The Indian Penal Code, 1860- A General Introduction and Background

By | November 29, 2018
The Indian Penal Code

The Indian Penal Code is one of the most unique and spectacular Penal Law Code entailing a number of crimes, their scope, nature and punishments thereof. It is best-taken care in the hands of Judiciary, Law practitioners, academicians, students and law learners. The Indian Penal Code indirectly owes its origin to Jeremy Bentham, who is a well-known jurist on the subject of law reforms. The basic premise of the substantive law Code is very much influenced by the British law, however, elements from the Napoleonic Code (1804) and Louisiana Civil Code (1825) have also been derived. The Code is all around recognized as a pertinently drafted code, relatively revolutionary. It has considerably survived for more than 150 years in a number of jurisdictions without major corrections or amendments.

The Indian Penal Code was enacted in the year 1860. In the midst of cataclysmic upheavals, social and political, it stands as a tribute to the genius of LORD MACAULAY who, as the president of the First Indian Law Commission constituted in 1834, said: “Our principle is simply this- uniformity when you can have it; diversity when you must have it; but, in all cases certainty.” The Indian Penal code is a role model in the matter of certainty. During the 143 years of its existence on the statute book, it has undergone the last number of amendments. Indeed, rarely one comes across a judgment stressing the need to fill in any lacuna in the Penal Code due to ambiguous language or otherwise.

History

There was no criminal law in uncivilized society. Every man was liable to be attacked in his person or property at any time by anyone. “A tooth for a tooth, an eye for an eye, a life for a life” was the forerunner of criminal justice. As time advanced, the injured person agreed to accept compensation, instead of killing his adversary. Subsequently, a sliding scale came into came existence for satisfying ordinary offences, which gave birth to archaic criminal law.

The history of criminal law in India may conveniently be studied under three heads, namely:

  1. Ancient Hindu criminal law,
  2. Mohammedan criminal law and
  3. English criminal law.

Ancient Hindu Criminal Law:

Historically, the concept of crime and its distinction from a civil wrong emerged much later after the institution of Kingship and subsequently the State came into existence.

The penal law of ancient communities is not the law of crimes, it is the law of wrongs[1] because in those days there was no such classification of wrongs as torts and crime. There was not much difference in the nature of punishment for the modern varieties of wrongs. Commenting on the same point Federick Pollock and Maitland observed that the English society prior 10th century confused crimes with civil wrongs i.e., torts because the bond of family was far more stronger than that of the community, therefore, the injured party and his kindred could avenge the wrong by private vengeance and self-redress.[2] This view of the ancient penal law, though in case of almost all systems in the world, is not correct in case of ancient Hindu Criminal Law. In the Hindu Law punishment of crimes occupies a more prominent place than compensation for wrongs. Of the leading codes of Ancient India, the Code of Manu is the complete digest dealing with law, religion, custom, and usages then prevalent; assault, battery, defamation, theft, robbery, gambling and cheating, trespass were the main offences of that time and the punishment prescribed for them was based on scientific principles and the highest prescribed punishment was the death sentence. The right to punish individual lay in the in the hands of the individual in western criminal jurisprudence and this right was transferred only during middle ages from individual to the society and later to the State. But in the ancient Hindu law, it was the duty of the king to punish the offender. The Hindu law-givers did not expressly distinguish between civil wrong and crime, still, the difference in penalties and procedure which they have prescribed indicates that they clearly realised in what way the criminal aspect of a differed from its civil respect.

Mohammedan Criminal Law:

After the conquest of the country by Muslims Mohammedan criminal law was introduced in our country, and the Indian Courts applied Mohammedan criminal law in the administration of justice. The Muslims imposed criminal law, Sharias, as they called it on the Hindus whom they had conquered. This was based on the Quran and they believed it to be of divine origin. Since the laws of Quran were inadequate to meet the entire requirement, so certain rules of conduct called Sunna were introduced. Crimes were divided into two classes namely: i) Crimes against God (adultery and drunkenness) and ii) Crimes against man (murder and robbery). The offences against God were considered Public wrong and could, therefore, be punished by the community or society. The offences against the man were private wrongs and therefore could be punished by individuals. All offences for punishment were classified under four broad principles:

i) Quisas(Retaliation)- They applied especially to offences against a person, wilful killing and grave injury and the injured party had the right to inflict like the injury on the offender.

ii) Diyut(Blood money)- In certain cases where no retaliation was allowed the injured party had the right to demand only blood money known as Diyut.

iii) Hadd(Fixed Penalties)- In the case of Hadd the law prescribed and fixed the penalties for certain offences for example- Zina(illicit intercourse), drinking of a vine, theft, highway robbery and accusing a married woman. In case of theft, hands were cut off and for dacoity and robbery, maximum punishment was death.

iv) Tazir (Discretionary punishment)- When no punishment was prescribed, it was at the discretion of the judge to give any sort of punishment.

This type of Mohammedan Criminal law suffered from many defects as many of its provisions were not in conformity with good government, natural justice and common sense.

English Criminal law and development of IPC, 1860:

When the East India Company took over the dominion of Indian dominion, Mohammedan criminal law was in force. In 1765 the Company acquired the Nizamat of Bengal, Orrisa, and Bihar. The Company had to then administer justice for which in the beginning they adopted the policy of status quo. Gradually defects of Mohammedan law were realised, therefore, the first step towards removing those defects was taken by Warren Hastings who tried to do away with the mutilation for dacoity. An effort was made to rationalize the punishment by making it proportionate with the crime. A regulation of the year 1832 provided that in case of a trial for an offence under the regulations of non-Muslim could claim exemption from trial under the Mohammedan criminal law. But the changes so introduced were not applicable to all the Presidencies. Most of them applied in Bengal alone. The result was that different rules prevailed in different presidencies which in turn resulted in conflicts. Therefore a commission was appointed to examine the conflicting features and necessary modifications.

Later on, it was realised that a penal code was necessary. A Penal Code, under the guidance of Governor Elphinstone, was enacted which was known as Elphinstone Code. It consisted of 41 sections only. In 1844 a separate code was drawn for the province of Punjab after its annexation.

An all India Legislature was created by the Charter Act of 1833. The office of Law member in the Council of Governor General was created, Provision was also made for the appointment of a Law Commission.

The first law commission was appointed in 1834 with Lord Macauley, the then Law Minister as its chairman, Sarvshri Macleod, Anderson and Millet were the other members of the Commission. It prepared a draft Penal Code for India which was given for consideration to Governor General of India in Council on 14th October 1837. It was revised by Sir Barnes Peacock, Sir JW Colville and several others. The drafting was completed in 1850 and it was presented to the legislative council in 1856. The bill was passed on October 6th, 1860. It received the assent of the Governor General on the same date and thus became the Indian Penal Code, 1860. The Code came into operation on 1st January 1862.

Structure, Extent and Operation of code:

The Indian Penal Code of 1860, sub-divided into 23 chapters, comprises 511 sections. The Code starts with an introduction, provides explanations and exceptions used in it, and covers a wide range of offences.

The Indian penal code, 1860 (IPC) contains the substantive criminal law; the procedural or adjectival law is contained in the Criminal Procedure Code, 1973 (which replaced the code of 1898) (CrPC) which supplements the former by the rules of procedure. The Indian Evidence Act is also part of criminal law and discusses the evidentiary value in the criminal trial. The IPC defines offences and also provides for their punishment. It extends to the whole of India expect to the State of Jammu and Kashmir which enjoys special status and has its own code, the Ranbir Penal Code which is very similar to the IPC. Every person is liable under section 2 of the code without distinction as to caste, creed, nationality, status, etc., if the offence is committed in India. So if a foreigner commits adultery in India, he cannot be allowed to plead that adultery is not an offence in his country. However, the President of India and the Governors of States under Article 361 of the constitution enjoy special privilege and immunity from criminal liability. In addition to it following privileged persons are also not liable under the IPC: i) foreign sovereigns; ii) ambassadors and other diplomatic agents; iii) alien enemies; iv) foreign armed forces personnel, and v) warships.

Important Amendments to the Indian Penal Code, 1860:

Criminal Amendment Act, 2018:

The Criminal Law Amendment Act, 2018 is additionally a result of such primitive occurrences which shook the conscience and inner voice of the whole country. The demand for making stringent to rape laws more stringent had begun creating because of different youngster assault episodes. The notorious Kathua rape case and the Unnao rape case set off this demand and this brought forth the change of 2018.

After the amendment or the revision, Section 376 deals with three classifications of punishment for assault, aside from assault of ladies by police officials, community workers, members from the military, and so forth.

Section 376(1)

Punishment for the rape of a lady to be a minimum of ten years of rigorous imprisonment which may reach out to imprisonment forever. Therefore, the quantum of punishment has expanded from at least seven years to at least ten years.

Section 376 (3)

Punishment for rape on a girl under sixteen years old has been included by the revision. Punishment in such cases must be a rigorous imprisonment of a minimum twenty years which may stretch out to life imprisonment.

Section 376AB

Punishment for rape on a lady under twelve years old has likewise been included by the change. The punishment in such cases is characterized as a minimum twenty years rigorous imprisonment which may stretch out to imprisonment forever. The guilty party in such cases can likewise be rebuffed with capital punishment.

Along these lines, for the first time, capital punishment has been presented for the offense of assault thinking about the gravity of the offense.

Besides, Section 376DA and 376DB have been included by the revision which manages or deals with punishment for rape on a girl under sixteen years and twelve years individually. The punishment in such cases must be constantly imprisonment of life. Be that as it may, for rape on a girl under twelve years old capital punishment can likewise be granted. Provision (i) of Section 376(2) has been precluded.

The Criminal Law (Amendment) Bill, 2013 (Anti-Rape Bill):

The Act came into power on third February 2013 after the outrage of the whole country behind the homicidal gang rape that occurred in New Delhi the evening of sixteenth December 2012. The Criminal Law (Amendment) Act, 2013, an Indian enactment passed by the Lok Sabha on 19 March 2013, and by the Rajya Sabha on 21 March 2013, accommodates revision of Indian Penal Code, Indian Evidence Act, and Code of Criminal Procedure, 1973 on laws identified with sexual offenses. The Bill got Presidential consent on 2 April 2013 and considered to have come into power from 3 February 2013.

Section 354A – Sexual badgering has been made an impartial offense while prior, a man who makes unwelcome lewd gestures, forcefully shows pornography or requests/demands sexual favours from a lady commits the offense of inappropriate behaviour simpliciter under section 354A; this is deserving of imprisonment of up to three years. Making explicitly shaded comments additionally sums to lewd behaviour, which is deserving of imprisonment for up to one year.

Section 354B – If a man attacks or uses criminal power to any lady or abets such act with the aim of stripping or convincing her to be exposed in an open place, he carries out an offense under section 354B, which is culpable with imprisonment somewhere in the range of three and seven years.  Before this amendment, there was no specific provision regarding this offence.

Section 354C – Any man who watches, or captures the picture of a lady taking part in a private demonstration in conditions where she would, as a rule, have the desire for not being watched either by the culprit or by some other individual at the command of the culprit or scatters such picture shall be punished. Under Section 354C, such a man is held to be guilty.

Before this amendment, there was no specific offence under IPC. However, under Information Technology Act, 2000 both men and women were protected and punishment for the act was up to 3 years and/or fine up to Rs. 2 lakh.

Section 354D – Stalking has been made a particular offense under this new segment. In the event that a man stalks a lady, he might be punished with imprisonment of up to three years for the first time, and five years for the subsequent convictions. Notwithstanding, the offence is liable to specific exemptions like where a man can demonstrate that the acts done were incompatibility of some law, added up to a sensible and reasonable conduct with the end goal to a counteractive action of some wrongdoing.

As per the definition in Section 354D the offence was gender-neutral offence, making the crime of stalking punishable for both the gender whether male or female. However, the Amendment Act of 2013 changed ‘Whosoever’ to ‘Any Man’ making the offence of Stalking a gender-specific offence

Section 375 – Under the new section, a man is said to commit rape if there is:

Infiltration of a penis into the vagina, urethra, mouth or anus of any individual, or making some other individual to do as such with him or some other individual;

Addition of any question or any one part, not being a penis, into vagina, urethra, mouth or anus of any individual, or making some other individual do as such with him or some other individual;

Control of any one part to cause infiltration of vagina, urethra, mouth or anus or anyone a player in such individual or makes the individual do as such with him or some other individual;

Utilization of mouth to the penis, vagina, anus, urethra of someone else or makes such individual do as such with him or some other individual;

Finally, contacting the vagina, penis, anus or breast of the individual or makes the individual touch the vagina, penis, anus or breast of that individual or some other person.

The 2013 Act extends the meaning of assault to incorporate oral sex and the addition of an object or some other body part into a lady’s vagina, urethra or anus.

By- Vasundhara Kaushik

Faculty of Law, University of Allahabad

SOURCES:

  • Ratanlal & Dhirajlal The Indian Penal Code, 1860 33rd Edition Reprint 2012.
  • Indian Penal Code by Prof S.N. MISHRA, 20th Edition, 2016.
  • P.Srivastava’s Principles of Criminal Law, 6th Edition, Reprint 2016.
  • Indian Penal Code by N.V.Paranjape, 1st Edition, 2010.

[1] Maine; Ancient Law.

[2] Radcliffe & Cross: The English Legal system, 1954


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