Report No. 156
The Indian Penal Code
1.01. The origin of crimes and of Criminal Law lies in a primitive system, by which all wrongs were redressed by private revenge; a system of self-redress, based on the principle of Retaliation.
"A system of self-redress" says Mr. Moyle, an eminent scholar, "in the form of private vengeance, preceded everywhere the establishment of a regular judicature; the injured person, with his kinsmen or dependents, made a foray against the wrong-doer, and swept away his cattle, and with them, perhaps, his wife and children or he threatened him with supernatural penalties by "fasting" upon him, as in the East even at the present day; or finally, he reduced his adversary to servitude, or took his life.
Such savage retaliation did not constitute law, but it was the germ from which the Penal Law gradually developed, for the idea of such a procedure was not compensation but punishment. This system led naturally to terrible anarchy. The offender was often as strong, if not stronger than his adversary, and the assistance of the kinsmen on each side created a blood feud, lasting perhaps for generations."1
1. Nelson Indian Penal Code, (1897), p. 4.
1.02. Thus, there was no systematic criminal law in uncivilized society. Every man was liable to be attacked in his person or property at any time by any one. The person attacked either succumbed or overpowered his opponent. "A tooth for a tooth, an eye for an eye, a life for a life" was the forerunner of criminal justice.
As time advanced, the injured person agreed to accept compensation, instead of killing his adversary. Subsequently, a sliding scale came into existence for satisfying ordinary offences. Such a system gave birth to archaic criminal law. For a long time, the application of these principles remained with the parties themselves, but gradually this function came to be performed by the State.
In India anciently, the genesis of criminal jurisprudence can be traced to Smrtis but came into existence particularly from the time of 'Manu'. In the category of 'crimes', Manu had recognized assault, theft, robbery, false evidence, slander, criminal breach of trust, cheating, adultery and rape. The king protected his subjects and the subjects in return owed him allegiance and paid him revenue. The king administered justice himself, and, if busy, the matter was entrusted to a Judge. If a criminal was fined, the fine went to the king's treasury, and was not given as compensation to the injured party.
1.03. Vasco Da Gama, a subject of Portugal, first discovered the passage to India around the Cape of Good Hope, the southernmost point of Africa. Briefly stated, thereafter, the Portuguese began to carry on trade with India, and later, the Englishmen came on the scene and began to carry on trade with India. As they were very successful, Queen Elizabeth granted, in 1600, a Charter which incorporated the East India Company. The Charter also gave the power to the Company for making laws. In 1609; James I renewed the Charter, and in 1661 Charles II again gave similar powers while renewing it.1
1. Ratanlal & Dhirajlal The Indian Penal Code, (1982), p. i.
1.04. The Charter of 1668 transferred Bombay to the East India Company, and directed that proceedings in the court should be like unto those that were established in England. The Court of Judicature which was established in 1672 sat once a month for its general sessions and cases that remained undisposed of were adjourned to "Petty Sessions" which were held after general sessions. This Court inflicted punishment of slavery in cases of theft and robbery. In ordinary cases of theft the offender had to pay monetary compensation, or else he was forced to work for the owner of the article stolen.1
In 1683, Charles II granted a further Charter for establishing a Court of Judicature at such places as the Company might decide. In 1687, another Charter was granted by which a Mayor and Corporation were established at Fort St. George, Madras, in order to settle small disputes. By these Charters Englishmen who came to India were entrusted with administration of justice, both civil as well as criminal. In these Courts the powers exercised by the authorities were very arbitrary. Strange charges were framed and strange punishments were inflicted.2
In 1726, the Court of Directors made a representation to the Crown for proper administration of justice in India in civil and criminal matters. Thereupon, Mayors' Courts were established for proper administration of justice. But the laws administered were arbitrary because the Mayor and Aldermen were the Company's mercantile servants, and they possessed very little legal knowledge.
The law that was administered was utterly incapable of suiting the social conditions of either the Hindus or the Mohammedans. In 1753, another Charter was passed under which Mayors were not empowered to try suits between Indians; and no person was entitled to sit as a judge who had an interest in the suit. English law was no more applicable to Indians, and they were left to be governed by their own laws and customs.
In 1765, Robert Clive came to India for the third time and succeeded in obtaining the grant of the Dewani from the Moghul Emperor. The grant of the Dewani included not only the holding of Dewani Courts, but the Nizamat also, i.e., the right of superintending the whole administration in Bengal, Bihar and Orissa.3
In 1772, Warren Hastings took steps for proper administration of criminal justice. A Fouzdari Adalat was established in each district for the trial of criminal offences. With these Courts the Company's European subjects had no connection, nor did they interfere with their administration. The Kazi or Mufti sat in these Courts to expound the law and determine how far criminals were guilty of the offence charged. The Collector of each district was ordered to exercise a general supervision over their work. In addition to District Courts a Suddar Nizamat
Adalat was also established. This Court was to revise and confirm the sentences of Fouzdari Adalat in capital cases and offences involving fines exceeding one hundred rupees. The officers who presided over these Courts were assisted by Mohammedan Law officers. The scheme of justice adopted by Warren Hastings had two main features. First, he did not apply English law to the Indian provinces; and, secondly, Hindu and Muslim laws were treated equally. The administration of criminal justice remained in the hands of Nawabs, and therefore, Mohammedan criminal law remained in force.
These were the Courts in the capital. In the rest of the country the administration of justice was in the hands of Zamindars. In Bengal and Madras, Muslim criminal law was in force. In Bombay Presidency, Hindu criminal law applied to the Hindus, and Muslim criminal law to the Muslims. The Vyavahara Mayukha was the chief authority in Hindu law. But the Hindu criminal law was a system of despotism and priestcraft. It did not put all men on equal footing in the eye of law, and the punishments were discriminatory.4
In 1773, the Regulating Act was passed, which affected the administration of criminal justice. Under that Act a Governor-General was appointed and he was to be assisted by four Councilors. A Supreme Court of Judicature was established at Fort William, Bengal. This court took cognizance of all matters - civil, criminal, admiralty and ecclesiastical. An appeal against the judgment of the Supreme Court lay to the King-in-Council.
All offences which were to be tried by the Supreme Court were to be tried by a jury of British subjects resident in Calcutta. Any crime committed either by the Governor-General, a Governor, or a judge of the Supreme Court, was triable by King's Bench in England. The Charter of Justice that laid the foundations of the jurisdiction of the Supreme Court was dated March 26, 1774, and the justice administered in Calcutta remained so until the establishment of the High Court under the Act of 1861.
In 1781, amending Act was passed to remedy the defects of the Regulating Act. This Act expressly laid down and defined the powers of the Governor-General in Council to constitute provincial Courts of Justice and to appoint a Committee to hear appeals therefrom. The Governor-General was empowered to frame regulations for the guidance of these Courts. Muslim criminal law was then applicable both to the Hindus and Muslims in Bengal.
In 1793, towards the close of Lord Cornwallis' Governor-Generalship, fresh steps were taken to renew the Company's Charter. Accordingly, the Act of 1793, which consolidated and repealed certain previous measures, was passed.
1. Id., p.
4. Ratanlal & Dhirajlal The Indian Penal Code, (1982), pp. i,
1.05. In the mofussil towns in Bengal, the law officers of the Zilla and City Courts, who were Suddar Ameens and Principal Suddar Ameens, were given limited powers in criminal offences. They could fine up to Rs. 50 and award imprisonment, with or without labour, upto one month only. An appeal from their decision lay to the Magistrate or Joint Magistrate. Offences for which severe punishment was prescribed were tried by Magistrates, who were empowered to inflict imprisonment extending to two years with or without hard labour.
There were also Assistant Magistrates and Deputy Magistrates but they had not full magisterial powers. Offences requiring heavier punishment were transferred to the Sessions Judge. Death sentence and life imprisonment, awarded by Sessions Judges, were subject to confirmation by the Nizamat Adalat. An appeal from the decisions of Sessions Judges lay to the Nizamat Adalat. Such was the criminal administration in Bengal up to 1833.
In Madras, District Munsiffs had limited criminal jurisdiction. They could fine up to Rs. 200 or/and award upto one month's imprisonment. By regulation X of 1816, Magistrates were empowered to inflict imprisonment upto one year. There were also Suddar Ameens who tried trivial offences. Offences of heinous nature were forwarded for trial to the Sessions Judge, Offences against the State were referred to the Fouzdari Adalat. The Fouzdari Adalat was the Chief criminal court in the Madras Presidency, and was vested with all powers that were given to the Nizamat Adalat in Bengal.
The administration of criminal justice in Bombay was on the pattern of Bengal and Madras presidencies with certain minor changes.
The practice and procedure in Courts in Bengal, Madras and Bombay were prescribed by Regulations which were passed from time to time. In Bengal 675 Regulations were passed from 1793 to 1834; in Madras 250 Regulations were passed from 1800 to 1834; and in Bombay 259 Regulations were passed during the same period.
1.06. The History of the Indian Penal Code, or the Code of Criminal Law prevailing in British India, commences with the year 1833, the year which followed the Reform Bill, a period which was full of the subject of Law Reform, and of the Reform of Criminal Law in particular.
Indirectly the Indian Penal Code owed its origin to Bentham, the most conspicuous writer of the day on the subject of Law Reform, whose death had occurred only in the previous year. James Mill, Bentham's favorite disciple, had written the History of British India under the influence of Bentham's ideas. Thus, owing, in a great measure, to the influence of these two authors, the necessity for extensive legislation for India was keenly and widely felt.
1.07. In 1833, Macaulay moved in the House of Commons to codify the whole criminal law in India and bring about uniformity. Lord Macaulay, while speaking on the Bill in the British Parliament, said:-
"I believe that no country ever stood so much in need of a Code as India, and I believe also that there never was a country in which the want might be so easily supplied. Our principle is simply this - uniformity when you can have it; diversity when you must have it; but in all cases, certainty."1
Lord Macaulay also told the House of Commons that Mohammedans were governed by the Koran and in the Bombay Presidency Hindus were governed by the institutes of Manu. Pandits and Kazis were to be consulted on points of law, and in certain respects, the decisions of Courts were arbitrary. Thus the year 1833 is a great landmark in the history of codification in India. The Charter Act of 1833 introduced a single Legislature for the whole of British India. The Legislature had power to legislate for Hindus and Mohammedans alike for Presidency towns as well as for mofussil areas.
1. Diwan Anil Indian Advocates, Vol. XXV, p. 8.
1.08. Accordingly, the Charter Act of 1833 (3 and 4 Will. 1V, c. 85) was passed, by which the Governor-General of India, was empowered to legislate for the whole of India. To assist this project a Commission under the Chairmanship of Lord Macaulay was constituted which consisted of himself and two members namely, Mr. Millet and Sir John M'Leod.
During the years 1834-38 the Commission drafted what afterwards became the Indian Penal Code. From 1838 to 1860 the draft Code remained in the form of a mere draft. After undergoing elaborate revision by the Legislative Council, under the supervision of late Sir Barnes Peacock the Bill concerning the Penal Code was passed into law and became Act XLV of 1860.
1.09. The title of "Indian Penal Code" given by the Law Commission to the basic criminal law aptly describes its contents. The word "penal" no doubt, emphasizes 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.
1.10. In June 1971, the Law Commission had submitted its 42nd Report for revision of the Indian Penal Code. Accordingly, the Government had introduced a Bill, namely, the Indian Penal Code (Amendment) Bill, 1978 in Rajya Sabha. That Bill was passed by the Rajya Sabha. However before passing the Bill, the then Lok Sabha was dissolved and the said Bill could not find a place in the book of statutes.
Since then much water has flown and a number of new problems and issues have come to light, which gave rise to the necessity of undertaking a further comprehensive revision of the Indian Penal Code, with special reference to the provisions of the Indian Penal Code (Amendment) Bill, 1978. It was precisely for that purpose that the Government of India requested the Law Commission to undertake revision of the Indian Penal Code, with special reference to the aforesaid Bill, in the light of current socio-legal scenario.
In this background, a comprehensive study for revision of the Indian Penal Code, particularly with reference to the Indian Penal Code (Amendment) Bill, 1978 was undertaken.
1.11. In order to elicit public opinion on the relevant issues the Commission circulated a detailed questionnaire and also working paper in respect of the main issues to all the State Governments, Director-Generals of Police of all States, Supreme Court and High Court Judges, Bar Associations, Professors of law, Advocates and Non-Governmental Organisations. Various responses were taken into consideration (vide Annexures).
The Commission organised several workshops at Hyderabad, Vishakhapatnam, Goa, Shimla and a National Seminar was held at Delhi. At all these places the Commission had the benefit of discussion with judges, senior lawyers, police officers, legal academicians and non-governmental organisations. All the clauses of the I.P.C. (Amendment) Bill, 1978 were discussed thread-bare in all these workshops.
After making an intensive study, the Commission apart from focussing on the important issues, has in a separate chapter discussed every clause of the Bill and has made the necessary recommendations keeping in view the new trends since 1978, and they have to be duly considered before introduction of a fresh Bill.
However, at this stage, we may also mention that under clause 197 of the Bill, for the existing Chapter XIX, a new Chapter bearing the same number (Chapter XIX) is sought to be inserted to deal with "Offences against Privacy". In the existing Chapter XIX, three sections namely, sections 490, 491 and 492 are mentioned. But out of them sections 490 and 492 are repealed and the only remaining section 491 deals with "Breach of Contract" to protect the contractual rights of helpless persons.
In the proposed new Chapter XIX which is sought to be substituted in place of the existing Chapter, sections 491 to 492 are mentioned and they deal with "Offences against Privacy" like use of artificial listening or recording apparatus either to listen or to record conversation of person or persons without their knowledge or consent or making unauthorised photographs, etc.
We have dealt with this clause in detail in Chapter XII after duly referring to the contents of 42nd Report as well as the concept of right to privacy as extended under Article 21 of the Constitution and also various reports of foreign Law Commissions and ultimately recommended that these offences cannot appropriately be incorporated in the Indian Penal Code and that a separate legislation should be there to comprehensively deal with such offences against privacy. It is also mentioned that Law Commission is proposing to take up a comprehensive study on this subject separately as early as possible.