1

Crime: Aims and Objects

K.D. GAUR

THE CONCEPT OF CRIME

Of all the branches of law, the branch that closely touches and concerns man in
his day-to-day affairs is criminal law, yet the law is not in a satisfactory state.' Many
altempts have been made to define crime, but they all fail to help us in identifying what
kind of act or omission anounts to a crime. Perhaps, this is because of the changing
notions about crime from time to time and place to place. The very definition and
concept of crime varies not only açcording to the values of a particular group and
socicty, its ideals, faith, religious attitudes, customs, traditions and taboos, but also
ICCording to the form of government, political and economicstructure of the society and
a number of other factors: For instance, what is an offence against property in a
capitalist culture may be a lawful way of living in a socialist society. What is
permissible in a frce and an affluent society may be a pernicious vice in a conservative
set vp. Any act, which is a crime today, may not be a crime tomorrow, if the legislature
o decides. For instance, polygamy, dowry,' untouchability' are now crimes that were
01 so a few years ago. Suicide was a crime in England until the Suicide Act, 1961,6

Peter Brett, An Inquin into Criminal Guil (The Law Book Co., Australia, 1963), p. I.
R. Krishna lycr, Perspectives in Criminology: Law and Social Change (Applicd Publishers, 1980),.
p. 7-8,
bigamy u:nder s. 494
See the Hndu Marriage Act, 1955, $s. 5, 17. A man is liable for conviction for
of the IPC Muslim men, are governed by their personal laws and are exempt tron1 the purvicw of
4)4 Howevcr, Muslim women are liable for bigamy.
The DowIy Prohibition Act, 1961, ss. 3 and 4 make the giving and taking of deanding of dowry

Sre the l'otection of Civil Rights Act, 1955, s. 3.

Sith ud Hog, (riminal Luw ($th edn., Butterworths, London, 1983), p. 336.
 4
Criminal Law and Criminology

and in India from 1994 to early 1996,' when itbecame lawful to kill oneself. Similarly.
after prohibition laws are promulgated in aparticular area, the sale and purchase of
liquor becomes a crime. Parliament can scrap a crime from the statute book and make
it lawful. Abortion that was acrime until 1971 is now legal."
To understand the meaning and concept of crime in its correct perspective, it
would be appropriate to examine some of the definitions propounded by jurists.
() As a Public Wrong
In his classical work, Commentaries on the Laws of England, Blackstone defines
crime in two ways. In the first place, he says crime is:

An act committed or omitted in violation of a 'publie law' forbidding or

commanding it.
The definition appears to be misleading since it limits the scope of crime to violations
of a 'public law'. As such, the definition would cover only political ofences, viz.
offences against the State. Such offences are merely a segment of the great bulk of
criminal law. If 'public law' is taken as equivalent to 'positive' or 'municipal law' as
noted by Kenny, the definition would become too wide and would cover all legal
wrongs, while in fact every legal wrong is not a crime. Likewise, if 'public law is
interpreted to include both constitutional and criminal law, as with the Germans, the
definition ceases to define, because it is fallacious to define crime with the help ot
constitutional law !!
Perhaps Blackstone visualised the inadequacy of his first definition of crime, so
he modified it and said:

A crime is a violation of the 'public rights and duties' due to the whole
community, considered as a community.?
While editing Blackstone 's Commentaries, Stephen modified this definition slightly and
reconstructed it in the following woris:
Acrime is aviolation of a right, considered in reference to the evil
tendency of
P. Rathinam Nagabhusan Patnaik v. Union of India, AIR 1994
SC 1S44. Section 309 of the IPC
(attempt to commnit suicide) was held to be a cruel and irrational provision
violating Art. 2 of the
Constitution. The Supreme Court in Lokendra Singh v. State of Madhva Pradesh,
and (iian Kaur State of Punjab, AIR 1996 SC 946, AIR 1996 SC 940
however,
and reversed its carlier decisiun of 1994. Suicide is no again upheld the validity ot s. 09
more crime in US (19S6), Columbia Lit
Reves, p. 384
Seetions 1 and 33 of the IPC provide
Crmina! Lun. use's and Afuterials (3rd ed.,punishment for inducing abortion. See Gaur, K.)
discussIOn Butteworths, 1999), pp. 464 to 470 fr adetauli
9
Sec the Medu a! Termnalion of Pregnancv .At, 1971 (34 of 1971) s. 3.

Kenny's Otlne% ol (rnuna! La (|9th edn.,

4 BI (omm. S. JWC Tumer) Appendn, p. §
Crime: Aims and Objects

such violation as regards the community at large.D

However, the definition is not free from error. It narrows down the scope of
cnmeto the violation of rights only, whereas criminal law fastens criminal liability eve
on those persons who omit to perform duty required by law. Wilful omission to provide
tood, clothing,shelter or medical aid to a child by a father," or to a wife by a husband
IN acrime.' A police officer, who silently watches another police officer torturing a
eTsOn tor the purpose of extorting a confession, is liable for abetting the said offence,
Js he Ia under legal duty to prevent torture. l6 Likewise, there are other acts which o
to! \olate anyone's right but are nevertheless crime. For instance, tampering Win a
a bank note'" or being in
urene note, or engraving upon a metal plate the words of stamps' or any document
OsCSSION of counterfeit coinslS or counterfeit government
Alowg the same to be forged, are crimes.20
further stress that crimes are
The detinitions given by Blackstone and Stephen idea in regard to
Similar was the
tieaches of those laws which injure the community'.
designated crimes às delicta publica (public
the concept of erime with the Romans, who (public justice). However, all the acts that
TOngs) and crinminal trials as judicapublica
necessarily crimes. As pointed out by Kenny:
.1e mjurious to he community are not
any crime at all, a man may by a breach
It is possible that, without committing Company's affairs, bring about a
of trust, or by negligent mismanagement of amore severe than that produced by
calmity incomparably more widesprcad and
that petty theft is a (felonious)
slealing a cotton packet handkerchicf, though

to a crime, even though, instead of

For nstance, a person's conduct may amount
'cmy imjurious, it is, on the wholc, an
advantageous act. Hence, the reconstructed
fails to give an
detinntion of crime is nothing but a gencral description of crime, and
.dequatc and comprchensive definition.

(ii) As a Moral Wrong

The word 'crime' owes its genesis to the Greek expression 'krimos', which is

See Kenny, op. ci!.

R Russel, 1993 VLR S9.
lhe Cminal Procedure Code 1973 (2 of 1974) s. 125 niakes maintenance of wives, children and
ptcnts mandatory and failure to d0 so is punishable under thc law. On Prakash v. State of Punjab.
1Ik 1oi SC 1782. Accused-husband was held guilty under S. 307 1.P.C. for attempt to murder his
wite, Bmla Devi, by deliberately and systematically starving her for days togethcr.
HS Gaur, The Penal Law of India (Vol. 1. th edn., 2000) pp. 2S7-58, IPCs. 32.
1'C, 489A (o 489E.
1IC s. 242. 243.

heay, ct., p. 533.

: i : d |sso) 4AandE 384. The accuscd was guilty of the offence of common nuisance for
iiing a sloping causCway in Cowes llarbour, which was meant tor faeilitating the landing
wngers and goods. Sce |PCss. 208, 28I.
 synonymous with the' Sanskrit word "krama' meaning social order. Thus, the word
'crime' is applied 'to those acts that go against social order and are worthy of serious
condemnation'> Garafalo, an eminent criminologist, defines crime in terms of immoral
and anti-social acts. He says:

Crime is an immoral and harmful act that is regarded as criminal by public

opinion because it is an injury to so much of the moral sense as is possessed by
a community-a measure which is indispensable for the adaptation of the
individual to society.
In the definition, the emphasis on moral wrong again breaks down in many
respects. No
doubt, immoral acts like murder, or causing hurt without any reasonable excuse,
steal1ng
or destroying another's property, kidnapping a child, raping awoman, etc. have been
traditionally considered as crimes. However, there is quite an array of conduct, which,
though derogate from the cherished values of the community, are not considered as
crimes. Immoral acts like ingratitude, hard-heartedness, callous disregard for the
sufferings of others, etc., have never been crimes for obvious reasons of their triviality,
or the impracticability of using criminal law as the means to correct such behaviour.
Instead, they are to be corrected by social. educational and religious institutions. As
stated by the authors of the Code:

We cannot admit that a Penal Code is by any means to be considered as a

body of ethics, that the legislature ought topunish acts merely because those acts
arc immoral, or that, because an act is not punished at all, it follows that the
legislature considers that act as innocent. Many things which are not punishable
are morally worse than many things which are punishable. The man who treats
a generous berefactor with gross ingratitude and insolence deserves more severe
reprehension than the man who aims a blow in passion, or breaks a window in
a frolic; yet we have punishments for assault and mischief, and none for
ingratitude. The rich man who refuses a mouthful of rice to save a fellow
crcature from death may be a far worse man than the starving wretch who
snatchcs and devours the rice: yet we punish the latter for theft, and we do not
punish the forn1er for hard-heartedness.
immoral nature, but because
There are many acts that are prohibited not becausc of their
instance, traffic offences,
of social cxpedicncy and a number of other factors. For commodities, customs,
offences relating to black-marketeering or hoarding of essential
economic cxpediency necessitated by
licensing and taxing statutes, etc., are based upon economy. Likewise, there are some
social
a growing industrializcd and urbanized

K.S. Pillai,
Principles of the Law of Crimes in British lndiu (TLL, 1902), p. I. See
23. S.S. Huda, The rom (i) a Latin word
p. 6. The word "crime" is derived
Princip.'s of Criminologr (TLL, 1920), nmodem meaning of both
acse, and (1) a Sanskrit word, Kri (todo). Combining the
neaning "o
mos validly accusable at".
the roots. crinne" is "a
1914), p. 59.
24. (riminologr (Boston, Litle Brown,
174.
25. DrafiP:nel Code, note Q.p.
Crime: Aims and Objects 7

harmless crimes' like vagrancy and loitering: some prophylactic 'crimes' like
consorting and poSsession ol prohibited goods (even without intent to use them) for
eNample, weapons, drugs, illegal imports, and goods (including moncy) unlawfully
obtaincd.,26

(iii) As a Conventional Wrong

A noted criminologist, Edwin Sutherland, defines crime in terms of criminal
behaviour. He says:
Crininal behaviour is behaviour in violation of the criminal law. No matter what
not a
the degree of immorality, reprehensibility, or indecency of an act, it isturn, is
crime unless it is prohibited by the criminal law. The criminal law, in
defined conventionally as a body of specific rules regarding human conduct
apply uniformly to all
which have been promulgated by politicalauthority, whichwhich are enforced by
members of the classes to which the rules refer, and
distinguish this
punishment administered by the state. Characteristics, which
rules, are therefore,
body of rules regarding human conduct from other
politicality, specificity, uniformity and penal sanction."
crime instead of giving a
Sutherland merely enumerates the characteristics of a
of the criminal law.
detinition of crime. He only says that crime is a violation

(iv) As a Social Wrong

of developing social
As the legal concept of crime does not satisfy the demands
says:
sCience, John Gillin gives a sociological definition of crime. He
or that is
Crime is an act that has been shown to be actually harmful to society,
believed to be socially harmful by a group of people that has the power to
cnforce its beliefs, and that places such act under the ban of positive penalties.*
acts.
In Soviet Russia crime has been defined in terms of socially dangerous
crime is:
Article 7 of the Criminal Law Fundaments of former USSR (1959) states that
criminal
"Asocially dangerous act (commission or omission) provided for by thecconomic
law, which infringes the Soviet Social or state system, the socialist
and other
system, socialist property, the person or the political, labours, property
criminal
rights of citizens, or any other socialy dangerous act provided for by the crime."*
law, which infringes the socialist legal order, shall be deemed to be a

Trevor Nyman, The Dilution of Crime, 56 ALJ (198|) S0%, 508.

7. Edwin H. Sutherland, Principles of Crininology, (6th edn., 1965), p. 4. This definition is consistent
General Principles
with nulla pocna sine lege, i.e. without law there is no crime. Sce Jerome Hall,
Law of/ Crimes
f Criminal Law, (2nd edn., 1960), pp. 27-69: Clerk and Marshall, A Treatise the
on
(oth edn.. 1952, cdited by Melvin F. Wingersky), pp. 29-39.
1Basstouniand Savitski, The Criminul Justice Sste. of ('SSR (Charles C. Thomas, USA, 1979). P.
T37. The term 'socially dangerous act' is quite misleading and vaguc.
 The sociological definition too, like other definitions, fails to explain a number
of criminal behaviours. As stated earlier, when legislature enacts that a
particular act
shall become a crime or that an act that is criminal shall ccase to be so, the
act does
not change in nature in any respectother than that of legal
the name of the behaviour would be changed, but the classification. In other words.
the behaviour would remain the same, for the nature and the social reaction to
behaviour would remain essentially unchanged. For'social interest' damaged by the
instance, though now dowry is a
crime, there is hardly any change in the attitude of the
practice today than before as is evident from the number people. Perhaps, it is more in
of do wry deaths and cases of
bride burning reported each year.
(v) As a Procedural Wrong
Some writers define crime in terms of nature of
the proceedings. For instance,
Austin says:
A wrong which is pursued by the
sovereign or his subordinates is a crime (public
wrong). A wrong which is pursued at the discretion of the injured party and his
representatives is a civil injury (private wrong). 0
The definition does not hold well in respcct of a
prosecution could be initiated only at the instance ofnumber of offences in which the
court will take cognizance of the offence of adultery andtheofinjured party as in torts. No
497, 498), cxcept upon a complaint made by the criminal clopcment (|PC ss.
husband
cruelty by husband or relatives of husband upon police of the woman and in case of
the wifc or women's parents, etc. (CrPC, S. report or upon a complaint by
Austin's definition and stated:
199A). Accordingly, Kenny modified

Crimes are wrongs whose sanction is punitive, and is in no way

any private person, but is remissible by the Crown alone, if remissible by
remissible at all.31
Kenny's definition is also not free from lacunac and is open to
respect to the word 'rcmissible' that the difficulty arises. Thc criticism. It is with
definition lays
remission by the Crown', which is not always true. There arc a stress on
number of
compoundable offences that are remissible by some gratification from the accused.4
From the forcgoing discussion, it is evident that crime has so far not been
satisfactorily accomplished by any writer. In fact, as stated by Russcll:

29. The Dory Prohibition Act, 1961, s. 3 prescribes punishment for giving or taking of
dowry which
may elend to two years of imprisonment with a minimunm of six months' and fine upto Rs. I0000.
30. Sec l.ectures on Jurisprudence, Lccture 27 (Student's cdn., 1920), pp. 249-53.
31. Kenny, op. cit.. p. 539.
32. See Wnfield, Province of the Law of Torts, TLL, p. 197; Allen, Legal Duties, pp. 2\-$2.
33. TIhe Cositulion of lndia, Arts. 72 and l6| empower the President of India and the Govemor of a
Sale respeelivcly to grant pardon, reprieve, resp1te or remission of punishnvent or to susnend, remit
or coute the sCntecc of any person convicled of any offence.
34, See Cri'C 1973, s. 320(|) and (2) lor oftences that may be compounded.
Crime: Aims and Objects
9

"Criminal offences are basically the creation of the criminal

time to time by those sections of the policy adopted from
community who are
enough to safcguard their own security and comfort by powerful or astute
power in the state to repress conduct, which they feelcausing the sovereign
position .. may endanger their

Similarly, Roscoe Pound says:

A final answer to the question 'what is crime'?, is
impossible, because law is a
living,changing thing, which may at one time be based on sovereign will and at
another time on juristic science, which may at one time be uniform, and at
another time give much room for judicial discretion, which may at one time be
more specific in its prescription and at another time much more general.

(vi) As a Legal Wrong

When a penal statute prescribes punishment for an act or illegal omission (s. 32
IPC), it becomes crime. But as regards the definition of the ternm crime', there is no
satisfactory definition acceptable to all and applicable in all situations. Even the Indian
Penal Code is silent on this issue, though it has codified the bulk of the criminal law
of the country. Section 40 of the Code simply states:
Except in the chapters and sections mentioned in clauses two and three of this
section, the word 'offence' denotes a thing made punishable by this Code .. or
under any special or local law."

This provision is nothing but a statement of fact and cannot be regarded as a definition
of crime. However,one can understand what constitutes a crime, by the following three
essential attributes:

(i) crime is an act of commission or an act of omission on the part of a human

being, which is considered harnmful and prohibited by the State;
(i) the transgression of such harmful acts is prevented by a threat or sanction
of punishment administered by the State; and
(ii) the guilt of the accused is determined after the accusation against him has
becn investigated in legal procccings of a special kind in accordance with
the provisions of law (as provided under Criminal Procedure Code, 1973
and Law of Evidence, 1872), *
35. Russell on Crime. Vol. I(12h edn., First Indian Reprint), p. 18.
36. Interpretution of Legal tistory (Harvard University Press, 1946), Chapter II.
37. The General Clauses Act, I897, s. 3(38) states:
Ofcnces shall ncan any act or omission made punishable by any law for the tine being.
In Halsbuty's Luns of England, a erine has been defincd as:
An unlaw ful act or delault which is an oflence against he public and renders the person guily oe
tlhe act or detault liable to legal punishment. (Vol. 10, Simond's cdn., 1955). p. 271.
Sce Kenny, op it, Pp. 4-5; Secl also Malin E, Wingersky (cd.), 4 Ireutixe on the Law of Crimes
(Callaghan & Conpany, Chicago, 1958). p. 79.
10 Criminal Law and Criminology

THEORIES OF CRIME: NATURAL LAW VIS-A-VIS POSITIVE LAW*

As discussed earlier, crime is defined as the commission of acts prohibited by
penal law, andcriminals as persons who commit such acts. On these assumptions avast
literature has developed about the volume of crime, motivation for crime, prevention of
crime, suppression of crime, and methodology for apprehension, adjudication, and
reformation of criminals.

(i)) Natural Law Theory

Considering crime philosophically, the fundamental issue is whether to define
crime naturally by the laws of God, or positively by the laws of man. In
crime God-made or man-made? essence, is
In the course of development of Western civilization, God's law
natural law. Crime became abreach of nature's order, nature being the evolved
into
ideal state of
affairs ordained by God.
God's connection with natural law became
came to receive primary emphasis. Crime as sin receded progressively attenuated, and nature
crime as an affront to the natural order became the to a theological concept, and
the love and respect we owe to our dominant view. Under this theory,
neighbour makes his killing or mutilation or
seduction aviclation of natural law, hence a crime. Under the
conduct is inherently and immutably criminal, whether or not any natural law theory, certain
so declared. Conversely, acts that do not enactment of man has
violate the natural order are not criminal, no
matter what classification the legal order may give
Natural law relies heavily on feeling, on moralthem.
sense, and on individual instinct
for the fitness of things. Under the natural law
theory,
moral code is a crime, and by implication, an act that an act that violates the basic
IS not a true crime. does not violate the moral code
The great difficulty here lies in
law today lcaves us with thc amorphousdetermining what is basic moral code. Natural
fecl is right and its violation is what we guidance that the basic moral code is what we
feel is wrong. To translate moral fecling into
a specific code of conduct is,
however, a task worthy of the greatest theologian and
beyond the strength of most judges and legislators. In such a state of affairs, crime, and
with it criminal lavw, becomcs plagued with
of definition.
vagueness, uncertainty, mutability. and lack

(ii) Positive Law Theory

The alternative concept of crime considers it aman-made
crcation. Under this
view, erime is a violation of a man-made command ofa sovcreign, a violation
identified
as apublic wrong. This vicw of crime as conduct, formally prescribcd by
sovereign
authority, carrics the namc positive law. The killing or mutilation or seduction of a
neighbour is acrime only if sovereign authority has so declared. The virtue ot positive
law lies in its precision and its prcdictability--qualitics that enable positive lavw (o
Cscape the theoretic tyranny of natural law's vagucncss, uncertainty, and reliamce on
subjective moral sense and feeling. Positive law possesses the added virtue oe
Macklin Fleming, 0f Criuc'N and Righus (Norton & Co., New 1'ork, 197`), pp. 20-32.
 ime: Alms and objects
11

aracticable application to
'or it appears to dispensecommunities
of diverse races, religions, classes and
with the need for commonly held beliefs cultures,
wrong. Crime under positive lawconsists of those acts, and about right and
only those
nrohibited by criminal law under threat of punishment, Both crime acts, specifically
eNplicitly defined and specified in advance. and punishment are
The positive law theory is particularly troubled by
Cvemplified by the Nuremberg laws of Hitler's Germanythethat problem of the unjust law,
human rights and legal protections from Jews. If law is the withdrew certain basic
does the sovereign who is corrupt and inhumane command of the sovereign,
crcate genuine law? Need such law be
obeved? The usual positivist answer is that a regularly adopted
mmoral, remains law until repealed. 1f the unjust criminal law, even if advised or
law oppresses beyond
cndurance, resort may be had to the right of revolution, that is, overturn of the
legal order, and with it, the unjust law. In short, bad law may be entire
but in the meantime, it remains law. repealed or overruled,
Betwecn these two theories of crime, one based on natural law, the
usitive law, cach with its strengths and weaknesses, the struggle has continued other on
s00 years, in ascendancy. Neither theory of crime has been used to the total for over
of the other. England, the birthplace of 'due process', exclusion
continues
law ermes, that is, acts not proscribed by any enactment, but
to recognize common
nevertheless
cimes because of their flagrant imnmorality. In 1961 and 1972," the Houseconsidered
of Lords
tound distribution of acommercial directory listing and advertising the
prositutes contrary to good morals, and hence criminal.
services of
On the other hand, in the United States and in India, though natural law
theories
strongly influenced the penal legislation, it does not recognize natural law or common
l:aw crimes as in England. However, natural law serves as the conscience of positive
lw, And courts, at times, import the concept of common law and natural law principles
norder to interpret the provisions of law and give relief to the victim of crime and the

Between natural law and positive law theories, the positivists appear to have the
better and more practical side of the argument, and in criminal law they havt generally
carricd the day. Natural law tends to assume the role of a brake on excesses of positive
law, to function as a tribune of the people.
TRUE CRIME IDENTIFIED

True erime is inberently cvii. It comprises those violations of the natural order,
which, i unchecked, make it inpossible for men to live together. Such violations can
be identified as invasions of prinary personal rights.
Shaw , DPP U961) 2 AI ER 446 (||L). Kuller v. DPP (1972) 2 All ER 898 (HL), See K.D. Gaur
for text of Cases
(æmpl Law: ascs and Materials (Butterworths, 1999), pp. 250-55
cither
Mr Hlospit:al Z; AIR 1999 SC 495. Apex Court held that doctor hospital is not iablo
appellants's being HIV+ to Ms. yand
) Lu ot tot o in crinninal law for disclosng the fact of
betwcen (wo Tundamental rights, namely thc appcllant's rixht
obseryed that where there is a clash (who was engaved with the
Macy (uho was V+) as part of right to ile and Ms. Y's'
l) fundanmental right under Art, 2l of he Constitution
DDellu) riebtto leada hcalthy ite whieh is lher morality or public interest, would alone be enfoned
the publie
.' dt. the righ which would advance reasOns hat nloral consderations cannot
be kent at hav
proess of (ourt, for the
.hroueh the
12 Criminal Law and Criminology

Invasion includes both actand intent (pulling the trigger with intent to kill), and
hence true crime requires that the invasion be intended. By limiting true crime to
intentional invasions and excluding from the province of true crime invasions that are
accidental, mistaken, coerced, provoked, or irrational, its identity is preserved as
conduct abhorrent to moral feeling. Thus, true crime can be explained as invasions of
primary personal rights, andof operations of public agencies created to protect personal
rights, invasions abhorrent to the moral sense and prescribed by positive law.
Regulatory offences, invasions of secondary personal rights and most victimless
crimes are criminal in only a conventional or secondary sense outside the sphere of true
crime.

Of the two groupings of true crime, invasions of

primary personal rnghts
comprise the overwhelming volume and invasions of operations
comprise only a small fraction. of public agencies

()) Criminal Law as Protection of Primary

Criminal law exists to protect primary rightsPersonal
of
Rights
persons
invasion by others. For instance: against intentional

1. Every person has the right to life.

2. Every person has the right to
3. Every person has the inviolability of his life and his body.
4
right to freedom of movement.
Every pcrson has the right to security of person.
5. Every person has the right to security of habitation.
6. Every person has the right to security and enjoyment of property.
The principal task of government is
external invasion by means of armed forcesprotection of primary personal rights against
and protcction against internal invasion
means of criminal law. The ultimate aim of by
criminal law, therefore, is protection of
primary personal rights against intentional invasion by
others-protection of the wcak
against the strong, the law-abiding against the lawless, the
(a person who cxploits others), the pcaceable worker against the predator
against the
The deviccs uscd by criminal law to protcct rights violent.
consist of rules of conduct,
sanctions for violation of the rules, machincry to impose sanctions,
operate its machinery. The protection of other rights, including and proccdures to
civil rights, is secondary to individual welfare. collective rights and
The necd for government arises from man's need for
protcction of life, liberty,
and property. This protcction is against cach other, for, in Madison's words, if men
were angcls, no government would be necessary'." In a stable socicty, this protection
is taken for granted, but in times of civil disorder or anarchy, its necd
surfaces in acute
form. TIhe first job of the government is to protcct the basic rights of life.
persons and
property. In its prme function, the governmcnt acts as watchnman, and in this capacity,
I proteets the primary rights of pcrsons against invasion by others-the lawleSS, the
disorderly, the violent, the fraudulent. The prcdatory organisation of an efiective
Overnnent takes priority over liberty in creation of civilised sOCiety, becuse liberty
41. Jmes dison, The lederaliM, s. 51 (New 'ork, Modern Library. i937). p. 337.
 ime: Aims and Objects 13

cannot
exist without the protection of an effective government.7 Accordingly, the
Constitution has authorized the State to make laws for
preventive detention: (i) for the
security of the country as a
whole or part thereof; or (ii) the maintenance of public
maintenance of supplies and services essential to the community; or
order; or (iii) the
(iv) for reasons connected with defence,
foreign affairs or the security of India.
is not absolute. It is subject to
However, the State's power of curtailment of liberty
Art. 22 of the Constitution, 4)
safeguards provided under cl. (4) to cl. (7) of in Punjab and Jammu and Kashmir are
The military action by the security forces the life, liberty and property of
to protect
examples of the State's intervention extremists and terrorists.
individuals against acts of violence by

Criminal Law as Protection of Secondary Personal Rights

(iüi)
function of the State is the protection of civil and political rights
The secondary under the heading 'Fundamental Rights'. These
enshrined in Part IIl of the Constitution guaranteed
designated to protect and preserve a person'sfundamental rights such rights.
rights are against the state's arbitrary deprivation of
under Part IIl of the Constitution restrict improprieties of the government itself,
of civil rights is to
The essential function who overstep their authority. Many civil
and
government agents
more specifically of human rights), such as right to life ard liberty,
political rights (commonly known as political
of speech, freedom of press, freedom of assembly, and freedom of
freedom of the structure of government, and- thus
activity, principally concern the integrity such
more polity than criminal law, and these include protection against
involve
of personal right as false arrest, false imprisonment, compulsory self
invasions cruel and unusual punishment, and
incrimination, unreasonable search and seizure,
denial of the due process of law.
civil rights seek to provide an answer
Legislative and judicial protection for thesewatchmen'?
the These civil rights are of
to Juvenile's classic inquiry, Who watches
government is to protect life, liberty and
utmost importance. The first function of the
persons, individually and collectively, against invasion by lawless at1d
property of
an effective government, do our
violent persons. Only after the establishment of to protect our instruments of
secondary needs come into existence, that is, the need against
protect ourselves
governmnent against subversion by others and the need to
government agents who abuse their powers.
personal rights
From this order of priorities, which recognizes the protection asof derivative and
civil rights
as primary and protection of collective rights and to
secondary, it follows that we must not sacrifice the protection of primary rights
harmonise these
protcction of cither collective rights or civil rights. Rather, we must
watchman,
protections so that each may perform its function-the government to act as
watchman's watchmen.
and systems of collective rights and civil rights to act as the
ORIGIN OF CRIMINAL LAW

Because of the wide variance in the concept of crime, a bird's-eye view of the

JS Mill. Uiltartansin (I 86)(London, Everyman's Library, J.M. Dent, 1940). p. S0, Sir James
Stephen, Lberty, Equality and Fraternity (London. Smith, Elder, 2nd cdn., I874). p. Is4.
Sce KD Gaur, Law and Socety of Alodern India ( 1989), Deep & Deep. New Delhi, pp. ll-38)
different theories about the origin and development of criminal law is needed in order
to have a clear understanding of the nature of crime. Broadly speaking, theretheon
conflict
are four
theories, viz., 'civilwrong', 'social wrong', 'moral wrong', and 'group
0) The civil wrong theory' regards criminal law as originating in torts,or
wrongs to individuals. According to this theory, all wrongs produced efforts at self.
redress in the injured parties and were therefore treated as injurious to Darticular
individuals. And later, the wrongs came to be regarded as harmful to the society at
large. Consequently, the group took over charge of the treatment in its own hand. Of
course, somecrimes did originate in torts, namely, deceit, nuisance, false imprisonment.
defamation, ctc., for which compensation (furtum) was secured from the wrongdoer.
However, this theory is inadequate as a universal explanation of criminal law, as it
assumes priority of the individual over the group, which is not true in all cases. There
are wrongs liketreason, sedition, etc., that have been regarded since early days as direct
wrongs to the State, i.e. the society at large.
(i) The 'social wrong theory' postulates that criminal iaw originated as arational
process of unified society. Thus, when wrongs occur, society makes regulations in order
to prevent the repetition of such wrongs. This theory is again only partially true. It
certainly covers serious offences like murder, robbery, dacoity, etc., and explains how
laws are made, but fails to explain how criminal law has developed in the course of
time.
(ii) The 'moral wrong theory' says that the criminal law originated in and is a
crystallisation of mores, traditions and the like. Customs, after persisting for a long time,
achieved an ethical foundation. Violations of such customs produced antagonistic
reactions of the groups that were expressed in the form of criminal law with penal
sanctions. This is true in respect of conventional crimes, such as offences against
person, property, reputation and the like. However, it does not explain many social and
economic crimes that deal with the regulations of offences relating to evasion of taxes,
Iicensing. hoarding of essential commodities, food and drug adulteration, etc.
(iv) The 'group conflict theory' holds that criminal law developed in the conflict
of rival groups ir order to protect each other's interests. Thus, through criminal law, the
powerful group forces the State to prohibit the conduct when they fecl it may endanger
their position. This theory may explain offences relating to property interests, but fails
to explain other categories of offences, viz., offences against the State and public
tranquility, ctc.
DISTINCTION BETWEEN MORAL, CIVIL AND CRIMINAL WRONGS
Since the very beginning of human civilization, man has recognised certain acts
committed by an individual, for instancc. lying. gambling. cheating, stealing. killing.
kidnapping, raping a woman, ete., as reprehensible, because they tend to reduce human
happnesS. Such acts are called wrongs and are looked upon with disapprobation.
The evil lendencies of these anti-social acts widely differ in degree and scope. For
0stance, lying, refusal to give a mouthful of rice to save a tellow creature, omission to
rescue a nan fronn drowning, ete., are not considered sufficiently serious for an action
44 Sutierland, op. cit, pp. 9-11
 nne.:Aims and Objects 15

law. Such acts are simply considered as immoral or ethical wrongs and the concern
ofsocial and religious laws. On the other hand, wrongs, like nuisance, deceit, libel,
robbery, dacoity, murder, rape, kidnapping, etc., are considered sufficiently serious for
legal action.
The State may respond to any such act in two ways,either at the instance of the
njuredindividual or group, or by itself taking a direct action. In other words, where the
magnitude of injury is supposed to be more concentrated on the individual, the
srongdocer is asked to compensate the injured in terms of money as in case of deceit,
label, nuisance, negligence, etc. This type of wrong is called 'civil wrong' or 'tort' for
which civil remedy is open to the injured. Where the gravity of the injury is
niparatively more directed to the public at large, putblic condemnation or provision for
Wrongs like
Compensation, as in the case of moral and civil wrongs, is ineffective.
woty, murder, kidnapping, sedition, treason and the like, disturb the very fabric of
iw and order, and jeopardise the State's existence or create a widespread panic.
lherefore, the State stresses punishment of the wrongdoer. This category of wrong is
called 'public wrong' or 'crime' for which criminal proceedings are instituted by the
State, and the culprit is punished by a court of law if found guilty.46
MERGER OF TORT WITH CRIME

Thereare certain wrongs that may fall under thecategory of tort as wellas crime,
a tort
uch us deceit, trespass, malicious prosecution, defamation, etc." An assault is
when looked at from the point of view of an individual, as it is a violation of the right
the same time,
of every person to his personal safety being preserved unmolested. At
ich an act is looked upon as a menace to the safety of the society in general. It will,
therctore, bc punished by the State as a crime. In all such cases, two different kinds
ol actions are open against the wrongdoer. The wrongdoer may be punished criminally
nd also compelled in a civil action to pay damages to the party aggrieved. Such kinds
o Wrongs are called 'felonious tort'.
At one time in England, there could not be a dual action, i.e. both civil and
rminal, in respect of the same wrongful act. If the act was a felony (crime), it was said
that it 'drowned the particular and private wrong'. This doctrine of the nmerger of tort
n telony prevailed for a considerable period of tinme. Later on, the doctrine was
:edtied and it was held that both civil and criminal actions could be brought against
he inticter of injury, but the former remedy could only be resorted to after the atter.
In other words, the private wrong is not merged in felony, but only suspended until the
Hurcd party has performed his public duty vf prosecuting the offender.
In India, this artificial rule of 'merger of tort in felony' has not been accepted.

Sec nticld und Joluwic: on Torts (12thedn., 1984), p. 3: Tortious liability arises fron the breach
of aduty pimanly fixed by law; this duty is tow ards persons generally and its breach is redressable
by an ation for uniquidated danages.
See KD. Gaut, Aleu Book on ndan Penal Code (2nd edn., Reprint 2001, Universal Law
Publishny Co. Pv. Lid., 1998), pp. S9-60 for the distinction between tort and erime.
See lPC, ss. 120A, 211, 2G8, 409.
I'C, s. 351.
16 Criminal Law and Criminology

An injured person can maintain an action for damages for a tortious act, even though
it amounts to a crime, without, in the first instance, instituting criminal proceedings
against the offender. The failure of an injured party to institute criminal proceedings
does not deprive him of his right to bring a suit in a civil court to recover damages for
the wrong." This has been done in order to make Indians conscious of their rights and
duties.

CRIMINAL LAW IN ANCIENT INDIA

The Indian Penal Code, the basic criminal law of the country was placed on the
statute book in India in I860. It came into force on I January 1862, replacing the
various rules and regulations on criminal law that then existed in British India.
However, the germ of criminal jurisprudence came into existence in India at the time
of Manu. He gave a comprehensive code which contains not only the ordinances
relating to law, but is acomplete digest of the then prevailing religion, philosophy and
custons practiced by the pcople.!
Manu has recognized assault., battery, theft, robbery, false evidence, slander,
libel, criminal breachof trust, adultery, gambling and homicide, as crimes. These are the
prncpal oftences against persons and property that occupy a prominent place In the
Indian Penal Code. The king used to either dispense justice himself with the help of
cOunsellors, or appoint judges and assessors for the administration of justice.
These prccepts are excellent. However, the substantive criminal jurisprudence of
Manu is not free from bias. According to him, the gravity of the offence varies with the
caste and creed of the criminal and so does the sentence. The protection given to
Brahmins was paramount and they werc placed above all.2
During this period, there was no clear distinction between private and public
wrongs. Murders and other homicides were regarded as private wrongs. The right to
claimcompensation was the rule of the day. A distinctionwas, however, drawnbetween
casual offenders and hardened criminals." Again, he made provisions for exemption
trom criminal liability, where the act was done without any criminal intention, or by
mistake of fact, or by consent, or was the result of accident, much on the lines provided
in Chapter IV' (General Exceptions) of the Indian Penal Code. The right of private
49 UnnonCarbide ('orporation v:. Union of India, AIR 1992 SC 248. Held merger of criminal liability
n cIvil Iabilty or vice versa is against public policy.
IsIVs on the ndian Penal Code, Indian Law Institute (1962). p. i.
Sengupta. 'voluton of Ancicnt Indian Law (TLL, 1950), p. 3. In primitive society in ancient Inda
tbe admnisltalon ot justice was the coneern of the comnon people in their various associations.
suh as Áu. Sreni, Guilds. etc. The King was not involved in the administration of justice. I was
Dhmt Sitras that mentioned for the first time administration of justice as onc of the funcion of
the King
Sce M.anu, luvtilutes of llindu Luw, Chapter VIlI, on Judicature' and on 'Law, Private and
(Hmnal'. pp. 44, 380.
l d . pp 19-30, Mnu says:
Iist, let mpunish by gentle admonition; afierwards, by harsh reproof; thirdly, by deprivation of
pioperty, aler that, by corporal pain. But, when even the corporal punishment he cannot restrain
Comm.
Nuch oftenders, let hm apply to them all the four modes with vigour. Quoted from 4 BI
$, 9.
 developed.
efence was tully
MOHAMMADAN CRIMINAL LAW

Manu's code continued in India tillthe Mohammadan rule was established, and
.hon the pcople were forced to the criminal jurisprudence of Muslims. The Muslim legal
sVstemhad its origin in the Koran, which is said to have been revealed by God to the
Pronhet Mohammad. In Muslim law, the concept of sin, crime, religion, moral and
NCal obligation is blended in the concept of duty, which varied according to was the
Ielative importance of the subject matter. The administration of criminal justice
entrusted in the hands of Kazis. The punishment varied according to the nature of the
retaliation;
crime. Broadly speaking, the punishment was four-fold, namely, Kisa or
discretionary or
Dau or blood money; Hadd or fixed punishment; and Tazir or Syasa,
fixed, and
Cvemplary punishment." However, the notions of Kazis about crime were not
was no
dttered according to the purse and power of the culprits. As a result, thereIndia, and
unitormity in the administration of criminal justice during the Muslim rule in
it was in a most chaotic state.

ENACTMENT OF INDIAN PENAL CODE

The Muslim system of administration of criminal justice was in vogue in India

when the British took over the reign of the country. In the beginning, they engrafted the
Muslimsystem of administration, but were faced with much difficulty. As a result, the
11ottusil as wellas the Presidency Courts gradually began to turn to the English law for
Presidency
guidance and help. However, in adopting the British system, each of the
The
(ourts at Bombay, Calcutta and Madras followed an independent course of its own.
Iesult was a chaotic mass of conflicting and contradictory decisions on similar points.
Ihe regulations passed by different Presidencies differed widely in their scope and
contained different provisions. For instance, in the Bengal Presidency, serious forgeries
were punishable with imprisonment for a tern1 double the term fixed for perjury;
whereas in the Bombay Presidency, perjury was punishable with imprisonment for a
term double the term fixed for the most aggravated forgeries.$ Likewise, in the Madras
IPresidency, the two offences were exactly on the same footing. The result was utter
disorder and confusion in the administration of criminal justice.S
Accordingly, aLaw Commission was constituted in 1834,with Lord Macaulay
s its President and Macleod, Anderson and Millet as the Commissioners for preparing
Penal Code for the sub-continent to bring about uniformity in criminal law. The
Commission submitted its report on 15 June 1835, and the Draft Penal Code was given
wide circulation in order to ascertain the views of judges, jurists, lawyers and others.
After a prolonged discussion and carefulconsideration, the Draft Penal Code was

Sec Essuys onthe Indian Penal Code. (1962)(ILI). pp. 1-32;Sce RC Nigam, PrinCiples of Criminal
Law (Vol. I, 1965), pp. I8-20.
Bombay Regulation (14 of IN827), ss. l6-17.
Madras Regulation (6 of I8), s. .
Harn Sngh Gour, The Penal Law of India (Vol. I, th edn., 2000), pp. I5-17.
 18 Criminal Lawand Criminology
approved by the Legislative Council and received the assent of the Governor-General.
in-Council on 6 October 1860, and the Indian Penal Code was brought into force on Ist
January, 1862 for the whole of the then British India, which included present India
(except State of Jammu & Kashmir), Pakistan, Bangladesh and Myanmar.
The Indian Penal Code is a comprehensive piece of legislation. It
chapters and over 590 sections (tilldate). The Code embodies the general comprises 26
the country, and it is the sole authority in respect to the general conditionspenal law of
of liability,
the definitions of specific offences in the Code, and the conditions of
criminal liability. Some crimes are cognizable and some are not.* exemptions from
Traditional and
conventional crimes are rooted in time and custom, and the Indian Penal Code
represents the core. The Code covers a vast range of anti-social behaviour in relation
to the state of society as it existed more than a century ago. The
Code is supplemented
by local and special statutes to punish certain categories of
that are prejudicial to the interest of the citizens and state.wrongs or behaviours or acts
The Code, no doubt, is an admirable compilation of substantive
most of its provisions are as suitable today as they were when criminal law and
offences have emerged in course of time with ihe change inenacted, but many new
political structure of the society and erosion in ethical and moral socio-economic and
the even and honest functioning of the new social, values necessary for
this has necessitated of a thorough revision of the political and economic process. All
Penal Code to make the Code
progresSive and pragmatic. For instance, offences known as white-collar and socio
economic crimes, scam, bank frauds, hawala and criminalization of
unknown, have emerged and are multiplying at an alarming pace. politics, etc. hitherto
become adominant feature of a powerful section of society, which These crimes have
criminal activity or engages in it directly. The criminalization ofeither aids and abets
such as terrorism, hijacking, etc., have eroded the faith of politics and crimes
and governance of the country. the people in the legalsystem
The Santhanam Committee, while
and social problcms of corruption, broadlyexamining the various administrative, legal
eight categorics^! and recommended for addition classified the socio-economic offences into
of a new chapter to the Indian Penal
law of the country. The Law
ground that such offences shouldCommission, however, rejected the proposal on the flimsy
be dealt with by special and
self-contained enactments
58. CrPC 1973, s. 2(c): 'Cognizable offence' means an
a case in which 'a policc officer may, in offence for which, and 'cognizable case' means
for the time being in force, arrest accordance with the First Schedule or under any other law
without warrant'
K.D. Gaur, White Collar Crime and its Impact on
Socien' (1976)
SanthanamCommittce Report on the Prevention of Corruption, 1964,JBCI, p. 1.
Vol. S(4), p. I.
(o!. lbid., para 7.3, pp. 53-54. The categories are as
follows:
(|) Offences calculated lo prevent or
obstruct the cconomic development of the countrv and
endanger its cconomic health, (2) Evasion and
of their position by public servants in making of avoidance of taxes lawfully imposed, (3) Misuse
licences and permits and similar other matters, contracts
and disposal of publie property, issuc of
(4) Delivery by individuals and industrial and
commerCal undertaking of goods not in aecordance with agreed
contracts entered into with public authorities, (5) Profiteering, specifications in fulfilment o!
(o) Adulteration of food-stults and drugs, (7) black marketing and hoarding.
Theft and misappropriation of public propcrty and
funds, and (8) Tralticking in licences, permits, etc.
 supplementthe basic criminal law.2
that
Even the Bill for revision of the Penal Code introduced in thc Rajya
Sabba vide
IPC (Amendment) Bill, 1972 could not see the light of the day.
The provisions under the Code can broadly be classified into two
categories, viZ.,
) Gencral Principles, and (ii) Specific Offences. General principles relate to the basic
ounciples of criminal law, criminal liabilityand provisions relating to general exception
trom crimninal liability. These are:
() Introduction, Title and (Territorial operation of the Code) (Chapter 1).
(2) General Explanations (Chapter I).
(3) Punishments (Chapter I).
(4) General Exceptions (Chapter IV).
(5) Abetment (Chapter V).
(6) Criminal Conspiracy (Chapter VA).
(7) Attempts to commit offences (Chapter XXIII).
The specific offences discussed in the Code may be classified into six major
ategorIes as stated below:

VI
(1) Offences Against the State, Army, Navy and Air Force, etc. (Chapters
and VIl).
Welfare]
(2) Offences Against the Public Tranquility, etc. [the Common
(Chapters VIlI, IX, IX-A, X, XI, XII, XII!, XIV, XV and XIX).
(3) Offences affecting the Human body (Chapter XVI). (Corporeal or
(4) Offences Against Property Docunments and Property Marks
Incorporeal) (Chapters XVIl and XVIII).
Relatives of
(5) Offences relating to Marriage and Cruelty by Husband or
Husband (Chapters XX and XX-A).
Intimidation, Insult and
(6) Offences Relating to defamation, Criminal
Annoyance (Chapters XXI and XXII).
discussed in
Table | in brief gives an idea about the various types of offences
the lndian PenalCode. The adjective (i.c., procedural) law is contained in the Criminal
the procedure
I'occdure Code,4 which provides for setting up of criminal courts andIndian
and the Evidence
tor nvestigation, inquiry and trial of the accusedós offences arrive at the
Act, I872" deals with law of evidence on thc basis of which the courts
and
(oncluson about the facts of the case and determine the guilt of the accused
Monounce judgments thereupon.

Iwww-ninh Report of the Law Commission (|966), pp. 10-1.

revision of thc Penal Code.
lony sevond Report of the Law Commission on lP'C, recommended for
186l) which was
The tust general Criminal Procedure Code came into force in I861 (Act 25 of
eplaced by Act 10 of I872 and later by Act S of 1898. Thc Ciminal Proeedure Code 1973, which
wame nto force on the Ist day of April 1974, has replaced the carlier Act of 1898.

Ihe Elenwe Act, I872 (1 of I872) came into force on lst day of September, 1872.
 TABLE 1 20

Specific Offences under the Indian Penal Code

3 4 5 6
Offences affecting comnnon Offences affecing the Offenccs against Property Documents
Otence apantthe State well-being Human Bady. Chapter XVI and Property Marks (Corporeal and Incorporeal)

State, Anny, Nvyand 1. Public Tranquility, I. Affecting Life Chapter XVit Chapter XVIII
Offences affecting
Chapter 17 Air force. Chapter VII Chapter VilI (ss. 299-31 1) (ss. 378-462) (ss. 463-489E) Reputation
(ss. 12-130) (ss. 31-140) (ss. J4-169) 2. Causing Miscarnagc. . Theft 1. Forgery
2. Public Servants Injuries to unborm, (ss. 378-382) (ss. 463-477A)
Chapter IX Exposure of Infants, etc. 2. Extortion 2. Propety and Defamation Criminal
(ss. 161-171) (ss. 312-318) (ss. 383-389) other Marks Chapter XXI Intimidation
3. Election. 3. Hurt (ss. 319-338) 3. Robbery and Dacoity (ss. 478-489) (ss. 499-502) Insult and
Chapter. IXA 4. Wrongful Restraint and (ss. 390- 402) 3. Curency Notes Annoyance
(ss. 171-A-171-I) Wrongful Confinement 4. Criminal and Bank Notes Chapter XXII
4. Contempts of Lawful (5s. 339-348) Misappropriation (ss. 489A-489E) (ss. 503-5 10)
Authority of Public 5. Criminal Force and (ss. 403-404)
Servants Assault (ss. 349-358) 5. Criminal Breach
Chapter X 6. Kidnapping, Abduction of Trust
(ss. 172-190) Slavery, Forced Labour (ss. 405-409) Offences Relating to Marriage
5. False Evidence and (ss. 359-374) 6. Receiving of Stolen
offences Against 7. Rape (ss. 375-376D) Property
Public Justice, 8. Unnatural Offences (ss. 410-414) Marriage Cruelty by
Chapter XI (s. 377) 7. Cheating Chapter XX Husband or
(ss. 191-229) (ss. 415-420) (ss. 493-498) Relatives
6. Coins and Govemment 8. Fraudulent Deeds and Chapter XX-A Criminal
Stamps, Chapter XII Disposition of Property (s. 498-A)
(ss. 230-263A) (ss. 421-424).
7. Weights and Measures, 9. Mischief
Chapter XII (ss. 425-440) Law
(ss. 264-267) 10. Criminal Trespass
(ss. 441-462)
8. Public Health, Safety.
Convenience Decency
and
and Morals,
Chapter XIV
(ss. 268-294A)
Criminology
9. Religion, Chapter XV
(ss. 295-298)
10. Contracts of Service,
Chapter XIX
(ss. 490-492)