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Report No. 35

General view of criminal law as prevailing in 1837

A picture in brief of the position regarding criminal law as obtaining in 1837 will be found in the Law Commissioners' Report of that year.1

The printed draft of the Indian Penal Code was submitted to the Government of India on 14th October, 1837. Thereafter, Government requested the Indian Law Commissioners to examine the opinions received on the 1837 draft and also to study the draft Act contained in the seventh Report of the Commissioners on Criminal Law of England and to give their Report accordingly.

The Indian Law Commissioners submitted in 1846 their Report2 (First Report) of the draft Penal Code. Later, in 1847, they submitted their Second and concluding Report3 (Second Report on the Indian Penal Code) on 24th June, 1847. After this, Sir Lawrence Peel, Chief Justice of the Supreme Court at Fort Williams (previously Advocate-General), having received from the Government the Report of the Law Commissioners, studied it and gave his observations to the Government in 18484.

1. 1837 Report, main Report, pp. 1 to 4.

2. Report dated 23-7-1846, of the Indian Law Commissioners, on the Draft Indian Penal Code.

3. Report dated 24-6-1847 (Second Report of the Indian Law Commissioners, on the Draft Indian Penal Code).

4. Observations of Sir Lawrence Peel, on the Draft Indian Penal Code (1848).

It is not necessary to state each point dealt with by the Law Commissioners in 1846; but a few points which are still of interest may be noted:-

(a) Homicide-Death caused by words was specifically dealt with in the discussion in the 1837 draft, and the 1846 Commissioners also dealt with it in detail and came to the conclusion1 that if death is certainly caused by words deliberately used by a person with intention to cause that result, or with the knowledge that in the condition of the party to whom the words are spoken it is likely that the words will make such an impression on him as to cause death, and without any such excuse as it admissible under "General Exceptions", such person should suffer the penalty of culpable homicide:-

Here is the wilful doing of that which is known to be likely to produce evil, manifesting the mens rea essential to criminal responsibility, the evil produced is death, the efficient cause,-the words spoken. It is scarcely agreeable to reason, that having traced the effect to its cause, the law should refuse to acknowledge it as an effective cause; or that the Judge should be obliged to say, it is true that the effect was produced by the operation of the words, but words in law are not an act, therefore the speaker is not criminally responsible.

Death resulting from a slight wound which from neglect or from the application of improper remedies has proved fatal was considered in detail2.

Provocation by words was specifically considered, and the proposal in the original Code to cover such provocation i.e. not to recognise any distinction between provocation by mere words or gestures and other provocation, was approved3.

Other points relating to provocation were considered4.

The topic of voluntary culpable homicide by consent was considered and the proposed provision that such homicide should not amount to murder was approved, with a slight modification, namely, the consent should have been given not only by a person above 12 years of age but by a person capable of making an intelligent choice5.

Voluntary culpable homicide in defence-the provision reducing it to manslaughter-was approved in principle6.

Mitigating circumstances.-Regarding punishment for murder, a comment on the 1837 draft had been received from Mr. Hudleston, a Judge of the Sudder Court of Madras,7 stated8-"I prefer the provisions of our Regulations, which define the grounds for mitigating the capital punishment." On this comment, the 1846 Report noted9, that Mr. Hudleston had not specified the provisions which he had in mind. "In the general law relating to murder in the Madras Regulations, which Mr. Hudleston must be understood to refer to, there is no such definition. But a discretion is given to the Judges not to pass sentence of death, if there appear to them to be "alleviating circumstances" in the case-a discretion sufficiently arbitrary."

The topic of rash or negligent homicide-clause 304 of the 1837 draft-was approved after discussion.10

Rape.-The case of a man attempting to commit a rape on a woman and in the attempt involuntarily causing her death-clause 305, illustration in the 1837 draft-was considered, and the proposal in the draft approved11. [The illustration was to the effect that in such a case, the homicide was culpable but not voluntary, because death was an effect wholly unexpected and unconnected with the intention and act of the party, except by accident. Mr. Pyrne (Judge Sudder Court Bombay) had stated that it was possible that rape of delicate woman may cause death: for example, rape was committed on an infant of 6 or 7 years of age, death ensues therefrom. (He had stated that a recent case had come before the courts). As to this, the Report pointed out that it was voluntary culpable homicide death being likely.

1. 1846 Report, p. 77, para. 249.

2. 1846 Report, pp. 77-80, paras. 250 to 257.

3. 1846 Report, pp. 83-84, paras. 269 to 273.

4. 1846 Report, pp. 85-86, paras. 274-279.

5. 1846 Report, p. 92, para. 294.

6. 1846 Report, pp. 93-95, paras. 296-302.

7. See 1846 Report, p. 2, last para. and side note.

8. 1846 Report, p. 95, para. 303.

9. 1846 Report, p. 95, para. 303.

10. 1846 Report, pp. 96-100, paras. 309 to 314.

11. 1846 Report, p. 100, paras. 315 to 317

(b) Abetment of suicide-Clause 306 of the 1837 Report had proposed the punishment of death (apart from other alternative punishment) for abetment of suicide of a child under 12 years, any insane person etc. A comment from Mr. J.F. Thomas had been received to the effect that the inducement to commit such crimes must in the ordinary course of events be so exceedingly slight that it scarcely seemed necessary to place the offence on a level with the most atrocious murder, and annex the penalty of death.

In his opinion, a lesser penalty would suffice to check the commission of the crime. Mr. Thomas particularly referred to the definition that "acts" included an illegal omissions and pointed out that instances of suicides which could be prevented by persons were numerous and "at present they have not the most remote idea that they are acting criminally" and that they should not be held liable to the heavy penalties.

As to this, the 1846 Report1 observed that clause 306 was based on the same principles as clause 298, second proviso of the 1837 draft (homicide with consent of such persons to be murdered), in as much as the offence of causing death of persons concerned (i.e. persons under age or under disability) was regarded as murder even though death was caused with their consent and, therefore, clause 306-abetment of suicide-attached the penalty of murder to the offence described therein, when committed in respect of a person under age or disability.

The clause was approved subject to modifications regarding age of 12 years being replaced by an age where a person could form an intelligent judgment.

It was also observed (regarding illegal omissions) that the rule would fail to be applied under these clauses chiefly in cases where a person bound to take care of the person of another had, by an illegal omission of his duty, intentionally given him the opportunity of killing himself or permitted him to obtain the means of killing himself, or (secondly) also in the case where one person, seeing another person preparing to destroy himself, (say by hanging) allowed him to accomplish his purpose without any attempt to prevent him, if, (as may be expected), the law of procedure makes it a common duty incumbent upon all men to assist in preventing offences about to be committed in their presence. The intention here in the second case would be inferable from the circumstances.

1. 1846 Report, pp. 101-102, paras. 321-324.

(c) Attempt to commit murder-Attempt to commit voluntary culpable homicide was, under clause 309 of the 1837 draft, punishable with imprisonment up to 3 years. The framers of the 1846 Report considered, that this cause was meant to apply to attempts to cause death under circumstances which, if death ensued, would make the offence to be voluntary culpable homicide of one of the mitigated descriptions; because attempt to commit murder was expressly provided for by another clause 303.

They therefore recommended the necessary clarification1. As regards attempt to commit murder, clauses 308 and 320 had this effect, that where hurt was caused, the offence would be punishable with transportation for life or rigorous imprisonment for life but not less than 7 years and also fine. No change was recommended on that clause2.

1. 1846 Report, pp. 104-106, para. 337.

2. 1846 Report, p. 105, para. 339-340.

(d) Perjury-In the 1837 draft, clause 294, dealing with voluntary culpable homicide read with illustration (d) thereto had this effect, that if A falsely deposed before a Court of Justice that he saw another person commit a capital crime and the other person was convicted and executed in consequence, A was guilty of the offence of voluntary culpable homicide, (If A had the intention to cause death or knowledge of likelihood of his causing death, etc.).

This proposal was discussed in the 1846 Report. It stated1 that "the offence in question falls naturally within the definition of voluntary culpable homicide, which could not be expressed properly in terms that did not cover it" But, it went on to say,-"and but that we think it desirable to restrict rather than to extend capital punishment, and that it would be in effect an extension of it to make the perjurer liable to the convicted of homicide, which would be murder under clause 295, when his false swearing has caused the condemnation and execution of an innocent person, we would not hesitate to recommend that this part of the Code be left untouched.

For the reason last stated, however, we would advise that the illustration (d) be omitted under clause 294, and that Clause 191 in the Chapter of offences against public justice be declared applicable generally to the offence of giving false evidence. with the intention of causing a person to be convicted of a capital crime, whether the object intended be effected or not. The punishment which may be awarded under this Clause is transportation for life, or rigorous imprisonment for life or for a term not less than seven years, and fine.".

1. 1846 Report, p. 82, para. 266.

(e) Dacoity with murder-By Clause 380 of the 1837 Draft, where a murder was committed by any one of a gang of the dacoits, every one of the gang was liable to be punished with death.

The 1846 Report noted, that by the Regulations in force in Bengal and Madras, a single person going forth with an offensive weapon with intent to rob and perpetrating etc. a robbery, was also guilty of dacoity, and that by those Regulations "leaders of gangs or other heinous offenders convicted of a repetition of the crime or without such repetition of a degree of cruelty, violence, or other aggravating criminality, which under the discretion allowed by the Mohammedan Law were punishable with death " were liable to the sentence of death if the case appeared to the Nizamut Adawlut to render such heinous offenders liable to such punishment.

It also noted, that by the Bombay Regulation 14 of 1827, section 37, gang robbery accompanied with force was punishable in any of the modes specified in section 3 (which included death). The 1846 Report however did not consider it advisable to extend the punishment of death to any case other than that already given in clause 380 of the 1837 Drift1.

It also noted the suggestion2 that heads of gangs of dacoits should be sentenced to death, because in such cases death was desirable "as an example" to the country. This was a suggestion by Mr. Giberne3, a Judge of the Sudder Court at Bombay. The Report did not consider it advisable to extend the punishment of death to any case besides that dealt with in clause 380. But it did express agreement with the suggestion of Mr. J.F.

Thomas that there ought to be a great distinction in adjudging punishment between persons proved to be leaders, or regular or habitual members of a gang following robbery as a profession on the one hand, and poor coolies enticed to swell the number on the other hand. (Mr. Thomas had suggested4 transportation etc. in the case of every leader, regular member of the gang, every person armed with weapon capable of inflicting death, etc.).

For the present purpose, it is unnecessary to deal in detail with the later discussions relating to the draft Indian Penal Code5. On the 30th May, 1851, the revised edition of the Code was circulated to Judges for comments. Later, in 1854, a Committee consisting of Barnes, Peacock, Sir James Colville, J.P. Grant, D. Elliot etc. was asked to consider the revised Code. That committee did not recommend any substantial alterations in the original Code. The Code was read for the first time on the 28th December, 1356 and for the second time on the 3rd January, 1857, and referred to a Select Committee.6 It was then passed by the Legislative Council of India; it received the assent of the Governor-General on the 6th October, 1860.

1. 1846 Report, p. 155, para. 542.

2. 1846 Report, p. 155, para. 542, read with para. 535.

3. See 1846 Report, p. 2, last para. and side note.

4. 1846 Report paras. 533 and 542.

5. The relevant material is also not easily available. See Rust, Hurt & Homicide, (1958), p. 45.

6. Cf. Rust, Hurt and Homicide, (1958), p. 45.

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