Role Name Affiliation

Criminology

Fundamentals of Crime, Criminal Law and Criminal Justice

IPC: Historical development

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Principal Investigator Prof. (Dr.) Ranbir Vice Chancellor, National
Singh Law University, Delhi
Co-Principal Investigator Prof. (Dr.) G.S. Bajpai Registrar, National Law
University Delhi
Paper Coordinator Prof. (Dr.) G.S. Bajpai Registrar, National Law
University Delhi
Dr. Debdatta Das
Asst. Prof. Dept of Law, The
University of Burdwan, West
Bengal
Content Writer/Author Dr. Dipa Dube Associate Professor, Rajiv
Gandhi School of Intellectual
Property Law, IIT Kharagpur
Content Reviewer Prof. N.K.Chakrabarti Director, KIIT School of Law,
Bhubaneswar.
DESCRIPTION OF MODULE

Items Description of Module

Subject Name Law
Paper Name Fundamentals of Crime, Criminal Law and
Criminal Justice
Module IPC- Historical Development
Name/Title
Module Id 03
Objectives Learning Outcome:

 To make the learners understand the criminal

law as existent prior to British era.

 To make the learners understand the

development of criminal law during British
rule.

 To make the learners appreciate the process

of making of the Indian Penal Code.

Prerequisites A basic idea of the Indian British history along with

the process and factors leading to codification of law
during the period
Key words Muslim law, Kisas, Diya, Charter Acts, Macaulay,
Codification

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Introduction.
The Indian Penal Code is the major substantive criminal law applicable to the territory
of India. It covers a plethora of offenses, whether against the individual, property,
State etc., and prescribes punishments for the same. The Code has been enacted way
back in 1860 and is the handiwork of the British colonial masters who wanted to
resolve the utter chaos and confusion prevailing in the then administration of criminal
justice in India. As has been observed, „there is a very great want of definition,
accuracy and uniformity as to the miscellaneous offenses… It wants remodelling,
classification and codification.‟ Accordingly the task of codifying the penal law of the
country was entrusted to the law commission and Macaulay, in association with the
members of the Law Commission, drafted the entire code. After many deliberations,
the Penal Code was finally passed by the Legislative Council of India and received
the assent of the Governor General on October 1860.

The making of the Indian Penal Code, however, is not confined to the years under
Macaulay and thereafter. The ancient land, owing its origin to thousands of years, had
its own criminal justice system. Over a period of time, the invasion by foreigners
implanted into the soil elements of diverse system and the codification of the Penal
Code has to be appreciated in the backdrop of this development. This module will
trace the historical development of the criminal law of India till its codification in
1860.

Ancient Law.
From the earliest times known to history, the Aryan race settled in our country as
peaceful peasants. They had in course of time ceased to be nomadic and on them the
elements of cohesion and discipline had become visibly impressed. It was a society
which had developed its own institutions and which had long since adopted a
tolerable form of government. Naturally its laws were fully developed, as was its
criminal law. The Hindu law of punishment occupied a more prominent place than
compensation for wrongs. If the injury inflicted by the wrongdoer was serious in
character, the wrongdoer was not only compelled to compensate the injured party, in
addition to this had to undergo a punishment imposed by the King(Nigam, 1965).
Punishment was considered to be a sort of expiation which removed impurities from
the man of sinful promptings and reformed his character. Artha Shastra, Manu Smriti

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and Yajnavalkya Smriti are the three leading law codes of ancient India, of which the
Manu Smriti marks an epoch in the legal history of India and contains not only the
ordinances relating to law but a complete digest of the then prevailing religion, the
laws of the religion, customs and usages observed by the people.

In Manu Smriti, law was discussed under eighteen principal heads, covering both
modern civil and criminal branches of law, which fell under heads such as gifts, sales
without ownership, the rescission of sale and purchase, partition, bailment, non-
payment of debt, loans, wages or hire, breaches of the agreements and contracts,
disputes between partners and between master and servant, boundary disputes, assault
and slander, defamation, trespass of cattle, damage to goods and bodily injuries in
general. It specifically recognized assault, defamation, theft, robbery, violence to
body, adultery, altercation between husband and wife, and gambling as crimes. Later
on, Manu added cheating, trespass or transgression and fornication to the list of
offences(Vibhute, 2012). After recounting the main heads of his jurisprudence, Manu
has enjoined the King either to dispense justice himself within the assistance of
counsellors or to appoint a court or a judge and three assessors, who are enjoined to
see for themselves before they hear, and carefully sift what they hear. He further
mentioned that the administration of justice may be entrusted to the three re-generate
classes but never to a Sudra.

As regards punishment prescribed, they included censure, rebuke, fine, forfeiture of

property and corporal punishment which included imprisonment, banishment,
mutilation and death. The quantification all these punishments by the King was
regulated by a set of principles laid down, and the factors indicated, in the code itself.
Yajnavalkya and Brihaspati also State that there are four methods of punishment,
namely, by gentle admonition, by severe reproof, by fine and by corporal punishment;
and declared that these punishments may be inflicted separately or together according
to the nature of offense. Yajnavalkya laid down that the king should inflict
punishment upon those who deserve it after taking into consideration a. The nature of
the offense b. The time and place of the offense and c. the strength, age, avocation and
wealth.

Certain classes of persons were exempted from punishment under the ancient criminal
law in India. Angiras quoted by the Mitakshara states that an old man over 80, a boy
below 16, women and persons suffering from diseases are to be given half
Prayaschitta and Sankha; a child less than five commits no crime nor sin by any act
and is not to suffer any punishment nor to undergo any Prayaschitta(Gandhi, 2005).

In addition to these, the principles of individualization of punishment was

meticulously worked out in laying down the penalties for the offenses. According to
Manu, the gravity of the crime varies with the caste of the delinquent and so does the
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sentence. If the accused was a Brahmin belonging to the highest class of society, he
was to be given lesser punishments in some offenses, even a quarter of the prescribed
punishment in others. Instead of capital punishment he was to be banished, as it was
considered to be a greater punishment than death(Nigam, 1965). The severity of
punishment thus depended largely on the caste of the accused.

Muslim Criminal Law. Before the advent of the British, Mohamedan criminal law
was prevailing in India. Muslims after conquering India imposed their criminal law on
Hindus whom they conquered. The origin and fountain of Mohammedan criminal
law is the Koran which is believed to owe its origin to divine inspiration. However,
over a period of time, this was found to be inadequate to meet the needs of society.
Consequently, the rules of conduct (Sunnat) deduced from oral precepts, actions and
decisions of the Prophet constituted the secondary source. Concurrence of the
companions of Muhammad and the aid of analogy constituted respectively the third
and fourth source of Muslim law.

Hidaya and Fatawa – i- Alamgiri expounded the criminal law. The former laid down
the general rules and principles while the latter was a collection of case law(Gandhi,
2005).

The traditional Muslim criminal law broadly classified crimes under three heads(Jain,
2006): i) crimes against God ii) crimes against Sovereign and iii) crimes against
private individuals. The first category included such crimes as apostasy, drinking
intoxicating liquors, adultery etc. The second category included such crimes as theft,
highway robbery and robbery with murder. The third category included such offences
as murder, maiming etc., offences against the human body. The Muslim criminal law
tried to make a distinction between murder and culpable homicide but it did not rest
on the intention or want of intention of the culprit. It rested on the method employed
in committing the crime. This was peculiar and generated grave injustice. As pointed
out by Banerjee(Banerjee, 1990), “with exceptions crime was considered to be a
wrong done to the injured party, not an offence against the State and punishment was
regarded the private right of the aggrieved party.” There was no distinction between
private and public law, between crime and tort. This led to injustice and corruption.”
Accordingly, the Muslim criminal law arranged punishments for the various offences
into four categories, viz., Hadd, Tazeer, Kisa which was commutable to Diya(Jain,
2006).

Kisa. Kisa or retaliation meant, in principle, life for life and limb for limb. Kisa
applied to cases of wilful killing and certain types of grave wounding or maiming,
offences falling in the third category mentioned above. Kisa or retaliation was
regarded as the right of man ( Hakka Admi) and not of public or God. It gave to the

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injured party or his heirs a right to inflict a like injury on the wrong doer as he had
inflicted on his victim.

Diya. Diya or Diyut meant blood money. In certain cases, like unintentional injuries,
diya was awarded to the victim on a fixed scale. In cases where kisa was available, it
could be exchanged with diya, or blood money. The injured person or his heir could
accept diya or kisa as he liked. Thus, in case of murder, the heir of the victim could
accept diya and forgo his right to claim death of the murderer. So also, in cases of
intentional wounding or maiming, the victim could accept diya in lieu of kisa. All
these were crimes against human body. Practically, the punishment of diya was
alternative to kisa.

Hadd. Hadd etymologically meant boundary or limit. In criminal law, it meant

specific penalties for specific offences. The underlying idea was to prescribe, define
and fix the nature, quantity and quality of punishments for certain particular offences
which the society regarded as anti- social or anti-religious. These offences were
characterised as being „against God‟, or, in other words, against public justice. The
punishments prescribed under hadd could not be varied, increased or decreased; if the
offence was established, the prescribed punishment had to follow as a matter of
course. The judge had no discretion in the matter. Some of the hadd punishments were
death by stoning or scourging, amputation of a limb or limbs, and flogging. The
prescribed punishment for certain offences were: for zina or illicit intercourse, death
by stoning or scourging; for theft, amputation of limbs etc. The hadd punishments
were severe, with the main aim to deter criminals from committing crimes which were
injurious to the community of God‟s creatures.

The proof of the offence was very essential in case of hadd punishments. It had to be
very strict and full legal evidence of either two or four competent eye witnesses of
proved credit was insisted upon for convicting the offender. For example, zina could
be punished only if there were four eye witnesses of the actual act and thus, in
practice, a person could not be convicted of the offence unless he defied public
decency and committed that offence in the open. Apart from technical rules of
evidence, any doubt was sufficient to prevent the imposition of hadd. Such doubts
related to the nature of authority applicable to the facts of the particular case, or from
the character of the evidence or from the state of mind of the accused person etc. The
imposition of hadd punishments were, therefore, rare(Jain, 2006).

Tazeer. Tazeer meant discretionary punishments. These punishments were inflicted at

the discretion of the judge as there were no fixed rules to prescribe such punishments.
Usually, these punishments consisted of imprisonment, exile, corporal punishment,
boxing on the ear or any other humiliating treatment. Tazeer could be inflicted in
several situations. First, it could be inflicted for offences for which penalty by way of
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hadd or kisa was not prescribed. These offences were not serious or of a heinous
nature and so were left to be punished according to the discretion of the judge. Such
offences included use of abusive language, forgery of deeds or letters with a
fraudulent design, bestiality, sodomy, offences against human life etc. The conditions
for conviction for tazeer offences were not very difficult. It could be inflicted on a
confession, evidence of two persons, or even on strong presumption. The whole of
this part of criminal law being discretionary could be regulated by the Sovereign. The
King had a right called, “Right of Siyasat” to punish the guilty in the interest of the
general public.

The Mohammedan system of administration of criminal justice was in force when the
East India Company spread its dominion in India. The British was enjoined to
maintain status quo in the matter of civil and criminal justice and their administration
but they later realised that the Muslim criminal law was defective in many respects.
As observed by Stephen:

“The Mohammedan criminal Law was open to every kind of objection. It was
occasionally cruel. It was frequently technical, and it often mitigated the
extravagant harshness of its provisions by rules of evidence which practically
excluded the possibility of carrying them into effect. Thus, for instance,
immoral intercourse (zina) between a woman and a married man was in all
cases punishable with death, whether violence was used or not; but punishment
is barred by the existence of any doubt on the question of right or by any
conception in the mind of the accused that the woman is lawful to him and by
his alleging such idea as his excuse. Moreover the evidence of women in such
an accusation was rejected.”

The result was, as Stephen remarked, “a hopelessly confused, feeble indeterminate

system of which no one can make anything at all.” Rudolph Peters has mentioned
that, “British officials were baffled by the leniency of Islamic criminal law and by the
loopholes that often precluded the infliction of what they saw as adequate punishment
for serious criminals. Application of unmodified Islamic criminal law, they believed,
stood in the way of maintaining law and order. On the other hand, they were reluctant
to allow siyasa sentences, which they regarded as arbitrary and opposed to the notion
of the rule of law. The British, then, saw no other way than to gradually modify strict
Islamic criminal law, by putting it on the Procrustean bed of British notions of justice
and law and order.”(Peters, 2005) T.K. Banerjee has, however, differed and pointed
out “.. In some respects, undoubtedly, the Mohammedan law was superior to the
English criminal Law of the period which was still rule and crude, and far from
perfect. English law would hang a man for stealing trivial things, but in Bengal, a
thief could never be capitally punished.”(Banerjee, 1990) Dr. Aspinall observes that
in “prescribing the severest punishments for crimes against person, it was in advance

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of the English criminal law of the eighteenth century which punished offences against
property with much greater severity”.

Whatever may be the case, the defects of the Mohameddan criminal law led to a
growing demand for reforms in every section of society. The Mohammedan
administrators took no definite steps to improve the situation, more so because of
the strong ties between religion and law. It was only during the East India
Company‟s administration under the Governorship of Warren Hastings and Lord
Cornwallis that strong reformative steps were introduced(Gandhi, 2005).
The coming of the British.
Vasco da Gama, a subject of Portugal, first discovered the passage to India.
Thereafter, the Portuguese began to carry on trade with India. They were followed by
the Dutch and subsequently, the English came on the scene. It began to carry on trade
with India. In 1600, a Charter was granted which incorporated the East India
Company. The Charter gave the Company exclusive right of trading. In 1609, James I
renewed the Charter and in 1661, Charles II gave similar powers. The Charter of 1668
transferred Bombay to the East India Company, and directed that proceedings in court
should be like unto those that were established in England. The Court of Judicature
which was established in 1672 set once a month for its general sessions and of cases
that remained undisposed of were adjourned to “petty sessions” which were held after
general sessions. The court inflicted punishment of slavery in cases of theft and
robbery. In ordinary cases of theft, the offender had to pay monetary compensation. In
1683, Charles II granted a further Charter for establishing a Court of Judicature at
such places as the Company might decide. In 1687, another Charter was granted
which entrusted Englishmen who came to India with administration of justice, both
civil as well as criminal.

In 1726, the Court of Directors made a presentation to the Crown for proper
administration of justice in India in civil and criminal matters. Thereupon, Mayors‟
courts were established for administration of justice. However, the laws administered
were arbitrary as the Mayor and Aldermen possessed little knowledge of law. In 1753,
a Charter was passed under which the Mayors were not empowered to try suits
between Indians. In 1765, Robert Clive came to India and obtained the grant of the
Dewani from the Mughal Emperor. The grant of the Dewani included not only the
holding of Dewani Courts, but the Nizamat also, that is the right of superintending the
whole administration of Bengal Bihar and Orissa(Manohar, Singh, & Srivastava,
2010).

Changes Introduced under British Rule.

After the British East India Company, in 1765, had acquired the authority over the
department of finances of Bengal, it gradually extended its control over other

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branches of government. One of these was the administration of criminal justice.
Since Bengal was part of the Mughal Empire, the legal system was essentially Islamic
and based, as far as penal law is concerned, on Hanafite law. Constitutionally, the
British could not change that. However, they reformed the judiciary in such a way that
the Muslim judicial officials were subordinated to British judges. Moreover, since
they regarded Islamic criminal law as inconsistent and too lenient, they began to
remedy those doctrines that they regarded as obstacles to the maintenance of law and
order and as repugnant to natural justice.(Peters, 2005)

Nigam writes that under the Moghul rule, civil and revenue justice were administered
under the authority known as Dewani, whereas military and criminal justice was
under the Nizamat. Clive obtained from the emperor of Delhi, whose power was
declining, a grant of the Dewani of Bengal, Bihar and Orissa in 1765. By another
treaty the Company, in the same year, acquired the Nizamat from his Subedar. Inspite
of this, the Naib Nazim and his Nizamat Adalat continued to administer criminal
justice over the inhabitants of those provinces until 1790, when the Company
dismissed the Naib Nazim and assumed the administration of criminal justice
directly(Nigam, 1965).

Under the Nizamat, the hierarchy of courts included Nazim, as the supreme
Magistrate having jurisdiction to try capital offenders; followed by Naib Nazim who
tried lesser offences; under him the Fouzdar, an officer of police to try non capital
offences; and lastly, the Kotwal. This structure prevailed in cities and towns while in
the mofussils, the Zamindars had their own civil and criminal courts in their districts.
Only in case of death sentences, the matter had to be reported to the capital town
before actual execution.

The first attempt to reform the criminal justice was made after the passing of the
Regulating Act 1773, under which new courts were also set up. In each district, a
criminal court was set up composed of a Kazi, a Mufti and two Maulvis to try
criminal cases in presence of a collector, an European supervisor, deputed to see that
the trial was fairly conducted. A Superior Court of revision was set up, which
composed of a Darogah, the Chief Kazi, the Chief Mufti and three Maulvis. They
used to sit as a court of criminal revision as well as, in capital cases, they used to
confirm and approve the conviction. In 1793 another reform was made. In each
district, a court was set up composed of a European judge and assisted by Hindu law
expert and Mohammedan law expert. Four appellate courts were set up in the towns
of Calcutta, Dacca. Patna and Murshidabad. Each court consisted of three judges and
three native experts, namely a Kazi, a Mufti, and a Pandit. Above them was Sudder
Nizamat Adalat or supreme criminal court at Calcutta. The setup of the courts laid the
foundation of the existing system of administration of criminal justice. In the

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presidency towns, the system was different. They were Mayor courts and then came
the Supreme Court and Justices of Peace(Nigam, 1965).

The Regulating Act of 1773 authorized the Crown to establish a Supreme Court at
Calcutta consisting of a Chief Justice and three puisne judges. The court was to have
power to hear and determine all complaints against any British subjects, residing in
Bengal, Bihar and Orissa for any „crime, misdemeanors or oppressions‟ committed by
them. The Charter granted under this Act gave to the Supreme Court within its limits
all the authority of the Court of King‟s Bench in England. It also provided in
reference to criminal justice that it should be administered „in such or the like manner,
and form, or as nearly as the condition and circumstances of the place and the persons
admit of as our courts of oyer and terminer and gaol delivery do or may in that part of
Great Britain called England.‟ Supreme Courts similar in all respects to the Supreme
Court of Calcutta were established in Madras in 1800 and in Bombay in 1823. This
reform in the administration of criminal justice led to a problem. The Britishers in
these courts began gradually to refer to, and rely upon, the English law of crimes,
while the criminal courts in the Presidency towns were obliged to follow their own
system of law. Such a practice, obviously, resulted in a non- uniform law of
crimes.(Vibhute, 2012)

Along with reforming the courts, it was also necessary to rid the criminal law of those
features which militated against the social well-being so that the flagrant abuses in the
area of criminal justice could be avoided. Accordingly, Cornwallis‟s Government
introduced several reforms. According to Cornwallis, to judge murder from the
intention of the criminal and not the manner of proceeding, was “evidently to follow
the plainest principles of natural reason.” He did not regard it as a violation of the
Muslim law, but only a rational preference. Furthermore, the option of the next of kin
of the deceased to remit the death penalty on the murderer was taken away. It was laid
down that “the relations be in future debarred from pardoning the offender, and that
the law be left to take its course upon all persons convicted, without any reference to
the will of the kindred of the deceased.” In 1791, it was further resolved that the
punishments of mutilation should not be inflicted on any criminal in future. Instead
the cruel punishment of mutilation of limbs etc. were substituted for imprisonment
and hard labour. Steps to modify the law of evidence were also taken up during this
time. The Muslim law did not permit a Hindu to testify against a Muslim accused.
This archaic rule was abolished during the period(Jain, 2006).

The Regulation XIV of 1797 was an important measure which was inspired by
humanitarian and benevolent spirit. It was designed to remedy an evil flowing directly
from Muslim law which condemned prisoners guilty of murder, in certain
circumstances, to pay diya. A large number of persons condemned to pay diya were
languishing in prisons being unable to pay the money involved. The Regulation
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granted relief to the persons. The Sadar Nizamat Adalat was empowered to grant such
relief. It was also decided that fines were to be imposed not for the benefit of private
parties, but for the use of the Government. The Regulation LIII of 1803 tried to
introduce specificity in terms of punishment for crimes and thereby do away with the
concept of discretionary punishment under tazeer. In the following years, the process
of modifying and adapting Muslim law of crimes continued. Punishments for perjury
and forgery where enhanced; exemplary punishments were prescribed for dacoity; the
law relating to an adultery was rationalized and modified etc.

Making of the Penal Code.

The Bombay province was the first one to enact a brief Penal Code in 1827 under the
guidance of Elphinstone-the then Governor of Bombay – for the mofussil. The
Bombay regulation, incorporating almost all the penal law of the Bombay Presidency,
superseded the Muslim Penal Law. The Bombay Code, which was extremely simple,
short and written more in the style of a treatise than in that of a law, remained in force
until it was superseded by the Indian Penal Code. When Punjab was annexed in 1844,
a short code was drawn up for that province, as the Mohammedan criminal law which
was in force in Bengal was not recognized in Punjab. In the province of Madras,
Bengal, Bihar, Orissa and other territories acquired by the Britishers, the criminal law
as introduced by regulations was enforced.

The Charter Act of 1833 came as a significant step towards the development of
criminal law. It introduced a single legislature for the whole of British India with
jurisdiction to legislate for all persons and the presidency towns as well as for the
mofussil. Parliament, while recognizing that a complete uniformity of laws was
impossible, set up a Commission to give India a Common Law that is to provide a
general law applicable prima facie to everyone in British India, though particular
classes might have to be exempted from its rules as to particular matters. As stated by
Macaulay, “I believe that no country ever stood so much in need of 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… A Code is almost the only blessing- perhaps the only blessing which
absolute governments are better fitted to confer on a nation than popular
governments.” Under s 40 of the Charter Act of 1833, the first law member, T.B.
Macaulay, was appointed who assumed charge of his office on June 27, 1834. Section
53 of the Charter Act of 1833 also made a provision for the appointment of a Law
Commission to inquire into the state of laws in force and to make reports thereon.
Accordingly in 1834, a Law Commission was appointed, known as the first law
commission, with Macaulay, J.M. Mcloed, G.W. Anderson and F. Millett as
Commissioners. The Commission was directed to take up the preparation of Penal
Code for India. In the instructions to the Commissioners, drawn up by Macaulay,
Bentham‟s “principles of punishment and his criteria for a code‟ found clear
expression. The basic objective and principle of the code was to replace a patchwork
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of Muslim and Hindu laws overlaid with a mixture of transplanted English laws and
East Indian Company regulations to ensure, as much as possible, a singular standard
of Justice. Macaulay rejected the idea of mere consolidation and sought a code that
would apply to the entire Indian empire. The core objectives of the proposed Penal
Code may be described as follows(Wright, 2011):
 It should be more than a mere digest of existing laws, cover all contingencies
and “nothing that is not in the code ought to be law.”
 Crime should be suppressed crime with the least infliction of suffering, and
allow for the ascertaining of the truth at the smallest possible cost of time and
money.
 Its language should be clear, unequivocal and concise. Every criminal act
should be separately defined, the language followed in indictment, and
conduct found to fall clearly within the definition.
 Uniformity is the chief end, and special definitions, procedures or other
exceptions to account for different races or sects should not be included
without clear and strong reasons.

Macaulay had these principles in mind when he declared “uniformity where you can
have it; diversity where you must have it; but in all cases certainty.” They represented
a concrete and practical version of Bentham‟s legislative aspirations(Yeo & Wright,
2011).

The work on the Penal Code took over two years. The Commission submitted their
report on 1835 and the Draft Penal Code on May 1937. It was returned to the Law
Commission with an order to get it printed under its superintendence. The
Commission printed the draft accordingly. The Commission also carefully revised and
corrected the Code, along with the Notes, while it was in the press(Nigam, 1965).

The recommendations of the Commission did not however find immediate acceptance
of the Government. The Governor General in council was of the opinion that some
steps need to be taken to revise it. For this purpose, the opinion received from the
Presidencies were referred to the Commission and the Draft Penal Code was
thoroughly revised by the Commissioners, C.H. Cameron and D. Eliot submitted their
report on July 1846, followed by a second report submitted on June 1847. It may be
mentioned here that the draft of the Penal Code, when it was circulated for opinion,
evoked a good deal of opposition and many eminent people expressed their
reservations. In the words of Fitzjames Stephen, “Lord Macaulay‟s great work was far
too daring and original to be adopted at once and it is not surprising that the period of
gestation was prolonged.” In 1851, it was referred to the judges of the Supreme Court
of the three presidencies, the Advocate General of Madras and other judges and jurists
for their opinion. The Court of Directors in London who were anxious to see the Penal
Code enacted as early as possible, added a fourth member to the commission and the

12
report was sent to the committee for revision. It consisted of J.P Grant, Sir Barnes
Peacock, James William Colvile, D. Elliot and U.I. Moffatt Willes. The committee
after intensive deliberations decided to recommend to the legislative council that the
Penal Code originally proposed by the commissioners under TB Macaulay should
form the basis of the system of penal law to be enacted for India. However, they
considered all the suggestion and alterations proposed which they incorporated in the
draft Penal Code. The final and revised Penal Code was prepared and brought in by
Peacock, Colvile, Grant, Elliot and Arthur Buller. It has been observed that “It is
customary to speak as if Indian codification had taken its rise with Macaulay, and to
regard the Indian Penal Code as his work. Macaulay was unquestionably an eloquent
mouthpiece for the principles of codification laid down by Bentham. But he marks
only one stage, and by no means the most active and fruitful stage, of the work. The
Indian Penal Code was the result of the labours of thirty years, during which it passed
through the hands of many distinguished jurists. In the form in which it ultimately
became law, it bears more of the impress of the exact judicial mind of Sir Barnes
Peacock than of the discursive genius of Lord Macaulay.”(India and our Colonial
Empire, 1882)

The revised Penal Code was read for the first time in the Legislative Council on
December 1856 and then for a second time on January 1857 and thereafter, it was
referred to a select committee which was to report thereon after April 1857. The
Indian Penal Code Bill after its second reading was published in the Calcutta
Supplementary Gazette on January 21, 24 and 28, 1857. The suppression of the
Mutiny and the transfer of the Government, from the Company to the Crown, changed
the political conditions and the necessity to pass the law was greatly realized. It was
finally passed by the Legislative Council of India and received the assent of the
Governor General in Council on October 1860. It was scheduled to come into force
on May 1, 1861. It was published in the Calcutta Gazette on October 13, 17 and 20
1860. However, the date of its enforcement, with the view to enabling the people, the
judges and administrators to know the provisions of the new Penal Code, was deferred
till January 1, 1862 by the Amending Act IV of 1861(Vibhute, 2012).

Thus, it is evident that the Indian Penal Code 1860 is an outcome of the vision and
laborious efforts of about three decades, particularly that of Lord Macaulay, the main
architect of the code. In its drafting, the Commissioners no doubt derived much
valuable help from the French Penal Code and Livingston‟s Code of Louisiana but
above all the basis of the Indian Penal Code was the criminal law of England. “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. I do not believe that it contains
any matter whatever which have been adopted from the Mohammedan law. The Code
consists of 511 sections and it deserves notice as a proof of the degree in which the
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leading features of human nature and human conduct resemble each other in different
countries…”(Wright, 2011). Stephen has further observed: It seems to me to be the
most remarkable as I think it bids fair to be the most lasting, monument of its
principal author. There is a fashion in literature which may diminish the influence and
popularity of his own writings, but the Penal Code has triumphantly supported the test
of experience for upwards of twenty one years now (now 150 years) during which
time it has met with a degree of success which can hardly be ascribed to any other
statute of anything approaching to the same dimensions.

Nevertheless, it met with criticism from later day scholars who resented the
importation of the foreign Penal Law in India. Sir Hari Singh Gaur opined that as a
code, it is by far the most important piece of Indian legislation cannot be questioned.
But that it requires a thorough revision by an expert committee of lawyers is equally
indisputable. He has also mentioned that the punishments in the code are draconian
and no civilized country imposes such heavy sentences as the Penal Code. “The Code
does not represent Britain's attempt to modernize India's criminal law, but rather its
enactment reflected developments in England that led to a massive overhaul of
England's criminal justice system; in effect, defects in England's legal system
motivated the codification of Indian law..”(Skuy, 1998) Even Whitley Stokes in 1887
had remarked, “the time therefore has apparently come for repealing Act XLV of
1860 and for re-enacting it with the changes made by the acts amending it and with
such further improvements in arrangement, wording and substance as may commend
themselves to the Government of India after consulting the learned judges of the high
courts, and the ablest of the officers by whom the code is administered in the
mofussil.” The then contemporary public opinion of Indians was also not favourable
to the code. The drafters of the code, Indians accused, failed to honour their „promises
of simplicity, completeness and general intelligibility‟ of the code, when it was
brought to the „test of its practical application‟.

It is pertinent to note that the Indian Penal Code 1860 has been amended only
sparingly since its enactment in the post-British era. It has continued in its operation
as a major substantive law of the country for more than 150 years. Some amendments,
indicating new offenses, whether relating to criminal conspiracy or cruelty to married
women or specific offenses against women etc. have been added over the years to
keep the century-old Penal Code in tune with the contemporary social changes.

14
References.

Banerjee, T. K. (1990). Background to Indian Criminal Law. Kolkata: Cambray &

Co.

Banerjee, T. K. (n.d.). Background to Indian Criminal Law (1990), R. Campray & Co.

Gandhi, B. M. (2005). VD Kulshreshtha’s Landmarks in Indian Legal and

Constitutional History (8th ed.). Lucknow: Eastern Book Company.

India and our Colonial Empire. (1882) (Vol. LXI). London: Trubner& Co.

Jain, M. P. (2006). Outlines of Indian Legal & Constitutional History. Wadhwa and

Company Nagpur.

Manohar, V. R., Singh, A., & Srivastava, O. P. (2010). Ratanlal and Dhirajlal’s The

Indian Penal Code (32nd ed.). Nagpur: Lexis Nexis Wadhwa and Company

Law Publishers.

Nigam, R. C. (1965). Law of crimes in India (Vol. 1). Asia Pub. House.

Peters, R. (2005). Crime and punishment in Islamic law: theory and practice from the

sixteenth to the twenty-first century. Cambridge University Press.

Skuy, D. (1998). Macaulay and the Indian Penal Code of 1862: The Myth of the

Inherent Superiority and Modernity of the English Legal System Compared to

India‟s Legal System in the Nineteenth Century. Modern Asian Studies, 32(3),

513–557.

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Vibhute, K. I. (2012). PSA Pillai’s Criminal Law (11th Edition). Nagpur: Lexis

Nexis.

Wright, B. (2011). Macaulay‟s Indian Penal Code: Historical Context and Originating

Principles. Codification, Macaulay and the Indian Penal Code: The Legacies

and Modern Challenges of Criminal Law Reform, 19–58.

Yeo, S., & Wright, B. (2011). Revitalising macaulay‟s indian penal code.

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