Second Report on the "gations under which the bidder lays himself by such bidding." Considering such proceeding as a contempt, and as an obstruction to the public service, it appears fit to punish it, but we see no reason for the fine being unlimited. In Indian Penal Code. Clause 168, which provides for the punishment of a person obstructing a public sale, the fine is limited to 500 rupees, the term of imprisonment being one month, as in Clause 170. We would limit the fine in Clause 170 to 500 rupees. By Clause 3, Section 14, Regulation II. of 1822 of the Bengal Code, now rescinded, a person bidding at a public sale and not concluding his purchase, was liable to a fine of 100 rupees, or imprisonment for 15 days. By the existing law at Reg. XXVI. of Madras, persons bidding who are legally incompetent to purchase, are liable for 1802, Sec. 21. the second offence to fine and imprisonment without limitation. Mr. Norton upon this clause, as we have observed above, asks, "what is the criterion of bidding without intention of performing all the obligations, &c." We can only say, that we see no need for any peculiar criterion. The fact that the bidder did not intend to complete the purchase, must, of course, be proved by such evidence as is ordinarily admitted in similar cases. 111. In Clauses 171, 173, 175, 177 and 178, are provisions for the punishment of resistance to arrest, the rescue of prisoners, escape of prisoners from custody, and the harbouring of persons ordered to be taken into custody or who have escaped from custody. In the next chapter, under the head of Offences against Public Justice, are further provisions for the punishment of prisoners under sentence escaping from custody, &c. The punishment for resisting an arrest, and for rescue, is imprisonment, which may extend to six months, or fine, or both. The punishment for escaping from custody is imprisonment, which may extend to three months, or fine, or both. For harbouring a person ordered to be taken into custody, the punishment is imprisonment to one month, or fine which may extend to 200 rupees. For harbouring a person who has escaped from custody, the imprisonment may extend to two months, and the fine to 500 rupees. Many experienced officers have objected to these punishments as too lenient. In the case of a state prisoner, or a murderer, or a dacoit, for example, it is thought that the punishment denounced in Clauses 171 and 173 respectively, will be inadequate to deter the friends of the offender from resisting an attempt to take him into custody, or from rescuing him from custody. Again, it is observed that imprisonment for three months, under Clause 175, would not deter a person apprehended for a serious offence, whose punishment might be imprisonment for 14 years, from attempting to escape. 112. By the Digest of the English Criminal Law, persons resisting apprehension Chap. V., Sec. 5, or escaping from custody not under sentence, are punishable with imprisonment, Arts. 1 to 4. which may extend to two years, and in felonies to three years; the rescue of prisoners not under sentence is punishable with imprisonment, which may extend to three years, and in cases of felony and treason, with transportation for seven years, or imprisonment not exceeding three years. 113. The terms of imprisonment thus authorized are very long compared with those of the Code, but it is to be considered that by the Code the amount of fine which may be added to the punishment of imprisonment is unlimited, and that when the offence is aggravated by the commission of an assault or any other offence at the same time, the offender is liable to additional punishment. Thus in a case of rescue, for example, if an assault were committed attended with hurt, the offender would be liable to imprisonment for six months for the rescue, and for one year in addition on account of the hurt, and to fine at the discretion of the Court. It has been suggested that there should be a gradation with reference to the nature of the charge against the person whose arrest is resisted, or who has escaped or been rescued from custody, and we are inclined to think it advisable to follow the Digest on this point. The Digest prolongs the term of imprisonment when the offence charged is a felony, that is, an offence punishable with transportation. We would provide in the Code for an extension of the term of imprisonment from six months to one year, when the offence charged is punishable by imprisonment which may extend to seven years. 114. The same modification we think advisable in Clauses 177 and 178 respecting "harbour;" we would suggest that the punishment in these clauses be doubled when the offence charged against the person harboured is punishable by imprisonment which may extend to seven years. It is to be observed that when harbour 330. D 2 Art. 9. Arts. 10, 11. harbour is given to one who has committed an offence punishable with imprisonment for seven years or upwards, with the intention of screening him from justice, it is called subsequent abetment, and is punishable under Clause 107 with imprisonment, which may extend to six months, or fine to 1,000 rupees, or both. We have already suggested a modification of the exceptions to these clauses, in commenting upon the exception to Clause 107 to the same effect. 115. Of Clause 179, which provides for the punishment of persons insulting or causing interruption to public servants in the discharge of their public functions, Mr. Hudleston observes, that it is open to enormous abuse, and in the case of the lower Native servants would lead to false charges. Mr. A. D. Campbell would strike out the words " offers any insult," or insert" above the rank of a common peon or chuprassie." Colonel Sleeman suggests that there should be one clause for the offering of insult, to be punished as here proposed, and another for the mere causing of interruption, to be punished with fine, and imprisonment only in default of payment of the fine. He thinks that this distinction is much wanted. 116. We think that the objections to the provision regarding insult in this clause are overstrained. Clause 485 provides generally for the punishment of any person intentionally offering insult to another, and we see good reason as regards the public peace for this provision. But if it is properly made an offence to insult a private person going about his own business, à fortiori it ought to be made an offence to insult a public servant while he is in the discharge of his public functions, as it is by Clause 179, and still more to insult a public servant while he is holding a court of justice, as by Clause 197. We would provide distinctly for the offence of causing interruption to a public servant in the discharge of his public functions, as proposed by Colonel Sleeman, subjecting the offender to a fine not exceeding 200 rupees, and of course to imprisonment in default of payment under the general rule. We shall propose a similar arrangement with respect to the offences described in Clause 197. 117. Mr. Hudleston objects to Clause 181, which provides for the punishment of a person who, knowing himself to be directed by law to give assistance to any public servant in the execution of his public duty, intentionally omits to give such assistance, with imprisonment which may extend to one month, or fine to the amount of 200 rupees, or both. This provision appears to him calculated to lead to much abuse, and he thinks the principle of doubtful propriety, and the penalty too severe. His colleague, Mr. A. D. Campbell, expresses his dissent from this Chap. IV., Sec. 2, opinion, and we agree with him. The Digest of the English Criminal Law has Art. 12. Seventh Report, P. 11. 66 a general article, under which a person wilfully doing what is prohibited, or omitting any matter or thing commanded to be done by any statute," is punishable with imprisonment which may extend to three months, or fine at discretion, or both. The Commissioners observe, that this is "an enactment which "is essential for the enforcing of general laws in the absence of any particular "penalties annexed to disobedience." The penalties, they observe, may be incurred although the offender is not apprised by the Digest by what acts or omissions he will incur them, This, they admit, is an inconvenience, but a necessary one, for some means are absolutely essential for compelling obedience to the direct and peremptory precepts of the law, and one who is wilfully guilty of disobedience may be regarded as having acted criminally. These observations appear to be applicable to the provision in Clause 181. 118. We come now to Clause 182, the reasons of which are fully explained in Note F., p. 39, 40. the Note to this Chapter. What is proposed " is to empower the local authorities "to forbid acts which those authorities consider as dangerous to the public "tranquillity, health, safety or convenience, and to make it an offence in a per 66 66 son to do anything which that person knows to be so forbidden, and which may endanger the public tranquillity, health, safety or convenience." The clause does "not give to the local authorities the power of arbitrarily making anything "an offence. For unless the Court before which the person who disobeys the "order is tried shall be of opinion that he has done something tending to "endanger the public tranquillity, health, safety or convenience, he will be liable "to no punishment. The effect of the order will be merely to deprive the person "who knowingly disobeys the order, of the plea that he had no bad intentions. "He will not be permitted to allege that if he has caused harm, or risk of harm, "it was without his knowledge." 119. We Second Report on the 119. We think it is satisfactorily shown in the note, that the proper local officers should have power to issue orders for the purpose indicated, to have force without the sanction of the Legislature, so far as is provided in the clause in Indian Penal Code. question; and with such a check upon the punishment of persons disobeying the orders as the clause contains, in requiring it to be proved that the disobedience, by act or omission, caused or tended to cause any of the evils against which the order was meant to guard, it does not appear to us that it is liable to abuse; nor do we see that there is such room for arbitrary constructions as Mr. Norton finds in it. 120. Mr. Hudleston says, "the intention of this clause appears good, but I "think it badly worded. Power to remove nuisances should be given. I object "to punish for causing any annoyance,' 'risk of annoyance,' or ' risk of rioting.'' Mr. Hudleston does not explain what he understands by the term "nuisance." By the definition of it in the Digest of English Criminal Law, it includes any act or unlawful omission which causes or tends to cause " "any pub"lic calamity, mischief or disorder, or any common injury, damage, inconve"nience or annoyance to the Queen's subjects" (generally, or any class of them), "in respect of their habitations, personal safety, health, or comfort and convenience or property." So that according to the English Law, which Mr. Hudleston generally approves of, in giving power to order the removal of a nuisance, and, as we apprehend Mr. Hudleston means, to enforce the order by a penalty, power would be given virtually to punish for annoyance, which he objects to. 121. It has been suggested that the authors of the Code have been overcautious against abuse of the authority which they deem to be necessary in this respect, in providing, for the reasons stated by them, "that no person should be punished merely for disobeying a local order, unless it be made to appear that "the disobedience has been attended with evil or risk of evil," intending thus to secure that no person shall be punished "for disobeying an idle or vexatious "order." Mr. H. C. Tucker says, "no one should be allowed to plead that an "order was 'foolish,' as his reason for disobeying it; until reversed on appeal "the order of every public servant should be binding, and be enforced. Officers "should be warned against issuing vexatious orders (under liability to suit for damages in the Civil Court), and they might be prohibited from issuing any general orders without the previous sanction of the controlling authority." 122. The Commissioners themselves say, "we see some objections to the way. "in which we have framed this part of the law. But we are unable to frame it "better." We suppose they had some apprehension that the power they felt to be necessary would be apt to be neutralized when the punishment of disobedience to it was made contingent on the judgment of another authority as to the effect of such disobedience; that the order would not be likely to meet with the prompt obedience requisite to make it effectual for the end intended on an emergency, if disobedience could not be punished summarily by the same authority which issued the order. We have some such apprehension; but we are not prepared at present to suggest any modification of the clause, which, while it should make the power more effectual, should leave it equally safe from abuse. We are the more content to leave the clause untouched, when we find that only one officer employed in the internal administration has offered a practical objection to it. 123. Clause 184 provides for the punishment of a person holding out a threat of injury to a public servant to prevent him from doing his duty, and Clause 186 for the punishment of one who holds out such threat to any person to prevent him seeking protection from a public servant empowered as such to give him protection. In both cases the punishment is imprisonment of either description, which may extend to one year, or fine, or both. Mr. Hudleston (Mr. A. D. Campbell agreeing) objects to the former clause as liable to great abuse. Threats," he observes, are often effusions of passion unattended with any "formal intention of wrong. The observation is true, but it is for the Court to distinguish between empty threats of this kind for which the punishment should be merely nominal, and threats calculated to cause the person to whom they are held out to be in fear of the injury threatened, which it is proper to punish with more or less severity, within the limit prescribed, according to the 330. 66 D 3 nature Second Report on the Indian Penal Code. Paras. 108, 109. 113. Para. 104. nature of the injury threatened and the probable efficacy of the threat. For a threat of "grievous hurt," delivered in a manner calculated to make the person threatened believe that it would be inflicted, and terrifying him with the apprehension of it to a degree likely to induce him to fail in his public duty, the maximum punishment authorized would not be too severe; still less for a threat of murder, to which the clause equally applies. Indeed,' we cannot think it severe enough, when reference is made to Clause 483, which provides the punishment of imprisonment which may extend to two years, or fine, or both, for the offence of criminal intimidation (Clause 482), committed to induce any person to do what he is not legally bound to do, or to abstain from doing what he has a right to do, or merely to cause distress or terror to him. It is to be observed, that this Clause 184 applies to judicial officers as well as others, there being no special provision regarding threats to judicial officers in the next Chapter of Offences against Public Justice. We are of opinion that the penalty should be the same as is denounced in Clause 483. Mr. 124. With reference to Clause 187, and others to the same effect, Sir H. Seton questions first, generally, the propriety of making offences cumulative; secondly, the propriety of making them so, to the extent proposed in this chapter. Norton observes, that double or cumulative punishments abound in this chapter, with less need for them than in any other. We shall consider the general question in reviewing the Chapter of Punishments. We have above suggested a reason for cumulative punishments being so frequent in this chapter, namely, to provide discriminately for aggravations which the English Law provides for indiscriminately, by allowing a much greater latitude in the punishments for the primary offences; and we cannot but think the method of the Code, as it limits discretion, is more conducive to exactness in the apportionment of punishment. 125. Mr. Pycroft observes, that there is no adequate punishment in the Code for preferring false complaints, a very common practice in India. We conceive that Clause 163, upon which we have remarked in para. 102, sufficiently provides for this offence. 66 126. Sir H. Seton asks, are the offences contained in this chapter to be the only contempts liable to punishment? If so, what is to be the provision for "enforcing decrees, orders, &c.? Is any party to be at liberty to set the law at "defiance who is willing to submit to a limited fine and imprisonment?" We have already offered a suggestion on the point touched by the last question. To Clauses 193 & 194. promote the enforcement of decrees, &c. there are some further provisions in the next chapter. The penalties prescribed for the particular offences obstructive of judicial procedure which are defined in the Code, must be taken as exclusive of other punishment. But it would seem not to be intended to meddle with any other coercive power the Courts possess for the enforcement of decrees, &c., as by attachment and sale of property, and so forth. CHAPTER X. OF OFFENCES AGAINST PUBLIC JUSTICE. 127. THIS chapter is intended to provide for offences that interfere with the administration of justice, which do not fall within the provisions of the preceding Chapter relating to Contempts of the lawful authority of Public Servants, or of other chapters, or which appear to call for more severe punishment when comClauses 188 to 192. mitted for the defeat of justice. 128. The first five clauses in this chapter which relate to false evidence are very important. The first of them, Clause 188, defines the offence of "giving "false evidence" on oath or under a sanction tantamount to an oath, distinguishing it from the offence of making a false statement to a public servant under the like sanction in Clause 162, by the circumstance that it is given in some stage of a judicial proceeding touching a point material to the result of such proceeding. The next Clause, 189, defines the offence of "fabricating false "evidence." Clause 190 provides for the punishment of the offence of giving or of fabricating false evidence simply; Clause 191 and 192 aggravate the punishment punishment when the offence is committed with the intention of deceiving a court of justice so as to procure a wrongful conviction of a capital offence, or of some grave offence not capital. Second Repor on the Indian Penal Code 129. The English Criminal Law Commissioners, in their Fifth Report, ex- Page 23. pressed an opinion" that the distinction between the offences of false swearing 66 in a judicial proceeding, and mere false swearing, is judicious and proper." After pointing out some statutory provisions regarding mere false swearing," Page 26. they observed that the great objection to such provisions is, that " they confound "the aggravated offence of judicial perjury with the inferior crime of false swearing." "It appears to us," they said, " that the object of the law may "be much more effectually attained by a general clause, such as will be found " in the Digest, making it criminal in any person lawfully required by any competent authority to declare the truth upon his oath in any proceeding not judicial, wilfully to state a falsehood, and we propose to place this offence in a "lower degree than judicial perjury in the classification of punishments." This is exactly the course taken by the Indian Law Commissioners in framing the Code. We find, however, that the English Criminal Law Commissioners took a different view in framing the Digest appended to their Seventh Report. In this Chap. V., Sec. 4, the article defining perjury includes false swearing on any "other occasion where Art. 5. 66 an oath is imposed, required or sanctioned by law," as well as "in some "judicial proceeding." We think the arrangement of the Code is preferable, for the reasons given in the Fifth Report, as above cited. 66 66 130. Mr. Hudleston, commenting on Clause 188, says, "I do not see why the "word 'perjury,' which is perfectly intelligible to the people of India, and has "been so long in use, is discarded." Mr. A. D. Campbell answers, "The reason why the word 'perjury' as well as the English Law regarding it has "been entirely discarded in this Code, has been most satisfactorily explained in "Note G." He adds, " it is gratifying to find so many officers in the interior "bearing testimony of that admiration which I agree with them is justly due to "the Law Commissioners, for the vast improvement they have suggested in this important branch of the Criminal Code." The authors of the Code thought it inexpedient to use the technical terms of the English Law where they did not adopt its definitions, and so materially departed from it in substance. The reason is general, and applies to the whole body of the Code, as well as to this particular article of it. As to the people of India, although the word “ perjury" is used in the English Regulations, we apprehend that the offence is better known to the generality by words of similar import to those used in the Code "ex- Bengal Reg. II., pressing the nature of the crime in the most current local language." 131. There are "explanations" annexed to Clause 188, which, for the purpose of it, include as judicial proceedings certain investigations for judicial objects which do not take place before a Judge or a Court of Justice, as those terms are defined in Clauses 12 and 13. Mr. Hudleston questions the propriety of empowering such an officer as is indicated in one of the "illustrations," viz. an officer deputed by a court to ascertain boundaries, to take evidence on oath, but we do not see any valid objection to it. The offence is the same essentially whether the oath be taken before the Judge or the officer, the intent being "mislead the Judge on a point material to the question" before him, in order to the decision of which the investigation is directed to be made. It is to be observed, that another explanation makes an interpreter who gives a false interpretation on oath to a Court of Justice, guilty of " giving false evidence" within the meaning of this clause. "to 1807, Sec. 3, (c) 132. It will of course be necessary to modify the wording of Clause 188 and of Clause 162, so as to make them consistent with Act V. of 1840, and Act XXI. of 1837, in respect to the affirmation substituted for an oath in judicial proceedings by the former, and to the declaration allowed to be substituted for an oath on other occasions by the latter. The punishment authorized by Section Imprisonment not exIV. Act XXI. of 1837, for a false declaration, is less than is authorized for a ceeding one year, or fine, false statement on oath by Clause 162. The latter we think should not be Imprisonment not exaltered. 66 133. Mr. Fagan proposes an additional provision for the case of a person stating that to be true, which he could not possibly know to be true, 330. D 4 or or both. ceeding three years, or fine, or both. |