Report on the Indian Penal Code. Clause 14. Chapters VII. and VIII. Clauses 15 and 16. of superior jurisdiction, or a judge trying a case in which the sentence rests with the Sudder Court, is comprehended in its terms. It is clear that every person "officially designated as a judge," is included. The illustration (b) shows that a Magistrate sitting on a charge on which he has power to sentence to fine or imprisonment, with or without appeal, is a judge. A magistrate conducting a preliminary investigation, to ascertain whether there is ground to put an accused party on his trial by a judge, it would seem, is not to be considered a judge under this clause. 76. Mr. Norton says he does not know if arbitrators are included as judges. Arbitrators" empowered by law to give a definitive judgment," as, for example, under Regulation XVI. of 1793 of the Bengal Code, and the corresponding Regulation XXII. of 1802 of the Madras Code, we apprehend are included. 77. Under Clause 14 Mr. Norton supposes that the first class of public servants therein described, viz. "every covenanted servant of the East India Company," may be taken to include covenanters with Government by charter-party. This is a mistake, which, considering the positive sense that the term "covenanted servant" bears in the Company's territories, we deem to be most unlikely. 997 78. Mr. Norton notices the comprehensiveness of some of the other descriptions of public servants, and observes on the whole, that he "can hardly tell "what existing person may not be included under the term 'public servant. Supposing the several descriptions he specifies to be as comprehensive as he takes them to be, yet it does not appear to us that they are faulty in this respect, with reference to the provisions in the two chapters relating to public servants, in the application of which recourse will be had to them. We think they will be found sufficiently distinct and definite for the purpose they are to serve. We have no apprehension that there will be any difficulty in determining who are positively excluded as not falling under any of the descriptions in Clause 14. 79. It is questioned by one officer whether Juwabnevisses, Gomastahs, and other servants of that class, come under any of the descriptions in this clause so as to be subject to the provisions of Clause 138. It seems to us that as servants whose duty it is "to make " or or "keep documents," they fall under the 5th, 10th or 11th description, according to the department in which they may be employed. 80. With reference to Clauses 15 and 16, Mr. Norton says, "It appears to "me an incorrect position to include (as may be) highway robberies among "frauds,' as by 'causing wrongful gain to one party by means of wrongful loss "to another party. Wrongful gain" and "wrongful loss" are explained in Clause 15; and in Clause 16 it is said, "Whoever does any thing with the "intention of causing wrongful gain to one party, by means of wrongful loss to "another party, is said to do that thing fraudulently." In the definition of theft in Clause 363, a chief ingredient is the intention" to take fraudulently any thing "which is property." It is said in Clause 375 that theft is "robbery "if attended with certain aggravations; hence arises Mr. Norton's remark, that by the definition in Clause 16, highway robberies may be included among frauds. The remark, we think, does not affect the correctness of the definition of the term "fraudulently. The propriety of using this term in the definition of theft and robbery will be considered in the proper place. 81. With reference to these and other clauses in which the term " property is used without a definition of it, an officer observes, that in discussing the Code with Natives the meaning of the term was questioned; and he suggests that it is a point on which disputes are likely to arise. 82. In the Book of Definitions annexed to Mr. Livingstone's Code, it is said that the term "property conveys a compound idea composed of that which is its "subject, and of the right to be exercised over it." We believe that the term property" is every where used in this Code so as to be applicable exclusively to "that which is its subject," and we imagine that the expression so used was thought by the framers of the Code to be sufficiently intelligible by itself, and as clear as it could be made by the help of any set of words in the form of a definition. And so far as we have considered the provisions relating to "property," and the illustrations thereof, it does not appear to us that there is need for any explication of the term. In this view we are confirmed by finding that there is no no question raised about it, in the papers referred to us, by any one but the individual whose observation we have noticed. Report on the Indian Penal Code. 83. Referring to Clauses 17 and 18, Mr. Norton says, "it appears both arbi- Clauses 17 and 18. trary and inconsistent to attribute possession to cestuique trusts and to guardians, "of those things which are put into a wife's or servant's possession in trust for "the husband or master, or into an idiot's possession," as, for instance, without "the consent or knowledge of the husband, master or guardian." And Mr. Greenhill suggests that words should be added in Clause 18, specifying that the possession of the idiot, &c. is "with the knowledge of the guardian." The objection would have weight, we think, if such constructive possession could be charged against the party so possessing, as a criminal possession, in order to bring him. within the definition of any offence, and to render him liable to a penal prosecution. But we are not aware that the clauses in question are capable of being so perverted under any of the provisions of the Code; and they appear to be necessary with a view to precision in criminal charges affecting other parties in respect of property so situated, in which it may be material to declare in whom the possession rested at a certain time, as, for example, in charges of theft under See Note N. p. 76 Clause 363. and 77. 84. Upon Clause 19, which explains that "property is not said to be in the Clause 19. possession of any party other than a person," and upon the illustration which shows that property is not to be considered as in the possession of the Government of India, the Bank of Bengal, &c., but of the persons in trust for those parties, Sir H. Seton observes that "the sole object of this explanation seems to "be to convert theft from a body of persons into criminal breach of trust, see "Clause 363. If so," he asks, "whether it does not fall under the rule as to general exceptions, Note B., page 15, viz. that it ought to be appended to the "rule which it is intended to modify." He asks again," why should not pro"perty in the possession of a body of persons be protected from theft? It is so by the Law of England." To these remarks and questions it may be answered that property belonging to a body of persons is protected from theft committed by any but the person who has possession of the property in trust for the owners. Such a person making away with the property committed to his keeping by a body of persons is not guilty of theft, but of a criminal breach of trust. See Illustration (x) under Clause 363. Any other person stealing such property will be guilty of theft, but of theft from the person who, according to the illustration under Clause 19, is considered to have possession in trust for the body to which the property belongs. 85. Upon Clause 21, explaining the signification of the word "documents," Clause 21. Sir H. Seton puts the following questions: 66 Why should the term 'document,' which in a popular sense has a more "extensive meaning, be limited to writing, which, with the explanation given, "would exactly convey what is meant?" 66 Why should a Gazette, a Proclamation, &c., cease to be documents? they "are usually classed among documentary evidence by the English Law?" "Whether the explanation has not reference solely to the chapter relating to "offences relating to documents, and ought not therefore to have been inserted " in it ?" 86. Mr. Norton also says it appears an arbitrary definition of a document to confine it to handwriting. 87. Mr. Greenhill observes, that a printed or lithographed paper bearing the seal or stamped signature of a person unable to write, would not be a document under the explanations given in this clause. He alludes to this, he says, as seals are used in India without handwriting. 88. The term "writing" which Sir H. Seton suggests to be used instead of "document," as conveying exactly what is meant, is defined in the Digest of the Art. 3, English Criminal Law Commissioners "to signify any material on which any XXIII. "words or figures, at length or abridged, are written, printed or otherwise expressed, "or any map or plan is described." In Mr. Livingstone's Book of Definitions it is explained that "wherever the contrary does not appear from the context, the "word writing means not only words traced with a pen, or stamped, but printed "or engraved, or made legible by any other device." It is obvious that these explanations 19. C 2 Chap. Report on the explanations of the term "writing," make it more comprehensive than the word Indian Penal Code. "document," as it is defined by the Indian Law Commissioners, and they seem Clause 22. Clause 26. Clause 28. Clause 31. to be open to the objection that they give a meaning to the term more extensive than that which the word "writing" conveys in a popular sense, as the explanation of "document" in the clause under consideration, on the other hand, as Sir H. Seton remarks, comes short of the popular sense of its meaning. Another difference between the definition of "writing" in the Digest of the English Criminal Law Commissioners and that of "document" in this clause, is that the former applies to the material on which words are written, &c., whereas the latter applies to the matter written, &c. Mr. Livingstone's definition of " writing" also applies to the words written, &c. Both the definitions referred to would embrace the seal used instead of a signature, or the stamped signature alluded to by Mr. Greenhill, which the definition in this clause appears to exclude, but which we incline to think ought to be included. We are not aware indeed of any reason why the definition of "document" in this Code should not be as wide as that of "writing" in the Digest of the English Criminal Law. It is dangerous, however, so much to extend the terms of a definition, lest what depends upon it in the sequel should be deranged. Perhaps Sir H. Seton's suggestion of placing the definition in the chapter" of Offences relating to Documents" for which it seems to have been framed might be adopted on the principle stated in the 2d para. of Note B. in regard to special exceptions, altering it so as to include a paper bearing a seal intended to serve instead of the signature of a name, or the stamped signature of a name intended to serve instead of the same written with a pen. 89. With reference to Clause 22, which explains what is meant by the words, "valuable security," Sir H. Seton asks "would not a cancelled instrument be 'a valuable security' under this clause?" We think not; for an instrument available for the purpose for which it was made is clearly what the clause intended '; a cancelled instrument, therefore, though by the cancelling of it a legal right may be "extinguished," inasmuch as the instrument upon which such right depended is thereby voided, does not fall within its scope. 90. In Clause 26 it is explained, that "a person is said to cause an effect "voluntarily' when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew to be likely "to cause it." The latter part of this definition, which goes beyond the intention, to the obvious consequences of an action, is highly approved by Sir J. Awdry, but is disapproved by others. We shall consider the point in reviewing the chapter of General Exceptions. 91. Colonel Sleeman objects to that part of Clause 28, which makes the term "illegal" applicable to every thing "which furnishes ground for a civil action." These appear wide words, but we think it would be difficult to restrict them without the risk of excluding something that ought to be included. Generally we apprehend it will be found unobjectionable to designate as illegal any thing done or omitted to be done by a man for which he is liable to a civil action. 92. Upon the explanation of "intelligent consent" in Clause 31, Sir H. Seton questions whether the word "consent" does not necessarily import the capacity of the party giving it, implying that the definition is unnecessary. Mr. Norton observes, that it is arbitrary and inconsistent to attribute to "intelligent "consent" that consent" which may have been given under deception," implying that there ought to be a definition, but that the one which is given is too wide. Sir H. Seton we conceive would construe the word "consent," which he appears to consider sufficient by itself, to include consent given under deception, supposing the party to be capable of consenting at all, or able to understand "the nature and consequences of that to which he gives his consent." Even supposing with Sir H. Seton, that the definition is superfluous, which we do not think, it can do no harm. We do not think it would be proper to consider a consent given under deception" as not an "intelligent consent. 66 93. It has been suggested that it would be dangerous to put consent given under the influence of "passion" out of the pale of "intelligent consent," as in the definition, and we are rather inclined to that view. 94. It 94. It would seem that the definition of "a person of Asiatic blood" contained Report on the in Clause 32, has no relation to any provisions of the Code, but those contained in Indian Penal Code. Clauses 43 and 44 in the Chapter of Punishments, and it appears to us that on a principle analogous to that stated in the 2d para. of Note B. on the Chapter of Clause 32. General Exceptions, it should be introduced as an explanation immediately after these clauses, in connexion with which we shall examine it. CHAPTER III. GENERAL EXCEPTIONS. 95. In clause 26, as already noticed, it is explained that "a person is said to cause an effect' voluntarily' when he causes it by means whereby he intended "to cause it, or by means which at the time of employing those means he knew "to be likely to cause it." In Clause 69 in this chapter, it is declared that nothing which is not intended to cause death and which is not known by the doer to be likely to cause death, is an offence by reason of any harm which it. "may cause," &c. if the sufferer has consented to suffer that harm, &c. In Clause 70, it is declared that "nothing which is not intended to cause death is an "offence by reason of any harm which it may cause," &c., if the sufferer has consented to suffer that harm, &c. In Clause 294 in the chapter of Offences affecting the Human Body, it is set forth that whoever does any act "with the intention of thereby causing, or with the "knowledge that he is likely thereby to cause, the death of any person, and does "by such act cause the death of any person, is said to commit the offence of voluntary culpable homicide."" 66 96. Sir J. Awdry observes, with reference to the above explanation and the definitions corresponding with it, that "the general purpose of avoiding fiction "and adhering to strict truth is excellent. For this reason I think the Com"missioners have done well in subjoining to intending,' the phrase or knowing that he was likely to produce such an effect,' instead of leaving it to the "legal presumption that a man must be taken to intend the obvious consequences "of his wilful acts." 666 97. Mr. Norton, on the other hand, deems that the Commissioners have erred. Chapter XVIII He says, "It appears to me impossible to read as far as this chapter* without "suspecting that the Commissioners have some peculiar object in distinguishing 66 66 on so many occasions between the doing an act with an intention' to effect a "certain result, and the doing it with a knowledge that it is likely' to produce "that result. Now there appears to me an error in principle in legislating on any such distinction, and I mention it the more pointedly at this opportunity, "because I think the present chapter will afford more than one instance of the uncertainty, and even of the absurdity, which may arise from the applications "of such a distinguishing doctrine. The principle of English law is, that a "man's intentions and designs are to be judged of by the quality of the act done, " and that he shall be presumed to have intended that which his act was naturally likely or calculated to effect. But, if the Commissioners' distinction above "noted is really intended, and is to prevail, in estimating the substantive quality "of an act, it will follow that a man is to be supposed capable of designing a thing by means not at all likely, and which he knows not to be likely, to effect "it, or, on the other hand, he is to be supposed capable of doing a thing which "he knows to be likely to cause a certain effect, and at the same time not to "intend that result." 98. Mr. A. D. Campbell makes the following remarks: "At clause 26 it is "declared, that a person is said to cause an effect voluntarily' either when he "causes it by means whereby he intended to cause it, or, by means which at the "time of employing these means he knew to be likely to cause it.' I greatly doubt "the propriety of the latter part of this definition, especially with reference to "the distinction subsequently drawn by the Commissioners themselves in Note "B., page 17, between acts which they there distinguish as voluntary, yet not "intentional,' that is to say, when the person who caused death did not mean to cause it, but knew that he was likely to cause it. They add, what appears to me "no less important than most appalling- in general, we have made no distinction C 3 between 19. Report on the "between cases in which a man causes an effect designedly, and cases in which Indian Penal Code. "he causes it with the knowledge that he is likely to cause it."" Note B. Page 17. 66 66 They then go on, in illustration of the cases of consent excepted from "this very extraordinary rule, in which, on the contrary, they distinguish the "intent from the knowledge possessed of the likely result, to instance a fatal operation by a surgeon, and a shot fired at a wild beast attacking a man, which "kills the latter; as exhibiting no intent whatever to cause death, yet the pos"session of knowledge that the act was likely to cause it. Now, the only knowledge possessed, in both these instances, seems to me to have been the very reverse of that which is here erroneously stated by the Law Commissioners, and "to have coincided precisely with the intent itself. The knowledge possessed was, that the act of man was, in these instances, the sole means left to prevent, "not to cause, death; and the intent was the very same, not to cause but to pre"vent death. The likelihood decidedly was the prevention of death by the act "of man, and the fatal alternative was not as the Law Commission erroneously state, any likelihood, but the mere improbable result of the failure of his best "endeavours to prevent that death, which, by the act of God, was otherwise quite "inevitable." "But because the Law Commission, in these two instances, intending to give "illustrations of the distinction between 'intent' and 'knowledge of likelihood,' "chance unfortunately to have here quoted two cases, in which they happen on "the contrary to coincide, instead of differing with each other; there is no reason "whatever thence to question the correctness of the most important distinction "here drawn by the Law Commissioners themselves between crimes produced by "intent,' as contradistinguished from such as are caused without intent,' yet are accompanied by a knowledge on the part of the causer of the result' likely to be "produced, and there seems, on their own admission of such distinction, the very strongest reason for doubting the propriety of their having made no such dis"tinction in general.' My decided impression is, that throughout the Code the glimmering here given by the Law Commission of this highly important dis"tinction is altogether lost sight of, and that these two phrases, which, though they may occasionally express the same, may also, as here admitted by the "Law Commission, often express very different, if not opposite things, have "been nearly universally used in the Code, in the most dangerous manner, as really convertible terms." 66 99. It appears to be necessary only to quote the words of the Commissioners in the passage referred to by Mr. Campbell, in order to show that there was no such confusion as he imagines in their views on this subject. 66 66 66 They say, "In general we have made no distinction between cases in which a man causes an effect designedly, and cases in which he causes it with a knowledge that he is likely to cause it, If, for example, he sets fire to a house in a "town at night, with no other object than that of facilitating a theft, but being perfectly aware that he is likely to cause people to be burned in their beds, and "thus causes the loss of life, we punish him as a murderer. But there is, as it appears to us, a class of cases in which it is absolutely necessary to make a dis"tinction. It is often the wisest thing that a man can do to expose his life to great hazard. It is often the greatest service that can be rendered to him to do "what may very probably cause his death. He may labour under a cruel and wasting malady, which is certain to shorten his life, and which renders his life, "while it lasts, useless to others and a torment to himself. Suppose under these "circumstances he, undeceived, gives his free and intelligent consent to take the "risk of an operation, which in a large proportion of cases has proved fatal, but "which is the only method by which his disease can possibly be cured, and "which, if it succeeds, will restore him to health and vigour. We do not con"ceive that it would be expedient to punish the surgeon who should perform the "operation, though by performing it he might cause death, not intending to cause "death, but knowing himself to be likely to cause it. Again, if a person attacked by a wild beast should call out to his friends to fire, though with imminent "hazard to himself, and they were to obey the call, we do not conceive that it "would be expedient to punish them, though they might by firing cause his death, " and though when they fired they knew themselves to be likely to cause his "death." "We 66 |