NAME- SOHOM SAHA

ROLL NO- 02
CLASS- LL.M. II (TORT AND CRIME)
SUBJECT- PRINCIPLES OF CRIMINAL LAW (PAPER-IV)
JOGESH CHANDRA CHAUDHURI LAW COLLEGE
UNIVERSITY OF CALCUTTA
(This assignment is based on Origin and Development of Criminal Law- Module II)

ASSIGNMENT
INDIAN PERSPECTIVE OF DEVELOPMENT OF
CRIMINAL LAW
1. Introduction:
In the early period of Indian civilization, their is no such written, codified or
directed laws for crimes. As there was no such authority or leader, victims had to accept it
as a fate or otherwise he retaliate against the wrongdoer. In the advanced Rig-Veda period
there was a mention that punishment of a thief lied on the person to whom the theft was
committed. As individual wrongdoing gradually turned into group activities and larger
peace loving group existence were required and formed. This group life required certain
rules of behaviour and certain actions when members will not obey rules. These code of
conduct, which regulate people are known as Dharma. In this time a larger society was
emerging, though in this time as all was following dharma there was respect of rights of
the fellow members. But this type of ideal society did not last very long and the actual state
of affairs gradually deteriorated. A situation arose when some persons began to exploit and
torment the weaker sections of society for their selfish ends. Tyranny of the strong over the
weak reigned unabated. This situation forced the law abiding people to search for a remedy.
This resulted in the discovery of the institution of King and establishment of his authority
over the society, which came to be known as the State. As the very purpose of establishing
the State and the authority of the King was the protection of person and property of the
people, the King organized a system to enforce the law and punish those who violated it.
However, the Indus Valley Civilization suggests that an organized society existed
during Pre-Vedic period in India but the oldest literature to explain the code of conduct of

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the people and the rule to be followed by the King are Vedas. Therefore the development
of Criminal Law in India is covered from the Vedic period onwards dividing it into three
periods- Ancient India (1000 B.C. to A.D. 1000), Medieval India (A.D. 1000 to 1757) and
Modern India (A.D. 1757 to till present days).
2. Criminal Law in Ancient India:
This period was started from more or less 1000 B.C. and ended in A.D. 1000 when
basically Hindu social existence can be observed. In this respect, laws are generally these
society oriented. The elements of state administration showing rule by a King with the help
of his assistants may be traced back to the early Vedic period. In the Rig-Veda the King is
called Gopajanasya or protector of the people. This implies that he was charged with the
maintenance of law and order. The Hindu legal system was embedded in Dharma as
propounded in the Vedas, Puranas, Smritis and other works on the topic. The Veda was the
first source of Dharma in ancient India. The Dharma sutras, Smritis and Puranas were the
other important sources. Subsequently the Mimamsa (art of interpretation) and the
Nibandhas (commentaries and digest) also became supplementary sources of law.
Whenever there was conflict between Vedas, Smritis and Puranas, what was stated in the
Vedas was to be taken as authority. The Vedas are four in number, these are the Rig Veda,
the Yajur Veda, the Sam Veda and the Atharva Veda. Each of the Vedas consists of two
main parts: a Samhita, or collection of mantras or hymns; and a Brahmana.1
The Dharmashastras laid down the law or rules of conduct regulating the entire
gamut of human activity. This necessarily included civil and criminal law. The earlier
works, which laid down the law in the form of sutras, were divided into three classes, these
are Srauta sutras, Grihya sutras and Dharma sutras. The Dharma sutras dealt with civil and
criminal law. The important Dharma sutras, which were considered as high authority, were
of Gautama, Baudhayana, Apastamba, Harita, Vasista and Vishnu. These Dharma sutras,
therefore, can be regarded as the earliest works on Hindu legal system. 2
The next important source of the Hindu law was the Smritis. The compilation of the
Smritis resembles the modern method of codification. All the legal principles scattered in
the Vedas and also those included in the Dharma sutras as well as the custom or usage
which came to be practised and accepted by the society were collected together and
arranged subject wise in the Smritis. The Smritis dealt with constitution and gradation of

1
Dr. Rahul Tripathi, Evolution of criminal justice system in ancient India, Volume 5, 153-157, Available
at: www.allsubjectjournal.com (Visited on June 13, 2020 at 2:48 P.M.)
2
Ibid.

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courts, appointment of judges, the procedural law for the enforcement of substantive law,
etc. The important Smritis are the Manu Smriti, the Yajnavalkya Smriti, the Narada Smriti,
the Parashara Smriti and the Katyayana Smriti.3
The eighteen sub-divisions of law, which cover civil as well as criminal law, are
the special features of the Manu Smriti. Puranas were also a source of law in ancient
India. All the 18 Puranas are classified into three categories. Those are devoted to
Brahma, Vishnu and Shiva.4
Kautilya’s Arthashastra was considered to be another important and authoritative
source of law during ancient India. According to Kautilya, an essential duty of government
is maintaining order. He defines this broadly to include both maintenance of social order
as well as order in the sense of preventing and punishing criminal activity. Kautilya has
mentioned the law of procedures; the law of evidence in civil as well as criminal cases;
procedure of criminal investigation; and quantum and method of punishments for various
types of offences. Prisons, lockups and welfare of prisoners are also the subject matters of
the Arthashastra. Kautilya has prescribed code of conduct for Judges and for the King. In
addition to the literary works of the Hindu law, the customs and usages were also
considered as law to administer justice.5
The dandaniti, or punishment policy, is one of the elaborately dwelt upon subjects
in ancient India as it was intimately connected with the administration of the State. As per
Manu, Yajnavalkya and Brihaspati there were four kinds or methods of punishment during
ancient India, namely, admonition, censure, fine and corporal punishment. Corporal
punishments included death penalty, cutting off the limb with which the offence was
committed, branding on the head some mark indicating the offence committed, shaving
the head of the offender and parading him in public streets. The nature and types of
punishments were very cruel, inhuman and barbarous. The Katyayana Smriti provided that
if a Kshatriya was guilty of an offence the quantum of penalty imposed on him would be
twice of the penalty imposed on a Sudra for the similar offence. The Manu Smriti has also
a similar provision which provides that higher the Varna of the offender greater the
punishment.6

3
Supra note 1
4
Ibid.
5
Ibid.
6
Ibid.

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 After this, Sultanate rulers started establishing their empire and criminal laws were
changing by there influence.
3. Criminal Law of India in Medieval Period:
This is a period of more or less 650 years after the end of Hindu ruler’s influence
and last before British East India Company came in power. It can be said that it was a time
of Muslim Criminal Law’s emergence. The origin of those laws can be Quran and due to
it’s inadequacy Sunnah was introduced. And certain other sources of laws are there, these
are Hedaya, Fatwa-e-Alamgiri.
The mohammedan criminal laws has four principles of punishment, these are Kisas
or retaliation; Diyut or blood-money; Hadd or fixed punishment, and Tazeer and Siyasa or
discretionary and exemplary punishments.
(i) Kisas or retaliation: The principle of Kisas was ‘a life for a life’, and ‘a limb for a
limb’. Under this head ‘Jinayat’ was included which means offences against the person,
although it was restricted to wilful homicide, maiming and wounding. punishment of
retaliation can be classified into cases of death and cases short of death. Retaliation in cases
of death was considered to be the right of man and it devolved on his legal heirs who
represented him in the exaction of it. But there was one condition to be fulfilled for this
punishment, that the blood of the deceased should have been under the protection of the
law, from permanent residence within the territory of a Muslim state subject to its authority.
The murder of an unprotected non-Muslim, whether by a Musalman or by an unbeliever,
did not permit the retaliation of death. In the case of wilful homicide the culprit was
excluded from inheritance to the property of the victim. Offences against the person, short
of homicide can also be classified into wilful or by misadventure. But unlike the case of
homicide, the instrument used was not the criterion for adjudging whether this offence was
wilful or otherwise, nor according to the Hedaya, was there any difference as regards
punishment whether the destruction of any member of the body was wilful or by
misadventure. Offence against the person short of homicide, which did not incur retaliation
subjected the offender, if the act was wilful, or his Aquila, if the act was involuntary, to the
payment of ‘Arsh’ or the fine of blood in cases short of life. Both Kisas and Arsh for
personal injuries not affecting life, were however, open to composition between the parties;
and the injured person was at liberty to remit the penalty, on the same principles of private
right and satisfaction, which have been stated with respect to the provisions for homicide. 7

7
K. N. Pillai, Shabistan Aquil, Essays on Indian Penal Code, 4-18 (Indian Law Institute, New Delhi, 2015)

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(ii) Diyut or blood-money: Diyut means fine or compensation for blood in cases of
homicide. The punishment of Diyut was an alternative to the punishment of Kisas. Again,
all illegal homicides, excepting wilful homicide of the kind for which retaliation could not
be claimed, would be visited with Diyut or the fine of blood payable by the Aqila of the
offender as well as by the offender himself. In cases of quasi-deliberate homicide,
erroneous homicide, or involuntary homicide, in addition to the payment of the fine of
blood, the offenders were liable to the penalties of expiation and exclusion from
inheritance. But in the case of accidental homicide by an intervening cause no other
punishment was added to the payment of the fine of blood, for the immediate act of
bloodshed in this case was not attributed to any person.8
(iii) Hadd or specific penalty: It was defined in the Hedaya to comprise of the specific
penalties fixed with reference to the right of God. Under Hadd the quantity and quality of
punishment was fixed for certain offences and this could not be altered or modified. If the
offence was proved, the Qadi had no other alternative but to sentence the convict to the
prescribed punishment. The aim of Hadd was to deter offenders from the perpetration of
criminal acts injurious to the community. But Hadd could not be executed if there was any
doubt, or legal defect; and the ruler was directed to administer the law with moderation.
The punishment of Hadd extended to the crimes of adultery, of illicit sexual intercourse or
Zina between married or unmarried persons, of false accusation of incontinence or Qadhf
of drinking wine or Shurb, of theft or Sariqa and of highway robbery or Sariqa-i-Kubra. In
case of Shubha the sentence of Hadd was barred. Shubha was stated to be “that which
appears to be just and right, but in truth is not”. In Zina, at least four witnesses were
necessary. Again, in a case of conviction for Zina upon evidence, if the witnesses or any
one of them declined to stone first, the sentence of lapidation could not be put in execution.
Qadhf or Slander of a chaste Muslim's continence was defined as an offence committed by
a false imputation of incontinence, against a man or a woman, who was free, sane, adult,
of the faith of Islam, and of chaste reputation. Equivocal expression were construed
according to the apparent intention of the speaker, and if they clearly indicated a charge of
incontinence the accused incurred the punishment for slander, unless the truth of the charge
was admitted or proved. No penalty, however, was due for imputing incontinence to a
person who had actually been guilty of it, whether in the particular instance stated, or in
any other; provided the fact was established either by the positive testimony of competent

8
Supra note 7

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witnesses; or by the voluntary acknowledgement of the party accused; or by the evidence
of two men, or one man and two women, in proof of a confession of the fact. Theft (Sariqa)
and Sariqa-i-Kubra or Highway robbery was said to concern the ruler whose province it
was to guard the highways by means of his assistants; and private larceny, was stated to
concern the individual proprietor, or his representative. Sariqa-i-Kubra or highway robbery
was defined in the Hedaya and five circumstances were mentioned as requisite to the
enforcement of the law against a highway robbery. 9
(iv) Tazir and Siyasa or discretionary and exemplary punishments: Tazeer and
Siyasa meant discretionary punishment and exemplary punishment respectively, where the
kind and amount of punishment rested entirely on the discretion of the judge. Under Tazeer
the punishment could be anything from imprisonment and banishment to public exposure.
The power of sentencing criminals to suffer discretionary punishment under the legal
denomination of Tazeer, Accobut and Seasut in three cases. First, in the cases of offences
for which no specific penalty, of Hadd or Kisas, has been provided by the law; being, for
the most part, offences not of a heinous nature, the punishment of which is left
discretionary. Secondly, for crimes within the specific provisions of Hadd and Kisas, when
the proof of the commission of such crimes may not be such as the law requires for a
judgment of the specific penalties. Thirdly, for heinous crimes in a high degree injurious to
society, and particularly, for repeated offences of this description, which, for the ends of
public justice as expressed by the term Seasut, may appear to require exemplary
punishment beyond the prescribed penalties; and with respect to crimes of this description,
an unlimited discretion, extending to capital punishment. The penalties of Tazeer were of
two kinds; one of a private nature, being in satisfaction of individual right; the other public
and considered to be the right of God. Tazeer by reproach which was not to be slanderous,
was also legal. Siyasa technically meant exemplary punishment, such as the ruler, or his
delegate, might deem expedient for the protection of the community against dangerous
characters, especially such as habitually committed atrocious crimes, and of whom there
could be no hope of reformation.10
These were the practise of criminal law in the sultanate period, the Mughal Empire and
other Muslim Kings of State of this Indian sub continent. Soon after the emergence of

9
Supra note 7
10
Ibid.

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British East India Company and their command, various harsh practise of criminal law was
eradicated and other British society influenced practise of criminal law enforced.
4. Criminal Law in Modern India:
In this period criminal laws adopted various things and many application of criminal
law stopped. This part of time has started when East India Company started delivering
command in their acquired states and based on this it can be said that this is a period of
almost 250 years. This time of development of criminal law in India can be divided into
two parts. First, pre-independence era of criminal law and second, post-independence era
of criminal law.
4.1. Pre-Independence development of Criminal Law in modern India:
The preparation to amend, alter, repeal Mughal and Mohammedan influenced laws
was started by Warren Hastings in almost eighteenth century. Though it was not codified,
again Cornwallis tried it and after finding lot of trouble glitches in the practise of criminal
law of previous ruler, they annulled fully and started enforcing Criminal laws like England.
He laws related to crimes like dacoity and robbery, burglary and infanticide were severely
questionable. Social issues like infanticide, practise of Sati, profession of poisoner, slavery
etc. were required to be eradicated. One of the greatest example was the Charter Act 1833,
which was passed by the British Parliament.
The government in Britain in 1833 appointed a commission known as the, ‘Indian
Law Commission’ to inquire into the jurisdiction, powers and rules of existing courts and
to make reports setting forth the results of the inquiries and suggesting reforms. The law
commission work on the Anglo-Indian Codes from 1834 to 1879 and one of the most
important contributions of the first Law Commission was the Indian Penal Code, submitted
by Macaulay in 1837 and passed into law in 1860. Another important law that was codified
was the Code of Criminal Procedure. When it was first passed in 1861, the Code of
Criminal Procedure fiercely guarded ‘privileges’ or ‘rights’ as they were alternatively
described as and made the law both a symbolic and an actual marker of imperial power.11
After this Evidence Act 1872 was also enforced which is an exclusive example of scientific
practise in Criminal Law and other laws. Though laws were made by the British rulers, yet
Indian society and effect of those laws were serious matter of concern. Certain other acts
which were enforced,

11
Dr. Reshma Umair, Development pf Criminal Law in India, Available at:
http://data.conferenceworld.in/ICSSR/28.pdf (Visited on June 15, 2020 at 8:14 P.M.)

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 (i) Central Excise Duty Act 1944
(ii) Foreigners Act 1946
(iii) Prison Act 1894
(iv) Explosive Substances Act 1908
4.2. Post-Independence development of Criminal Law in modern India:
After independence all previous laws were cleared by the Parliament and certain
laws were amended or altered or repealed by the legislatures as Constitution of India
became the supreme source of all existing laws of India. If any law which is contrary to the
word of Constitution of India, it will be struck down. Therefore every provision of every
laws were checked and attested. Indian Penal Code 1860 an Indian Evidence Act 1872 is
playing active to in the practise of Criminal Law. With this various other laws are enforced
and till today various amendments were done in IPC and Evidence Act. Various section
has also amended. Like definition of ‘Electronic record’ and ‘Harbour’; section of Criminal
conspiracy, sedition, causing death by negligence, molestation, acid attack dowry death,
acid attack, sexual harassment, voyeurism, stalking, certain sections relating to sexual
offence, cruelty by husband or relation of husband etc. Not only that Criminal Law is
constantly developing in India by new happening of offence and emergence of new
periphery.
For this reason various other legislations came in existence, these are,
(i) Prevention of Corruption Act
(ii) Narcotic Drugs & Psychotropic Substances Act 1985
(iii) Juvenile Justice Act 1988
(iv) Probation of Offenders Act 1958
(v) The Immoral Traffic (Prevention Act) 1956
(vi) The Schedule Caste And Schedule Tribes (Prevention of Atrocities ) Act 1989
(vii) Income Tax Act 1961
(viii) Arms Act 1959
(ix) Information Technology Act 2000
The above stated legislations are not established only for criminal law but violating
laws is to considered as an offence. The Code of Criminal Procedure 1973 has enforced
and playing a significant role in Criminal Law.
In present days, it can be observed that Criminal Law has various other dimension
which was never seen before. In today’s perspective theories like reformation gets more
priority. Criminal psychology is matter or research and in Indian society we now believe

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that offender can be reformed and he can take part in the society after his period of
reformation/punishment. Another major issue which plays a significant role with
Criminology and Penology, that is Victimology. If a crime occurs, the victim suffer badly.
For this reason various types of victim gets compensation which may decrease the pain of
survival like a victim. In crimes like acid attack, rape, murder, burn injury or grievous hurt
victim/ victims gets compensation through the District Legal service Authority or State
Legal Service Authority or if any Judge of the authorized Court order to disburse amount
of interim relief as laid in the legislations.
5. Conclusion:
From the ancient period of time, crime is being done and to restrict, prohibit and
punish those element criminal law is being applied. From the B.C.1000 to present day
development and criminal law is constant. With this scenario, certain influence can be
observed which helped and still helping to develop undisputed criminal laws. Development
of Criminal Law in India can be classified into three parts depending on time, these are,
ancient times, medieval times and modern times. In ancient times, Hindu social dominance
can be observed and that is why criminal laws were Hindu society influenced. Dharma was
the basic source of law. It was followed by Vedas, Puranas, Vedanta, Smritis. Certain other
source of Criminal law can be seen, like Dharmashastras, Kautilya’s Arthashastra, Manus
Samhita etc. Application of punishment was generally retributive theory and mens rea was
not at all important matter. So generally it was like wrongful action and its reaction of the
whole society is the punishment. In medieval period criminal laws are mohammedan ruled
influenced and various harsh and different type of Criminal laws can be seen. Kisas, Diyut,
Hadd, Tazeer and Siyasa were types of application of criminal law in different types of
occurrence. As some criminal laws of previous Hindu influenced society was custom,
ritual, usage depended; similarly criminal laws in medieval period were more religious
influenced and totally biased. After the end of Sultanate and Mughal rule, British rulers
influenced new socially relevant criminal laws and various laws were removed. In modern
era they have established new Indian Penal Code and Evidence Act which is the major
legislation. Though previous Code of Criminal Procedure was removed and new Code of
Criminal Procedure 1973 came into force. With this it is to be observed that many new
types of criminal activities came into existence and forcing legislators to make serious
legislations to eradicate these type of criminal activities. In today’s India, reformative
theory is being applied by which offender can be reformed and come to the mainstream of

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the society. Not only that, preventive theory is also being applied to protect people and
prohibit criminal to commit any unlawful act. Beside this, suffering of victim is also a
matter of concern. And for this reason, compensation for various types of victim has
ensured by the legislations.
However, development of criminal law in India is constant and it can be said that
laws relating to this perspective will develop further depending on criminal activities in
modern Indian society.

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