be incorporated in the body of the Code itself.
The Santhanam Committee on Prevention of Crime felt that the Indian Penal Code, though a very comprehensive compilation, does not fully meet the requirements of our society after a century of its codification. It does not cover many segments of our socio-economic life with which we are required to contend today. Though many of these hitherto uncovered fields have since been covered by piecemeal legislation after independence, yet the need exists to codify them at one place in the form of one or two separate chapters in the body of the Indian Penal Code. Thus, anti-social acts which could be described as economic offences like profiteering, black marketing, hoarding, adulteration of food-stuffs and drugs, trafficking in licences and permits, tax evasion, usury, violation of rules regarding foreign exchange, etc., could be grouped together in one chapter of the Indian Penal Code under the heading of "Economic Offences". Similarly social vices like corruption, casteism, untouchability trafficking in women and children and a host of such other things could be grouped together under a single chapter entitled "Social Offences" in the Indian Penal Code itself.
Multiplicity of laws like multiplicity se charges is highly misleading and adds to the difficulties of the common man, the accused and perhaps the advocates on either side. So it is high time that we codified in simple language, the bulk of our important penal laws at one place.¹
Perhaps the most important of the functions of the State is that which it discharges as the guardian of law and order, preventing and punishing all injuries to itself charges assobedience to the rules which it has laid down for the common welfare. In defining the dibit of its rights in this respect, the State usually proceeds by an enumeration of the acts which impinge upon them, coupled with an intimation of the penalty to which any one committing such acts will be liable. The branch of law which contains the rules upon this subject is accordingly described as "Criminal law".
It is comparatively modern. The early tendency was to punish offences against the sovereign power by an exceptional executive or legislative act, and to treat offences against individuals, even when, like theft and homicide, they were a serious menace to the general welfare, as merely civil injuries to be compensated for by damages. The law of Rome continued to the last to treat as civil delict acts which would now be regarded exclusively as crimes, although, by a long course of unsystematic legislation, it had also attached penal consequences to some of them.²
The criminal law of India has been codified in the Penal Code and in the Criminal Procedure Code; the former Code deals specifically with offences and states what matters will afford an excuse or a defence to a charge of an offence. The Penal Code is the substantive law and the Criminal Procedure Code, the adjective law. Section 5 of the latter Code says:
All offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained.
There have been important changes through amendments from time to time, particularly in 2013 which amended the Indian Penal Code, 1860, the Indian Evidence Act, 1872, and the Code of Criminal Procedure, 1973, on laws relating to sexual offences.
Mental elements in crime
Intention, motive, mens rea, knowledge, innocence, mistake of fact and mistake of law are some of the mental elements that play a significant part in criminal law.
Intention
"Criminal intention" simply means the purpose or design of doing an act forbidden by the criminal law without just cause or excuse. The intention of the accused to produce a particular consequence shows his intention to do that act. An act is intentional if it exists in idea before it exists in fact, the idea realising itself in the fact because of the desire by which it is accompanied. The word 'intent' does not mean ultimate aim and object, nor is it used as a synonym for 'motive'. Where the Legislature makes an offence dependent on proof of intention, the Court must have proof of facts sufficient to justify it in coming to the conclusion that the intention existed. No doubt one has usually to infer intention from conduct, and one matter that has to be taken into account is the probable effect of the conduct.
But that is never conclusive. As a general rule, every sane man is presumed to intend the necessary or the natural and probable consequences of his acts, and this presumption of law will prevail unless from a consideration of all the evidence the Court entertains a reasonable doubt whether such intention existed. This presumption, however, is not conclusive nor alone sufficient to justify a conviction and should be supplemented by other testimony.
An accused must be judged to have the intention that is indicated to the intented acts. The burden of proving guilty intention lies upon the prosecution whersychologinis expressly definition of crime. Criminal as a fact has to stated as part of the gai toffences under the special Acts unless it is specifically ruled out or ruled out by necessary implication.³
Motive
Motive is not to be confused with intention. If a man kane that a certain consequence will follow from his act, it must be presumed in differat he intended that consequence to take place although he may have had some quite different ulterior motive for performing the act. The motive for an act is not a sufficient test to determine its criminal for performing the act. The enot anything that can contribute e intention, but althoven to prevent, any kind of action. Motive may serve as a clue to the intention; but although the motive is pure, the act done under it may be criminal. Purity of motive does not purge an act of its criminal character. An act which is unlawful cannot, in law, be excused on the ground that it was committed from a good motive.
Motive, though not a sine qua non for bringing the offence home to the accused, is relevant and important on the question of intention.
Though the prosecution is not bound to prove motive for the crime, absence of any motive is a factor which may be considered in determining the guilt of the accused. Thus, if there is really no motive and the crime is completely motiveless then that circumstance can be taken into consideration along with the evidence of prior insanity. But if the actual evidence as to the commission of the crime is believed, then question no of motive remains to be established. It is not the bounden duty of the prosecution to prove motive with which a certain offence has been committed. It is sufficient if the prosecution proves by clear and reliable evidence that certain persons committed the offence, whatever the motives may be which induced them to commit that offence. For, motive is a fact very often within the special knowledge of the person doing the act and thus, it becomes extremely difficult to ascertain the motive in a given case but that does not mean that the offence was not committed.
The question of motive is not material where there is direct evidence of the acts of the accused and the acts themselves are sufficient to disclose the intention of the actor. But in cases of circumstantial evidence, absence of motive is a factor in favour of the accused.
Mens rea
It is one of the principles of the English criminal law that a crime is not committed if the mind of the person doing the act in question is innocent. It is said that actus non facit reum, nisi mens sit rea (the intent and act must both concur to constitute the crime). Although prima facie and as a general rule there must be a mind at fault before there can be a crime, it is not an inflexible rule, and a statute may relate to such a subject-matter and may be so framed as to make an act criminal whether there has been any intention to break the law or otherwise to do wrong or not.
The full definition of every crime contains expressly or by implication a proposition as to the state of mind. Therefore, if the mental element of any conduct alleged to be a crime is proved to have been absent in any given case, the crime so defined is not committed; or, again, if a crime is fully defined, nothing amounts to that crime which does not satisfy that definition.
It, therefore, appears that the above maxim has not so wide application as it is an sometimes considered to have. It has undergone a modification owing to the greater precision of modern statutes. It is impossible to apply it generally to all statutes, and the substance of all the reported cases is that it is necessary to look at the object of each Act that is under consideration to see whether and how far knowledge is of the essence of the offence created. Crimes are at the present day much more accurately defined by statutes or than they formerly were.
The maxim actus penfacode ini mers sit red has, however, no application to the offences under theontain expressly proposity technical sense because the definitions of offrous offences con tahether the act must state of mind of the accused. The definitions shonestly or thraudulents have been done "intentionally', 'voluntarily Thowingly dishonions. So, fraudulently or the like. Every ingredient is stated in the definitiorguilty, mens rea will mean one thing or another according fence particular offence thenind Evind may thus be a fraudulent mind, a dishonest or a negligent or rash mind Every offence under the Code virtually imports the mind, criminal intent or mens rea in some form or other. If, in any case, the Indian Legislature has omitted to prescribe a particular mental condition, the presumption is that the Ogislature is intentional. In such a case, the doctrine of mens rea is not applicable.
Only limited and exceptional class of offences can be committed without a guilty mind. The Court should always bear in mind that unless the statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, an accused should not be found guilty of an offence under the criminal law unless he has got a guilty mind. Absolute liability is not to be lightly presumed but has to be clearly established.⁴
Knowledge
Where knowledge of a fact is an essential ingredient of an offence it must be distinctly proved. There are certain offences in the Penal Code where the accused who commits those offences is punished irrespective of the fact whether he had knowledge or not. Where a particular act is forbidden the question of knowledge becomes immaterial.
Innocence
The law presumes innocence until guilt is proved. The onus of proving everything essential to the establishment of the charge against the accused lies upon the prosecution. Every man is to be regarded as legally innocent until the contrary be proved. Criminality is therefore never to be presumed. The evidence must be such as to exclude, to a moral certainly, every reasonable doubt regarding the guilt of the accused. If there be any reasonable doubt about the guilt of the accused, he is entitled as of right to be acquitted.
The more heinous and improbable a crime is, the greater is the force of the evidence required to overcome the presumption of innocence. Where the facts found proved in a case are perfectly consistent with either the innocence or guilt of the accused the presumption of innocence should prevail. The presumption of innocence in criminal cases signifies no more than that if the commission of a crime is directly in issue, it must be proved beyond reasonable doubt. The proof of guilt must depend on positive affirmation, and cannot be inferred from mere absence of explanation. The prosecution cannot be permitted to take advantage of the weakness of the defence case. The case for the prosecution has to be proved beyond all shadow of reasonable doubt de hors this weakness. Further, suspicion however strong is not proof. In other words, the persuasion of guilt ought to amount to a moral certainty.
Where facts are as consistent with the prisoner's innocence as well as with his guilt, innocence must be presumed; and criminal intent or knowledge is not necessarily imputable to every man who acts contrary to the provisions of the law.
Culpable possession, knowledge or motive, may overthrow the presumption of innocence and raise in its place a presumption of guilt.
Mistake of fact
Mistake, as the term is used in jurisprudence, is an erroneous mental condition, conception or conviction induced by ignorance, misapprehension, or misunderstanding of the truth, and resulting in some act or omission done or suffered erroneously by one or both of the parties to a transaction, but without its erroneous character being intended or known at the time. It may concern either the law or the facts involved.
A mistake of fact consists in an unconsciousness, once present existence of a fact or present, material to the transaction, or in the beliche pihe existence of a thing a thing material to the transaction, which does not exist, or in the past existence of a thing which has not existed.
Under the Penal Code, the mistake must be one of fact and nounlawful, the te through a mistake, a man, intending to do a law ful act, does that which is which is the deed and the will act separately, there is not that conjunction between thend a person, under a to form a criminal act. But where an act is clearly a wrong in itself, and a persone under a mistaken Aumpression as to the facts which render it criminal, commes thy saying that he guilty of impressiotten the hus, a burglar cannot escape punishment ly that deat he entered wrong house through mistake, nor can a murderer be heard to say that the deceased was not his intended victim. In either case, the mistake of fact is no excuse.
Mistake of law
If any individual should infringe the statute law of the country through ignorance or carelessness, he must abide by the consequences of his error, it is not open to him to aver in a Court of Justice that he was ignorant of the criminal law of the land, and no court of justice is at liberty to entertain such a plea.
The maxim ignorantia juris non excusat, (ignorance of law excuses no one), in its application to criminal offences, admits of no exception, not even in the case of a foreigner who cannot reasonably be supposed in fact to know the law of the land. It is indeed a legal fiction to suppose that everyone knows the law of the land, but it is a fiction which is so basic that without it the administration of criminal justice would come to a standstill Public policy requires it; expediency demands it to circumvent unsurmountable difficulties which the Courts will otherwise face. Without it, there will be no end to which such an excuse would be pressed into service.⁶
Although a person commits an act which is made an offence for the first time by a statute so recently passed as to render it impossible that any notice of the passing of the statute could have reached the place where the offence has been committed, yet his ignorance of the statute will not save the accused from punishment.⁷
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1. R. Deb: Reforms In Criminal Law: Some Suggestions, Journal of the Indian Law Institute, New Delhi, Oct.-Dec., 1975, pp. 592-93.
2. Holland's Jurisprudence, 12th edn. p. 378.
3. State of Maharashtra, v MH George, AIR 1965 SC 722: 1965 (1) Cr LJ 641. See also discussion under sub head 'Mens Rea' under section 81 (infra).
4. State of Maharashtra v MH George, AIR 1965 SC 722: 1965(1) Cr LJ 641.
5. Brij Bhusan Singh v Emp, AIR 1946 PC 38; Babu Singh v State of Punjab, (1963) 3 SCR 749 (SC): 1964(1) Cr LJ 566.
6. Bailey, (1800) Russ & Ry 1.
7. State of Maharashtra v MH George, AIR 1965 SC 722: 1965 (1) Cr LJ 641
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