Report No. 35
Regarding insane persons, Act 4 of 1849 provided as follows:-
"1. No person, who does an act which, if done by a parson of sound mind is an offence, shall be acquitted of such offence for unsoundness of mind, unless the court or jury, as the case may be, in which according to the Constitution of the Court the power of conviction or acquittal is vested shall find, that by reason of unsoundness of mind not wilfully caused by himself, he was unconscious and capable of knowing, at the time of doing the said act, that he was doing an act forbidden by the law of the land." (But even in such acquittals, the court was to order him to be kept in safe custody until the orders of the Government were received)17.
Regarding waging war, in the year of the Indian Mutiny, waging war and other offences against the State or instigation of the same was made punishable with death or transportation for life or rigorous imprisonment up to 14 years in addition to forfeiture of property, etc18.
Regarding Mutiny, an earlier Act19 had provided that every person who "maliciously and advisedly" endeavoured to seduce any person or persons, in the military or naval Forces of the East India Company from allegiance to Her Majesty or duty to the said Company, or endeavoured to stir up any person or persons to commit mutiny, etc., was on conviction to be transported for life or imprisoned up to 7 years.
In 185720, the offence of intentionally seducing or endeavouring to seduce any officer or soldier from his allegiance to British Government or duty to East India Company, exciting or causing others to excite mutiny or sedition in the army was made liable to the punishment of death or transportation for life or imprisonment with hard labour up to 14 years, besides forfeiture, etc.
Later, the 1858 an Act21 was passed to deal with persons who had escaped from jails during the mutiny. Punishment was transportation for life-sections 1 and 2.
1. Sir Henry Strachey's Report of 1802, Quoted in B.S. Sinha The Legal History of India, (1953), p. 71.
2. Mr. Doweleswell's Report of 1809, quoted in B.S. Sinha The Legal History of India, (1953), pp. 171-172.
3. Harrington, pp. 317-318; sections 1 to 6, Bengal Regulation 8 of 1801 may be seen. These sections modify the Muslim law. They require, however, that there must be an intention to murder one person and in prosecution of such intent on an actual homicide of another by accident.
4. Cambridge History of India, (1958), Vol. VI, p. 129, bottom.
5. See Bengal Regulation 21 of 1795, section 13 (as extended by Bengal Regulation 3 of 1804, section 11).
6. Bengal Regulation 6 of 1802 (20th August, 1802), section 2. The Regulation states that the criminal and inhuman practice of sacrificing children by exposing them to be drowned or devoured by sharks was reported to be prevalent at Saugor and other places. It asserts that this is an offence.
7. Cambridge History of India, (1958), Vol. VI, p. 129.
8. Bengal Regulation 53 of 1803, section 3, clause Second.
9. Bengal Regulation 53 of 1803, section 9, clause Second.
10. See Bengal Regulation 10 of 1804, section 3 read with section 2.
11. Bengal Regulation 10 of 1804, section 2.
12. Bengal Regulation 3 of 1805, sections 2 to 6.
13. Bengal Regulation 3 of 1805, sections 2 to 6; Harrington, pp. 326 to 329.
14. Harrington, p. 328.
15. In 1812, Regulation 15, (section 2) made certain special provisions for punishment of burglary particularly between sun-set and sun-rise; Harrington, pp. 329-330.
16. Field, Regulations of the Bengal Code (1875), p. 175, foot-note 2, Bengal Regulation 17 of 1817, section 15.
17. An Act for the safe custody of Criminal Lunatics Act 4 of 1849, sections 1 and 3.
18. Act 11 of 1857-An Act for the prevention, trial and punishment of offences, against the State (30 May, 1857).
19. Act 14 of 1849-An Act to punish tampering with the Army or Navy (25th August, 1849) section 1.
20. Act 14 of 1857, Section I (Duration was for one year, see section 14).
21. Act 5 of 1858-An Act for the punishment of certain offenders who have escaped from jail and of persons who shall knowingly harbour such offenders.
The offence of waging war was dealt with by Act 11 of 1857, preamble and section 1 of which may be quoted:1
Preamble.-"Whereas it is necessary to make due provision for the prevention, trial, and punishment of offences against the State; it is enacted as follows:-
1. Punishment for rebellion or waging war against the Government.-All persons owing allegiance to the British Government who, after the passing of this Act, shall rebel, or wage war against the Queen or the Government of the East India Company, or shall attempt to wage such war, or shall instigate or abet any such rebellion or the waging of such war, or shall conspire so to rebel or wage war, shall be liable, upon conviction, to the punishment of death, or to the punishment of transportation for life, or of imprisonment with hard labour for any term not exceeding fourteen years; and shall also forfeit all their property and effects of every description.
Provided that nothing contained in this section shall extend to any place subject to Regulation 14 of 1827 of the Bombay Code".
Regarding the offence of preparing to wage war, we may refer to Act 26 of 1858 (corresponding to section 122 of the Indian Penal Code), under which the collection of man, arms, ammunition or otherwise preparing to levy war against the Queen or the East India Company or instigating any other person to commit such offence, was punishable with death or transportation for life or imprisonment for life or imprisonment with hard labour up to 14 years, and also forfeiture of all property and effects of every description.2.
An Act3 of 1857 should also be referred to, which made provisions for trial of heinous offences4 in certain districts in which martial law had been established5.
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