Report on the Indian Penal Code. P. 18. should be declared a substantive offence, is a question which will be considered in its proper place; if it be made penal, it will be necessary to provide that the exception in Clause 71 shall not extend to it. 124. With reference to the Articles providing that the exceptions in Clauses 71 and 72 shall not extend to rape, &c., Mr. W. Hudleston and Mr. A. D. Campbell make strong observations upon the allusion to such acts "as within a "rule respecting acts done in good faith for the benefit of a child or lunatic." The explanation of the Commissioners is, that "even parents have been known "to deliver their children up to slavery in a foreign country, to inflict the most "cruel mutilations on their male children, to sacrifice the chastity of their female "children, and to do all this, declaring, and perhaps with truth, that their object was something which they considered as advantageous to the children. We "have, therefore, (they say) not thought it sufficient to require that on such "occasions the guardians should act in good faith for the benefit of their ward." The case given as an illustration (f) is a person abetting a rape on his daughter, intending in good faith her pecuniary benefit. 66 125. We regret that, in the present state of moral feeling among large classes of the people of India, we cannot regard this as a case out of all probability. We fear that parents in poor circumstances are too often to be found ready "to "sacrifice the chastity of their female children " under circumstances very likely to involve a rape, in a belief that they will be benefited by the connection thus formed with persons able to provide for them. It seems to be proper, therefore, to guard the exception from abuse in this respect. 126. There is a difference between Clause 69 and Clause 70, in that the latter speaks of" any person ""who has given a free and intelligent consent;" whereas .127 We may here notice a remark of Mr. A. D. Campbell,- 128. Clause 73 has been objected to as superfluous. Sir H. Seaton asks, whether the subject is not one which "might be left to the discretion of those by "whom the law is to be administered?" and whether this clause affords any other security?" The answer is to be found in the note of the Commissioners :Clause 73 is intended to provide for those cases which, though, from the imperfections of language, they fall within the letter of the penal law, are yet not "within its spirit, and are all over the world considered by the public, and for "the most part dealt with by the tribunals as innocent." After specifying instances, they say, "that these acts ought not to be treated as crimes is evident, and we think it far better expressly to except them from the penal "clauses of the Code, than to leave it to the Judges to except them in practice; "for if the Code is silent on the subject, the Judges can except these cases only by resorting to one of two practices, which we consider most pernicious, by making law, or by wresting the language of the law from its plain meaning." 66 129. Some Report on the 129. Some of the objections to this clause seem to arise from misconception. Thus Sir R. Comyn observes upon it, that "the criminality of doing harm' Indian Penal Code. depends upon whether the person harmed be of ordinary sense or temper, and likely to complain of such harm ;" and his comment is, that "it seems straining "the criminal law to suppose the consumption of the time of the court in ascertaining the sense and temper of the party." Now all this is a mistake. There could be no question of the sense and temper of the person harmed under Clause 73. The only question there could be, is, how would men of ordinary sense and temper regard the harm of which he complained? was it so slight that no person of ordinary sense or temper would complain of it? 130. We come now to the provisions regarding the right of private defence, Clauses 74 to 84. of which the Commissioners speak with great diffidence as the part of the Code the least satisfactory to themselves, at the same time observing that they are "inclined to think it must always be one of the least exact parts of every system "of criminal law." They propose to except from the operation of the penal clauses of the Code large classes of acts done in good faith for the purpose of repelling unlawful aggressions. Of the definitions they have given of the limits of private defence, they observe as follows: "It may be thought that we have "allowed too great a latitude to the exercise of this right; and we are ourselves "of opinion, that if we had been framing laws for a bold and high-spirited people, accustomed to take the law into their own hand, and to go beyond the line "of moderation in repelling injury, it would have been fit to provide additional "restrictions. In this country the danger is on the other side. The people are "too little disposed to help themselves. The patience with which they submit "to the cruel depredations of gang robbers, and to trespass and mischief com"mitted in the most outrageons manner by bands of ruffians, is one of the most "remarkable, and at the same time one of the most discouraging symptoms "which the state of society in India presents to us. Under these circumstances, "we are desirous rather to rouse and encourage a manly spirit among the people, "than to multiply restrictions on the exercise of the right of self-defence. We "are of opinion that all the evil which is likely to arise from the abuse of that right is far less serious than the evil which would arise from the execution of one person for overstepping what might appear to the courts to be the exact "line of moderation in resisting a body of Dacoits." 131. Sir J. Awdry says, "I agree with the admission of the Commissioners "that the line drawn as to the right of private defence is not satisfactory, as well "as that it is probably the least satisfactory part of most Codes. I cannot suggest "a better line. The difficulty is inherent. A nicely graduated scale of urgency " is impossible, because it depends on a combination of so many circumstances, "wherein those which are higher in their kind may exist in a lower degree, and "because the rule is to be applied by unlearned men, under circumstances likely "to deprive them of self-possession. I do not see that the Commissioners have "erred from the line of moral right and wrong, and this is the true guide; inen "cannot in general act in such cases from the knowledge of their rights, but from "the impulse of the moment acting on dispositions ready or not ready to place "others' safety in fair competition with their own; upon this footing, therefore, "not on that of strict knowledge of the law, must their responsibilities stand, 66 though of course it is desirable to simplify the law, so as to obtain the largest < possible amount of knowledge." 66 132. Mr. Norton, on the other hand, says, " As to those 'general exceptions' "which exclude from criminality certain acts done in private defence, a host of cases, as it appears to me, might be suggested, falling within the text which "neither ought, nor perhaps were intended, to be included, and as many more "acts disallowed which are justifiable. Such terms as right of defending body "or property against mischief' or 'criminal trespass' are not indeed easy to be "appreciated, and the whole Clause 75 is, with reference to the vast variety of "cases which may possibly be pointed at, to me absolutely unintelligible. "I know not how to make Clause 76 square with the restrictions of Clause 75." He adds, "It would be too tedious a task to point out the doubts and difficulties "and incongruities which arise to my mind in the perusal of the various vague and general expressions throughout this chapter." 133. Mr. W. Hudleston, one of the Judges of the Sudder Court at Madras, "thinks that the general principle of these rules respecting the right of private "defence Report on the Indian Penal Code. Chapter XV., SSC. 2. Art. 20. Art. 22. Art. 23. Art. 24. Art. 25. Art. 26. Sec. 5, Art 51. Clause 74. 66 "defence contrasts disadvantageously with the plain practical good sense of the "law of England on this subject." He views the several clauses as open to the objection that they would tend "to deter from exertion for the protection of person and property." It appears to him also that "the conditions enumerated "are such as cannot be supposed to enter into the contemplation of the party "assaulted." And he "regards the whole as a piece of legislation that savours "of the closet, and could not have emanated from practical knowledge and "experience." 134. Mr. A. D. Campbell, another Judge of the Sudder Court at Madras, and several other Judges of that Presidency, concur with Mr. Hudleston in thinking that the subsequent qualifications of the right declared to be inherent in every person by Clause 74, are "calculated to paralyze those exertions in defence of "their persons and property which the Government has sought to encourage among the natives of this country." 66 135. Mr. Giberne, a Judge of the Sudder Court at Bombay, makes observations to the same effect. 136. It will be seen from the quotation given above, that the Commissioners were fully alive to the danger of discouraging self-exertion on the part of the people by restrictions on the exercise of the right of self-defence, and apprehended that they might be thought to have gone too far the other way, and to have allowed too great a latitude to it. And so we find officers of the Upper Provinces of the Bengal Presidency making this very objection. Thus, Mr. Heyland anticipates that under colour of exercising the right of defence against mischief or criminal trespass, there will be endless affrays and breaches of the peace. "The evil that is thus likely to arise," he observes, " is but too evident, "and there is doubtless a wide difference between this species of aggression and "that by a band of Dacoits; and however little disposed the natives of this 66 country may be to oppose the latter, they are by no means backward in opposing "their neighbours in an act of trespass, or on any slight provocation, and are "only too ready to make use of their swords and clubs on those occasions." Again, Mr. G. W. Bacon observes, that "nothing is more common than the "defence that the deceased was supposed to be a thief, when murdered in cool "blood; and when really suspected, the first thing done towards his apprehension "is usually the infliction of a sword cut. Whatever may be the case in Bengal, "the natives of these Provinces (North-Western Provinces) are ready enough to 'slay, right or wrong, and require no further encouragement." 137. Before proceeding to notice the particular criticisms which we find in the papers referred to us upon the provisions of the Code on this subject, we shall shortly state for the purpose of comparison the rules set out in the Digest of the English Criminal Law Commissioners, which it is the more necessary to advert to, since "the plain practical good sense of the law of England" is supposed to rebuke the theoretical contrivance which is attributed to the framers of the Code, in this as in other parts of it. 138. First, then, with respect to Homicide, it is laid down in the Digest, that it is justifiable, 1stly, for the prevention of any felony, that is to say (Chapter I., Section 1.) any offence punishable with death or transportation, against the person, habitation, or property, of the person killing, or of any other person; 2dly, for the defence of one's own person against violence, under reasonable apprehension of immediate death from the assailant; 3dly, in repelling force by force in defence of one's own person, using no more violence than is necessary; 4thly, in defence of moveable property, repelling force by force, and using no more violence than is necessary, or under fear of death from the assailant; 5thly, in defence of house or land, resisting a person endeavouring by force to enter, using no more violence than is necessary, or under fear of death; 6thly, in removing from house or land a person who has no right to be there, using no more violence than is necessary, or under fear of death. And such justification extends to every person aiding or assisting another in the defence of his person or property. 139, By the Code every person has the right to defend his own body, and the body of every other person against every assault; and his own property, and the property of every other person against theft, robbery, mischief or criminal trespass. 140. Homicide, Clause 76. Clause 79 140. Homicide, or "the voluntary causing of death," is justifiable in defence Report on the of the body, as above, against an assault likely to cause death (1) or grievous hurt Indian Penal Code. (2); or with intent to commit rape (3), or an unnatural offence (4); or for the purpose of kidnapping (5), or of confining wrongfully (6); and in defence of property, against robbery (1), housebreaking by night (2), mischief by fire on any building, tent or vessel, used as a human dwelling (3); and against theft, mischief, or house trespass, under circumstances causing apprehension of death or grievous hurt (4). 141. In cases not of any of the descriptions above enumerated, the right of Clause 77. self-defence extends to the causing of any harm other than death, in repelling assaults upon the person, or offences against property, subject to the general condition of inflicting no more harm than it is necessary to inflict for the purpose of Clause 75. defence. 142. The Digest does not expressly declare that every person has the right to defend his person and property, and for this end to repel force by force, and that where homicide may not under the circumstances be justifiable, any lesser degree of bodily harm may be justifiable, if no more violence was used than was necessary for the purpose of defence; but this appears to be implied in Article 44, Section 5, of Chapter XV., in which it is laid down that "where violence is permitted to be used in the defence of person or property, any excess beyond "that which is necessary and unavoidable is within the meaning of the last preceding Article," which defines the offence of "Battery." 143. Comparing thus the provisions of the Code with the rules contained in the Digest of the English Criminal Law framed by Her Majesty's Commissioners, it is not easy to discover the contrast alluded to by Mr. Hudleston; and one is at a loss to conceive what Mr. Norton meant in his observation, that "such "terms as right of defending body or property against mischief or criminal tres"pass, are not easily appreciated." The Code does not speak of defending the body against mischief or criminal trespass, but it does speak of defending property against such offences by resisting even to the death, if necessary; and so does the law of England. 66 144. Coming now to the criticisms upon particular provisions, we shall notice, first, some observations of Mr. J. F. Thomas upon the declaration contained in Clause 75, that "the right of private defence in no case extends to the inflicting "of more harm than it is necessary to inflict for the purpose of defence." Mr. Thomas says, "This I consider too indefinite, and it is not aided by the illus"tration (b)—that A., a powerful man, well armed, defends his property by killing "an unarmed boy. The illustration shows, not merely that A. inflicted more harm,' it may be but little, or by some degrees, than was necessary, but such "as was obviously and wantonly unnecessary; and the definition itself should, I "think, be confined to this class of cases. At present there is too much uncertainty in the law. Judges must differ greatly when they have to determine "the point, that no more harm than necessary was done. I would make the line "broader and stronger; and would suggest that the clause should run in these or similar terms-- The right of private defence in no case extends to the inflicting of harm manifestly and clearly unnecessary to inflict for the purpose "of defence.' The illustration in the Code will then stand." 63 66 145. Mr. Giberne apprehends that this provision "will occasion much doubt "and difficulty, the opinion of the defender being acted upon at the moment of danger with all his feelings enlisted in favour of extreme measures; whereas the Judge, quietly contemplating in his court the probable and distant danger, "will naturally hold a very different opinion; and the consequence will be, that people will be discouraged from defending themselves and property from fear "of the consequences." 66 146. We have shown that words substantially of the same import with those in question are used for the same purpose in the Digest of the English Law Commissioners, and we may take it upon the authority of the Commissioners, that they are strictly in accordance with the present law. We are not aware that it has been found in practice that they present any greater difficulty than is inherent in the nature of the case. The necessity for the degree of force used is a matter to be judged 19. D 4 "of Report on the "of from the manner of the attack, the means used in the attack, or some other Indian Penal Code. "manifestation of the criminal purpose." We doubt whether a stricter definition could be made without risking the consequence apprehended by Mr. Giberne from the present one. Clause 75. Clause 76. Clause 314. 147. Mr. Norton, to explain his remark that he "knows not how to make "Clause 76 square with the restrictions of Clause 75," observes that, "taking "the text of the two together, part of it may be read thus: a female may defend "herself against an assault, provided she ascertains that the assault is with a "view to rape, and provided she acts under the restrictions of Clause 75, one of "which is that she must not inflict more harm than is necessary." We really cannot perceive any difficulty in this case, and we think that Mr. Norton would hardly be able to show that the female would be in a more unfavourable position for defending herself in a court of justice, which it is to be remembered is the point in all the exceptions, under the clause in question, than under the English law, as it is set forth in Article 20, coupled with Article 21, Section 2, Chapter XV. of the Digest, which contain the provisions that apply to the case supposed. Under either law, the female being accused, let us say, of homicide, would confess the fact, but would justify it on the ground that she slew the man to save herself from violation, being unable to do so by any other means. Under either law she would have to give proof of circumstances evidencing the intent of the man, and the necessity of her act to prevent him from accomplishing his purpose. 148. We take it that Article 20, above mentioned, which justifies homicide for the prevention of any felony, includes all the cases in Clause 76 of the code, except the sixth, an assault with the intention of wrongfully confining any person, and this last we apprehend is covered by Article 23. 149. Referring to the case last mentioned under Clause 76, in connexion with the first Article of Clause 75, Mr. Norton observes, that "a man may defend him"self against an assault, provided he ascertains that the assault is with the inten"tion of confining, and is aware that the apprehended confinement is an offence punishable by more than a year's imprisonment, and provided also, that the "assailant does not turn out to be a public servant, authorized under circum"stances to confine some person, though not the party assailed." This case is stated invidiously. Simply stated, the proposed law is, that if a public servant, known to be one who is by his office competent to make arrests, shall attempt to confine a person, it may be wrongfully, that person will not be justified in resisting the attempt by force, but he will be justified in resisting by force any person not being a public servant, or not being legally competent, who shall attempt to confine him; and if from the circumstances there be reasonable cause to apprehend that the confinement is intended to be protracted, he will be justified in resisting even to death, if necessary. 150. We think, however, that there is reason in the exception that has been taken to the provision which justifies homicide in resisting an attempt at wrongful confinement likely to be continued for three days; that is to say, such a confinement as is punishable under Clause 334, with imprisonment for a term exceeding one year. Although it may be right to allow resistance even to death against an attempt to carry a person off, to be kept a prisoner in a hill fastness, for example, where his captivity would be likely to continue for years, we cannot think it would be right to justify such an extremity, to prevent a confinement which there was reason to apprehend might extend to three days, or a little more, even if it were quite certain that it could not be prevented by other means. 151. With reference to the second Article of Clause 76, and the fourth Article of Clause 79, Mr. Pyne, a Judge of the Sudder Court at Bombay, observes as follows: "Were 'grievous hurt limited to the first seven definitions of that "offence, the right of private defence against an assault, by which it might "reasonably be apprehended that such grievous hurt would take place, might "be taken as a justification for homicide; but, under the eighth designation of "the offence, it is, I think, allowing too great latitude to the right of private "defence to suffer a person to resist to the death, from a fear of receiving an injury which may render him unable to follow his ordinary pursuits for twenty days; the nature of the assault against which a person in self-defence acts, 66 "must |