CHAP. XIII. - Of Offences relating to Weights and Measures CHAP. XIV. Of Offences affecting the Public Health, Safety and Conve- SPECIAL REPORTS OF THE INDIAN LAW COMMISSIONERS. SECOND REPORT ON THE INDIAN PENAL CODE. From the Indian Law Commissioners to the Honourable the President of the 1. WE have the honour to submit our Second and concluding Report on the Indian Penal Code. Second Report on the Indian Penal Code. 2. Our First Report consisted of a review of the chapters of a general nature Report dated 23d governing the whole Code, namely, the chapter of "General Explanations," July 1846. the chapter of "General Exceptions," and the chapter of "Abetment," and Chaps. i. iii. iv. of the important chapters treating of "Offences affecting the Human Body," Chaps. xviii. xix. and of "Offences against Property;" to which was added a brief notice of some Postscript, dated modifications of the English Criminal Law, affecting matters treated of in those 5th Nov. 1846. chapters, which are proposed in the Second Report of Her Majesty's Com- Submitted to Her Majesty, 14 May missioners for the Revision and Consolidation of that Law. 1846. 3. In this Report we begin with the chapter of "Offences against the State," Chap. v. and proceed through all the chapters of offences not before examined, in the Chaps. vi. to xvii. order in which they stand in the Code, and finish with the chapter of "Punish- and xx. to xxvi. ments," which stands second in the Code, but which we have purposely reserved Chap. ii. to the last. CHAPTER V. OF OFFENCES AGAINST THE STATE. 4. THIS chapter provides only for offences against the Government of India, and not for offences against the General Government of the British Empire, for reasons stated in the note to the chapter, which appear to us to be good and Note C. p. 26. sufficient. 5. It may be well on this occasion to advert to the suggestion offered in that note, as to the expediency of the interposition of the Imperial Legislature to pass Page 28. a Law of High Treason for the territories of the East India Company, on the ground that though "it is highly improbable that any English King will visit his "Indian dominions, or that any plot having for its object the death of an English σε King will ever extend its ramifications to India; it is by no means improbable that persons residing in the territories of the East India Company may be parties to the levying of war against the British Crown, without violating any "local regulation. If any insurrection were to take place in any of the British "dominions in the Eastern Seas, in Ceylon, for example, or in Mauritius, it is by no means improbable that persons residing within the Company's territories might furnish information and stores to the rebels. And if this were done by a person not subject to the jurisdiction of the Courts established by Royal Charter, "we are satisfied that there would be most serious difficulty in bringing the "criminal to legal punishment." 66 66 6. The principal offence provided for in this chapter is waging or attempting Clause 109. to wage war against the Government, or abetting the waging of such war; after which is the offence of concealing a design to wage such war; next is the Clause 110. assaulting, or wrongfully restraining, or overawing by means of a riotous assembly, Clause 111. 330. A 2 the Second Report on the Indian Penal Code. Digest in 7th Re- Art. 11 to 13. 25 Ed. 3, stat. 5. 6th Report, p. 13. Page 17. Page 6. Page 28. Page 29. the Governor-general, or any Governor or Deputy-governor, or Member of the Council of any Presidency, in order to induce or compel him to exercise, or refrain from exercising, any of his lawful powers. 7. Mr. Norton thinks that "the Law of High Treason, as expressed in the "Statutes of England in respect of levying war, &c., would with a little concen"tration of their language, have more clearly defined the offences intended to be "created by these clauses." 8. If the plain and simple terms of the clauses in question be compared with the Articles of the Digest of the English Law on the same topics, we rather apprehend that the general opinion will be contrary to that of Mr. Norton. 9. The English Criminal Law Commissioners, it will be observed, have given definitions of the terms "levying war," both as regards the manner of it, and as regards the objects intended thereby, which they deemed necessary in order to put a stop to a latitude of construction beyond what, in their opinion, the Statute of Treasons contemplated, but which has been sanctioned by high judicial authority. "The crime," they say, "is in plain and unambiguous terms declared "by the statute to consist in a levying of war. There is nothing to indicate that "these terms were intended to be used otherwise than according to their literal "sense; and indeed the context, as well as the history of the times antecedent to "the declaratory Act, confirm the position that they were meant to be used "in that sense." After much reasoning on the subject, they say in conclusion, "under these impressions we are inclined to recommend that the use of all "constructive interpretations of the Statute of Treasons, both in the article of 'levying war and of compassing the King's death, should be abolished by the Legislature; and we have accordingly inserted in the Digest provisions which "will have the effect of excluding them." 66 10. In another place the Commissioners say, "the terms of the statute seem naturally to import a levying of war by one, who throwing off the duty of "allegiance, arrays himself in open defiance of his sovereign in like manner and "by the like means as a foreign enemy would do, having gained footing within "the realm." So also we conceive the terms "waging war against the Government," naturally import a person arraying himself in defiance of the Government, in like manner and by like means as a foreign enemy would do; and it seems to us, as we presume it did to the authors of the Code, that any definition of terms so unambiguous, would be superfluous. 66 11. The reasons assigned in the note for making the abetment of hostilities against the Government an offence specially, instead of leaving it to the operation of the general law of abetment in Chapter IV. appear to us satisfactory. But we do not see that but for such a provision "a conspiracy for the subversion of "the Government which should be carried as far as the Gunpowder Treason, "would be punishable very much less severely than the counterfeiting of a rupee." It appears to us, that under Clause 96, such a conspiracy carried so far, acts being done in pursuance thereof and in order to the committing of the offence contemplated, would be punishable with imprisonment for six years. It is true, however, that under the general law of abetment "a conspiracy for the "subversion of the Government would not be punished at all, if the conspirators "were detected before they had done more than discuss plans, adopt resolutions, "and interchange promises of fidelity." 12. Mr. Hudleston suggests, that "the condition of owing allegiance to the "British Government ought to be added" to the definition in Clause 109. Mr. R. N. C. Hamilton says, "ought not words fixing some definitive individuality to be used," as "whoever being a British subject (or subject of British India) wages war, &c. shall be punished with death?" "The rulers of foreign independent "states (he observes) any more than those of France or Russia, cannot be "declared liable to death for waging war. Yet the clause as it stands compre "hends them." 13. The Statute of Treasons recited in the Digest is not more specific than this chapter of the Code, in regard to the persons subject to its provisions. It says simply, "if a man do levy war against our Lord the King in his realm," as the Code says, "whoever wages war against the Government," &c. The laws of a particular particular nation or country cannot be applied to any persons but such as owe allegiance to the government of the country, which allegiance is either perpetual, as in the case of a subject by birth or naturalization, &c., or temporary, as in the case of a foreigner residing in the country. They are applicable of course to all such as thus owe allegiance to the Government, whether as subjects or foreigners, excepting as excepted by reservations or limitations, which are parts of the laws in question. The specification proposed by Mr. Hamilton would exclude foreigners resident in the country. Now, when foreigners enter a country, it is supposed that they are allowed to do so only upon this tacit condition, that they be subject to the laws. "The public safety, the rights of the nation and the prince," says Second Report on the Indian Penal Code. Vattel, "necessarily require this condition, and the foreigner tacitly submits to Book II., Chap. 66 <6 it, as soon as he enters the country; as he cannot presume that he has access VIII., Sec. 101. upon any other footing. The sovereignty is the right to command in the "whole country, and the laws are not simply confined to regulating the conduct "of the citizens towards each other, but also determine what is to be observed 66 "of this submission, foreigners who commit faults are to be punished according "to the laws of the country." So the Statute 3 & 4 William 4, c. 85, empowers the Government of India to make laws and regulations for all persons, whether British or native, foreigners or others within and throughout the whole and every part of the territories under the Government of the East India Company; and if this Code should become the law, it would of course be understood as applicable to all persons thus subject to the legislative authority of the Governor-general of India in Council, unless it were otherwise specially provided in the Act by which it was promulgated. Farther, as the legislative authority of the Governor-general in Council is expressly declared to extend to "all servants of the said Company "within the dominions of princes and states in alliance with the said Company," the Code would embrace them likewise. 14. The authors of the Code considered it very desirable that it should be made to extend also to British born subjects of the Queen, and to native subjects of the British Government, within the dominions of such princes and states, but in their letter to the Governor-general in Council, under date the 2d May 1837, they said they had serious doubts whether the legislative authority of the Government of India went so far. Upon this point, and also upon the power of the Government of India to apply the Code to offences committed on the high seas by natives of the British territories, they recommended that a reference should be made to the Home authorities. In the answer of the Secretary to the Dated 5th June Government of India it was notified that a reference would be made to the Court 1837. of Directors, in order that the doubts which had been suggested might be cleared up. A reference was made accordingly to the Court of Directors, who took the opinion of the Attorney and Solicitor-general, and of their own Counsel on the subject, which they communicated to the Government of India in a despatch, dated 19th February 1839. The law officers say, that in their opinion" the Legislative Council has power to pass laws enacting and declaring that crimes " and offences committed in the territories of princes or states in India, adjacent "to the British territories, by persons, the native subjects of and owing obedience "to the laws of such British territories, shall be liable to be tried and punished as "if committed within the local limits of the British territories ;" and also, "that "the Legislative Council has power in the same manner to provide for the trial "and punishment of crimes and offences committed upon the high seas, enacting "and declaring them to be offences of the same quality, and triable and punish"able as if they had been committed on land as has been done as to offences 66 "committed at sea by British Statutes." They add, that "it would of course be 39 Geo. 3, c. 37. proper to limit the application of such a law to persons, natives and subjects "owing obedience to the Laws of the British territories. For piracy, &c., provision "has been made by existing laws." It is to be observed that this opinion does not touch the question of the power of the Indian Legislature to make laws binding on British born subjects of the Queen residing in the dominions of princes and states in alliance with the East India Company, which appears to be still doubtful. 15. In the communication from the Secretary to the Government of India above referred to, it was also intimated that the Governor-general in Council fully concurred in the principle advocated by the Commissioners in the letter above mentioned, Second Report on the Indian Penal Code. mentioned," that the Penal Law should extend to all inhabitants of India with- 66 66 16. If the Penal Code shall be adopted, it may be presumed that the Act by which it is promulgated will declare to what places and to what classes of persons it shall apply generally, and will notify any reservations or limitations which may be resolved upon. 17. Mr. Hudleston referring to a suggestion of Mr. Blane, that the provision contained in Clause 111 should be extended to all constituted authorities, observes for himself that the clause as it stands "appears to be a strange provision "with an inadequate penalty." It would be strange, we conceive, to magnify an assault of the nature described in this clause, committed upon an inferior officer of the Government, as a "constituted authority," into an offence against the State; and equally strange not to make it an offence against the State when it is committed upon the Governor-general of India, or a Governor or a Member of the Government of any Presidency, with the view to deter him from exercising any of his lawful powers as Governor-general, &c. It appears to us that Clauses 184 and 185 sufficiently provide for the punishment of attempts to overawe other public officers or "constituted authorities," when such attempts are not made by a "riotous assembly;" when they are made by a " riotous assembly," the provisions of Clause 127 and the following Clauses of the Chapter of Offences against the Public Tranquillity apply. 18. With reference apparently to Clause 113, and the explanation subjoined to it, Mr. Norton makes the following remarks: 66 6 "As regards the object of defining the mode of slandering Government-' as 'by words either spoken or intended to be read, or signs, &c.' and of defining "what shall constitute slandering, namely, the exciting feelings of disaffection, "as contrasted with the exciting only feelings of such a disapprobation of mea"sures of Government as is compatible with a disposition to render obedience and "to support its lawful authority against unlawful attempts, &c.' I conceive the "composers of this Code are as unfortunate as all others have been in that effort. "Words spoken and signs made, and words written, with a view to sedition or of "exciting disaffection, are of very different effect and criminality, and the vagueness " in the definition of slander is such, that no two persons would probably agree in "their sense of it. But the greatest objection appears to me to be the enormous "severity with which the most trivial slander against Government, by the most "trivial sign of communication, may be visited-extending as it may to banish"ment for life added to unlimited fine." 19. Mr. Cochrane, in commenting [upon Clause 113, says, "I think that as a mere matter of public policy, every Government should avoid punishing mere "words, unless such be accompanied by acts injurious to the interests of "the State. But this clause does not only apply to words, but is in fact a "direct attack on the public press. The expression as is compatible with a dis"position to render obedience,' which is the qualification of the clause, appears "to me of a very dangerous tendency, and calculated to place men's rights "and liberties in the discretion of each particular Judge." He objects to the clause also on the ground of the injustice of inflicting such severe punishments as are authorized by it. 20. Mr. Hudleston considers the clause to be " wholly indefensible," but he does not state his reasons for this opinion. 21. The offence which the clause is intended to punish is that of attempting to excite feelings of disaffection to the Government; and to guard against too wide a construction of this term, and to give free scope to that kind of temperate discussion and criticism of public measures which is conducive to the public good, an explanation is subjoined declaring that by disaffection is not meant "such a "disapprobation of the measures of Government as is compatible with a disposition "to render obedience to the lawful authority of Government against unlawful "attempts to subvert or resist that authority." It seems to us that by this explanation the discretion of the Judge is pretty well guided and limited, and that there |