Report No. 42
Indian Penal Code
1.1. Criminal law in two Codes.-
The Law Commissioners who laboured in the middle of the last century on the codification of the laws in force in British India, decided to put the criminal law of the land in two separate codes. The first to be placed on the statute book was the Indian Penal Code formulating the substantive law of crimes. This was enacted in October 1860, but brought into force fifteen months later on the 1st January, 1862. Then came the first Code of Criminal Procedure enacted in 1861, which consolidated the law relating to the set-up of criminal courts and the procedure to be followed in the investigation and trial of offences. This division of the vast subject of criminal law for the purpose of codification is obviously convenient and useful.
1.2. Title of "Penal Code".-
The title of "Indian Penal Code" given by the Law Commissioners to the basic criminal law aptly describes its contents. The word "penal" no doubt, emphasises the aspect of punishing those who transgress the law and commit offences, but it could hardly be otherwise, so long as punishment and the threat of it are the chief methods known to the State for maintaining public order, peace and tranquility.
1.3. Territorial extent of Code.-
As originally enacted, section 1 provided that the Code shall have effect "throughout the whole of the territories which are, or may become vested in Her Majesty by Statute 21 and 22 Vict., c. 106 entitled 'Act for the better Government of India', except the Settlements of Prince of Wales' Island, Singapore and Malacca". By an amendment made in 1898, the references to the three colonial settlements outside India were omitted. While the Code itself was not in force in any of the Indian States, its provisions were, in course of time, adopted with minor modifications in practically all of them. Upon the commencement of the Constitution, the Adaptation of Laws Order, 1950, changed the extent clause to "the whole of India, except Part B States".
1.4. Each of these States had its own version of the Penal Code, not materially different from the Indian Penal Code. Soon afterwards, the Part B States Laws Act, 1951 (3 of 1951) amended section 1 of the Code, substituting "the State of Jammu and Kashmir" for "Part B States" and repealed the Penal Codes of the former Indian States except that of Jammu and Kashmir.
1.5. Extension to Jammu to Kashmir recommended.-
The Jammu and Kashmir Ranbir Penal Code, as it is called, is a replica of the Indian Code with the addition of half a dozen sections1 relating to the dissemination of contents of prescribed documents, wrongful obstruction to the use of pubic tanks and walls, and slaughter of cattle, and three sections2 relating to whipping. It appears anomalous to have the punishment of whipping continued in only one State of India when it has been abolished in the rest of the country long ago. In our Report3 on the Code of Criminal Procedure we have pointed out the anomalies and difficulties arising out of two different Codes operating in Jammu and Kashmir and in the other States and recommended that these should be removed, by first suitably amending the Constitution (Application to Jammu and Kashmir) Order, 1950 under Article 370 of the Constitution, and then by extending the Indian Penal Code and the Criminal Procedure Code to this State.
1. Sections 190A and 291A to 291D.
2. Sections 513, 514 and 515.
3. 41st Report, paras. 1.8 and 1.9.
1.6. Section .-original object explained.-
With reference to section 2, the Law Commissioners1 stated.-
"We do not advise the general repeal of the penal laws now existing in the territories for which we have recommended the enactment of the Code. We think it will be more expedient to provide only that no man shall be tried or punished (except by a Court Martial) for any of the acts which constitute any offence defined in the Code, otherwise than according to its provisions."
In other words, in so far as the provisions of the Code were applicable, they were to prevail in supersession of the penal laws previously in force. The Madras High Court observed2 in a case of 1866.-
"It must be borne in mind that, up to the date of the enactment of Act XVII of 1862, the Legislature took no steps towards expressly repealing the old criminal law. Possibly it may have been thought hazardous to repeal it wholesale and without such a careful scrutiny as would ensure the rescission of such parts alone of the old law as the Penal Code rendered superfluous. Whatever may have been the reason, the old law was left in the Statute Book, and but for the provisions of section 2, the great body of acts and omissions punishable under the Penal Code might have been still prosecuted under the old law."
"As the Penal Code was intended to be general, it was necessary, while the old law was retained in the Statute Book, to provide against its continuing in operation in the very large number of cases in which the acts and omissions constituting offences under it were also violations of the provisions of the Penal Code. The old law was therefore rendered inoperative to this extent by section 2, except in so far as section 5 (which was perhaps too long to be introduced into section 2, parenthetically, and was on that account, and also perhaps for greater clearness, placed by itself) qualifies it and acts as a saving clause."
Relying on this section, the Calcutta High Court held3 that the English common law cannot be followed in order to modify the offence of criminal defamation. It observed.-
"The Penal Code certainly declares the law in respect of defamation. It contains a definition of defamation and sets out a number of exceptions. It appears to us that "it must be regarded as exhaustive on the point. Section 2 enacts that every person shall be liable to punishment under this Code, and not otherwise, for their acts. If there are a number of exceptions to the offence of defamation, other than those contained in section 499, it appears to us that an offender must be liable to punishment for defamation otherwise than under the Code. On principle, therefore, it would seem to us that section 498 is exhaustive, and that if a defamatory statement does not come within the specified exceptions, it is not privileged."
1. Law Commissioners' 2nd Report on the Penal Code, sections 536-538.
2. (1866) 3 MHCR, Appendix xi, xxii.
3. Kari Singh v. Emperor, 1912 ILR 40 Cal 433 (439).
1.7. Deletion recommended.-
Section 2, however, is not needed at the present day, and may be deleted. The old regulations or laws in force when the Code was enacted have mostly been specifically repealed. There can be no question as to the exclusive applicability of the provisions of the Code, subject to what is stated in section 5.
1.8. Section 3.-
Section 3 provides that "any person liable, by any Indian law, to be tried for an offence committed beyond India shall be dealt with according to the provisions of this Code for any act committed beyond India in the same manner as if such act had been committed within India". Two conditions have to be fulfilled before this section is pressed into service for the purposes of a criminal case: first, there should be an allegation that a person (whether a citizen of India or not) has committed outside India an act which, if committed in India, would be punishable under the Code, and secondly, that person is liable under some Indian law1 to be tried in India for that offence.
When both these conditions are satisfied, the accused person is required to be dealt with according to the provisions of the Code in the same manner as if the culpable act had been committed in India. The practical utility of the section would seem to lie in the fact that all the general and ancillary provisions of the Code, like complicity in crime, general exceptions, abetment and attempts are expressly made applicable in relation to the ex-territorial culpable act for which the accused person is liable to be tried and punished in India.
1. See definition in section 3(29) of the General Clauses Act, 1897, which by virtue of section 4A applies also to the Penal Code.
1.9. History of section 4.-
While section 3 merely clarifies one aspect of the ex-territorial application of the Code, it is in the next section as expanded from time to time that this application is fully expressed. The history of section 4 is interesting from the constitutional angle. From 1860 to 1898, it stood as follows.-
"4. Every servant of the Queen shall be subject to punishment under this Code for every act or omission contrary to the provisions thereof, of which, whilst in such service, he shall be guilty on or after the said 1st day of May 1861, within the dominions of any Prince or State in alliance with the Queen, by virtue of any treaty or engagement heretofore entered into with the East India-Company, or which may have been or may hereafter be made in the name of the Queen by any Government of India."
The ex-territorial application of the Code was limited to persons in the service of the Government and to offences committed by them, whilst in such service, in the territories of Indian States. This was in consonance with section 22 of the Indian Councils Act, 1861, which enabled the Governor-General in Council to make laws and regulations for all persons within British India "and for all servants of the Government of India within the dominions of Princes and States in alliance with Her Majesty". In 1898, section 4 of the Code was replaced by the following which gave it a much wider scope.-
"4. The provisions of this Code apply also to any offence committed b.-
(1) any Native Indian subject of Her Majesty in any place without and beyond British. India;
(2) any other British subject within the territories of any Native Prince or Chief in India;
(3) any servant of the Queen, whether a British subject or not, within the territories of any Native Prince or Chief in India.
Explanation.- In this section, the word 'offence' includes every act committed outside British India which, if committed in British India, would be punishable under this Code."1
The Indian Legislature had by then been empowered by the British Parliament to legislate extra-territorially in respect of these three categories of persons.2 In pursuance of section 99(2) of the Government of India Act, 1935, which enlarged that power, section 4 of the Code was amended in 1940,3 by inserting after clause (3), the following clause.-
"(4) any person on any ship or aircraft registered in British India, wherever it may be."
After the coming into force of the Constitution, the Adaptation of Laws Order, 1950, replaced the first three clauses of section 4 by one clause reading "any citizen of India in any place without and beyOnd India", and omitted the word "British" occurring in the fourth clause and in the explanation.
1. foru illustrations were given at the end of the section.
2. See section 8 of the Foreign Jurisdiction and Extradition Act, 1879.
3. The Offences on Ships and Aircraft Act, 1940 (4 of 1940).
1.10. Enlargement of extra-territorial operation considered.-
The extra-territ6rial operation of the Code at present is thus limited to offences committed by Indian citizens outside India and to offences committed on board Indian ships or aircraft. We have considered whether the field of such operation of the Code should be enlarged in any way. While common law countries consider the territorial principle basic for assuming jurisdiction in criminal legislation and admit the application of the personal principle very sparingly, civil-law countries emphasise the personal principle and also accept the territorial principle.
International law, however, recognises several bases of jurisdiction for criminal legislation in the sense that the fact of legislation on any such basis or the prosecution of an alien under such legislation gives no right to another nation to enter a valid objection. The territorial principle which is universally accepted and acted upon by all States is, as Lauterpacht puts it, "a rule of convenience in the sphere of evidence, and not a requirement of justice or even a necessary postulate of the sovereignty of the State."