AN HISTORICAL INTRODUCTION TO THE INDIAN PENAL CODE

Author(s): Atul Chandra Patra

Source: Journal of the Indian Law Institute , July-Sept., 1961, Vol. 3, No. 3 (July-Sept.,
1961), pp. 351-366
Published by: Indian Law Institute

Stable URL: https://www.jstor.org/stable/43949716

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 AN HISTORICAL INTRODUCTION TO THE
INDIAN PENAL CODE

By
Atul Chandra Patra *

The Indian Penal Code has worked for a hundred years. To

meet the needs of the society, further legislation had to be undertaken
from time to time by way of amendment to the Code as well as supple-
mentary provisions. The aim of the present article is to give in
a nutshell the legislative history of the Indian Penal Code, 1860.
The Mahomedan law in operation in India prior to the East-India
Company's Administration will be referred to in order to prepare the
reader for a study of the history of the Indian Penal Code, and not
as an independent study of the Mahomedan law itself.
During the Mahomedan period both the Hindus and the
Mahomedans were governed by the Mahomedan criminal law.1 The
Hindus had been lef t undisturbed in the governance of their personal
causes by their personal laws.2 The non-Muslim subjects of a Muslim
State known as zimmee were thus not subject to all the laws of Islam.
Their legal relations, inter se, in respect of civil causes were to be regu-
lated according to the precepts of their own faith. Such portion oi
the civil law of the Mahomedans, however, as related to matters oi
trade, barter, exchange, sale, contract and the like, was made applic-
able to Muslims and non-Muslims alike. The saving of the Hindu
law, where any, was, again, subject to the rule that in case of a civil
dispute, too, if either of the parties were a Mahomedan, the Mahome-
dan law would prevail. A Brahmin pundit was never vested with a
criminal jurisdiction whose exercise was the exclusive function of the
Mahomedan gentlemen learned in the law.3 Brahmanic courts, either
elected by the people or sanctioned by the Emperor, were functioning
here and there, and they followed Manu and other Hindu lawgivers
so far as the Hindu laws were left operative.

* Advocate, Supreme Court of India.

1. Charles Hamilton, Hedaya, London, 1791, Vol. I, Preliminary Discourse,
lxxxvi.
2. Ibid., Preliminary Discourse.
3. See Muhammad Basheer Ahmad, The Administration of Justice in Medieval
India, , 1941, 83.

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352 INDIAN PENAL CODE : HISTORICAL INTRODUCTION

With reference to the administration of the Mahomedan law in

the courts of the Provinces of Bengal, Bihar and Orissá on the eve of
the Company's Administration there, it may be said that of the several
attributes of the law, the Mahomedan exponents of the law evinced a
keen sense of precision and solidarity. Barring the provisions for
discretionary sentences, precision in the orthodox jurisprudence of the
Mahomedans could not admit of the moderation of the present day
jurisprudence. Solidarity in the shape of disinterestedness, as opposed
to interestedness and uninterestedness, was considered a virtue by
Mahomedan jurists, as it is considered today, and did not leave any
spacious field for the play of flexibility.4 Only in the absence of any
prescribed text on a particular fact or situation, the kazis acted according
to their individual sense of justice and injustice.
People have always a craving for similar reactions on the part of
the Administration to the actions of the wrongdoers.5 The Mahomedan
jurists adopted the principle of the application of the fixed rule that
was designed to be generally fair and ensured uniformity of treatment
in case and case in preference to the adoption of the principle of in-
vestigating each case on its merits with the possibility of arriving at a
variable conclusion on the part of the judge concerned. A compre-
hensive Mahomedan jurisprudence provided for the guidance in all
possible cases and left little for the trier to exercise his own reason,
conscience or reflection. Even in these days of indeterminate sentences
there are some who have preferred this uniformity-of- treatment system
to the individualisation process.6 Excessive individualisation might
frustrate the community's sense of equality before the law and would
also impair the sense of moral responsibility on the part of the indivi-
duals. Moral rules, too, as has been pointed out by Dr. Potter in his
Quest of Justice , have proved inadequate in human justice because such
rules as humanly expressed have been found variable in content and
uncertain in application. Social ethics alone as embodied in judicial
or textual precedents could give the Mahomedan system the force of
moral sanction.7
Roscoe Pound in An Introduction to the Philosophy of Law 8 has traced
no less than twelve ideas of the nature of the law which man has lived

4. As to duties, demeanours and equipment of a kazi see Hedaya Farsee , Book

XX (Hamilton's Translation, London, 1791, Vol. II, 612-624) ; see also
Futawa Alumgiri (original Arabic version), Book XXIV.
5. Cf. Lawson, The Rational Strength of English Law, 1951, 12.
6. Gf. Carter v. Minister of Health , [1950] 1 All E.R. 904.
7. Cf. Gahn, The Sense of Injustice, 1949, 106; see also Joseph Schacht, The
Origins of Muhammadan Jurisprudence, 1950, 223.

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 ATUL CHANDRA PATRA 353

under. The ideas emphasise on one or more

The ideas are those of the divinity, traditiona
ness, immutability, agreeability, harmony
reciprocity, limitability, and acceptability of
or a particular system of law. Of these aspect
medan jurists were guided by their sense of
logical reasoning, and the Moulvies, as we fin
Company's courts, accepted and applied the
wisemen of old who were supposed to have le
safe course for human conduct. Consistency w
and the truth or justice of the legal premises w
judicial administration of the Provinces of
was taken over by the Englishmen.
The Islamic community as an organised soc
the existence of any rival group or communit
existence. Both as suitors and as witnesses th
handicapped vis-a-vis the Mahomedan.9 Th
sanctioned in the precepts as well as followed
mony of a stranger uncorroborated by the evi
were members of the kin-group was not foun
courts of justice and the orthodox Mahomeda
advent of the Company's Administration the r
of the community governing the law of crim
several phases of punishment, namely, retaliat
tion to the individual, clan or sovereign, dete
purification or penitence, and enforced refor
jurisprudence retained in Bengal, Bihar and O
phases of retaliation,11 composition 12 and de
concerned, the Mahomedan law in Bengal, B
yet passed the phase of personal retaliation, t
exercised by the injured party itself instead of
enter the phase which allowed the State to ex
sanctions on the calculus of the principles of r

8. An Introduction to the Philosophy of Law, 19

Chap. 2, pp. 24-47.
9. Hamilton, Hedaya, Vol. I, 1791, Preliminary Dis
10. Hedaya Farsee, Book XXI (Hamilton, Vol. II, 6
11. See Hedaya Farsee , Book XLIX (Hamilton, 1791
12. See Hedaya Farsee, Book XLIX (Hamilton, Vol
13. For fines, see ibid., Book L, Chap. I (Hamilto
imprisonment see Hedaya Farsee, Books XVIII,
(Hamilton, Vol. II, 574, 624 : Vol. Ill, 488, 525)

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354 INDIAN PENAL CODE : HISTORICAL INTRODUCTION

In the altered circumstances, that is, when the administration of

Bengal, Bihar and Orissa was taken over by the English, the age old
pecularities of the Mahomedan system appeared intolerable to the new
sovereign rulers who proposed to alter the necessary law of evidence
and of crimes in accordance with the principles of the present day
systems of the world. It was provided, for example,14 that the religious
tenets of witnesses would no longer be considered as a bar to the con-
viction or condemnation of a prisoner ; but in cases in which the
evidence given on a trial would be deemed incompetent by the
Mahomedan law on the plea of the persons giving such evidence not
being of the Mahomedan religion, the law officers of the Courts of
Circuit would declare what would have been their futwa supposing
such witnesses had been of the Mahomedan persuasion and the Court
of Nizamut Adawlut would pass such sentence as they would have
passed had the witnesses for the prosecution been Mahomedans. Since
Mahomedan law did not allow hanging of criminals, death had to
be allowed, for a period, by flagellation in Company's courts. Later,
the death by flagellation had to be replaced by hanging.
The Mahomedan law of kisas (retaliation) provided for the alter-
native system of payment of the price of blood or compromise.
Records showing acceptance of retaliation to be exercised in person by
the party injured instead of price of blood were not rare. The rules of
retaliation for the application were not yet delegated to the courts
alone, and convictions, reparations and retaliation were accepted as
the alternative practices of the community. The law that the next of
kin to the person murdered should execute the sentence on the mur-
derer soon drew the attention of the Company's Government. " It
would be," wrote Hastings, " difficult to put a case in which the
absurdity of it should be more strongly illustrated than in one before
us, of a mother condemned to perish by the hands of her own children
for the murder of her husband

They would have deserved death themselves, if

devoid of every feeling of humanity as to hav
it to her who gave them life." 15 According
force in Bengal, Bihar and Orissa in those day
criminal in a case of murder, again, was no
mining factor in awarding punishment. Acco
14. Rules for the Guidance of the Nizamut Adawlut
passed by the Governor-General in Council in the
the 27th April, 1792.
15. Hastings's letter dated 1st July, 1773, recorded
3rd August, 1773,

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 ATUL CHANDRA PATRA 355

the importance of the weapon or the manner of mu

the intention on the part of the criminal was emp
pany's Government, however, in replacing this pie
law accepted the principle of Yusuf and Muhame
the importance of the criminal intention and not th
ment of perpetration.16 Relatives were also debarr
the offenders.17 To the British administrators, the s
in the shape of payment of the price of blood a
Rs. 10,000/- or a fraction of it, Rs. 333-5-4, for exa
fied by the attenuating circumstances appeared arc
able, and they made the crimes in question a con
instead of the injurer and the injured.18
Subject to the above, farmans had, however, some
during the Mahomedan period, in terms differing
categorical provisions of the law as contained in te
Alumgiri. Thus the Shahi farmans issued on 16th J
Dewan of Gujerat suggested the infliction of impr
amputation,19 though in Bengal the punishment
amputation was being followed till the year 1791 wh
of the Governor-General in Council it was ordained
was to undergo hard labour for seven years when h
conformity to the futwah or opinion of the Mahom
lose one limb, and for fourteen years where sentenced
Prior to the passing of this Resolution in 1791, dac
undergo the punishment of mutilation and amputat
Chronicle of February 19, 1789, described how at Sa
14 criminals had to undergo the sentence of mutila
on February 15 of the same year.
The Mahomedan law with the necessary modific
to govern the people of India for a considerable
India Company's administration. Its provisions wer
16. Article 33 of the Regulation of 3rd December, 1790. T
ceded by the General Regulations made in 1772.
17. Article 34, Ibid.
18. Extract from the Resolutions of the Governor-Genera
9th October, 1791 ; Extract from the Proceedings of the
in Council in the Revenue Department, under date the 1
19. Sir Jadunath Sarkar, Mughal Administration , Patna U
Lectures, 1921, Second Series, 13-19.
20. Extract from the Proceedings of the Governor-Gener
date the 10th October, 1791.
21. The said Resolution was later incorporated in Regulati

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356 INDIAN PENAL CODE : HISTORICAL INTRODUCTION

in cases where the Regulations and the Mahomedan law prescribed

distinct penalties for the same offence.22 It was from the year
1832 23 that the people of Bengal, Bihar and Orissa not professing
Mahomedan faith were absolved, if they so desired, from the operation
of the Mahomedan criminal law. By 1827 the penal law of the
Bopibay Presidency, too, had been almost all contained in the regula-
tions.24 The penal law of the Madras Presidency was, again, by the
time, the Mahomedan law only in its name. An attempt at consoli-
dation of the British empire in India, moreover, necessitated unity of
administrative control and uniformity of the laws and judicial systems
in all parts of British India.25 The Governor-General became the sole
authority for promulgating laws for all persons and courts of justice.26
The Governor-General's Council had one member added who had no
say in the executive Government and was concerned along with others
in legislative functions.27 Later on, a sort of Legislative Council was
established composed of members of the Supreme Council, one repre-
sentative each from the Local Governments and two judges of the
Supreme Court of Calcutta.28 This Legislature enacted for a time all
laws whether of provincial orali India application. The Local Govern-
ments either themselves sent legislative proposals to the Centre or,
after 1 854, got them introduced there . through their representative
sitting there. This state of things continued till 1861 when legislative
power was restored to the Governments of Bombay and Madras.29
The increasing legislative powers of the different Provincial
Governments from 1813 onwards were responsible for the growth of a
heterogenous system of laws, both substantive and procedural, as
enacted by the Regulations of the different Provinces. The conflict of
laws, the pattern of which will be hereinafter seen, created difficulties
in the administration of the country as a whole. This led to the
appointment, as noted before, of a Member of the Council of the
Governor-General.30 The first Law Member, T. B. Macaulay, assumed

22. Fyzoolah [Prosecutor) v. Deo Rai and Dhun Singh (Prisoners) 1813 : Proceed-
ings of the Sudder Nizamut Adawlut at Calcutta.
23. Article 5 of Regulation VI of 1832.
24. Bombay Regulation XIV of 1827.
25. Despatch from the Court of Directors to Bengal No. 44 (Public), dated 10th
December, 1834, paras. 9-11.
26. Section 39 of the Charter Act of 1833.
27. Section 40 of the Charter Act of 1833.
28. Section 22 of the Charter Act of 1853.
29. Preamble and Section 44 of the Indian Councils Act, 1861.
30. Section 40 of the Charter Act of 1833.

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 ATUL CHANDRA PATRA 357

the charge of his office on June 27, 1834, with his

salvation lay in her wholesale Anglicization. Th
provided for the appointment of a Law Commission
time Commissions to inquire fully into the state o
the administration of justice in the British possessi
make reports thereon.31 By virtue of this Act as
ones, Law Commissions were appointed respectivel
1861 and 1879. Of these four Law Commissions, th
worked in India while the second and the third ha
England. No Indians were employed as Commission
England was used as a basis.33 The British Indian
criminal, substantive and procedural, had, consequ
without owing their origin to the institutes, texts or
of the pre-British India or to the post-Plassey tex
Mahomedan law. Though theoretically conscious 34
of the relation of the Indian customs, usages, law
the new laws to be enacted for the governance of t
Law Commissioners factually could not do justice t
The Commissioners even resisted the changes introd
ment of India to the Draft Bills prepared by the
representative Indian minds, again, resented the i
complex foreign laws and the procedure of their ad
where a few vestiges were allowed to remain as re
laws of the Indians, they assumed the English garb
rendered them observable only to the eye of a vet
only after a good deal of labour and research.37
The Indian Law Commission, with T. B. Macaula
G. W. Anderson and F. Millett as Commissioners, submitted to the
Governor-General in Council, according to the orders of Government
of the 15th June, 1835, the (Draft) Penal Code on the 2nd of May,
1837. It was returned to the Commission in order to be printed under
31. Section 53 of the Charter Act of 1833.
32. Section 28 of the Charter Act of 1853.
33. Instructions of the British Government to the Third Commission.
34. The Report of the Fourth Indian Law Commission , dated 15th November, 1879.
35. Whitley Stokes : Anglo-Indian Codes, Vol. I, 1887, Introduction to the Con-
tract Act , 534.
36. Banga Darshan, Pous, 1279 B.S. (Dec. -Jan. 1872-73), Banga Desher Krishak
(Peasants of Bengal).
37. Acharyya, Codification in British India : Physiognomy of the history of Codification
in British India, 1914, 40-41.

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358 INDIAN PENAL GÔDË Î HISTORICAL INTRODUCTION

its superintendence.38 The Draft was accordingly printed under the

superintendence of the Law Commission and was, as well as the Notes,
carefully revised and corrected by the Commissioners while in the
press.
At the time the first Indian Law Commission took up the task of
drafting a penal code for India, the systems of penal law then establish-
ed in British India widely differed, as noted before, from each other.
In the words of the Commission, " The Criminal law of the Hindoos
was long ago superseded

Mahomedan criminal law

extent by the Regulation
Presidency of Bombay, th
that of the Hindoos, has
particular class of cases ; a
the Judge to pay any atte
been made by three differ
ed, very different provi
punishable with imprisonm
perjury ; 39 in the Bomba
punishable with imprisonm
the most aggravated forg
offences are exactly on th
the escape of a convict is
double of the term assign
dencies,42 while a coiner i
imprisonment assigned to
In Bengal the purchasing
not punishable, except in C
of only fifty rupees.44 In

38. Officiating Secretary J. P

tive Department, the 5th Ju
tive Department Act of 1860
39. Bengal Regulation XVII o
40. Bombay Regulation XIV o
41. Madras Regulation VI of 1
42. Bombay Reg. XIV of 182
Bengal Reg. XII of 1818, se
tion V, cl. 2.
43. Bombay Reg. XIV of 182
Bengal Reg. XVII of 1817, se
Madras Regulation II of 1822
44. Calcutta Rule Ordinance
13th November, 1821.

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 ATUL CHANDRA PATRA 359

a fine of Rs. 40/-.45 In the Bombay Presidency

imprisonment for four years.46 In Bengal th
without a licence is punishable with a moder
purchasing of stamps from a person not license
punished at all.47 In the Madras Presidency th
with a short imprisonment ; but there also the p
ed at all.48 In the Bombay Presidency, both
purchaser are liable to imprisonment for five years
The penal law of the Bombay Presidency was
tained in the Regulations ; and was almost all
extensive Bombay Regulation XIV of 1827. Th
and of the Madras Presidency was, as noted befo
law only in its name. In substance the penal law d
the Mahomedan penal law. The East-India Com
in course of time so much modified the Mahome
the three Presidencies that the emergence of a D
in 1835 (not till submitted to the Governor-G
not meet with any approval or opprobrium of t
people took it with indifference. The Bombay Reg
too, superseding, earlier, the Mahomedan penal l
discontent among the people there.51
The Bombay Code, that is, Bombay Regulation
not found by the Commission as the groundw
India. The penal law of the Bombay Presidency
found by the Commission, any superiority over
two other Presidencies, except that of being dig
Bombay Regulation XIV of 1827, the principle
crimes ought to be classified, and punishments a
less regarded than in the legislation of Benga
owing solely to the discretion and humanity of
cruelty and injustice were not daily perpetrated i
of the Bombay Presidency.52
45. Madras Reg. XIV of 1832, section II, cl. I.
46. Bombay Reg. XXII of 1827, section XIX.
47. Bengal Reg. X of 1829, section IX, cl. 2. ,
48. Madras Reg. XIII of 1816, section X, cl. 10.
49. Bombay Reg. XVIII of 1827, section IX, cl. 1.
50. Samachar Durpon , August 29, 1835.
51. The Indian Law Commission in their prefatory letter
October, 1837, while submitting the printed Draft India
the Right Hon'ble Lord Auckland, Governor-General of I
52. For a disparity of punishments from the point of view o
ment, see page (4) of the prefatory letter of the Indian L

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360 INDIAN PENAL CODE : HISTORICAL INTRODUCTION

Many important classes of offences were altogether unnoticed by

the Bombay Code ; and this omission was supplied by one sweeping
clause which armed the courts with the power to punish as they though
fit offences against morality, or against the peace and good order of
society, if those offences were penal by the religious law of the offender.5
The said clause thus did not apply to people who professed a religion
with which a system of penal jurisprudence was not inseparably con-
nected. Consequentially, a Mahomedan was punishable for adultery ;
a Christian was at liberty, under the Bombay Code, to commit adulter
with impunity.
The population living within the local jurisdiction of the court
established by the Royal Charters was subject to the English crimina
law, which law was considered, in England, as requiring extensiv
reform. The English law and its procedure were found so defectiv
that it could be reformed only by being entirely taken to pieces and
reconstructed.54

To quote the Commission, " Under these circumstances we have

not thought it desirable to take as the groundwork of the Code any of
these systems of law now in force in any part of India. We have,
indeed, to the best of our ability, compared the Code with all those
systems, and we have taken suggestions from all ; but we have not
adopted a single provision merely because it formed a part of any of
those systems. We have also compared our work with most celebrated
systems of Western jurisprudence, as far as the very scanty means of
information which were accessible to us in this country enabled us to do.
We have derived much valuable assistance from the French Code, and
from the decisions of the French Courts of Justice on questions touching
the construction of that Code. We have derived assistance still more
valuable from the Code of Louisiana, prepared by the late Mr. Livings-
ton. We are the more desirous to acknowledge our obligations to that
eminent jurist, because we have found ourselves under the necessity of
combatting his opinions on some important questions."
The Governor-General in Council was desirous that some steps
should be taken towards a revision of the printed Draft of the Penal
Code prepared by the Indian Law Commissioners, and submitted to the

dated 14th October, 1837, while submitting the printed Draft Penal Code to
the Governor-General in Council, cited, supra.
53. Reg. XIV of 1827, section 1, cl. 1.
54. Letter to Lord John Russell, from the Commissioners appointed to inquire
into the state of the Criminal Law, dated 19th January, 1837.

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 ATUL CHANDRA PATRA 361

Government of India under date the 14th O

to its adoption with such amendments as mig
to its final disposal or otherwise. For this pu
from the several Presidencies were referred to the Commission for
their examination. The attention of the Commission was also directed
to the ' Act of Crimes and Punishments' as contained in the Seventh
Report of the Commissioners on the criminal law of England, with a
view to comparison, and the detection of any omissions or other imper-
fections that might exist in the Draft Code.
With these materials the Commission was expected to be enabled
to frame such a report as might assist the Government of India in
forming a judgment on the merits of the Code at no distant time.55
The voluminous papers containing commentaries and strictures on
the Draft Penal Code were examined, compared and digested by the
Law Commission with great pains and care. The instructive reports of
the Commissioners on the English criminal law and the Digest of Crimes
and Punishments contained in their Seventh Report were also made use
of. References were, again, occasionally made to the Code Penal of
France and Livingston's Code for Louisiana. The laws actually
administered by the Company's courts under the three Presidencies
were also taken note of. With these materials in their mind, the
Commissioners, C. H. Cameron and D. Eliott, proceeded to revise the
Chapters, taking clause by clause, and considering particularly
the criticisms, objections or suggested amendments, and submitted their
First Report on the Penal Code under date the 23rd July, 1846.
The printed Draft Penal Code prepared by the Indian Law
Commissioners and submitted to the Government of India under date
the 14th October, 1837, consisted of 488 Clauses of which 233 Clauses
were comprised in the Chapters reviewed in the First Report on the
Indian Penal Code submitted on the 23rd July, 1846, with a Postscript
dated the 5th November, 1846. After the First Report ending on
650th paragraph was finished, the second Report of Her Majesty's
Commissioners for revising and consolidating the Criminal Law (of
England) and submitted to Her Majesty on 14th May, 1846, came into
the hands of the Commissioners here. The modifications as proposed
in the second Report of Her Majesty's Commissioners were taken notice
of so far as they were relevant to the matters treated of in the Chapters
of the Indian Code which had been reviewed in the first Report on the
Indian Penal Code. The findings of the Commissioners, C. H. Cameron

55. Secretary Bushby's Letter, dated the 26th April, 1845, to the Indian Law
Commission. v

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362 INDIAN PENAL CODE : HISTORICAL INTRODUCTION

and D. Eliott, were appended, as noted before, to the first Report

as a Postscript dated the 5th November, 1846.
The second and concluding Report on the Indian Penal Code
proceeded on all the Chapters of offences not before examined and was
submitted by C. H. Cameron and D. Eliott, the Indian Law Commis-
sioners, under date the 24th June, 1847.
The papers referred to the Law Commission for their examination
comprised Reports from Sir J. P. Grant, Sir H. W. Seton, Judges of the
Supreme Court at Calcutta, Sir R. B. Comyn and Sir E. J. Gambier
respectively the Chief Justice and Judge of the Supreme Court at
Madras, Sir H. Compton, Chief Justice, and Sir J. Awdry, Judge and
afterwards Chief Justice, of the Supreme Court at Bombay. They also
comprised a Report from Mr. G. Norton, the Advocate-General at
Madras and one from Mr. J. Cochrane, the Company's Standing
Counsel at Calcutta. There were also a Report from the Sudder Court
for the North-Western Provinces under the Presidency of Fort William
in Bengal, and separate Reports from W. Hudleston and A. D. Campbelli
two of the Judges of the Sudder Court at Madras, and Giberne,
Pyne and Greenhill, three of the Judges of the Sudder Court
at Bombay, accompanied by Reports from the judges, magistrates and
other officers subordinate to the said courts and a separate Report from
Colonel Sleeman, Commissioner for the Suppression of Thuggee.
Sir H. Compton observed that in drafting a Penal Code which
sought to be substituted for all the systems which then prevailed, the
Law Commissioners had done what was not intended by Parliament.
The Parliament did not think it expedient to change the whole penal
jurisprudence of British India. According to Sir H. Compton and
Sir E. J. Gambier the existing penal laws could be modified by addi-
tions and alterations the utility or the need of which had been evinced
by experience. Sufficient and sound materials could be found in the
existing systems of penal law, the judges observed, for making such
alterations and amendments as the form of Government and the condi-
tion of the people might require.
The Reports of Sir H. Seton and Sir R. Comyn contained
comments upon details as well as general remarks and criticisms upon
the plan of the work and the principles laid down in it and expounded
in the Notes (in the printed Draft Indian Penal Code dated the
14th October, 1837). According to Sir H. Seton, the best justification of
a codified penal law was to be found in the necessity of some system^
the absence of any satisfactory one and the hopelessness of construing a
more perfect one except by means of successive improvements upon the

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 ATUL CHANDRA PATRA 363

Penal Code once formed. If the attempt were t

further, until all the information which theoretic
desirable were obtained, it could never have b
The Law Commissioners (C. H. Cameron an
that the Draft Penal Code was sufficiently com
modifications, as suggested, fit to be acted up
of the Penal Code was then forwarded to the
Court at Calcutta on 30th May, 1851, for the
tions or suggestions on its provisions which m
necessary. Under Home Department, Legislativ
the Judges of the Sudder Court were also each
the like observations and suggestions. The said
Draft Act of the criminal law as prepared by
tive member of the Legislative Council of
Lawrence Peel and Mr. Justice Buller of the S
had their observations over the Draft Act as pr
Mr. Justice Colvile forwarded his opinion on t
Penal Code in June 1852. 57 The Judges of
Calcutta were again addressed to give their view
of the Penal Code. 58

With Letter, Legislative Department, dated 9 August, 1851, the

revised edition of the Penal Code with copies of the minutes recorded
by the Governor-General and the other members of the Government on
the subject was sent to the Company in London. 59
The Court of Directors in London were anxious to see the Penal
Code enacted as early as it would be possible. 60 They made, earlier»
Barnes Peacock, the fourth member of Council. 61
The Committee (consisting of J. P. Grant, B. P. Peacock, James
William Colvile, D. Eliott and U. I. Moffatt Willis) to whom the Penal
Code had been referred, in their letter to the Hon'ble the Legislative

56. Chief Justice Lawrence Peel's letter dated Cossipore, Thursday, September 1 1»
1851, to the Hon'ble the President of Legislative Council of India in
Council.

57. Mr. Justice Colvile's Memo, to Governor-General in Council, Court House,

June, 1852.
58. Home Department, Legislative, March 27, 1852.
59. Company's Letter to the Government of India, No. 2 of 1852, dated,
London, Legislative Department, 4th February, 1852.
60. Letter- Legislative Department, No. 15 of 1854 to the Governor-General ot
India in Council dated London the 5th April, 1854.
61. Companys' letter dated 4th February, 1852, cited, supra.

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364 INDIAN PENAL CODE : HISTORICAL INTRODUCTION

Council dated July 7, 1854, stated that since the Committee had been
constituted, several meetings had been held upon the Penal Code, and
they had come to the conclusion to recommend to the Council that the
Penal Code as originally proposed by the Indian Law Commissioners
when Mr. Macaulay was the President of the Commission should form
the basis of the system of penal law to be enacted for India. They were
accordingly taking into consideration the various alterations therein
and additions thereto that had been proposed to be made ; and they
intended to submit to the Legislative Council a revised code embodying
such of the proposed alterations and additions as might appear to them
to be improvements, and such other amendments as might suggest them-
selves to them in the course of their revision. They did not intend to
recommend, they observed, any substantial alteration in the framework
or phraseology of the original code. They hoped to be able to submit to
the Council in the course of a few months their report, together with
a code revised upon the principles thus explained.
Suggestions for the creation of new crimes and their punishments
came from all quarters and were handed over to the Committee of the
Council engaged in the revision of the draft of the Penal Code for
their examination.
The revised Indian Penal Code was prepared and brought in by
Barnes P. Peacock, Sir James William Colvile, J. P. Grant, D. Eliott
and Sir Arthur Buller. It was read a first time on the 28th December,
1856.62 The Indian Penal Code Bill was read a second time on the 3rd
January, 1857, and was referred to a Select Committee who were to
report thereon after the 21st of April, 1857. 63 The Supplement to the
Calcutta Gazette of the 21st, 24th and 28th January, 1857, published the
Indian Penal Code Bill after its second reading. The Indian Penal Code
was then passed by the Legislative Council of India, and received the
assent of the Right Hon'ble the Governor-General on the 6th October,
1860. It was due to come into force on the First day of May, 1861.
The Act as passed was published in the Appendix to the Calcutta Gazette
dated 13th, 17th and 20th October, 1860. In order to enable the
people the judges and the administrators to know the provisions of
the new Penal Code, the enforcement of the code was deferred till the
first day of January, 1862, by the enactment of Act VI of 1861.
Her Majesty's Secretary of State for India sent a Despatch64 declar-
ing the sense which Her Majesty's Government entertained of the high

62. National Archives of India, Legislative Dept. Act of 1860 No. XLV -
Part II.

63. Supplement to the Calcutta Gazette, dated 28th January, 1857.

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 ATUL CHANDRA PATRA ß65

value of the service rendered to the Government of India in the

important part which Sir Barnes Peacock took in carrying the Indian
Penal Code through the Legislative Council. Sir Barnes Peacock was
thanked also by the Government of India upon the accomplishment of
the great work which owed its completion to the ability and indefatig-
able zeal which he had devoted to it.65

The statement of facts as made in the foregoing paragraphs seeks

mainly to delineate the different stages the work of codification of the
penal law in India underwent during the years 1834-1860. A few
observations may however be herein made as to the interests shown by
the people in the Draft Indian Penal Code as well as their reaction
thereto. As it has been seen, almost all the Englishmen knowledgeable
in law and holding positions of responsibility in different parts of India
took an interest in the Penal Code while in the making though it has
to be remembered that the Indian Penal Code as it ultimately emerged
in 1860 was mainly the work as originally proposed by the Law Com-
missioners when T. B. Macaulay was the President of the Commission.
The Indian section of the community, though equipped and actively
interested even from the first quarter of the nineteenth century in the
day to day legislation for British India, had no hand in the making of
the Indian Penal Code of 1 860. The considerable period of time taken
in the making of the Code 66 as well as the huge sums of money expend-
ed on the Commissions 67 did not fail to invite strictures from the
intelligentsia. A section of the Indian community also resented the
technical and cumbersome procedure of the foreign laws as embodied
in the Indian Acts.68 The authors of the Draft Indian Penal Code
themselves observed that it would be greatly difficult to procure good
translations of their work.69 The succeeding Law Commissioners found
the Draft Indian Penal Code absolutely untranslatable.70 According to
to the Hindoo Patriot of January 29, 1857, the promises of simplicity,
completeness and general intelligibility, which codifiers made of their
work, failed grossly when brought to the test of practical application.

64. National Archives of India ; Legislative No. 19 of 1860 dated 22nd

December.
65. National Archives of India ; Legislative Dept. 1861, A. Proceedings, Febru-
ary, 1861, No. 9.
66. See The Indian Reform - No. 1 ; see also Government of India since 1834 , 16.
67. J. B. Norton : The Administration of Justice in Southern India , 127-129.
68. Banga Darshany ťous, 1/79 B. a., cited, supra .
69. Law Commissioners* prefatory address, dated 14th October, 1837, cited,
supra.
70. First Report on the Penal Code by the Indian Law Commissioners, 23.

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366 INDIAN PENAL CODE ! HISTORICAL INTRODUCTION

None, however, whether Hindu or Mahomedan, mourned the dis-

appearance of the Mahomedan law of crimes and evidence from the
India Code.71
The Central Legislature in course of a century enacted a number of
Acts affecting the Indian Penal Code or supplementing the Penal law
of India.72 As a result of devolution of power a number of Acts have
also been passed by the Provincial or State Legislatures enacting sub-
stantive provisions of criminal law or amending the provisions of the
Code of Criminal Procedure.73

71. Samachar Durpon, August 29, 1835, cited, supra ; Sir Sayyed Ahmed's
Memorandum, recorded in the Abstract of Proceedings of the Legislative
Council of the Governor-General dated the 26th January, 1882, 63, 64 ;
Law Commissioners' prefatory address, dated 14th October, 1837, cited,
supra.
72. See The Indian Penal Code (45 of 1860), Government of India, Ministry of
Law, 1961. List of Amending Acts and Adaptation Orders.
73. Criminal law including criminal procedure formed Entry 30 of Schedule,
Part I - Central Subjects - to the Devolution Rules as made under section
45 A of the Government of India Act where the expression " The Govern-
ment of India Act " meant not a separate parliamentary enactment but
a properly certified version of the Act of 1915 as subsequently amended.
A copy of the Government of India Act, 1915, with the amendments,
whether by way of substitution, addition, or omission, required by the
Government of India (Amendment) Act, 1916, and by section 45 of the
Government of India Act, 1919, and the Second Schedule thereto, had to
be prepared and certified by the Clerk of the Parliaments, and deposited
with the Rolls of Parliament. After the passing of the Government of
India Act, 1919, His Majesty's printer printed copies of the Government of
India Act, 1915, in accordance with the copy so certified. The Govern-
ment of India Act, 1915, as so amended, would be cited as "The Govern-
ment of India Act." See section 45 of the Government of India Act, 1919
(9 & 10 Geo. 5, c. 101). Criminal law including criminal procedure was thus a
Central subject under the said Government of India Act. Under the Govern-
ment of India Act, 1935 " Criminal law, including all matters included
in the Indian Penal Code at the date of the passing of this Act, but exclud-
ing offences against laws with respect to any of the matters specified in List I
or List II and excluding the use of His Majesty's naval, military and air
forces in aid of the civil power " and " Criminal procedure, including all
matters included in the Code of Criminal Procedure at the date of the pass-
ing of this Act " formed respectively Entries 1 and 2 of the List III - Con-
current Legislative List in the Seventh Schedule to the Act of 1935. Under
the Constitution of India, too, the subject of " Criminal law, including all
matters included in the Indian Penal Code at the commencement of this
Constitution but excluding offences againsts laws with respect to any of the
matters specified in List I or List II and excluding the use of naval, military
or air forces or any other armed forces of the Union in aid of the civil
power" and " Criminal procedure, including all matters included in the
Code of Criminal Procedure at the commencement of this Constitution "
respectively form Items 1 and 2 in the List III - Concurrent List - in the
Seventh Schedule to the Constitution.

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