Introduction to the Indian Penal Code (45 of 1860)

INTRODUCTION

(45 of 1860)

"The Indian Penal Code may be described as the criminal law of England freed from all technicalities and superfluities, systematically arranged and modified in some few particulars to suit the circumstances of British India" said Stephen¹

         The Indian Penal Code came into operation on the 1 January 1862. Though, it received he assent of the Governor-General-in Council on October 6, 1860. The Indian Penal Code was drafted in 1834 by the first Indian Law Commission of which Lord Macaulay was the President and three other members were there; Charles Hay Cameron, John Macpherson Macleod and George William Anderson. The credit of passing the Penal Code into law, and of giving to every part of it the improvement which practical skill and technical knowledge could bestow is due to Sir Barnes Peacock, who held Macaulay's place during the most anxious years through which the Indian Empire has passed. Prior to 1860, the English criminal Law, as modified by several Acts, was administered in the Presidency towns of Bombay, Calcutta and Madras. The major criminal offences in India have been codified in The Indian Penal Code and in another enactments and their procedures and their procedure in the Criminal Procedure Code. The Indian Penal Code deals specifically with offences and states what matters will afford an excuse or a defence to a charge of any offence.

          The purpose of IPC is Criminal Justice and Punishment. As was held in case of State of Haryana v Jagdish, (2010) 4 SCC 216 that the punishment, if taken to be remedial and for the benefit of the convict the remission should be granted. If sentence is taken to be purely punitive, in public interest to vindicate the authority of law and to deter others, it should be granted.

         The Penal Code was drafted by the first Law Commission under the presidentship of Lord Macaulay and three commissioners named Macleod, Anderson and Millet. The Commission was constituted in 1834 to investigate into the jurisdiction, powers and rules of the courts and police establishment. Elucidating the task before the commission Lord Macaulay observed, „I believe that no country ever stood so much in need a code of law as India and I believe also that there never was a country in which the want might be so easily supplied. Our principle is simply this- uniformity when you can have it; diversity when you must have it; but in all cases, certainty.‟ In preparing the Penal Code they drew not only upon the English and the Indian laws and regulations, but also upon Livingstone‟s Louisiana Code and the Code of Napoleon. The Commission drafted and submitted the Indian Penal Code in 1837. Another Commission reviewed the Code in 1847. The Code was accordingly revised but it was only after the two Law Members of the Governor-General of India in Council revised the Code that it was submitted to the Legislative Council in 1856. It finally came into force after receiving Governor-General‟s assent on October 6, 1860.²

         While posterity hailed Macaulay‟s code as a work of genius, many persons at the same time criticised it. An example of such criticism by Rankin may be of interest. He said, „The Penal Code is one of the much praised Acts of Indian Legislature and in spite of its many defects has served its purpose fairly well. Its sentences can hardly be said to be other than monstrous. No civilized country today imposes such heavy sentences as does the Penal Code. Heavy sentences have long gone out of fashion in England and the odour of sanctity and perfection attaching to the Penal Code should not deter indigenous legislatures to thoroughly revise the sentences and bring them into conformity with modern civilized standards.‟³ The draft of the Penal Code, when it was circulated for opinion, evoked a good deal of opposition and many eminent judges and the advocates were against it. “The saying in East Bengal is”, said Sir C. P. Ilbert, “that every little herd boy carries a red umbrella under one arm and a copy of Penal Code with the other.”⁴ To date we do not know of any objection raised by the Muslim jurist of those days when Penal Code was enacted in 1860. Through the history it has been found that the Muslim jurists are very keen with regard to Shariah law and they avail every opportunity to raise their voice if any step is taken against Shariah law by any quarter of the society or the ruler. Thus it remains a query for us to know as to what kept them away from raising any objection in implementation of the Penal Code. It might be the provisions of the Penal Code show many similarities in concept as well as practice of Islamic criminal law of Tazir. It is often claimed that the basis of the Penal Code, 1860 is Islamic criminal law devoid of some of the rules of qisas and diyat. 

1. History of Criminal Law of England, Vol. 3, p. 300.

2  Ratanlal & Dhirajlal: The Indian Penal Code, 33 ed, (Nagpur: Wadhwa & Company, 2004), p. iv.3  G.C Rankin, supra note 4, at p. 215.
4 C.P. Ilbert, The Mechanics of Law Making, p. 166; referred by V.D. Kulshreshtha, Landmarks in Indian Legal and Constitutional History, 8th ed., (Lucknow: Eastern Book Company, 2007), p. 270.