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Report No. 35

Sections 1 and 2 of Act 16 of 1857 may be quoted:-

"I. Punishment for any heinous offence in Districts or place subject to Martial law or to which this Act is extended.-Whoever shall commit or attempt to commit any heinous offence in any District or place in which Martial Law have been or shall be established, or in any District or place to which this Act shall be extended by order of the Governor General of India in Council, shall be liable, on conviction to the punishment of death, or to the punishment of transportation for life, or imprisonment with hard labour for any term not exceeding fourteen years; and shall forfeit all his property and effects of every description.

II. Interpretation of the words "heinous offence".-The words "heinous offence" shall be deemed to include an attempt to murder, rape, maiming, dacoity robbery, burglary, knowingly receiving property obtained by dacoity, robbery or burglary, breaking and entering a dwelling house and stealing therein, intentionally setting fire to a village, house, or any public building, stealing or destroying any property provided for the conveyance or subsistence of Troops, and all crimes against person or property attended with great personal violence, and all crimes committed with the intention of assisting those who are waging war against the State or forwarding their designs."

The broad features of the Muslim Criminal law, as altered by Regulations on the subject, before the Indian Penal Code was enacted, may be indicated.

Regarding sentences, it was felt6-7 that the discretion which the Muslim criminal law left for heinous crimes was rather unlimited, and its administration became arbitrary and uncertain. In the adjudication of punishment under the discretion thus allowed, the position regarding sentence (it was stated) was often governed by a consideration of the degree of proof rather than the degree of guilt and criminality of the act established against the accused. It was considered necessary to amend the law on these points, and that was done by a Bengal Regulation8.

Before this, the position was that the sentences of the court were to be regulated by Muslim law except in cases in which a deviation from it was expressly directed by any Regulation9.

The operation of the law may be illustrated with reference to an actual case. Four persons were charged with murder. The principal was sentenced to death, one convicted of being an accessory before the fact and of bringing a false accusation of murder against an innocent person was sentenced to imprisonment for life; the remaining two convicted of privity of crime after the fact and concealing their knowledge thereof, were sentenced to imprisonment for three years10.

The rule of the Muslim law, that if any one of the gang of robbers commits murder, the prescribed punishment is inflicted on the whole, was maintained11.

In cases of murder, wounding or other personal injury, a description of the weapon or other instrument said to have been used in the perpetration of the act was to be recorded in the papers including such particulars as are available to fix the intent of the prisoner, the length of the instrument, its general form, if not one in common use, etc12.

It was recognised that there was a great difference between an offence entered upon with deliberation and a criminal intent and one committed with premedication and unprovoked by previous enmity and malice. Intoxication was considered as a ground of mitigation for punishment in certain cases, unless wilful13.

In all cases where the Sessions Court condemns a prisoner to suffer death penalty or imprisonment for life, it was to transmit a copy of the sentence to the Nizamut Adawlut, and not to execute the sentence till the final sentence of that court14-15 (the Nizamut Adawlut).

There seems to have been some controversy as to whether a person who is compelled by another by a menace of death to murder a third person, could be excused for the murder. One view was, that in such cases the person compelled, as the "instrument" rather than the author of the homicide, and therefore, subject to discretionary punishment only if the circumstances of the case so required. Another view was, that both the parties were liable to murder.16

1. Act 11 of 1957, an Act for the prevention, trial and punishment of offences against the State (30th May, 1857).

2. Act 26 of 1858, (section 1) (Temporary).

3. Act 16 of 1857, An Act to make temporary provision for the trial and punishment of heinous offences in certain districts (13 June, 1857).

4. The expression, "heinous offences" was defined by an inclusive definition-section 2 Act 16 of 1857.

5. Court-Martial could be established under Act 14 of 1857.

6. Beaufort Digest of Criminal Law, (1846), p. 16, para. 43.

7. Section 1, Bengal Regulation 53 of 1803.

8. Bengal Regulation 53 of 1803, section 2, paras. first to fifth.

9. Beaufort Digest of Criminal Law, (1846), p. 19, para. 59; Bengal Regulation 9 of 1793, sections 54 and 74.

10. Beaufort Digest of Criminal Law, (1846), p. 38, para. 135 referring to Nazamut Adawlut Report, Vol. 4, p. 235.

11. Beaufort Digest of Criminal Law, (1846), p. 37. para. 139.

12. Beaufort Digest of Criminal Law, (1846), p. 143. para. 769 citing C.O. No. 54 of Vol. 2, p. 4.

13. Beaufort Digest of Criminal Law, (1846), p. 33, para. 117.

14. Bengal Regulation 9 of 1793, section 47.

15. Beaufort Digest of Criminal Law, (1846), p. 147, para. 199, and p. 157, para. 850.

16 See Beaufort Digest of Criminal Law, (1846), p. 29, para. 93, and p. 33, para. 118.

British subjects.-Special mention must be made of the law applicable to "British" subjects (i.e., those who were not "natives"). From the Report No. 31 of the Indian Law Commissioners to the Governor General, dated 4th November, 18431, it would appear, that they were regarded as governed by the English law. Act 31 of 1838 embodying the provisions of criminal law passed in the first year of Queen Victoria amended the law on the subject. Its principal object was to take away capital punishment in certain cases, and to mitigate the rigour of the law in other respects.

Briefly speaking, the following offences were removed from the category of capital offences; (in respect of "British" subjects):-

(1) Malicious injuries;

(2) Burglary;

(3) Robbery;

(4) Burning and destroying ships.

As enumerate in that report of 18432, offences (in respect of British subjects) which remained capital after Act 31 of 18383 (an Act of the Government of India) and the Statute 9 Geo. 4, c. 744 (passed earlier to remove certain offences from the category of capital offences) were twelve, namely:-

(1) Return from transportation;

(2) Murder;

(3) Attempt to murder, when injury inflicted;

(4) Sodomy;

(5) Rape;

(6) Abuse of female children under eight years of age;

(7) Robbery with wounding;

(8) Burglary with assault (with intent to murder);

(9) Arson, where person within house, and life endangered;

(10) Riotously destroying buildings;

(11) Destroying ships, and life endangered;

(12) Exhibiting false lights.

The Report recommended that it was not expedient to give the "provincial tribunals" jurisdiction over British-born subject in capital cases.

1. Report No. 31, of the Indian Law Commissioners to the Governor General, dated.-11-1843, printed in copies of the Special Reports of the Indian Law Commissioners, (1844), p. 335, 338 and 339, see paras. 20-22.

2. Report No. 31 of the Indian Law Commissioners, etc.

3. Act 31 of 1838.

4. Statute 9 Geo. 4, C. 74.

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