CRIMINAL LAW-I

CHARACTERISTICS OF THE PENAL LAW

 A set of rules and regulations
 That act as an instrument of social control
 Are condemnatory in nature
 Authorise the infliction of state punishment
It defines and punishes acts and omissions that are perceived as:
1. Attacks on public order, internal or external
2. Abuses or obstructions of public authority
3. Acts injurious to the public in general
4. Attacks on the persons of individuals, or upon rights annexed to persons
5. Attacks on the property of individuals or rights connected therewith
Criminal law must balance between ‘collective interests’ and ‘individual interests.’ It is the
law that provides protection against the grossest acts that can be conducted against an
individual as well as it provides the state with the highest amount of authority. Therefore, it is
very important to achieve a balance to ensure that the criminal law is neither too weak nor too
stringent.
HISTORY/ORIGIN OF THE CRIMINAL LAW
410 AD- Anglo- Saxon Era
The Roman Empire had disintegrated and the Anglo- Saxons came and settled in the area that
forms present day England and Scotland. This was a period general lawlessness in the
society. Crimes were decided according to the law of wrongs and compensation. Various
forms of compensation like bot, white and wergild were present that could free a person of
the crime that they had committed.
The various kinds of compensation were:
1. Bot- compensation paid according to the nature and type of injury to the victim after
considering his societal status.
2. Wergild- compensation paid to the family of the deceased who was killed by the
wrongdoer. If the compensation paid was found to be unsatisfactory, the relatives of
the deceased would seek for vengeance. Blood feuds were common at this time.
3. White- compensation paid to the King or the leader for causing a breach of King’s
peace. It was a way of generating revenue for the King’s treasury and is considered to
be the forerunner of the present-day fine that is paid to the government on committing
an offence.
4. Botless Crimes- crimes for which no compensation could free the person from
punishment. This punishment was decided by the King. For eg. Perjury, treason,
blasphemy, etc.
With the onset of Christianity in 597 AD, the bishops also started deciding on matters like the
King. They brought with themselves, the concept of sin and morality. This introduced the
element of mens rea or the intention of the person in deciding the crime committed by him.
People had very less respite as justice was not given in a fair manner and clergymen were
given the authority to decide law.
1066 AD- Norman Conquest
William of Normandy came from Germany and conquered the area of England and Scotland.
He made two very important changes:
1. He stopped the practice of blood feuds
2. He stopped all forms of compensations
He slowly and steadily recognised some acts as offences and attached punishments to it and
made it known to the public. Now, people started becoming aware of the offences. He also
introduced the concepts of imprisonment and jury system. However, the accused was still not
given the opportunity to be represented. The powers of the Church were also limited. All of
this gave way to a better understanding of law.
The Era of Industrialisation
The gap between the have and have-nots widened with the onset of industrialisation which
led to a structural change in the society. The deplorable living conditions gave rise to the
crimes of petty theft, prostitution, burglary and begging. The existing laws were found to be
insufficient to protect people against the financial losses that emerged from these crimes.
There was a huge demand for the legislation and standardisation of rules. The Social Contract
theory that emerged had two parts:
1. Pactum Unionus (Article 1 of the Constitution)
2. Pactum Subjectionus (Schedule 7 of the Constitution)
This led to the incoming of a lot of new legislations. Some of these were: The Mutiny Act,
1692; The Black Act, 1723; The Bugging Act, 1749.
1. THE MUTINY ACT 1692- possession of stolen goods with the knowledge of them
being stolen was regarded as an offence and the magistrates were given the power to
lease such goods.
2. THE BLACK ACT 1723- The property was separated into common property and
property of the King. The offences of criminal trespass, poaching and theft were
introduced. The offence of poaching referred to the hunting of animals in the royal
grounds by common people.
3. THE BUGGING ACT 1749- the selling of small scraps of leather in the black market,
or the offence of clicking was abolished. The practices of search warrant and seizure
were introduced and the judge or an agent of the judge was given the power to issue a
search warrant or seize goods.
Indian Context
The Britishers now wanted to codify laws. In accordance, the first Law commission of India
was appointed under the Charter of 1833. It was headed by T.B. Macaulay and had three
other members- J.M. Macleod, F. Miller and G.W. Anderson.
Macaulay observed that Indians were brute and needed to be civilised. He believed in the
total anglicisation of the laws in India. He studied the local laws but did not conform to it and
was heavily influenced by the Western jurisprudential principles and the French Penal Code.
The Indian Penal Code was passed in 1860 but could come into force only from 1 st January
1862. This was done in order to familiarise the judges and adjudicators with the laws first and
introduce the police under the Indian Police Act of 1861. In 1868, the first procedural code
was passed under the Code for Criminal Procedure 1868 and the Indian Evidence Act was
brought in 1872.
Objectives of Codifying Criminal Law in India
1. Taking away discretionary power.
2. No punishment other than what is mentioned in the codified law would be imposed on
a guilty person.
3. Every offence had to be defined in clear and precise terms with exceptions,
explanations and illustrations wherever necessary.
4. Criminal Law should apply uniformly throughout British India.
PRINCIPLES OF CRIMINAL LAW
Mala in se
Mala prohobita
Mala in se- Evil in itself
Certain crimes are condoned throughout the world and across cultures. Eg. Murder, Rape,
Child Sexual Abuse, etc. These offences are so evil that a society cannot progress without
punishing these offences.
Mala prohibita- Evil which is prohibited
There are certain acts with which there is nothing fundamentally wrong, but it is punishable
under the law of that country. Eg. Different traffic rules relating to overtaking, public
nuisance, etc.
Nullum Cremen Sine Lege
Nullum Cremen Proene Lege
Nullum cremen sine lege- It is the principle of non-retroactivity. A person must not be
punished for an act that has not been regarded as an offence at the time of the commitment of
the act. An act cannot have retrospective impact.
Nullum cremen proene lege- It is the principle of legality. A person cannot be convicted for a
crime that has no precise definition or ingredients and there can be no punishment without a
pre-defining law.
DIFFERENCE BETWEEN TORTS AND CRIMES
TORTS CRIMES
It is a legal/ civil wrong. It is a criminal wrong.

It is against an individual. It is against the state.

It calls for unliquidated damages. It calls for liquidated damages.

It is not codified. It is codified.

It calls for compensation or remedies. It attracts punishment.

Mental element is not necessary under every Mental element is a major requirement
tort. under most of the crimes.
Petitioner files a plaint. Complainant files a complaint.

The degree of the importance of the burden Burden of proof is very important, and the
of proof is lower. act must be proved beyond reasonable
doubt.
Guilt is presumed if the ingredients are The accused is presumed to be innocent
fulfilled. until proven guilty.
Proportionality is not an essential feature of A person must be punished in proportion to
the damages awarded. the crime that he has committed.
Contributory negligence is given due Reliance is not given to the victim’s fault.
significance.

PURPOSES OF CRIMINAL LAW

1. Criminal law tries to prevent harm. This harm could be an injury to life, body or
property.
2. Criminal law gives people a warning.
3. It defines an offence and its ingredients.
4. Seriousness- bailable and non-bailable; compoundable and non-compoundable;
cognizable and non-cognizable; summons case (punishment less than two years) and
warrants case (imprisonment above two years)
5. Criminal law prescribes punishment well in advance. (Kinds of punishment under
section 53 are fine, forfeiture of property, imprisonment, life imprisonment, death
penalty)
6. Criminal law is centred to give justice and victimless crimes or crimes without any
direct or apparent victim are also punished.
SOURCES OF CRIMINAL LAW
 Legislations
 Precedents
 Common Law Principles
  International Conventions and Treaties- Convention on Rights of Child, 1985;
PALERMA Protocol
 Constitution of India
 State Amendments
 Special and Local Laws (Sec. 40 and 41 of IPC)
JURISDICTION
 Territorial Jurisdiction
 Extra- territorial jurisdiction
 Admiralty Jurisdiction
 Jurisdiction of Courts to decide on matters
The components of jurisdiction are as follows:
1. Power to take judicial notice of a matter presented before the authority. Judicial notice
basically means cognisance.
2. Power or Authority to hear and determine a matter presented before it.
3. Authority to adjudicate and exercise any judicial power in relation to the matter.
JOINT LIABILITY