Law of Crimes
To start with the history of the criminal law in India we should know the roots of it, as earlier, it is mentioned that the law of crimes was in India since Vedic times, Manu a great scholar has mentioned crimes in his writing ‘Manusmriti’ where he has mentioned various crimes, other than this there were some jurisprudential approaches also. Further, there will be the development of criminal law from Mughal rule to British rule to forming of I.P.C.
3.3.1 Law of Crime during Moghul Rule in India
With the decreasing authority of Hindu rulers, their internal fights and opposition provided chances to Muslim invaders to invade and conquer a large part of the Indian Territory and impose their laws for the administration of criminal justice.
The ancient Hindu law of crime thus slowly gave way to the introduction of the Mohammedan Law of crime in Mogul ruled Indian State. The Moghul rule protracted to most parts of India excepting Bombay which remained out of reach of Moghul invaders and was governed by the Hindu Law of crimes until it was invaded by the British company in 1672.
The Mohammedan law of crime was based on the teachings of the Holy Quran. with the expansion of Moghul rule in India, it was found that many of the provisions of Mohammedan criminal law were found insufficient to meet the requirements of a large community, hence certain amendments were made in it by way of Sunna i.e rule of conduct. The Hidaya contained the general principles of Muslim law while Fatwa-i-Alamgir was a collection of case law.
The Muslim law of crimes presented by Moghul rulers, however, failed to provide neutral and fair justice on account of certain inherent shortcomings in it. Its greatest evil lay in its partisan attitude towards Muslims and bias against Hindus in matters of sentencing and law of evidence.
Punishment for different offences was contained in five major heads, namely Quisa (retaliation), Diya (blood-money), Hadd (defined punishment), Tazir (discretionary punishment) and Siyasat (ordinance of the ruler).
The retaliation punishment of Quias was applied to cases of willful killing, maiming or causing severe injury. Under this punishment, the next of kin of the person killed or the person injured had the right to kill or inflict injury to the offender.
The retaliatory killing was to be done with a sword. Where a victim of the crime was a slave, his master had the right to retaliate and take revenge. However, in the case of killing, this right to punishment was subject to the limitation that all the next of kin of the slain person should have wanted its infliction on the killer.
The term Diya signified blood money payable to the victim (i.e the person wronged) by way of compensation. As a substitute to the punishment of Quias, the next of kin of the person killed could claim blood money for willful killing or murder.
Hadd was yet another mode of punishment prescribed under the Muslim law of crime. It meant ‘fixed’ or ‘defined’ punishment wherein the judge had no discretion to change the mentioned punishment. The wrongdoings falling under this category being serious and injurious to the public at large were severely dealt with and carried deterrent punishment. These crimes could not be compounded or compromised. The common forms of Hadd were stoning, flogging, amputation of limbs etc.
The sentence prescribed for unlawful intercourse i.e., Zina was cursing or stoning the criminal, amputation of hands for the offence of theft, death for dacoity, scourging for falsely accusing a married woman of adultery and so on. The offence of Zina required the evidence of at least four male witnesses of repute. If the witnesses were less than the requisite number, they were liable to be held guilty for defamation. The punishment under Hadd could, however, be inflicted only after the completion of procedural formalities.
Tazir was a kind of punishment that was discretionary. It could be in any form such as banishment, imprisonment, reprimand, exposing the offender to public ridicule or marching him through public streets with his face blackened or head shaved. It could be inflicted on the evidence of a man and woman or strong presumption. Commenting on this form of punishment Rakin observed that even cases coming under Quias or Hadd could be dealt with by inflicting lesser penalties under Tazir, where there was some doubt about the guilt of the accused or a legal defect in procedure. Offences like forgery, sodomy, bestiality and those against morality or decency were generally punishable under Tazir.
The offences not covered under any of the aforesaid categories were punishable under Siyasat, i.e., the authority of the ruler. They were typical and meant to enable the ruler to use his discretionary authority for the sake of public tranquillity and maintenance of law and order in the community.
Commenting on the nature of punishment prescribed under the Mohammedan law of crimes, Warren Hastings, the first Governor-General of India 1773 observed that these punishments were founded on lenient principles for the detestation of bloodshed and in practice, the harsh and brutal punishment prescribed under Quias and Hadd could hardly be inflicted because of legal lacunae in the law of evidence and judicial procedure.
As Warren Hasting observed the changes started to begin in the Indian criminal law system, but there is still a vast history behind these changes and a long story to understand how India got its penal code I.P.C which is the modern and present criminal law of our country.