xxxii TEXT-BOOKS AND COMMENTARIES CITED. SPENCE, On Equitable Jurisdiction, London, 1846, vol. ii, 1849. STEPHEN, Dig. Cr. L. = Digest of the Criminal Law, 3rd ed., London, 1883. Hist. C. L. A History of the Criminal Law of England, 3 vols., London, 1883. = STORY, Eq. Jur. = Commentaries on Equity Jurisprudence, 12th ed., London and Boston, 1877. SUGD., V. & P. = The Law of Vendors and Purchasers of Estates, by E. Sugden, 14th ed., London, 1862. TAPPING, The Law and Practice of... the Writ of Mandamus, London, 1848. WEST & B., Digest of Hindu Law, by R. West and G. Bühler, 3rd ed., Bombay, 1884. W. & T., L. C. = White and Tudor's Leading Cases in Equity, 6th ed., London, 1886. WILBERFORCE, Statute Law, London, 1881. WMS. EXORS. A Treatise on the Law of Executors and Administrators, by Sir E. V. Williams, 8th ed., London, 1879. WMS. SAUND. Notes to Saunders' Reports, London, 1871. WOODFALL, Law of Landlord and Tenant, 13th ed., London, 1886. INTRODUCTION TO THE PENAL CODE. THE Indian Penal Code is now contained in the principal Act, XLV of 1860, the Whipping Act, VI of 1864, and the three amending Acts, XXVII of 1870, XIX of 1872, and VIII of 18821. Its enactments naturally fall into six divisions or parts, which may be thus entitled: I. Preliminary, II. Punishments, III. Offences against the State and the Public, IV. Offences against Individuals, V. Participation, and VI. Attempt2. But, as the Code is at present arranged, the rules as to Punishments are placed between the chapters respectively entitled 'General Explanations' and 'General Exceptions,' which are certainly preliminary matter: bigamy and other acts injurious to public morality are treated after violence to the person: the enactments as to Participation must be sought for in chapters II (secs. 34, 35, 37, 38), V, VI (secs. 121, 125), VII (secs. 131-139), IX (sec. 164), XII (sec. 236), XVI (secs. 305, 306, 310) and XVII (secs. 391, 394, 396, 400-402, 411–414); and the enactments as to Attempt are scattered through chapters VI (secs. 121, 124, 125, 130), IX (secs. 161, 162, 163), XI (secs. 196, 198, 200, 213), XII (secs. 239, 240, 241), XVI (secs. 307, 308, 309, 318), XVII (secs. 385, 387, 389, 391, 393, 394, 398), and, lastly, XXIII. In this Introduction the Code will be considered in the order of subjects above indicated. To this division belong the chapters now respectively numbered and headed I. Introduction; II. General Explanations; IV. General Exceptions. 1 The amendments made by these Acts, as well as by Act VI of 1861 (to alter the time from which the Indian Penal Code shall take effect), and the Indian Oaths Act, 1873, s. 15, will be found infra in their proper places. The portions of the Code which have been repealed by Acts XIV of 1870, XXVII of 1870, XIX of 1872 and X of 1882, will here be omitted. "The Strafgesetzbuch für das Deutsche Reich places the chapter in Attempt (Versuch) before that VOL. I. ม B on Participation (Theilnahme), and puts both before the chapters dealing with the offences implied in every attempt and participation. Surely the most simple and logical plan is first to treat offences actually committed by principals, then to deal with accessorial offences, and then with cases in which the criminal has only tried to commit one or more of the offences before considered. This plan is also the more convenient as it saves many forward references. Chap. I. Preamble. Chapter I contains the Preamble to the Code: its Short Title: the date at which it took effect (commonly called the Commencement): provisions relating to its personal application and local extent; and a section saving certain other laws. The brief preamble merely recites that it is expedient to provide a general penal code for British India. The expediency appears from the facts, (a) that, when the Code came into force, the criminal law of British India was, in the three Presidency towns, the English criminal law, unreformed save by 9 Geo. IV. c. 74 and Acts XXXI of 1838, XXII of 1839, and XVI of 1852', and, in the Mufassal, partly that introduced by the Muhammadan conquerors, partly that established by the Anglo-Indian Regulations; and (b) that the English criminal law was an artificial and complicated system, framed without reference to India, and even in England considered to require extensive reform: that the Muhammadan criminal law was unsuited to a civilised country; and that the Anglo-Indian Regulations, made by three different legislatures, contained widely different provisions, many of which were amazingly unwise3. 1 Some small amendments were also effected by Acts VII and XIX of 1837, XXXI of 1839, VII and X of 1844. 2 Except the Panjab, where 8 manual of criminal law framed originally by Sir R. Temple had been given by the executive as a guide to the magistrates. 3 The following instances are taken from the letter dated the 14th Oct. 1837, addressed to Lord Auckland by Macaulay and the other members of the Indian Law Commission : 'In Bengal serious forgeries are punishable with imprisonment for a term double of the term fixed for perjury; in the Bombay Presidency, on the contrary, perjury is punishable with imprisonment for a term double of the term fixed for the most aggravated forgeries; in the Madras Presidency, the two offences are exactly on the same footing. 'In the Bombay Presidency the escape of a convict is punished with imprisonment for a term double of the term assigned to that offence in the two other Presidencies, while a coiner is punished with little more than half the imprisonment assigned to his offence in the other two Presidencies. 'In Bengal the purchasing of regimental necessaries from soldiers is not punishable, except at Calcutta, and is there punishable with a fine of only fifty rupees. In the Madras Presidency it is punishable with a fine of forty rupees. In the Bombay Presidency it is punishable with imprisonment for four years. 'In Bengal the vending of stamps without a licence is punishable with a moderate fine; and the purchasing of stamps from a person not licensed to sell them is not punished at all. In the Madras Presidency the vendor is punished with a short imprisonment; but there also the purchaser is not punished at all. In the Bombay Presidency, both the vendor and the purchaser are liable to imprisonment for five years, and to flogging... The penal law of the Bombay Presidency has, over the penal law of the other Presidencies, no superiority, except that of being digested. In framing it, the principles according to which crimes ought to be |
