Development of Modern Criminal law
Written by: Adv. Akarsh Sharma
Vasco De Gama, an explorer of Portugal, first discovered the passage of India around the Cape of Good Hope, the southernmost point of Africa. Thereafter, the Portuguese began to carry on trade with India. The Portuguese were followed by Dutch. Subsequently, the English came on the scene and began to carry on trade with India. As they were very successful, Queen Elizabeth granted, in 1600, a Charter that incorporated the East India Company. The charter gave the company exclusive right of trading to all parts of Asia, Africa and America, beyond the Cape of Good Hope, eastward to straits of Magellan. It also gave the Company power to make laws.
In 1609, James-I renewed the charter, and in 1661 Charles II gave similar powers while renewing it.
The Charter of 1668 transferred Bombay to the East India Company and directed that proceedings in court should be like unto those that were established in England. The court of judicature which was estb. in 1672 sat one a month for its general sessions and of cases that remained undisposed of were adjourned to “Petty Sessions” which were held after the general robbery. In ordinary cases of theft the offender had to pay monetary compensation, or else he was forced to work for the owner of the article stolen.
In 1683, Charles II Wanted a further charter for establishing a court judicator at such places at the company might decide. In 1687, another charter was granted by which a mayor and corporation were established at Fort. St. George Madras, to settle the small dispute. By these Chargers Englishmen look into Indian work were entrusted with the administration of justice, both civil as well as criminal. In these courts, the power implemented by the authorities were very arbitrary. Strange charges were framed and strange punishments were imposed.
In 1726, the Court of directors made a representation to the crown for power administration of justice in India in civil and criminal matters. Thereupon, Mayors’ Courts were estb. for the proper administration of justice. But the laws administered were random because the Mayor and Aldermen were the Company’s mercantile servants, and they possessed very little legal knowledge. The law that was administered was utterly unsuited to the social conditions of either the Hindus or the Mohammedans.
In 1753, another Charter was passed under which Mayors were not empowered to try suits between Indians; and no person was entitled to sit as a judge who has an interest in the suit. English law was no more applicable to Indians and they were left to be governed by their laws and customs.
In 1765, Robert Clive came to India for the third time and succeeded in obtaining the grant of Dewani from the Moghul Emperor. The grant of Dewani included not only the holdings of Dewani Courts but also the Nizamat, i.e., the right of superintending the whole administration in Bengal, Bihar and Orrisa.
In 1772, Warren Hasting took steps for the proper administration of criminal justice. A Fouzdari Adalat was estb. in each district for the trial of criminal offences. With these courts the company’s European subjects had no connection, nor did they interfere with their administration. The Kazi or Mufti sat in these courts to expound the law and determine how far criminals were guilty of the offence charged. The collector of each district was ordered to exercise general supervision over their procedure. In addition to District Courts a Sudder Nizamat Adalat in capital cases and offences involving fine exceeding Rs.100. The officers who presided over these courts were assisted by Mohammedan law officers. The scheme of justice adopted by Warren Hasting had two main features:
- He did not apply English law to the Indian provinces
- Hindu and Muslim laws were treated equally.
The administration of criminal justice remained in the hands of the Nawab, and therefore, Mohammedan criminal law remained in force. These were the courts in the capital.
In the rest of the country, the administration of justice was in the hands of the Zamindars. In Bengal and Madras, Mohammedan criminal law was in force.
In the Bombay Presidency, Hindu criminal law applied to Hindus and Mohammedan criminal law to Muslims. The Vyavahara Mayukha was the chief authority in Hindu law. But the Hindu criminal law was a system of despotism and priestcraft. It did not put all men on equal footing in the eyes of law, and the punishments were discriminatory.
In 1773, the Regulating passed, which affected the administration of criminal justice. Under that Act, a Governor-General was appointed, and he was to be assisted by four Councillors. A Supreme Court of Judicature was estb. at Fort William Bengal. This court took cognizance of all matters, civil, criminal, admiralty and ecclesiastical. Appeals against the judgment of the Supreme Court were to be tried by a jury of British subjects resident in Calcutta. Any crime committed by either the Governor-General, a Governor, or a Judge of the Supreme Court, was triable by the King’s Bench in England. The charter of justice that laid the foundation of the jurisdiction of the Supreme Court was dated 26th March 1774, and the justice administered in Calcutta remained so until the establishment of the High Court under the Act of 1861.
In 1781, an amending Act was passed to remedy the defects of the Regulating Act. This Act expressly laid down and defined the powers of the Governor-General in Council to constitute provincial Courts of justice and to appoint a Committee to hear appeals therefrom. The Governor-General was empowered to frame regulations for the guidance of these courts. Mohammedan criminal law was then applicable to both Hindus and Mohammedans in Bengal.
In 1793, towards the close of Lord Cornwallis’ Governor-Generalship, fresh steps were taken to renew the Company’s Charter. Accordingly, the Act of 1793, which consolidated and repealed certain previous measures, was passed.
In the mofussil town in Bengal the law officers of the Zilla and City Courts, who were Sudder Amiens and Principal Sudder Ameens, were given limited powers in criminal cases. They used to decide petty theft cases and criminal offences. They could fine up to Rs.50 and award imprisonment, with or without hard labour, for one month only. An appeal from their decision lay to the Magistrate or Joint Magistrate.
Offences for which severe punishment was prescribed were tried by Magistrate, who were empowered to inflict imprisonment extending to two years with or without hard labour. There were also assistant Magistrate and Deputy Magistrate but they had not full magisterial powers. Offences requiring heavier punishment were transferred to Sessions judge. Death sentence and life imprisonment, awarded by Sessions judges, were subject to confirmation by the Nizamat Adalat. An appeal from the decisions of Sessions Judge lay to the Nizamat Adalat. Such was the criminal administration in Bengal up to 1833.
In Madras, District Munsiffs had limited criminal jurisdiction. They could fine up to Rs.200 or award one month’s imprisonment. By Regulation X of 1816, magistrates were empowered to inflict imprisonment for one year. There were also Sudder Ameens who tried trivial offences. Offences of heinous nature were forwarded for trial to the Sessions Judges. Offences against the state were referred to the Fouzdari Adalut. The Fauzdari Adalut was the chief Criminal Court in the Madras Presidency and was vested with all powers that were given to the Nizamat Adalut in Bengal.
The administration of criminal justice in Bombay was on the pattern of Bengal and Madras Presidency with certain minor changes.
The practice and procedure in courts in Bengal, Madras and Bombay were prescribed by regulations that were passed from time to time. In Bengal 675 Regulations were passed from 1793 to 1834; in Madras 250 regulations were passed from 1800 to 1834, and in Bombay 259 Regulations were passed during the same period as madras.
In 1833, Macaulay moved the House of Commons to codify the whole criminal law in India and bring about uniformity. He told the House of Commons that Mohammedans were governed by the Quran and in Bombay, Presidency Hindus were governed by the institutes of Manu. Pandits and Kazis were to be consulted on points of law, and in certain respects, the decisions of Courts were arbitrary. Indeed, laws were often uncertain and differed widely from province to province. Thus the year 1833 is a great landmark in the history of codification in India. The legislature has the power to legislate for Hindus and Mohammedans alike for Presidency towns as well as for mofussil areas.
Accordingly, the first Indian Law Commission was constituted in 1834 under the Charter Act of 1833 to investigate the jurisdiction, powers, rules of the existing Courts and police est. and into the laws in operation in British India; and make reports and opinions prevailing among different races and in different parts of the country. Mr.(afterwards Lord) Macaulay was the president at Macleod, Anderson, and Millet were the Commissioners of the Commission, Elucidating the task before the Commission Lord Macaulay observed, ”I believe that no country ever stood so much in need of a code of law as India and I believe also that there never was a country in which the want might be so easily supplied. Our principle is simply this-uniformity when you can have it; diversity when you must have it; but, in all cases, certainty.” In preparing the Penal Code they drew not only upon the English and the Indian laws and regulations but also upon Livingstone’s Louisiana Code and the Code Napoleon.
A draft Code was submitted by the Governor-General in Council on October 14, 1837. It was circulated to the Judges and law advisers of the Crown. On April 26, 1845, another Commission was appointed to revise the code. This Commission submitted its report in two parts one in 1846 and the other in 1847. The bill so revised remains pigeon-hold. Subsequently, it was revised by Bethune and Peacock who were law members of the Governor-General’s Council. It was presented to Legislative Council in 1856 and was passed on October 6, 1860. It superseded all Rules, Religions, and orders, of criminal law in India and provided a uniform criminal law for all the people in then British India irrespective of caste, creed or religion. It must be said to the credit of Lord Macaulay and his colleagues.
That despite tremendous difficulties, they firmly laid the foundation of Indian criminal law and did excellent pioneering work. The I.P.C has stood the test of more than a century and still largely meets the needs of present-day society. In days when the concept of individualization was unconceived, it defined offences and prescribed separate punishment for each. This indeed, is a recall’s to one’s mind in criminal law of England which still divides offences only into four broad categories of murder, manslaughter, felony and misdemeanour. This is, however, not to say that the I.P.C is a modern Code in every sense of the term and requires little change to meet the aims and aspirations of contemporary society. With the emphasis of penology having shifted from punitive deterrence to reformation and correction, the Penal Code though considered as an advanced Code a century ago, now appears to be an archaic Code by the standards of modern Social Defense. Extra-mural treatment like probation, parole, compulsory aftercare, attendance at work sheds attendance at psychiatric centres, compensation to victims of crime, free or partly paid Community Service etc., are not provided for in the main penal law in India, and had to be brought into existence to some extent through piecemeal legislature like the probation of offenders Act and the like. It is hoped; as and when the code is revised these modern concepts of Social Defense would be incorporated in the body of the Code itself.
The Santhanam Committee on Prevention of Crime felt that the I.P.C, though a very comprehensive compilation, does not fully meet the requirements of our society after a century of its codification. It does cover many segments of our socio-economic life with which we are required to contend today. Though many of these hitherto uncovered fields have since been covered by the piecemeal legislature after independence, the need exists to codify them at one place in the form of one or two separate chapters in the body of the I.P.C. Thus, anti-social acts which could be described as economic offences like profiteering, black marketing, hoarding, adulteration of food-stuffs and drugs, trafficking in license and permits, tax evasion, usury, violation of rules regarding foreign exchange etc. could be grouped in one chapter of the I.P.C. and many such examples which can be coated in this.
Perhaps the most important function of the state is that which it discharges as the guardian of law and order, preventing and punishing all injuries to itself and all disobedience to rules which it has laid down for the common welfare. In defining the orbit of its rights in this respect, the state usually proceeds by an enumeration of the acts which impinge upon them, coupled with an intimation of the penalty to which anyone committing such acts will be liable. The branch of law which contains the rules upon this subject is accordingly described as “Criminal Law”.
It is comparatively modern. The early tendency was to punish offences against the sovereign power by an executive or legislative act, and to treat offences against individuals, even when, like theft and homicide, they were a serious menace to the general welfare, as merely civil injuries to be compensated for damages. The law of Rome continued to be the last to treat as civil delict acts which would now be regarded exclusively as crimes, although, by a long course of unsystematic legislation, it had also attached penal consequences to some of them.
The criminal law of India has been codified in the Penal Code and Cr.P.C; the former Code deals specifically with offences and states what matters will afford an excuse or a defence to a charge of an offence. The Penal Code is the substantive law and the Cr.P.C, the adjective law. Like many other things crime also has certain elements through which the gravity of offence and mindset of the offender is determined. These elements are called mental elements of the crime.
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