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DEFECTS OF ENGLISH LAW AVOIDED BY INDIAN PENAL CODE.

CH. XXXIII. particular kind of telescope that it enabled people with bad eyes to distinguish objects at a great distance.

I admit, however, that I do not think that this method of legislative expression could be advantageously employed in England. It is useful only where the legislative body can afford to speak its mind with emphatic clearness, and is small enough and powerful enough to have a distinct collective will and to carry it out without being hampered by popular discussion. A criminal code drawn in the style of the Indian Penal Code could never be passed through Parliament, and even if it could I do not think English judges and lawyers would accept and carry out so novel a method of legislating.

In several points affecting the whole of the Indian Penal Code, warning has been taken from the defects of the English criminal law. The Code, wisely, as I think, for reasons already assigned, makes no attempt at the classification of crimes. It knows nothing of either felony or misdemeanour. It carefully avoids the use of words which have been the occasion of much misunderstanding and confusion in English law. It does not for instance contain the word "malice" or its derivatives. Such words, involving moral considerations, as it does employ, are defined with extreme exactness. For instance, "dishonestly," which frequently occurs, is defined to mean doing anything with the intention of causing wrongful gain to one person, or wrongful loss to another. 2" Wrongful gain" is gain by unlawful means of property to which the person gaining is not legally entitled. Wrongful loss" is the loss by unlawful means of property to which the person losing it is legally entitled.

I will now proceed to notice the principal matters contained in the Code itself which appear interesting in connection. with what has already been said as to the law of England.

The Code begins with a preliminary chapter setting forth the extent of the Code, and the time when it is to come into operation. One of the sections by which this is effected deserves notice because it might be useful as a precedent if the criminal law of England should ever be codified. The

existing criminal law of India was not specifically repealed CH. XXXIII. by the Penal Code, but it provided that every person should be liable to punishment under it, and not otherwise, for every act to which it applied. The effect of this was that if after the Penal Code came into force any one were to do an act which would have been criminal before it passed, and which was not forbidden by its provisions, he would still be liable to punishment under the old law. I never heard that any such act ever took place, though it is just possible that in the Presidency towns, where before the Penal Code came into operation the law of England was in force, the common law as to seditious words and seditious libel might be wider than the Penal Code, and so continue in force to some limited extent. Such a provision would be useful rather as an answer to any cry which might be raised as to the danger of a general repeal of the unwritten common law than upon any more serious grounds.

The second chapter is entitled not very happily "General Explanations," and consists partly of a series of definitions of the senses in which words are used, and partly of a statement of certain general doctrines of more or less importance. The idea by which the whole Code is pervaded, and which was not unnaturally suggested by parts of the history of the English law, is that every one who has anything to do with the administration of the Code will do his utmost to misunderstand it and evade its provisions; this object the authors of the Code have done their utmost to defeat by anticipating all imaginable excuses for refusing to accept the real meaning of its provisions and providing against them beforehand specifically. The object is in itself undoubtedly a good one, and many of the provisions intended to effect it are valuable as they lay down doctrines which may be needed in order to clear up honest doubts or misunderstandings. For instance, it is perfectly right to say, "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 or had reason to believe "to be likely to cause it." It is also quite right to define

VOL. III.

1 S. 39.

2 S. 30.

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CH. XXXIII. the expression " valuable security," and 1 the word "document," for the extent of these expressions might well be matter of reasonable doubt in good faith.

I think, however, that to go beyond this, and to try to anticipate captious objections, is a mistake. Human language is not so constructed that it is possible to prevent people from misunderstanding it if they are determined to do so, and over-definition for that purpose is like the attempt to rid a house of dust by mere sweeping. You make more dust than you remove. If too fine a point is put upon language you suggest a still greater refinement in quibbling. This I think is a not uncommon fault in Indian legislation, and the Penal Code was the first example of it. For instances it defines "life" as the life of a human being unless the contrary appears from the context. So of death. 3" Animal" is also defined as "any living creature other than a human being," a definition not only superfluous, but of doubtful correctness. It would include an angel, frog spawn, and probably a tree.

This introductory chapter is followed by a chapter headed “On Punishments." The punishments inflicted by the Indian Penal Code are death by hanging, transportation for life, imprisonment with or without hard labour, which may extend to fourteen years, forfeiture of property, and fine. Whipping is inflicted not under the Code, but under the provisions of an act passed in 1864. Death is the punishment of waging war against the Queen, murder, attempts to murder by convicts under sentence of transportation for life, false evidence causing the execution of an innocent man, and of all members of gangs of robbers (dacoits) numbering five or more, of

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1 S. 29.

2 Ss. 45 & 46.

S. 47. The most singular definition in the whole Code is the definition of "force" in s. 349. "A person is said to use force to another, if he causes "motion, change of motion, or cessation of motion to that other; or if he causes to any substance such motion, or change of motion, or cessation of "motion as brings that substance into contact with any part of that other's "body, or with any thing which that other is wearing, or carrying, or with 'any thing so situated that that contact affects that other's sense of feeling, "provided that the person causing the motion, or change of motion, or cessa"tion of motion, causes that motion, cessation of motion, or change of motion in one of the three ways hereinafter described: first, by his own bodily power; secondly, by disposing any substance in such a manner that the motion, or change or cessation of motion, takes place without any further action on his part, or on the part of any other person; thirdly, by inducing any animal "to move, to change its motion, or to cease to move.'

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whom any one in committing robbery commits murder. In CH. XXXIII. no case, however, is the punishment of death absolute. The court has always a discretion to sentence to transportation for life, and in the case of dacoity to rigorous imprisonment up to ten years as an alternative. The punishment of transportation is inflicted only where the sentence is for life, except in cases of what we should describe as treason felony, where the sentence may be for any term. There is in nearly every case an alternative power of sentencing to imprisonment up to ten or in some cases fourteen years. The maximum sentences of imprisonment vary according to the offence from fourteen years to a month. There is only one case, so far as I know, in which a minimum term of imprisonment is prescribed. This is the case of robbery accompanied by the use of a deadly weapon, or causing grievous hurt or attempting to cause such hurt, or to murder, in which case the offender must be imprisoned for seven years at least (s. 397). In all this the English law is closely followed, especially in the rejection of minimum punishments, and in the wide discretion left to the judges.

The chapter on punishments is followed by one entitled "General Exceptions," which deals with the question of responsibility. The title of the chapter is meant to imply (see s. 6) that all the exceptions contained in it are to be considered to be embodied in every definition of crime in the body of the Code. These general exceptions embody the law of England as it stands more simply, and in a manner which in my opinion is more satisfactory in several respects, than the corresponding part of the Draft Criminal Code of 1879. It goes at great length into the subjects of consent and compulsion, and at considerable length into the subject of the right of private defence. I do not, however, agree with its provisions as to compulsion. One provision might well be adopted in this country. It says in substance that the causing of "harm so slight that no person of ordinary sense "and temper would complain of such harm is not an offence."

The preliminary part concludes with a chapter on abetment and the concealment of offences which is not very unlike the

1 S. 95.

CH. XXXIII. English law as to accessories before and after the fact, but it contains nothing of special interest.

These matters are followed by the definitions of offences. I shall notice such of these only as afford occasion for some special remark.

1 The provisions as to offences against public tranquillity comprise all breaches of the peace from waging war against the Queen (s. 121) to an affray (s. 159). The only 2 offence corresponding to high treason punished by the Penal Code as it originally stood was waging war against the Queen, preparing to wage such war, and concealing a design to wage such war. Conspiring to wage war and making use of seditious language and writing were not included in the original Code. An act amending the Code was passed whilst I was Legal Member of Council which in substance inserted in the Code the equivalent of the English Treason-Felony Act. It was found to be required by circumstances. A mere conspiracy to wage war was not an offence against the Code unless some act or illegal omission was done in pursuance of it. 3 The law relating to riots and unlawful assemblies is very full and elaborate, but it is remarkable that the Penal Code contained no provision at all as to seditious offences not involving an absolute breach of the peace. It says nothing of seditious words, seditious libels, seditious conspiracies, or secret societies. The additions made in 1870 provide to a certain extent for the punishment of such offences, but they do so very imperfectly. During the rule of the East India Company there was always a reluctance on the part of the Company to behave and to legislate as unqualified sovereigns would naturally behave and legislate, and upon the assumption of the government by the Crown it was not considered necessary apparently to make any change.

* Offences relating to public servants naturally form a very important part of the Indian Penal Code, as the official body in India occupies a position and is charged with functions of far greater importance than those which belong to any corresponding body of officials in the world, possibly with the exception of Russia. On the one hand, any approach to

1 Ss. 121-160.

2 Ss. 121-124.

3 Ss. 141-161.

4 Ss. 161-190.