SPECIAL REPORTS OF THE INDIAN LAW COMMISSIONERS. REPORT ON THE INDIAN PENAL CODE. From the Indian Law Commissioners to the Honourable the President of the Report on the Indian Penal Code. 1. WE have the honour to submit a Report on the Indian Penal Code, in pursuance of the instructions communicated to us in Mr. Secretary Bushby's letter, dated the 26th April 1845, as follows:-"The Governor-general in Council is Received "desirous that some step should be taken towards a revision of the Code* with a 13th May 1845. "view to its adoption, with such amendments as may be found necessary, or to its "final disposal otherwise. For this purpose I have been instructed to refer to 6: you for examination, all the opinions received from the several Presidencies as per enclosed list, and to direct your attention to the Act of Crimes and "Punishments' contained in the Seventh Report of the Commissioners on the "Criminal Law of England, with a view to comparison, and the detection of any omissions or other imperfections that may exist in the Code. With these "materials, the Governor-general in Council trusts that you will be enabled to "frame such a report as may assist the Government of India in forming a judg"ment on the merits of the Code at no distant date." 66 66 2. We have with great pains and care examined, compared and digested, the voluminous papers containing commentaries and strictures on the Penal Code transmitted to us with Mr. Bushby's letter, and having reviewed the Code generally with reference thereto, we have directed our more particular attention to the chapters of the greatest importance, namely, those treating "of Offences affect- Ch. xviii, ing the Human Body," and "of Offences against Property," and to those of a Ch. xix. general nature governing the whole, namely, the chapter of "General Explana- Ch. i. "tions," the chapter of "General Exceptions," and the chapter of " Abetment." Chs. iii, iv, 3. Having studied the definitions of crimes and the rules and penal provisions contained in those chapters, with the aid of the lucid and able expositions of the principles upon which they are framed which are afforded in the valuable notes appended to the Code, we turned to the instructive Reports of the Commissioners on the English Criminal Law, and to the Digest of Crimes and Punishments contained in their Seventh Report, and carefully compared the two systems, with reference occasionally to the Code Penal of France and Mr. Livingstone's Code for Louisiana, and with a constant regard to the laws actually administered by the Company's Courts under the several Presidencies. Thus prepared, we proceeded to revise the chapters, taking clause by clause, and considering particularly the criticisms, objections, or suggested amendments, which we had previously noted as worthy of remark. 4. Our work performed in this manner has necessarily occupied a great deal of time, and the observations we have thought it proper to offer have extended to a greater length than we anticipated. 5. The following Report is a record of those observations, prefaced by a general notice of the papers referred to us for examination, and some observations suggested by criticisms of a general nature contained therein. We submit it as affording The printed Draft of a Penal Code prepared by the Indian Law Commissioners, and submitted to the Government of India under date the 14th October 1837. Report on the affording a sample from which your Honor in Council will be able to form a REPORT. Her Majesty's 6. The papers transmitted with Mr. Bushby's letter comprised Reports from the following Judges of Her Majesty's Supreme Courts : Calcutta, the Hon. Sir J. P. Grant, Puisne Judge. Sir H. W. Seton, Puisne Judge. Sir R. B. Comyn, Chief Justice. Bombay Sir E. J. Gambier, Puisne Judge, now Chief Justice. Sir J. Awdry, Puisne Judge, afterwards Chief Justice, a Report from the Advocate-general at Madras, Mr. G. Norton, and one from the Company's Standing Counsel at Calcutta, Mr. J. Cochrane. Also a Report from the Sudder Court for the North Western Provinces under the Presidency of Fort William in Bengal, and separate Reports from twot of the Judges of the Sudder Court at Madras, and three of the Judges of the Sudder Court at Bombay, accompanied by Reports from the Judges, Magistrates, &c., subordinate to the said Courts respectively, and a separate Report from Colonel Sleeman, Commissioner for the suppression of Thuggee. 7. Of the Judges of Her Majesty's Courts whose reports are above mentioned, Sir J. P. Grant, Sir E. J. Gambier and Sir H. Compton, have not entered into a particular examination of the Code. 8. Sir J. P. Grant states that he considers it incompatible with his duties as a judge to undertake the task of reviewing the Code and giving his opinion upon it, concluding with the following words, "I confess that I cannot set a limit to "the number of years which it would be necessary for me to devote exclusively "to the consideration and study of such a Code, and of all the large and intricate "and apalling questions with which it must be of necessity surrounded, if I could "think it consistent with my judicial duties, and the measure of my learning and "capacity, to undertake so vast a task in so untried a path of speculative juris"prudence and legislation." 9. Sir E. J. Gambier says, "I have always entertained the strongest doubts of "the propriety or expediency of promulgating any Code of Law which professes "to be more than a compilation and a better arrangement of those enactments "which have previously been in force, and which former experience has sanc"tioned and approved; and I have always thought that such a body of law should be " modified by those additions and alterations alone of which the same experience "has evinced the utility or the need. To do more than this, to put forth a body "of law which is not even founded upon any previously existing system, and to "clothe the enactments in language which is as new to those who are to dispense "the law as to those who are to live under it, appears to me a mode of proceeding "irreconcilable with the maxims of practical wisdom, and one calculated to intro"duce a degree of confusion and difficulty which has never yet been found in "administering the criminal justice of civilized country.' "Such (he adds) being my general opinion on the Code in question, I do not "enter into the consideration of the different parts of it." any 10. Sir H. Compton professes not to attempt a criticism of the work of the Law Commissioners, or of its arrangement, or particular provisions, but to state the grounds upon which à priori he is of opinion that the Code they have prepared should not be adopted. In the first part of his elaborate paper he endeavours to show, that in preparing the Penal Code in the manner in which it has been prepared, as a general system of Criminal Law for India to be substituted for all the systems which now prevail, the Law Commissioners have done what was not intended The whole Code consists of 488 clauses, of which 233 clauses are comprised in the chapters reviewed in this Report. + Mr. W. Hudleston and Mr. A. D. Campbell. Mr. Giberne, Mr. Pyne and Mr. Greenhill. Report on the tended by Parliament, while they have omitted to do" what was contemplated Indian Penal Code. "and commanded by Parliament," and that if in taking this course they were guided by instructions from the Governor-general in Council, such instructions were unwarranted, for "the Governor-general in Council had not legal power to dispense with the directions contained in the Act of Parliament, which, in fact, "created their own authority." 11. Passing from this preliminary objection, and, for the purpose of discussion, supposing that all that has been directed by Parliament has been substantially done, and that the Law Commissioners have been instructed to prepare a Code, he proceeds to consider the three following questions :- 1st. Whether it is expedient, if practicable, " at once to change the penal "jurisprudence of all British India?" 2d. "Whether it is practicable to form one system of law that can, or 3d. "Whether the Code which has been proposed is likely to produce the "benefits the Law Commissioners profess to expect from it?" 12. The first question he regards as decided already by Parliament, the language of the Act of Parliament plainly expressing, as he thinks, that " it was not "the intention of the Legislature, in short that it was not expedient to change the "whole penal jurisprudence of British India." 13. On the second question he refers to the experience of similar legislation in other countries, and averring that it has not produced the benefits expected from it " even with people who have long been subject to the same form of government, "and who profess the same creed, and that hitherto there has been found an in"herent difficulty in framing any system of written law," he concludes that "it. may well be doubted whether it be practicable, if expedient, to make penal enact"ments that may be equally applicable to every description of person in every part of British India," and intimates his opinion that " with due research and "inquiry there may be found in the systems of penal law which now prevail in "British India, sufficient and sound materials for making such alterations and "amendments in this branch of jurisprudence as the present form of government " and the condition of the people may require." 14. Lastly, with respect to the Code prepared by the Law Commissioners, or rather (for he professes not to have examined the Code itself) to the description of it contained in their letter to the Governor-general in Council with which it is prefaced, and with reference particulary to their reasons for framing "illustra"tions of their definitions," and to their avowed desire to limit the power which Courts of Justice possess of putting their own sense on the laws, he argues that "similar attempts to simplify Criminal Codes have utterly failed, and that it is no longer considered useful to attempt to render them perfect by the introduc"tion of all possible cases, which after all is deemed an impossibility." 15. He insits on "the importance of procedure," in order "to show that "until we know what system the Law Commissioners intend to recommend, we "cannot sufficiently examine or estimate the particular provisions of the Code "which has been framed.". 16. Of the other Judges above named, the reports of Sir H. Seton and Sir R. Comyn contain comments upon details, as well as general remarks and criticisms upon the plan of the work and the principles laid down in it, and expounded in the notes. The report of Sir J. Awdry consists of "general observations "which respect the character of the whole work," which he intended to follow up with remarks upon the practical details, an intention which it is much to be regretted he did not fulfil. 17. Sir H. Seton, speaking of the expediency of framing a Code for this country at the present time, observes, that "the best justification of it seems to "be found in the necessity of some system, the absence of any satisfactory one, "and the hopelessness of constructing a more perfect one, except by means of "successive improvements upon this," adding that "if the attempt were to be delayed until all the information which theoretically might be considered "desirable were obtained, it could never be made." 9. A 3 18. Having Report on the Indian Penal Code. 18. Having submitted "a few observations respecting Codes generally," he proceeds to examine the one now under consideration. He remarks first the number of new offences created by it, and states his own views as to the desirableness of extending as far as possible the operation of compensation, and limiting that of punishment. These views, he observes, are not suggested as opposed to those contained in the Code, but he thinks it may fairly be questioned whether they are sufficiently kept in view in the multitude of new offences created by it. 19. He next adverts to the language of the Code, and more especially to the definitions of crimes contained in it. He observes that Criminal Legislation demands plain language and definite precepts, but how far this is supplied by the Code with all the assistance derived from its illustrations, he thinks questionable. He remarks that the object seems to have been to exclude judicial discretion, but that however desirable it may be to limit judicial discretion, it is in vain to attempt wholly to exclude it by definitions, however illustrated. 20. He says generally, that "the Code itself furnishes abundant reasons "why it should not be put into operation, until the whole system is completed." This, he adds, "will afford the means of extending civil rights and remedies, "and may be found to modify or supersede many of the present provisions " of it." 21. His observations upon the details of the Code are submitted in a separate paper. 22. Of these observations and the criticisms in his report, he says, they "are "made with freedom, but not in a hostile spirit, not without a just sense of "the great difficulty of the undertaking, of the pains bestowed upon the execu"tion of it, and above all of the masterly manner in which the principles con"nected with it are discussed and developed in the notes," 23. Sir R. Comyn remarks, that "his own experience has been almost exclusively confined to the administration of Criminal Law at the Presidency of "Fort St. George under the English system," and observing of that system that "it is built up on notions not unfrequently inapplicable to the Native society of "India, and too often clogged by technical subtleties, which, if intended to pro"tect the innocent, occasionally assist in the escape of the guilty," he says, that "he certainly should be very far from advocating the extension of it beyond the "limits of the several Presidencies, whilst he thinks it highly desirable that, "if the Mofussil is to be governed by Regulations emanating from British "authority, these should be assimilated throughout the territory as far as the "nature of things may permit," therefore "in reviewing the proposed Code, "he has endeavoured to allow himself to be as little influenced by the prejudices "of education and professional habits as could reasonably be expected, and to "consider himself called upon to remark upon an entirely new compendium of "law, by which the persons and property of those who reside in India, under "the British dominion, may be best protected." 24. He observes, that he has found himself embarrassed in adverting to the various provisions of the Code by his ignorance of the manner in which it is proposed to carry them into effect, and expresses an opinion that under the system of criminal pleading now in force at the Presidencies, it would be difficult, if not impossible, to frame the accusations so as to meet many of them, adding, that the very introduction of new terms and new definitions would be a great impediment. 25. Before adverting to the particular heads of enactment, he " points out two "or three imperfections which as a system of Criminal Law seems to pervade the "whole." His remarks refer, 1st, to the system of "Illustrations;" 2dly, to the provisions by which "the commission or non-commission of an offence is made to "depend upon what may be passing in the mind of the party offending at the "time of committing the act laid to his charge ;" 3dly, to the provisions" treat"ing acts which are really outrages on society as merely offences to individuals." After commenting on the above heads, he says, "these are the chief general "observations which have occurred to me on an attentive perusal of the text and "the accompanying notes; many objections which had suggested themselves to "me "me in the former have been entirely or in great measure removed by the satis- Report on the factory reasoning of the latter." In reviewing the details he finds occasion for a Indian Penal Code. few brief observations only, upon particular chapters and clauses. With regard to the two important chapters treating of "Offences affecting the Human Body" and of "Offences against Property," he says of the former, that it contains only one provision which appears to him objectionable in substance, of the latter, that "it strikes him as a very successful digest of law for the protection of property." 26. Sir J. Awdry says, he conceives that he is not consulted on the expediency or practicability of codification in general, or as regards the Penal Law of India in particular, but that, assuming the necessity of framing a Penal Code as the only means of providing for the wants of a population which has no system of jurisprudence applicable to all, he is merely consulted as to the execution. 27. The first impression, he says, which was made upon him by the perusal of an early draft of the Code without the preface or notes, was, how simple and practical the whole scheme seemed to be, how little (with certain grave exceptions) departing from the substantial principles of the Law of England. "This impres"sion," he proceeds to say, "has been confirmed by the perusal of the complete "work, and to it has been added a sense of the general comprehension of its plan, "and of the sound reason of large classes of its enactments." Again he remarks, "the enactments are generally so conformable to the sound and universal princi"ples of this branch of law, which is or ought to be less artificial than the civil, "that I should see no great inconvenience and no injustice in its introduction." Contrarily to Sir R. Comyn, he observes, that "the procedure of the English Law seems fully adequate to the general working of the Code," and that he could easily leave to the jury almost any charge it contains." 28. The above, he observes, is "almost the highest praise of which he conceives "the draft of such a work capable, as long as it is not matured by those amend"ments and interpretations which in the course of time will supply its defects, "correct its errors and authenticate the sense of every line. The present involves a bold, and, to a certain extent, a successful attempt to mitigate the unavoidable "evils of the sudden introduction of a mass of enacted law." 29. On the whole he says, he "views this work as an admirable attempt to "comprise in a single statute the difinition of crimes and their punishments, but no more; and considers that those who, because they can point out numerous "and important defects in it, think they show that it is not entitled to that praise, only betray their own ignorance of the extreme difficulty of sound legislation." 66 30. Mr. Norton, the Advocate-general at Madras, in a long report, offers objections to the Code "which not only extend throughout almost all its details, "but also to the legislative principles upon which it is founded." In the conclusion of his report he says, my objection to the Code is to it as a whole. I conceive "it framed on erroneous principles. I deem it constitutionally defective, and that "it requires reconstruction throughout, and to be elaborated upon a different plan "and upon far more extensive data." 66 31. Mr. Cochrane, the Company's Standing Counsel at Calcutta, confines his observations to the chapters under the heads of "Punishments," "General Exceptions," "Abetment," "Offences relating to the Army and Navy," and "Offences against Public Tranquillity," in all which he finds provisions that appear to him highly objectionable. 32. The Sudder Court for the North Western Provinces of the Presidency of Fort William, while they express a doubt whether the plan followed in the preparation of the Code is the best that could have been adopted, yet "willingly "recognise its comprehensiveness, and the general success (as far as can be pre"dicated of any production not submitted to the test of practice) with which it "has been executed." Referring to the opinions given by officers subordinate to the court submitted with their own report, they observe that one only disapproves of the Code absolutely, and that the majority "approve of it with qualifications. A general approbation of the Code, we remark, is expressed by a considerable. number. 33. Colonel Sleeman, Commissioner for the suppression of Thuggee, whose opinion was specially called for by Government on account of his great prac 19. A 4 tical |