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Report No. 35

Appendix XXV

Capital Punishment Under the British Rule But Before the Enactment of the Indian Penal Code

III.-Capital Punishment under the British rule but before the enactment of the Indian Penal Code

We may now consider the statutory modifications made in the Muslim Criminal law during British times, in the period before the commencement of Indian Penal Code. The policy of the British being to interfere as little as possible with the Muslim Penal law, only such modifications were made as were required to remove its glaring defects.

In 1772, for suppressing robbery, a provision was made that dacoits were to be executed in their villages, the villagers were to be fined and the families of the dacoits were to become the slaves of the State1-2. The provision penalising the villagers and the family, however, very shortly ceased to be enforced3.

The letter of Warren Hastings, President of the Council dated 10th July, 1773 recorded on the proceedings of Council dated 3rd August, 17734, discussed in detail the principles of Muslim Criminal Law as expounded in theory and as applied in practice, and made several suggestions as to severe punishment and for dacoits, irrelevance of instrument used for committing homicide, the requirement of two witnesses in the case of positive capital offence, etc. It also throws considerable light as to the origin of sentence of transportation of life in respect of "every convicted felon and murder" not condemned to death by the sentence of the Adawlat5.

The Regulation dated 3rd December, 17906 made several changes.

Regarding homicide, by a Bengal Regulation of 1793 (sections 50, 52, 55, 76, Bengal Regulations 9, 1793 substituted by Regulation 4, 1797)

(a) nature of the instrument as signifying the intention was made immaterial in homicide; the intention was to be gathered from the general circumstances and the evidence; and

(b) the discretion left to the next of kin of the murdered person to remit the penalty of death was taken away7-8.

Thus, the motive, not the method, should determine the sentence9. In 1791, the punishment of mutilation was abolished. All criminals adjudged in accordance with the Fatwa of law officers to lose two limbs were to suffer, instead of it, imprisonment with hard labour for 7 years10-11.

Cornwallis, introduced a number of changes in criminal law by the "Cornwallis Code".

(The Cornwallis Code, 1793 really comprised 48 regulations dealing with various aspects of revenue, civil and judicial administration, including jurisdiction and procedure of Civil and Criminal Codes).

Cornwallis also deprived the relatives of a murdered men of their power to pardon the criminal, and the law was to take its course12.

A Bengal Regulation of 1797 provided that in cases of wilful murder, judgment was to be given on the assumption that "retaliation" had been claimed. The sentence could extend to death if that was the prescribed sentence under Mahommedan Law. As regards "fine of blood", the Judges were directed to commute the punishment to imprisonment-which could extend to life imprisonment13-14.

By the same Regulation of 1797, offenders guilty of putting to death "any person on the ground of his or her being versed in and practising sorcery or any other ground such person or persons" were declared to be guilty of murder on being convicted of the crime, and punishable accordingly.15

By sections 1 to 5, Bengal Regulation 4 of 1799, elaborate provisions were made for the trial of persons charged with Treason and other crimes against the State16.

Certain homicides which were regarded as justifiable homicides under the Muslim Law, were considered as opposed to public justice, and by Bengal Regulation 8 of 1799, such cases were declared liable to capital punishment. These included such cases as the prisoners being one of ancestors of the slain, or being the master of the deceased, or the consent of the deceased17-18. Death sentence could be passed provided if the court saw no circumstance which may render the prisoner a proper object of mercy.

By the same Regulation (section 5), it was made clear, that wilful homicide by poisoning or by drowning when the intention of drowning, etc., was evident was included in the rule19 that it is the intention which is material and not the manner and instrument of perpetration.

1. Article 35 of the plan for the administration of justice in Bengal framed by the Committee of Circuit presided over by Hastings; proceedings of the meeting held on 15 August, 1772 and adopted on 21 August 1772 (Judicial Regulations); see Harrington, Vol. I, p. 299.

2. Aspinall, Cornwallis in Bengal, (1931), p. 65, f.n. 4, citing Bengal letter to Court dated November 3, 1772.

3. Bengal Revenue Consultations, December 29, 1785.

4. See Colebrooke, Digest, Supplement, Calcutta, (1807), pp. 114 et seq.

5. Colebrooke, Digest, Supplement, Calcutta, (1807), p. 115.

6. Colebrooke, Digest, Supplement, Calcutta, (1807), pp. 141, 143, 155, 156 (Regulation for the Administration of Justice in the Criminal Courts in Bengal, etc.).

7. Bengal Regulation 9 of 1793. A Regulation for re-enacting with alterations and modifications, the regulations passed by the Governor General-in-Council on the 3rd December, 1790, etc. This very comprehensive Regulation, contains the fundamental rules for administration of criminal law.

8. Harrington, Vol. I, pp. 312, 313.

9. Aspinall, Cornwallis in Bengal, (1931), p. 69.

10. Resolution of the Governor-General in Council of 15 April, 1791, cited in Aspinall Cornwallis in Bengal, (1931), p. 74, and foot-note 3 on that page. This was replaced by section 51, Regulation 9 of 1793; Harrington pp. 310, 322.

11. See also Colebrook's Digest, (Calcutta, 1807), Supplement, p. 159.

12. Aspinall Cornwallis in Bengal, (Manchester University Press), (1931), p. 69, citing Bengal Revenue Consultations dated.-12-1790.

13. Bengal Regulation 4 of 1797 (13th March, 1797), section 3.

14. Barrington, Vol. I, p. 313.

15. Bengal Regulation 4 of 1797, section 6.

16. Bengal Regulation 4 of 1799, sections 1 to 5.

17. Bengal Regulation 8 of 1799, sections 2 and 3.

18. Harrirgton, p. 314, and foot-note 1.

19. This rule had also been enacted by Bengal Regulation 9 of 1793, section 75.

Dacoity.-It would appear, that the crime of dacoity was rampant in the beginning of the 19th century1-Sir Henry Strachey (while he was Judge of Circuit in the district of Calcutta, in his report in the year 1802) said2, "The crime of dacoity, has, I believe, increased greatly since the British administration of justice. The number of convicts confined at the six stations of this division is about 4,000. Of them probably nine-tenths are dacoits."

Mr. Doweleswell2 (Secretary to Government) in a report on the general state of police in Bengal, said: "Robbery, rape and even murder itself are not the worst figures in this horrid and disgusting picture. An expedient of common occurrence with the dacoits merely to induce confession of property, supposed to be concealed, is to burn the proprietor with straw or troches, until he discloses the property; or perishes in the flames....... If the information obtained is not extremely erroneous, the offender, hereafter noticed, himself committed fifteen murders in nineteen days and volumes might be filled with the atrocities of the dacoits every line of which would make the blood run cold with terror."

Death sentence was prescribed by Bengal Regulation VIII of 1801 for accidental homicide (as known to Muslim law) occurring in the prosecution of unlawful murderous intention, e.g., shooting at A with intention to kill A and by accident killing B3.

Certain other changes were made, not relevant to capital punishment.

By Regulation XXI of 1795 (as extended in its territorial application, by Bengal Regulation III of 1804) infanticide among "Rajkumars" was declared to be murder4-5.

By Bengal Regulation VI of 1802, the whole practice of infanticide by drowning was declared to be wilful murder punishable with death6. It was stated that the practice of killing female children had been widely prevalent in India, and the object was to stop that practice7. The Regulation, however, punished the throwing into sea, river, etc. of "any infant or person not arrived at the age of maturity".

Regarding robbery, by Bengal Regulation 53 of 1803, death sentence was provided for all cases of murder committed in the prosecution of robbery, or aiding, or abetting the same, etc. The Nizamat Adalat was empowered to inflict the capital sentence on habitual and notorious robbers8.

Regarding escape by convicts, by Bengal Regulation 53 of 1803 convicts escaping from their places of transportation, if apprehended, were directed to be tried, and on conviction, were to be sentenced to death9, "if no circumstances appear to the Court to render such convict an object of mercy".

Regarding hostility to Government, open hostility to the British Government, or actual commission of any overt act of rebellion against the authority of the same, or the act of openly aiding and abetting the enemies of the British Government were, in 1804, declared to be liable to the immediate punishment of death and to the forfeiture of the property, etc., of the convict10. The regulation provided for trial by courts martial and was applicable during times of war or open rebellion, but did not preclude11 the Government from causing the persons to be charged under Regulations 4 of 1799 and 20 of 1803.

Regarding robbery, Bengal Regulation 3 of 1805 made special provisions12. It had been brought to light that many village watchmen and some police officers were concerned in the preparation of robbery, or connived at the commission of robbery. Hence the Regulation laid down that any police officer convicted of robbery by open violence or of murder, wounding, maiming or any other aggravating act, in the prosecution of robbery or an attempt to rob was to be sentenced to death. Any direct or indirect connivance at any of these crimes on the part of any police officer was to be considered as its actual commission and punishable accordingly13.

By Bengal Regulation XVII of 1817, persons convicted of murder in prosecution of robbery, burglary or theft were made liable to the sentence of death14-15. By section 15 of the same Regulation, exemption of Brahmins of Benaras from capital punishment was abolished16.

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