The Indian Penal Code 1860 embodies the general principles of criminal law and general penal law for the country. It provides penal liability, penal definitions and illustrations alongwith exception. The IPC is a comprehensive legislation. It originally consisted of 23 chapters and 511 sections. Chapter V-A, IX-A and XX-A and several sections have been inserted and few have been deleted from the code. Before we study the IPC, it would be pertinent to study the history of Criminal Law in India.
History of Criminal Law in India
For the purposes of study the history of criminal law in India can be divided into three heads –
Ancient Hindu Criminal Law
Mohammedan Criminal Law
English Criminal Law
Ancient Hindu Criminal Law
The ancient Hindu Criminal Law is based on the Code of Manu. Manusmriti is the utmost importance for the history of criminal law in India. Manusmriti is a complete code on law, religion, custom and usage of that time. It provides the main offences of that time such as assault, battery, defamation,theft, robbery, gambling, cheating and trespass. The punishment for these offences was also very scientific. The highest prescribed punishment was the death sentence. But the Code of Manu is not free from bias because in certain cases for the punishing of offenders their social status, caste etc. were taken into consideration.
According to P. V. Kane ” The mere ancient criminal law in India was very severe and drastic, but from the times of Yajnavalkya and Brahaspati the rigor of punishment was lessened and softened and fingers came to be the ordinary punishment for many crimes.”
On the basis of above it clear that ancient Hindu Criminal Law was a systematic penal law.
Mohammden Criminal Law
The Mohammaden criminal law was based Koran which was believed to be of divine origin. Since laws of Koran were inadequate to meet the circumstances so Sunna was introduced.
The crimes were divided into two classes – Crimes against God and Crimes against man. The crimes against God were considered as public wrongs and it was punishable by the society. The offences against man was private wrongs and was punishable by the individuals. So the most of the cases were private wrong and prosecution was in the hands of individuals.
Punishment was of four kinds namely –
Qisas (retaliation)
Diyut ( blood money)
Hadd ( fixed penalties)
Tazir ( discretionary punishment)
Qisas
Qisas was similar to the retaliation. In qisas the injured person was entitled to inflict the same injury to the offender which he has caused. It was tit fir tat basis.
Diyut
Where there was not possible to inflict the same injury to offender then the injured person was allowed to demand blood money. It was known as Diyut.
Hadd
Hadd was fixed penalties. It was fixed by law for certain offences for example , Zina ( illicit intercourse) , drinking of wine, theft etc.
Tazir
Tazir was the discretionary punishment. Where no punishment was prescribed it was at the discretion of the judge to give any sort of punishment.
The Mohammaden Criminal Law had many defects. The provisions of Criminal justice was some times against the natural Justice. The rules of evidence were also defective for example, a non-Muslim was not allowed was a witness in evidence in any case affecting Mohammadan.
English Criminal Law
As we have already discussed that there many defects in Mohammedan criminal law system. When the Britishers came in power, they introduced several reforms from time to time. The First step was taken after passing of the Regulating Act, 1773. This introduced a criminal courts in each district. The district court consisted of a Qazi, Mufti and two Molvis. There was a Court of Criminal Revision composed of a chief Qazi, a chief Mufti and three Molvis.
Four appealate courts were established at Calcutta, Dacca, Patna and Murshidabad in 1793. European Judges began to be appointed in district courts in place of Qazi and Molvis. The Supreme Criminal Court at Calcutta was known as Sadar Nizamat Adalat.
After the appointment of British Judges in courts, they began to apply English Law of crimes in deciding the matters. Which resulted in conflicting judgements due to the variance in the set up of each Presidency. This difficulty was removed by the Charter Act, 1833. The Charter Act, 1833 introduced the system of single legislation for the whole of British India. The office of Law Member in the council of governor also created and there was provision for appointment of law commission.
Codification of Penal Laws
In order to bring uniformity throughout India the First Law Commission appointed under the Chairmanship of Lord Macaulay in 1834. Sarvashri Macleod, Anderson and Millet were the other members of the Commission. The commission submitted a draft code on October 14, 1837 which was circulated for the obtaining the views of the judges and law advisors. In 1845 the second Law Commission was constituted as the term of the First Law Commission expired with the same members. The second Law Commission submitted the reports in two parts – one in 1846 and other in 1847. The draft code again went through Treviso by Benthune and Peacock, the law members of the Governor General’s Council and was submitted to the Legislative Council in 1856 which after a thorough discussion was finally passed and received the assent of the Governor-General on October 6, 1860. It was the Act XLV of 1860. It came into force on January 1, 1862.
