CHAPTER-3

CRIME AND CRIMINAL LAW

THE CONCEPT OF CRIME

Of all the branches of law , the branch that closely touches and concerns man in his day-to-day
affairs is criminal law , yet the law is not in a satisfactory state. Many attempts have been made
to define crime, but they all fail to help us in identifying what kind of act or omission amounts to
a crime. Perhaps , this is because of the changing notions about crime from time to time and
place to place. The very definition and concept of crime varies not only according to the values
of a particular group and society, its ideals, faith, religious attitudes, customs, traditions, and
taboos, but also according to the form of government, political and economic structure of the
society and a number of other factors. For instance, what is an offence against property in a
capitalist culture may be a lawful way of living in a socialist society. What is permissible in a
free and an affluent society may be a pernicious vice in a conservative set up. Any act, which is a
crime today, may not be a crime tomorrow, if the legislature so decides. For instance, polygamy,
dowry, untouchability are now crimes that were not so a few years ago. Suicide was a crime in
England until the Suicide Act 1961, and in India from 1994 to early 1996, when it became lawful
to kill oneself .Abortions that were a crime until 1971 are now legal .

To understand the meaning and concept of crime in its correct perspective, it would be
appropriate to examine some of the definition propounded by jurists.

As a Public Wrong
In his classical work, Commentaries on the Laws of England, Blackstone defines crime in two
ways. In the first place, he defines crime as :

An act committed or omitted in violation of a public law forbidding or commanding it .

The definition appears to be misleading since it limits the scope of crime to violations of a
‘public law ‘ . As such, the definition would cover only political offences, viz offences against
the State. Such offences are merely a segment of the great bulk of criminal law. If ‘public law’ is
taken as equivalent to ‘positive’ or ‘municipal law’ as noted by Kenny, the definition would
become too wide and would cover all legal wrongs, while in fact every legal wrong is not a
crime. Likewise if ‘public law’ is interpreted to include both constitutional and criminal law, as
with the Germans, the definition ceases to define , because it is fallacious to define crime with
the help of constitutional law .
 Perhaps Blackstone visualized the inadequacy of his first definition of crime , so he modified it
and said :

A crime is a violation of the public rights and duties due to the whole community,
considered as a community .

While editing Blackstone’s Commentaries, Stephen modified this definition slightly and
reconstructed it in the following words :

A crime is a violation of a right, considered in reference to the evil tendency of such

violation as regards the community at large .

However, the definition is not free from error. It narrows down the scope of crime to the
violation of rights only, whereas criminal law fastens criminal law even on those persons who
omit to perform duty required by law. Wilful omission ot provide food, clothing, shelter or
medical aid to a child by a father or to a wife by husband is a crime.

Indian Penal Code – An Outline

CRIMINAL LAW IN ANCIENT INDIA
The basic criminal law of the country i.e. The Indian Penal Code , was created as a statute in
1860. It came into force on 1 January 1862, replacing the various rules and regulations on
criminal law statute prevailing in British India.1 However , the roots of criminal jurisprudence
can be traced to Manu, the famous law giver who framed a comprehensive code containing not
only the ordinances relating to law , but a complete digest of the then prevailing religion,
philosophy and customs practiced by the people.2

Assault, battery, theft, robbery, false evidence, slander, libel, criminal breach of trust, adultery,
gambling and homicide, recognized as the crimes by Manu, are the principal offences against
persons and property that occupy a prominent place in today’s Indian Penal Code (hereinafter
IPC). The king dispensed justice himself with the help of counsellors , or appointed judges and
assessors for the administration of justice.

Although these precepts are excellent, the substantive criminal jurisprudence of Manu is not free
from bias. According to him, the gravity of the offence varies with the caste and creed of the
criminal and so does the sentence. The protection given to Brahmins was paramount and they
were placed above all.3

1
Essays on the Indian Penal Code, ILI, 1962, p 1
2
Sengupta, Evolution of Ancient Indian Law, TLL, 1950 , p 3
3
Manu, Institutes of Hindu Law, Ch VIII on ‘Judicature’ and on ‘Law , Private and Criminal’ , pp 44, 380
During this period, private and public wrongs were not clearly distinguished. Murders and other
homicides were regarded as private wrongs. The right to claim compensation was the rule of the
day. A distinction was, however, drawn between casual offenders and hardened criminals.
4
Further, he made provisions for exemption from criminal liability, where the act was done
without any criminal intention, or by mistake of fact, or by consent, or was the result of
accident, much on the lines provided in Chapter IV of the Indian Penal Code. The right of private
defence was fully developed .

Mohammadan Criminal Law

Manu’s code continued in India till the Mohammadan rule was established. The Muslim legal
system had its origin in the Koran, which is said to have been revealed by God to the Prophet. In
Muslim law, the concepts of sin, crime, religion, moral and social obligation are blended in the
concept of duty, which varied according to the relative importance of the subject matter. The
administration of criminal justice was entrusted in the hands of kazis.

The punishment varied according to the nature of the crime. Broadly speaking, the punishment
was four-fold, namely, kisa or retaliation, diyut or blood money, hadd or fixed punishment and
tazir or syasa , discretionary or exemplary punishment.5 However, the notions of kazis about
crime were not fixed and differed according to the purse and power of the culprits. As a result,
there was no uniformity in the administration of criminal justice during the Muslim rule in India,
and it was in a chaotic state.

CRIMINAL LAW IN MODERN INDIA

The Muslim system of administration of criminal justice was in practice when the British took
over the reign of the country . In the beginning , they engrafted the Muslim system of
administration, but were faced with much difficulty. As a result, the moffussil as well as the
Presidency Courts gradually began to the turn to the English law for guidance and help.
However, in adopting the British system, each of the Presidency Courts followed an independent
course of its own. The result was a chaotic mass of conflicting and contradictory decisions on
similar points. The regulations passed by different Presidencies differed widely in their scope
and contained different provisions. For instance, in the Bengal Presidency, serious forgeries were
punishable with imprisonment for a term double the term fixed for perjury ; whereas in the
Bombay Presidency, perjury was punishable with imprisonment for a term double the term fixed
for the most aggravated forgeries.6 Likewise, in the Madras Presidency, the two offences were
4
Ibid, pp 129 , 130

5
Essays on the Indian Penal Code, Indian Law Institute, 1962, pp 1-32 and R C Nigam Principles Of Criminal
Law, Vol 1 , 1965, pp 18-20
6
Section 16-17, Bombay Regulation Act, ( 14 of 1827 )
exactly on the same footing.7 The result was utter disorder and confusion in the administration of
criminal justice.8

Indian Penal Code:A law commission was constituted in 1834, with Lord Macaulay as
its President and Macleod, Anderson and Millet as the commissioners for preparing a
comprehensive Penal code for the sub- continent to bring about consistency and uniformity in
criminal law. The commission submitted its report on 15 June 1835, and the Draft Penal Code
was widely circulated in order to ascertain the views of judges, jurists, lawyers and others.After a
prolonged discussion and careful consideration , the Draft Penal Code was approved by the
legislative council and received the assent of the Governor-General-in-Council on 6 October
1960, and the Indian Penal Code, as stated earlier was brought into force on 1 January 1862.

The IPC, a comprehensive piece of legislation, originally, had 23 chapters and 511 sections.
However,in course of time, three chapters-V-A,(Criminal Conspiracy) IX-A(Offences Relating
to Elections) and XXA (Cruelty by Husband or Relatives of Husband) and a number of sections
have been added numbering 550, and a few sections deleted. The Code embodies the general
penal law of the country, and it is the sole authority in respect to the general conditions of
liability, the definitions of specific offences in the Code, and the conditions of exemptions from
criminal liability. Some crimes are cognizable and some are not.9

The Code is supplemented by local and special statutes to punish certain categories or behaviours
or acts that are prejudicial to the interest of the citizens and the State.

The code, although an admirable compilation of substantive criminal law needs a thorough
revision to make it progressive and pragmatic in order to adopt to the flux of changes. For
instance, offences known as white collar and socio-economic crimes, scams, bank frauds hawala
and criminalization of politics, etc, hitherto unknown, have emerged and are multiplying at an
alarming pace. These crimes have become a dominant feature of a powerful section of society,
which either aids and abets criminal activity or engages in it directly.

The Santhanan Committee, while examining the various administrative, legal and social
problems of corruption, broadly classified the socio-economic offences into eight categories, and
recommended in 1964, the addition of a new chapter to the penal laws of the country. The law
commission , however, rejected the proposal on the ground that such offences should be dealt
with by special and self-contained enactments that supplement the basic criminal law.Even the
Bill for Revision of the Penal Code introduced in the Rajya Sabha vide IPC (Amendment)Bill
1972 was not passed .

CODE OF CRIMINAL PROCEDURE,1973 (CRPC):

7
Section 111, Madras Regulation ( 6 of 1811 )
8
Gaur Hari Singh, The Penal Law Of India ; Vol I, eleventh edn, 2000, pp 15-19.
9
Section 2(c) , Code Of Criminal Procedure 1973
The Code of Criminal Procedure (CrPC ) is the main legislation on procedure for administration
of substantive criminal law in India.10 It was enacted in 1973 and came into force on 1 April
1974.11 It provides the machinery for the investigation of crime, apprehension of suspected
criminals, collection of evidence, determination of guilt or innocence of the accused person and
the determination of punishment of the guilty. Additionally, it also deals with public nuisance,
prevention of offences and maintenance of wife, child and parents.

At present, the Act contains 528 Sections,12 2 Schedules and 56 Forms. The Sections are divided
into 37 Chapters.

ORIGIN
In medieval India, subsequent to the conquest by the Muslims, the Mohammedan Criminal Law
came into prevalence. The British rulers passed the Regulating Act of 1773 under which a
Supreme Court was established in Calcutta and later on at Madras and in Bombay. The Supreme
Court was to apply British procedural law while deciding the cases of the Crown’s subjects.
After the Rebellion of 1857, the crown took over the administration in India. The Criminal
Procedure Code, 1861 was passed by the British parliament. The 1861 code continued after
independence and was amended in 1969. It was finally replaced in 1972.

CLASSIFICATION OF OFFENCES
Cognizable and Non-cognizable Offences

Cognizable offences are those offences for which a police officer may arrest without court
mandated warrant in accordance with the first schedule of the code. For non-cognizable cases the
police officer may arrest only after being duly authorized by a warrant. Non-cognizable offences
are, generally, relatively less serious offences than cognizable ones.

Summons

Under Section 204 of the code, a Magistrate taking cognizance of an offence is to issue summons
for the attendance of the accused if the case is a summons case. If the case appears to be a
warrant case, he may issue a warrant or summons, as he sees fit. Section 2(w) of the Code
defines summons-case as, a case relating to an Offence, and not being a warrant-case. Section
2(x) of the Code defines warrant-case as, a case relating to an Offence punishable with death,
imprisonment for life or imprisonment for a term exceeding two years.

10
Bharti, Dalbir (2005). The Constitution and criminal justice administration. APH Publishing. p. 320.
11
Menon, N. R. Madhava; Banerjea, D; West Bengal National University of Juridical Sciences (2005). Criminal
Justice India Series: pts. 1-2. Chandigarh. Allied Publishers. p. 229.
12
"All Sections in CrPC".
Bailable and Non-bailable

According to Section 2(a), bailable offence are offences listed under the First Schedule as
bailable or made bailable under any other law for the time being in force. All other offences are
non-bailable.

TERRITORIAL EXTENT
The Criminal Procedure Code is applicable in the whole of India except in the State of Jammu
and Kashmir. The Parliament's power to legislate in respect of Jammu & Kashmir is curtailed by
Article 370 of the Constitution of India.

Provided that the provisions of this Code, other than those relating to Chapters VIII, X and XI
thereof, shall not apply-

(a) to the State of Nagaland, (b) to the tribal areas,

However the concerned State Government may, by notification apply any or all of these
provisions in these areas. Moreover, the Supreme Court of India has also ruled that even in these
areas, the authorities are to be governed by the substance of these rules.13

13
Mowu v. Suptd., Special Jail, 1972 SCC (Cri) 184, 189:(1971) 3 SCC 936