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Report No. 35

Appendix XXVII

Recommendations of the Indian Law Commissioners

Draft Penal Code, 1837

The Draft Penal Code (First Report) was prepared by the Indian Law Commissioners and submitted in 1837. After stating the reasons for proposing the enactment of a uniform Penal Code to take the place of the rules of Muslim laws and the various Regulations modifying it or in Bombay codifying the Penal Law1 and explaining the scheme of the proposed Code,2 they proceeded to set out the recommendations in the form of a Bill. Under clause 40, one of the punishments to which offenders were liable was death. The next was transportation3. Clause 41 gave power to commute the sentence of death to the Government of the Presidency without the offender's consent. The offences which were made capital seem to be the following:-

Clause 109-waging war etc.-(death or transportation for life or imprisonment of either description for life and also forfeiture of all property).

(Clauses 116 and 117-abetting mutiny etc.-only transportation for life etc.)

(Clause 191-Giving, etc., false evidence with the intention, etc., that any person may be convicted of capital offence-transportation for life or rigorous imprisonment not less than 7 years, etc. But where innocent person was executed, it was regarded as culpable homicide.-see clause 294, illustration (d).

Clauses 294, 295 and 300-murder-death or transportation for life or rigorous imprisonment for life and also fine.

(There were lesser punishments for manslaughter, voluntary culpable homicide with consent or in defence and for causing death by rash or negligent act.)

Perjury-illustration (d) to clause 294 ran as follows:-

"(d) A with the intention or knowledge aforesaid falsely deposes before a Court of Justice that he saw Z commits a capital crime. Z is convicted and executed in consequence. A has committed the offence of voluntary culpable homicide".

Clause 306-previously abetting by aiding the commission of suicide by any child under 12 years of age, any insane person, any delirious person, any idiot or any person in the state of intoxication-death or transportation for life, or rigorous imprisonment for life and also fine.

(Clauses 308, 309 read with clause 320-voluntary causing hurt in an attempt to commit murder-transportation for life, or rigorous imprisonment for a term which may extend to life but not less than 7 years and also fine).

Clause 380-Dacoity with murder-If any one of six or more persons who are conjunctly committing dacoity commits murder in so committing dacoity, every one of those persons shall be punished with death or transportation for life, or rigorous imprisonment for a term which may extend to life and must not be less than 7 years and shall also be liable for fine.

1. Penal Code, prepared by the Indian Law Commissioners, (1837), pp..-4.

2. 1837 Draft, pp..-11 (preface).

3. Other punishments need not be enumerated here.

General Principle for death sentence.-We now come to the reasons given by the framers of the 1837 Draft in support of the various provisions relating to the death sentence suggested by them. As regards death sentence generally, their observations were as follows1:-

"First among the punishments provided for offences by this Code stands death. No argument that has been brought to our notice has satisfied us that it would be desirable wholly to dispense with this punishment. But we are convinced that it ought to be very sparingly inflicted, and we propose to employ it only in cases where either murder or the highest offence against the State has been committed.".

1. 1837 Draft, Note A, p. 1, top.

Robbery and rape in 1837 Draft.-They were not apprehensive that they would be thought to have resorted too frequently to capital punishment. Rather they were afraid that people might criticise the Code as erring on the other side. In this context, they discussed the question whether gang robbery, cruel mutilation of the person and rapes should be punishable with death.

"These are doubtless offences which, if we looked only at their enormity, at the evil which they produce, at the terror which they spread through society, at the depravity which they indicate, we might be included to punish capitally. But atrocities as they are, they cannot, as it appears to us, be placed in the same class with murder". "To the great majority of mankind, nothing is so dear as life. And we are of opinion that to put robbers ravishers, and mutilators on the same footing with murderers is an arrangement which diminishes the security of life1."

They observed, that there was a close connection in practice between murder and most of those offences which came nearest to murder in enormity. The offender in those offences had always in his power to add murder to his guilt. The same opportunities, etc., which enabled a man to rob, to mangle, or to ravish, would enable him to go further and to despatch his victim. By doing so, he would remove the only witness of the crime. If the punishment of the crime which he has already committed be exactly the same with the punishment of murder, the offender would have no restraining motive.

"A law which imprisons for rape and robbery, and hangs for murder, holds out to ravishers and robbers a strong inducement to spare the lives of those whom they have injured. A law which hangs for rape and robbery, and which also hangs for murder, holds out, indeed if it be rigorously carried into effect, a strong motive to deter men from rape and robbery, but as soon as a man has ravished, or robbed, it holds out to him a strong motive to follow up his crime with a murder2."

1. 1837 Draft, Note A, p. 1, middle.

2. 1837 Draft, Note A. p. 1, middle.

Offence against property.-Regarding crimes against property, the framers of the draft observed1, that a great shock would be caused to public feeling if, while the most atrocious personal outrages (short of murder) were exempted from punishment or death, that punishment was to be inflicted even in the worst cases of theft, cheating, or mischief.

1. 1837 Draft, Note A, p. 2, top.

Commutation.-Regarding the power of commutation it was observed that it was evidently fit that the Government should be empowered to commute the sentence of death (without consent of the offender) for any other punishment.

Compensation.-Of some interest are the observations regarding compensation for crime1. The framers recognised that this was a matter of the law of procedure, and of civil rights. But they were decidedly of the opinion that "every person who was injured by an offence ought to be legally entitled to a compensation for the injury" and recommended that in every case in which fine was part of the punishment of and offence, it ought to be competent to the tribunal which has tried the offender (acting under proper checks) to award the whole or part of the fine to the sufferer, provided that the sufferer signifies his willingness to receive what is so awarded in full satisfaction on his civil claim for reparation. They thought it likely that2 this plan would be in great majority of cases render a civil proceeding unnecessary.

1. 1837 Draft, Note A, p. 9, middle and bottom.

2. 1837 Draft, Note A, p. 10, top.

We may now refer to their discussion relating to specific crimes.

Homicide.-The question of illegal omissions was elaborately considered1. The expression "causing death" in the definition of voluntary culpable homicide was explained, and the view was expressed that acts or illegal omissions which did not ordinarily cause death, or caused death very remotely, need not be excepted. There was undoubtedly a great difference between acts causing death immediately and those causing a death remotely, or between acts certain to cause death and those which cause death only under very extraordinary circumstances. But the difference was one to be considered by the tribunal when estimating the effect of the evidence in a particular case, not by the legislature in framing the general law.

It would require strong evidence, they said to prove that an act of a kind which very seldom causes death, or an act which caused death very remotely, has actually caused death in a particular case. It will require still stronger evidence to prove that such an act was contemplated as likely to cause death. But if satisfactory evidence proved that death was so caused voluntarily, it need not in their opinion, be excluded from the punishment for voluntary culpable homicide.2

The case of homicide by words was considered. A verbally directs Z to swallow a poisonous drug. Z swallows it and dies. This should be homicide in A and for the purpose, speaking should be considered as an act3.

Regarding the case of a person who died of a slight wound which, from neglect or from the application of improper remedies, has proved mortal, the framers saw no reason in excluding it from the general rule. They noted, that in India, fear, neglect and bad treatment were far more common than good medical treatment4.

The scheme of the proposed section relating to homicide was that voluntary culpable homicide was murder unless it fell within three mitigated forms, namely, (1) grave and sudden provocation (in which case it was "manslaughter"), or (ii) committed by consent or (iii) committed in defence4-5.

1. 1837 Draft, Note M, pp. 53-56.

2. 1837 Draft, Note M, p. 57, top.

3. 1837 Draft, Note M, p. 57, middle.

4. 1837 Draft, Note M, p. 58.

5. 1837 Draft, Clauses 295, 297, 298 and 299.

Provocation.-Regarding provocation, the framers agreed that homicide in such cases ought to be punished, in order to teach men to entertain respect for human life and give them a motive for governing their passions; but homicide committed in violent passion on provocation should not be visited with the highest penalties of the law. To treat such a person in the same way as the law treated a murderer would be highly inexpedient, would shock the universal feeling of mankind and would engage the public sympathy on the side of the offender against the law1.

Provocation by words was also considered, and the rule of the English law not recognising the effect of anger excited by words alone was criticised2. If a man felt an insult more than a wound, it did not show that he was a man of peculiarly bad heart.

1. 1837 Draft, Note M, p. 59, second to fourth para.

2. 1837 Draft, Note M, p. 59, first two paras.

Homicide by consent-Reasons for punishing murder severely.-Homicide by consent was treated as a mitigated form. Such an act should be punishable, of course, because a wise law-giver would desire to prevent such death, if it were only for the purpose of making human life more sacred to the multitude. Consent ought not therefore be a justification for the intentional causing of death1. But they felt that it should not be punished as severely as murder, for these reasons:-

(i) The motives which prompt man to the commission of the offence were generally far more respectable than those which prompted men to commit murder;

(ii) Such crime was by no means productive of so much evil to the community as murder. It did not produce general insecurity or spread terror through society. When the law punished murder with severity, it had two ends. One end was that people may not be murdered, and-another that people may not live in constant dread of being murdered; and the second was perhaps more important that the first. This "property" of the offence of murder was not found in homicide by consent2.

It was also noted, that the burning of a Hindu widow by consent was not (even under the law then in force) punished as murder, though it was an offence under the Regulations in force in the Presidencies.

Regarding homicide in self defence, the framers admitted that they were "forced to leave the law on the subject of private defence in an unsatisfactory state". They expressed the fear, that it must always continue to be one of the least precise parts of every system of jurisprudence. The portion of the law relating to homicide in defence must necessarily partake of the imperfections (of law of self-defence). The reason for treating this kind of homicide as less than murder was, that law itself invited men to the very verge of the crime designated as voluntary culpable homicide. The law authorised acts which were very near to homicide, and this circumstance greatly mitigated the guilt3.

1. 1837 Draft, Note B, p. 16, bottom and p. 17, top.

2. 1837 Draft, Note M, p. 61, bottom.

3. 1837 Draft Note M, p. 62, middle.

Rash and negligent homicide.-The topic of causing death by say, rashness or negligence as to indicate want of due regard for human life does not seem to have been separately dealt with in the notes, though clause 304 made it punishable with imprisonment up to two years or fine, etc.

But death in cause of felony-i.e., the situation where a person engaged in the commission of an offence causes death by rashness or negligence (without any intention to cause death or knowledge that it is likely to cause death, etc.) was elaborately discussed, along with the situation where a person engaged in the commission of in offence caused death by pure accident1.

Attempts to commit murder and attempt to commit the "mitigated forms" of a voluntary culpable homicide were explained, and illustrated. An interesting example given was.-A sets poisoned food before Z. Z does not swallow enough of the poisoned food to disorder him. A should be treated as guilty of a crime of a most atrocious description2. It was emphasised that such an act (i.e. attempt to commit murder) should be punishable notwithstanding that it does not amount by itself to assault, trespass or hurt.

If hurt was caused in an attempt to commit murder, it would be punishable (under clause 320) with transportation for life, etc., where murderous intention is made out severity of hurt should not be a circumstance to be considered in apportioning punishment though it may be important as evidence.

1. 1837 Draft Note M, p. 63, bottom, pp. 64 and 65, middle, and clause 305.

2. 1837 Draft, Note M, p. 66, top and middle.

Treason.-Treason was discussed in detail. It was noted, that there was some doubt as to whether the statute law of England (regarding Treason) was binding on natives. Apart from the Bombay Regulation 14 of 1827 (wherein there was a sweeping clause empowering the courts to award punishment in any case in which they conceived that morality and social order required protection), treason was not an offence under any other Regulation.

"The Mohammedan law might possibly be so violently strained as to reach it in Bengal and in the Madras Presidency." But those provisions could not be retained. That is why a specific section was proposed on the subject. Regarding the Royal person, it was felt that it was improbable that any English King would visit the Indian dominions, and therefore specific provision was not necessary. But levying of war against the British Crown should, it was observed1 be made punishable.

The framers of the 1837 Code also explained2 why the anomalous position regarding treason prevailed. The British Rulers in India, in the beginning, disguised their real power "under the forms of vassalage", and left "the Mogul and his Viceroys the empty honours of a Sovereignty which was really held by the Company". This policy was abandoned only slowly and by degrees. Hence it was impossible to point out the particular time when the "natives" became British subjects.

Reasons for making abetment of hostilities against the Government in certain cases a separate offence (instead of leaving it to general abetment) were also explained3.

Firstly, the general rules of abetment would not reach a person who, while residing in the British territories abetted the waging of war by a foreign prince against the British Government. (The foreign prince himself would not be guilty of an offence by waging such war). Secondly, though in general, a person who is a party to the criminal design which has not been carried into effect ought not to be punished as if the design had been carried into effect, yet an exception should be made with respect of High offences against the State.

Crimes against the State had this peculiarity that if they were successfully committed, the criminal was "almost always secure from punishment." After murder, the murderer is in greater danger than before murder. "But the rebel is out of danger as soon as he has subverted the Government." Hence the Penal law "should be made strong and sharp against the first beginning of rebellion, against treasonable designs, which have to be carried no further than plots and preparations." For this reason, such plots and preparations should not be left to the ordinary law of abetment.

1. 1873 Draft of the Indian Penal Code, Note M, p. 69, second para.

2. 1837 Draft of the Indian Penal Code, Note C, p. 27, bottom, and p. 28, top.

3. 1837 Draft, Note C, p. 28, middle.

Mutiny-Detailed reasons for punishing abetment of mutiny were given.1 A person who, not being himself subject to Military law, extorts or assists those who being subject to Military law, commit breach of discipline would "be a proper subject of punishment". But the general law respecting the abetting of offences will not reach him, because the Military delinquency which he has abetted would not be punishable by this Code, and therefore would not constitute an "offence".

Explaining their approach regarding punishment for such abetment, the framers of the 1837 Report stated that while the general rule which they had adopted was that the punishment of the abetter should be equal or proportional to the punishment of the person committing the offence, yet in this case they had departed, for these reasons:-

"But the Military penal law is, and must necessarily be, far more severe than that under which the body of the people live. The severity of the Military law can be justified only by reasons drawn from the peculiar habits and duties of soldiers, and from the peculiar relation in which they stand to the Government. The extension of such severity to persons not members of the Military profession appears to us altogether unwarrantable."

They also added that if a person "not in Military" who abetted a breach of Military discipline was made liable to a punishment regulated "according to our general rule by the punishment to which such a breach of discipline renders a soldier liable, the whole symmetry of the penal law would be destroyed." A person who induces a soldier to disobey any order of a commanding officer would be liable to be punished more severely than a dacoit, ravisher, etc.

1. 1837 Draft, Note D, p. 30, bottom.

Perjury-The framers of the 1837 Draft expressed this view:-

"If such false evidence actually causes death, the person who has given or fabricated it falls under the definition of murder, and is liable to capital punishment. In this last point, the law, as we have framed it, agrees with the old law of England, which, though in our opinion, just and reasonable, has become obsolete1".

1. 1837 Draft, Note G, p. 42, bottom.

Dacoity-The following observations are interesting1:-

"His Lordship in Council will perceive that we have provided punishment of exemplary severity for that atrocious crime, which is designated in the Regulations of Bengal and Madras by the name of Dacoity. This name we have thought it convenient to retain for the purpose of denoting, not only actual gang robbery, but the attempting to rob when such an attempt is made or aided by a gang."

1. 1837 Draft, Note N, p. 79, middle.

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