CHAPTER 2 Penal Law in India
PSA Pillai: Criminal Law,12th Edition
PSA Pillai: Criminal Law,12th Edition > PSA Pillai: Criminal Law,12th Edition
CHAPTER 2 Penal Law in India
CRIMINAL LAW OF THE HINDU SYSTEM
Arthasastra, Manu Smriti and Yajnavalkya Smriti are the three leading law codes of ancient India. However, it is Manu Smriti
or the Code of Manu,1 which has made a lasting impact on human behavior in India. It contains ordinances relating to law. It is
a complete digest of the then prevailing religion, philosophy, custom and usages observed by the people in India. It lists the
duties of the kings and rules, based on Dharma, of administration of justice by them.
In Manu Smriti, law was discussed under 18 principal heads,2 covering both modern civil and criminal branches of law, which
fell under heads such as gifts, sales without ownership, rescission of sale and purchase, partition, bailment, non-payment of
debt, loans, wages or hire, breaches of agreements and contract, disputes between partners and between master and servant,
boundary disputes, assault and slander, defamation, trespass of cattle, damage to goods and bodily injuries in general. It
specifically recognised assault, defamation, theft, robbery, violence to body, adultery, altercation between husband and wife,
and gambling; as crimes.3 Later on, Manu added cheating, trespass or transgression and fornication to the list of offences.4
These offences were subject to punishment such as censure, rebuke, fine, forfeiture of property, and corporal punishment
including imprisonment, banishment, mutilation and death. The quantification of these punishments by the King was regulated
by a set of principles laid down, and the factors indicated, in the Code itself. Yajnavalkya, following Manu, lays down that the
King should inflict punishment upon those who deserve it after taking into consideration the nature of the offence, the time and
place of occurrence of the offence, and the strength, age, avocation and wealth of the accused. As in other ancient communities,
the practice of paying money compensation was also prevalent in ancient India. However, the Hindu law of punishment
occupied a more prominent place than compensation.
However, Manu Smriti practiced distinction between the higher and lower castes in the matter of giving punishments.
Brahmins, persons belonging to highest caste of the Indian society, and women were exempt from the death sentence. Instead
of capital punishment, a Brahmin was to be banished, as it was considered a greater punishment for him than even the death
penalty. He was to be given lesser punishment in some offences, even a quarter of the prescribed punishment for others. Till
recently, this was the provision of the former Travancore State Penal Code. If a man belonging to a lower caste, i.e. if an
avarna man committed adultery with a Savarna’s wife, say a Namboodiri woman, the man would be awarded the death
penalty. If a higher caste woman, i.e. savarna committed adultery with a lower caste man, she would be publicly humiliated or
cast out of the house and city, or thrown to the dogs, and in some cases, burnt alive. Various tariffs of damages were provided
for different types of assaults and defamation. These practices were common in Malabar until the Indian Penal Code 1860 came
into force.
Hence, Manu Smriti was criticised for its unequal punishment and treating Brahmins above the law. However, a scholar of
criminal law,5 appreciating the scientific basis of this unequal punishment and its underlying basis, justifies such an unequal
punishment treating Brahmins above the law.
A Hindu Code was compiled by the Pandits of Benaras at the instance of Warren Hastings, when the latter was the Governor-
General of India. It was called the Gentoo Code. It provided death penalty for murder. Theft was divided into open theft and
concealed theft, and different punishments were prescribed as in Roman law. The former was punished by fine and the latter by
the most cruel punishment of cutting off the hand or foot at the discretion of the judge. Housebreaking and highway robbery
were punished with the death sentence.
MOHAMMEDAN CRIMINAL LAW
CHAPTER 2 Penal Law in India
Mohammedan criminal law, it is believed, originated from the Holy Koran. It was further expounded through Hadis, the
sayings of the Prophet, Ijmma, i.e. analogical deductions from the text laid in the Holy Koran, and Kiyas, i.e. views of the
learned scholars. Thus, the substantive Mohammedan criminal law has divine origin. What therefore remained for the human
beings was only to prescribe the rules of procedure for its enforcement and administration.
When Mughal rule was established over major portions of India, naturally, Mohammedan criminal law supplanted the ancient
Hindu penal law. It was Mohammedan criminal law, as expounded by the leading doctors of the Suni Mohammedans, Aboo
Haneefa and his two disciples Aboo Yoosuf and Imam Mohammed, that was introduced by the Mughal conquerors whose
power reached its zenith under Akbar (1556-1605).
Mohammedan criminal law classified all offences as incurring of one of these classes of punishments namely:
(1) Kisas or retaliation including diyut—the price of blood homicide;
(2) Hud—Specific penalties—theft, robbery etc.;
(3) Tazeer or discretionary punishment.
Kisas or retaliation applied principally to offences against the person; hud or specific punishment applied to robbery,
mutilation, theft, adultery and some other offences; and tazeer also called seasut or discretionary punishment, applied to all
other cases. Political offences were too vague and were put under the heading ‘destruction of rebels’, without giving any further
details. But homicide was classified very minutely into five grades:
(1) Katl-amd or willful homicide by a deadly weapon—equivalent to our murder;
(2) Katl-shabah-amd or willful homicide caused with an instrument which was not likely to cause death;
(3) Khatl-khata or erroneous homicide, killing under a mistake either as to the person or to the circumstances;
(4) Involuntary homicide by an involuntary act, as where a man falls on another from the roof of a house;
(5) Accidental homicide by an intervenient cause, as where a man unlawfully dug a well into which another person fell
and was injured.
For theft, hands were cut off. Stoning or scourging was the punishment prescribed for illicit intercourse. For various types of
robbery, the punishment was mutilation, death, or both.
Mohammedan criminal law was defective in many respects. It gave no weight to the testimony of unbelievers. In cases where
women were charged with sexual offences, their testimony was also rejected. In such cases, the law was not satisfied with less
than the positive testimony of four men, who are eyewitnesses to the fact and of ascertained credit. It was undoubtedly very
harsh and cruel in certain cases. Death sentence was awarded to a married man, who had sexual intercourse with a woman other
than his wife. The result was, as was remarked by Stephen ‘a hopelessly confused, feeble, indeterminate system, of which no
one could make anything at all’.
Under Mughal rule, civil justice and revenue laws came under the authority known as diwani, whereas military and criminal
justice came under nizamat. On 12 August 1765, Lord Clive obtained from the Emperor of Delhi, whose power was fast
declining, a grant of the Diwani of Bengal, Bihar and Orissa, which gave the Company the power to collect the revenue of
those provinces. By another treaty, entered with Nujm-ul-Dowla, the subedhar, in February 1765, the Company acquired the
nizamat from him. Still, until 1790, his deputy, the naib nazim with his nizamat adalat at Murshidabad continued to administer
criminal justice over the people. Finally, in 1790, the East India Company removed the naib nazim and directly assumed the
duties of the administration of criminal justice.
Under the native system of administration that was in existence in the city of Calcutta, administration of criminal justice was as
follows: There was a nizam, a supreme magistrate, invested with the power to try capital offenders. Just below him was the
deputy nizam, who dealt with lesser offences such as affrays, riots, etc. Below him was the Foujdar, an officer of police who
was the judge of all non-capital crimes. Kotwal was really the peace officer of the local unit dependant on foujdar.
Outside the capital, in the mofussil districts, the authority of the zamindars prevailed and each zamindar had his own civil and
criminal courts in his district. Only in cases of death sentence, the matter had to be reported to the capital before actual
execution.
Page 2 of 8
CHAPTER 2 Penal Law in India
DEVELOPMENT OF CRIMINAL LAW IN INDIA UNDER THE BRITISH RULE
Before the advent of the British, as stated above, the penal law prevailing in India for the most part was the Mohammedan
Law.6 With necessary modifications, it continued to govern the people of India for a considerable period of the East India
Company’s administration, as the latter did not interfere with the thitherto-prevailing penal law of the country. Provisions of
the Mohammedan law, however, were superseded only in cases where the regulations7 and the Mohammedan law prescribed
distinct penalties for the same offence.8
The first major attempt to reform the criminal justice was made after passing of the Regulating Act 1773, under which new
courts were set up. In each district, a criminal court, Foujdaree Adalat, was set up. It composed of Mohammedan officers, a
kazi, a mufti and two maulvis, to try criminal cases in presence of a Collector, a European supervisor, whose duty was to see
that the trial was fairly conducted according to the law by which it professed to be guided. A superior court of revision,
Nizamat Sadar Adalat, was set up at Moorshedabad. It was composed of a daroga, the chief kazi, the chief mufti and three
maulvis. It formed a court of revision as to the proceedings of the Foujdaree Adalat, and in capital cases signified their
approval or disapproval of convictions. In 1793, another reform, in pursuance of the Lord Cornwallis’s Judicial Regulations,
was made. In each district or zilla, a court, composed of a European judge assisted by a Hindu law expert and a Mohammedan
law expert, was set up. Four appellate courts, comprising three judges and three native experts of Hindu and Mohammedan law,
namely a kazi, a mufti and a pandit, were set up at Calcutta, Dacca, Patna and Moorshedabad. All these courts were subject to
the Suddar Nizamat Adalat or Supreme Criminal Court at Calcutta, which consisted of the Governor-General and his council,
with principal native law officers. Thus, this was the first criminal court presided over by a English judge established under the
authority of the Company for the administration of criminal justice to the natives of India. However, subsequently, the
constitution of the Suddar Nizamat Adalat was completely changed. Instead of consisting of the Governor-General-in-Council,
it was composed of civilian judges, and the district or zilla judges were empowered to act as criminal courts. During the same
time, magistrates, who were also collectors, were authorised to hear and determine petty offences such as assaults, and to
punish them with imprisonment up to fifteen days or fifteen strokes of rattan, subject or not to an appeal to the sessions judge.
Thus, the final form of the criminal courts of the East India Company was Suddar Nizamat Adalat, the sessions judges, and the
magistrates.
These courts had jurisdiction over the native Indians only. Alongside this, existed a system designed for the double purpose of
administering English law to the Europeans in India and of serving as a counterpoise in their interest to the great powers vested
in the Governor-General and his council. These institutions were the Supreme Courts and Justices of the Peace.
The Regulating Act of 1773 authorised the Crown to establish a Supreme Court at Calcutta, consisting of a Chief Justice and
three puisne judges. The court was to have power to hear and determine all complaints against any British subjects residing in
Bengal, Bihar and Orissa for any ‘crimes, misdemeanors, or oppressions committed’ by them. The Charter granted under this
Act gave to the Supreme Court within its limits all the authority of the Court of King’s Bench in England. It also provided in
reference to criminal justice that it should be administered ‘in such or the like manner, and form, or as nearly as the condition
and circumstances of the place and the persons will admit of as our courts of oyer and terminer and gaol delivery do or may in
that part of Great Britain called England’. Supreme Courts similar in all respects to the Supreme Court of Calcutta were
established in Madras in 1800 and in Bombay in 1823.
However, this reform in the administration of criminal justice led to a problem. The Britishers on these courts began gradually
to refer to, and rely upon, the English law of crimes, while the criminal courts in the Presidency towns were obliged to follow
their own system of law. Such a practice, obviously, resulted into a non-uniform law of crimes.
The Bombay Province was the first province in India to enact in 1827 a brief penal code, the Bombay Regulation of 1827 (the
Bombay Code or the Elphinstone Code),9 for the mofussil. The Bombay Regulation, incorporating almost all the penal law of
the Bombay Presidency, issued by Mountstuart Elphinstone, the then Governor of Bombay, superseded the Mohammedan
penal law. The Bombay Code, which was extremely simple, short and written more in the style of treatise than in that of a law,
remained in force until it was superseded by the Indian Penal Code 1860 (IPC).
In 1849, when Punjab was annexed to the British Empire by Lord Dalhousie on 29 March, a short Code was drawn up by the
then Governor-General for the Punjab Province as, the Mohammedan penal law, which was in force in Bengal, was not
recognised in the Punjab province.10 The penal law of the Madras, Bengal, Bihar and Orissa provinces and of other territories
acquired by the British, then known as North-West Provinces, was constituted by regulations.
Such was the position of criminal law in the most important parts of India when the government was taken over by the Crown
Page 3 of 8
CHAPTER 2 Penal Law in India
from the East India Company in 1858. However, one needs to go back to the Charter Act of 1833 to trace and appreciate the
development of penal law by the new government.
MAKING OF THE INDIAN PENAL CODE—HISTORICAL BACKGROUND11
The Charter Act of 1833, plausibly to achieve uniformity of laws and judicial systems in all the parts of British India,
introduced a single legislature for the whole of British India. It made the Governor-General of India, for the first time, solely
responsible for promulgating laws for all persons and the Presidency towns as well as for the mofussil.12 This ‘legislature’ was
authorised to enact all laws, whether of provincial13or all-India application. The Governor-General was assisted by an
Executive Council. The Charter Act of 1833, however, provided for the appointment of a ‘law member’ to the Council of the
Governor-General, who was only allowed to sit and vote ‘at meetings for making laws and regulations’.14 Thomas Babington
Macaulay,15 who had a firm conviction that India’s salvation lay in her complete anglicisation, was appointed as the first law
member on the Council. He assumed charge of his office on 27 June 1834.
The Charter Act of 1833 also provided for the appointment of a ‘Law Commission’16 for inquiring fully into, and reporting on,
the state of laws in force in British India and the administration of justice.17 Accordingly, in 1834, the First Indian Law
Commission comprising Thomas Babington Macaulay, Sir John Macpherson Macleod, George William Anderson and F
Millett as Commissioners was constituted. During 1834-36, the Law Commission, under TB Macaulay’s supervision, prepared
the Draft Penal Code.18 In pursuance of orders of the Government of 15 June 1835, the Commission on 2 May 1837, submitted
the Draft Penal Code to the Governor-General-in-Council, who on 5 June 1837 returned it to the Law Commission with an
order to get it printed under its superintendence.19 The Commission printed the Draft under its supervision. The Commission
also carefully revised and corrected the Code, along with the Notes,20 while it was in the press.
It is pertinent to note that the Law Commission did not base its Draft Penal Code on either the then penal law prevailing in
different provinces or the penal law system premised on the Mohammedan or Hindu law. The Commission reasoned:
The criminal law of the Hindus was long ago superseded...by that of the Mohammedans...The Mohammedan criminal law has in its turn
been superseded, to a great extent, by the Regulations. Indeed, in the Territories subject to the Presidencies of Bombay, the criminal law
of the Mohammedans, as well as that of the Hindus, has been altogether discarded, except in one particular class of cases; and even in
such cases, it is not imperative on the Judge to pay any attention to it. The British Regulations, having been made by three different
legislatures, contain, as might be expected, very different provisions.
‘It appears to us’, wrote the Commissioners to Lord Auckland on 14 October 1837, ‘that none of the systems of penal law
established in British India has any claim to our attention except what it may derive from its own internal excellence’. The
Commission also did not think it fit to use the Bombay Code, owing to lack of its ‘superiority’ over the penal law of the Bengal
and of the Madras Presidencies. Justifying its stand and disclosing its sources in preparing the Draft Code, the Commission
observed:
...[W]e have not thought it desirable to take as groundwork of the Code any of [these] systems of law now in force in any part of India.
We have, indeed, to the best of our ability compared the Code with all those systems, and we have taken suggestions from all; but we
have not adopted a single provision merely because it formed a part of any of those systems. We have also compared our work with
most celebrated systems of Western jurisprudence, as far as the very scanty means of information which were accessible to us in this
country enabled us to do. We have derived much valuable assistance from the French Code,21 and from decisions of the French Courts
of Justice on questions touching the construction of that Code. We have derived assistance still more valuable from the Code of
Louisiana22 prepared by the late Mr. Livingston. We are the more desirous to acknowledge our obligation to that eminent jurist, because
we have found ourselves under the necessity of combating his opinions on some important questions.23
On 14 October 1837, the Law Commission submitted the printed Draft Penal Code, along with Notes, to Lord Auckland, the
then Governor-General-in-Council.24 The Governor-General-in-Council, who had a strong desire to take some steps to revise
the Draft Penal Code, referred to the Law Commission opinions received from Presidencies for its careful consideration. The
Draft Code was revised clause by clause by the Commissioners, Charles Hay Cameron and D Elliot, who submitted their first
report on 23 July 1846. These Commissioners submitted their second and concluding report on 24 June 1847. The Draft Penal
Code was then in 1851 referred to the judges of the Supreme Court of the three presidencies, the Advocate-General of Madras
and other judges and jurists for their opinion. Meanwhile, the Court of Directors in London, which was anxious to see the Penal
Page 4 of 8
CHAPTER 2 Penal Law in India
Code enacted as early as possible,25 added a fourth member, Sir Barnes Peacock, to the Commission. The Code was sent to a
committee consisting of JP Grant, Sir Barnes Peacock, James William Colvile, D Elliot and UI Moffatt Willes. The Committee,
after intensive deliberations in a series of meetings, decided to recommend to the legislative council that the Penal Code
originally proposed by the Commissioners under TB Macaulay should form the basis of the system of penal law to be enacted
for India. However, the Committee considered all the suggestions and alterations proposed which they incorporated in the Draft
Penal Code. But it did not intend to recommend any substantial alterations in either the framework or phraseology of the
original. The final and revised Penal Code was prepared and brought in by JP Grant, Sir Barnes Peacock, James William
Colvile, D Elliot and Arthur Buller.
The revised Penal Code was read for the first time in the legislative council on 28 December 1856.26 The Indian Penal Code
Bill was read a second time on 3 January 1857. Thereafter it was referred to a select committee, which was to report thereon
after 21 April 1857.27 The Indian Penal Code Bill, after its second reading, was published in the Calcutta Supplementary
Gazette on 21, 24 and 28 January 1857. It was then passed by the Legislative Council of India, and received assent of the
Governor-General-in-Council on 6 October 1860. It was scheduled to come into force on 1 May 1861.28 It was published in the
Calcutta Gazetteon 13, 17 and 20 October 1860. However, the date of its enforcement, with a view to enabling the people, the
judges and administrators to know the provisions of the new Penal Code, was deferred till 1 January 1862 by the Amending
Act VI of 1861.
Thus, it is evident that the Indian Penal Code 1860,29 which is an outcome of vision, and laborious efforts of about three
decades (1834-1860) of the law commissioners, particularly of Lord TB Macaulay, the main architect of the Code, emerged as
a codified the then prevailing English criminal law.30 Sir James Fitzjames Stephen, paying tribute to Lord Macaulay and his co-
commissioners for their efforts in designing the Indian Penal Code, observed:
I am conscious of being partial critic of this work for many reasons. But it seems to me to be the most remarkable, as I think it bids fair
to be the most lasting, monument of its principal author.—[T]he Penal Code has triumphantly supported the test of experience for
upwards of twenty-one years [in 1883] during which time it has met with a degree of success which can hardly be ascribed to any other
statute of anything approaching to the same dimensions. It is, moreover, the work of a man who, though nominally a barrister, had
hardly ever (if ever) held a brief, and whose time and thoughts had been devoted almost entirely to politics and literature.—[I]t (Code)
deserves notice as a proof of the degree in which the leading features of human nature and human conduct resemble each other in
different countries.31
‘The Draft and the revision’, in his view, ‘are both eminently creditable to their authors; and the result of their successive
efforts has been to reproduce in a concise and even beautiful form the spirit of the law of England; the most technical, the most
clumsy, and the most bewildering of all systems of criminal law’.32
None other than Sir Henry Maine felt that ‘the admirable Penal Code’ was ‘not the least achievement of Lord Macaulay’s
genius’ and hoped that it (Code) ‘undoubtedly destined to serve someday as a model for the criminal law of England’.33
However, its ‘alien character’ made some Indian scholars to resent the importation of the ‘foreign penal law’ in India.34 Sir Hari
Singh Gour, in his Penal Law of British India, though appreciating the fact that the Indian Penal Code is ‘the most important
piece of Indian legislation, was unwilling to join Sir James Fitzjames Stephen in giving tribute to Lord Macaulay, the main
architect of the Code, and to the Penal Code. He felt that the ‘praise’ was ‘lavished upon it by discriminating critics without
close examination’, and ‘solely from the charm of the great name of its reputed author’.35 In 1929, he observed elsewhere36:
The Penal Code is one of the much praised Acts of Indian Legislature and in spite of its many defects has served its purpose fairly well.
Its sentences can hardly be said to be other than monstrous. No civilised country today imposes such heavy sentences as does the Penal
Code. Heavy sentences have long gone out of fashion in England and the odour of sanctity and perfection attaching to the Penal Code
should not deter indigenous legislatures to thoroughly revise the sentences and bring them into conformity with modern civilised
standards.37
The contemporary public opinion of Indians was not favorable to the Code. The drafters of the Code, Indians accused, failed to
honor their ‘promises of simplicity, completeness and general intelligibility’ of the Code, when it was brought to the ‘test of’ its
‘practical application’.38 But interestingly, this opinion seems to be unfounded when one recalls the following observation of
Sir James Fitzjames Stephen made in 1883. He remarked:
Till I had been in India I could not have believed it be to be possible that so extensive a body of law could be made so generally known
to all whom it concerned in its minutest details. I do not believe that any English lawyer or judge has anything like so accurate and
Page 5 of 8
CHAPTER 2 Penal Law in India
comprehensive and distinct knowledge of the criminal law of England as average Indian civilians have of the Penal Code. It is hardly an
exaggeration to say that they know it by heart. Nor has all the ingenuity of commentators been able to introduce any serious difficulty
into the subject. After twenty years’ use it is still true that anyone who wants to know what the criminal law of India is has only to read
the Penal Code with a common use of memory and attention.39
It is pertinent to note that the Indian Penal Code 1860, which has been amended only sparingly since its enactment in the post-
British era, is in operation as a major substantive penal law of India since more than 150 years. Only three chapters, namely,
offences relating to criminal conspiracy, election and cruelty to married women, have been added to its original 23 chapters.
Thematically, the Code may broadly be divided into four segments. Chapters I to V contain general matters relating to the
extent, definitions, punishment, general exceptions, and principles of liability. Chapters VI to XV deal with public matters
between individuals and the state. Chapters XVI to XXII are primarily concerned with offences committed by individuals
against individuals or legal persons other than the state. The last chapter, ch XXIII, is residuary in nature, laying down the
principle of punishment for attempt to commit an offence if no specific provision has been made therefor.
1 Its date according to Sir William Jones is 800 BC, while others place it at about 150 BC.
2 Manu, ch VIII, verse 1. Cited in RC Nigam, Law of Crimes in India, Asia, London, 1965, p 16.
3 Yajnavalkya and Nilkanta also recognised these crimes. Mayukha law that prevailed in Bombay also contains punishments for
assault, theft, violence and adultery.
4 RC Nigam, Law of Crimes in India, Asia, London, 1965, p 16.
5 RC Nigam, Law of Crimes in India, Asia, London, 1965, p 18.
6 Mohammedan law, however, did not generally prevail in the Presidency of Bombay. Hindus were governed by their own criminal
laws. Parsis and Christians were governed by English law. See, Herbert Cowell, History and Constitution of the Courts and
Legislative Authorities in India, sixth edn, 1966, p 199.
7 Before 1833, in each of the three Presidencies—Bengal, Madras and Bombay—the Governor-General exercised legislative powers
under authority from Acts of Parliament. Their enactments were called ‘Regulations’.
8 Regulation VI of 1832 (art 5) absolved the people of Bengal, Bihar and Orissa not professing Mohammedan faith from the
operation of the Mohammedan penal law.
9 Bombay Regulation XIV of 1827.
10 For details see Sir James Fitzjames Stephen, A History of the Criminal Law of England, vol III, Burt Franklin, New York, 1883, pp
295-297.
11 Heavily relied upon: Sir James Fitzjames Stephen, A History of the Criminal Law of England, Burt Franklin, New York, 1883 ch
XXXIII; AC Patra, ‘Historical Introduction to the Indian Penal Code,’ in Indian Law Institute, Essays on the Indian Penal Code,
Indian Law Institute, New Delhi, 2005, pp 33-44, and RC Nigam, Law of Crimes in India, Asia, London, 1965, pp 20-24.
12 Charter Act of 1833, s 39.
13 The local governments either themselves sent legislative proposals to the Centre or, after 1854, got them introduced there through
their sitting representatives. This state of things continued until 1861 when legislative power was restored to the Governments of
Bombay, Madras and Bengal. [See Preamble to, and s 44 of, the Indian Councils Act 1861].
14 Charter Act 1833, s 40. Two decades after the Charter of 1833, a sort of Legislative Council, comprising members of the Supreme
Council, one representative each from the local governments and two judges of the Supreme Court of Calcutta, was established to
assist the Governor-General in discharging his legislative function [vide s 22 of the Charter Act of 1853].
15 It was initially offered to Sir James Stephen.
16 Charter Act of 1833, s 40.
17 By virtue of the Charters of 1833 and of 1853, Law Commissions were appointed in 1834, 1853, 1861 and 1879. Of these four Law
Commissions, the first and the last worked in India while the second and the third had their sittings in England. No Indians were
appointed as commissioners, and the law of England was used as a basis. The British Indian civil and criminal statutes, in
consonance with this policy, had been enacted without owing to their origin to the institutions, texts or their commentaries of the
pre-British India texts of Hindu or Mohammedan law. The Law Commissioners, though theoretically conscious of the importance
of the relation of the Indian customs, usages, laws and institutions to the new laws to be enacted for the governance of the people in
India, did not attach importance to the ancient customs, usages and laws in India while formulating new laws. See generally, BK
Acharyya, ‘Codification in British India’, in Physiognomy of the History of Codification in British India, 1914, p 40.
Page 6 of 8
CHAPTER 2 Penal Law in India
18 Without injustice to any of colleagues of TB Macaulay on the Indian Law Commission, the Draft Penal Code may be attributed to
Macaulay. ‘The illness of two of the three colleagues threw the work entirely on me’, wrote Macaulay on 15 June 1837. See Lady
Trevelyan, Miscellaneous Work of Lord Macaulay, vol 1, Harper, 1880, p 417.
19 Officiating Secretary JP Grant’s letter dated 5 June 1837 to the Law Commission, National Archives of India, Legislative
Department Act of 1860, No. XLV, Part I.
20 Notes (lettered ‘A’ to ‘R’)—each itself an essay—appended to the Draft Penal Code explained and defended every
21 French Code 1810.
22 Code of Louisiana 1821.
23 Cited from AC Patra, ‘Historical Introduction to the Indian Penal Code’, in Essays on the Indian Penal Code, Indian Law Institute,
New Delhi, 2005, p 33, at p 37. Sir George C Rankin supported the Commission’s wisdom of taking the English law as a basis of
the Penal Code on the ground that since the time of Cornwallis it had been chose jugee that the criminal jurisdiction could not be
exercised without regard to British notions of justice, whether in substance or in method, and the Regulations had in fact introduced
much law upon that footing—apart altogether from the fact that the Presidency towns had worked with English law since 1726.
‘What profit was to be expected from going to other systems for a model?’, he quipped. See GC Rankin, ‘The Indian Penal Code’,
vol 60, Law Quarterly Review, 1944, p 37, at p 43.
24 Macaulay, Macleod, Anderson and Millett, A Penal Code prepared by the Indian Law Commissioners and Published by Command
of the Governor General of India, Pelham Richardson, 1838.
25 Letter-Legislative Department no 15 of 1854 dated 5 April 1854 addressed to the Governor-General-in-Council.chapter of the Draft
Code.
26 National Archives of India, Legislative Department, Act No. XLV of 1860.
27 Supplement to the Calcutta Gazette, dated 28 January 1857.
28 Section 1 of the Penal Code originally enacted stood as: ‘This Act shall be called the Indian Penal Code and shall take effect on and
from the first day of May, 1861, throughout the whole of the territories which are or may become vested in Her Majesty by the
Statutes 21 and 22 Victoria, Chapter 106, entitled ‘An Act for the better government of India,’ except the Settlement of Prince of
Wales’ Island, Singapore and Malacca.’
29 Act no. XLV of 1860. The Draft Penal Code remained as a draft for no less than 22 years probably due to the ‘extreme aversion to
any changes which boldly and definitely replaced native by European institutions’. The great mutiny and unsettled conditions that
prevailed in India also contributed to the delay. The end of the mutiny and the transfer of the government from the company to the
Crown gave an extraordinary impetus to legislation. As a result of that impetus, amongst other measures, the Penal Code was
passed and was brought into force from the 1 January 1862. The Penal Code did not become the law precisely in the shape in which
it was drawn as it was subsequently revised by the Legislative Council and by law commissioners. For details see Sir James
Fitzjames Stephen, A History of the Criminal Law of England, Burt Franklin, New York, 1883, pp 299-300.
30 The Indian Penal Code’, observed by Sir James Fitzjames Stephen, ‘may be described as the criminal law of England freed from all
technicalities and superfluities, systematically arranged and modified in some few particulars (they are surprisingly few) to suit the
circumstances of British India’. See Sir James Fitzjames Stephen, A History of the Criminal Law of England, vol III, Burt Franklin,
New York, 1883, p 300. Whitley Stokes also opined that the Code’s ‘basis is the law of England, stripped of technicality and local
peculiarities, shortened, simplified, made intelligible and precise’. See, Whitley Stokes, Studies, vol 1, p 126; see also GC Rankin,
‘The Indian Penal Code’, vol 60, Law Quarterly Review, 1944, p 37.
31 Sir James Fitzjames Stephen, A History of the Criminal Law of England, vol III, Burt Franklin, New York, 1883, at 299.
32 Lady Trevelyan, Miscellaneous Work of Lord Macaulay, vol 1, Harper, 1880, p 417.
33 Sir Henry Maine, Village Communities in the East and West, 1871, p. 115. Cited in GC Rankin, ‘The Indian Penal Code, vol 60,
Law Quarterly Review, 1944, p 37, at p 47.
34 See Banga Darshan, Pous, 1279 BS, December-January, 1872-73.
35 Hari Singh Gour, Penal Law of British India, vol 1, fourth edn, Introduction, at p CLXXXVIII.
36 Madras Law Journal, vol 57, p 60. Cited in GC Rankin, ‘The Indian Penal Code’, vol 60, Law Quarterly Review, 1944, pp 49-50.
37 However, referring to Note ‘A’ to the Draft Penal Code wherein the commissioners in 1837 hinted that sentences might be
decreased if prisons were better managed and expressed the hope that it would be shortly found practicable to reduce the terms of
proposed imprisonment, Sir George C Rankin has not taken the criticism. Further, he reminded that the Code when prescribes
punishments prescribes maximum amounts and that no court is in general obliged to pass any higher sentence than it thinks
sufficient. Ibid, p 50.
38 Hindu Patriot, 29 January 1857. Cited in RC Nigam, Law of Crimes in India, Asia, London, 1965, p 24.
39 Sir James Fitzjames Stephen, A History of the Criminal Law of England, vol III, Burt Franklin, New York, 1883, p 322.
Page 7 of 8
