Second Report on the Indian Penal Code. 214. Adverting to Clause 241, Sir H. Seton says, "A. wins a pool at commerce, in which he finds a bad shilling, which he puts into the next pool as "his stake; must he be imprisoned for not less than two years?" It does not appear to us that A. could be charged under Clause 241 with having received the counterfeit shilling knowingly, and therefore we take it, he would not be liable to this punishment. We are inclined however to think it expedient to omit or reduce the minimum in this and the following clauses of the chapter, as we propose with respect to some of the clauses of the chapter relating to the Vide post. analogous offence of forgery, &c. 66 215. Mr. Norton, adverting to those clauses which make the possession of counterfeit coins an offence, observes, that he "does not think the reasoning "sound for fixing the proof of the object and intent to utter on the prosecutor in cases where numerous counterfeit coins are found in the possession of a party. "The knowledge and intent of uttering counterfeit coin, where the actual uttering "takes place, may be required in substantive proof, because the circumstances "of it are extant on which a judgment can be formed. But where no act is "done at all, there is scarce a possibility of proving any secret object and intent, though pregnantly suspicious circumstances are, in such a case as this, a legiti"mate ground for a party to prove, what he alone can prove, the lawful excuse, or account for such possession of numerous articles of base coin, and such is "the principle of the English Criminal Law on this and other similar subject"matter, had it been thought worth the inquiry to ascertain it." In answer to these observations, so far as the authority of the English Criminal Law is concerned, and with reference particularly to the words we have put in italics in the last passage, it is only necessary to mention, what it seems strange Mr. Norton did not ascertain, that on the point in question the Code is in accordance with the English statute, the latter running thus: "if any person shall have in 2 Will. IV., c. 34, "his custody or possession three or more pieces of false or counterfeit coin," &c. s. 8. "knowing the same to be false or counterfeit, and with intent to utter or put off "the same, every such offender shall, &c." Under the Code, however, conviction will be easier by reason of the words, "or knowing it to be likely that such "counterfeit coin may pass as genuine.' 216. We have noticed that Clause 237 makes it an offence to abet the counterfeiting of the Queen's or Company's coin, but not of other coin, without the territories of the East India Company. It has been suggested that excluding Spanish dollars and other coin, which in some places are largely current, may be found"highly prejudicial to commerce." Referring particularly to the settlements in the Straits, in which we believe the Spanish dollar is the coin most current, and in which there is much complaint of the introduction of counterfeit coin of that description made without the settlements, probably at the instigation of persons within the settlements, it may be thought advisable to insert before Clause 237, a clause corresponding to it against persons abetting the counterfeiting of coin without the territories of the East India Company, intending that such coin may be imported into the territories of the East India Company. The words in italics, which are not in Clause 237, appear to be necessary to constitute an offence properly punishable by this Code, whereas to abet the counterfeiting the Queen's or the Company's coin is an offence which when committed by persons residing under the government of the Company, and owing allegiance to Her Majesty, is properly punishable without reference to the intention as to the disposal of the counterfeit coin. 217. It appears to us advisable to substitute for the explanation annexed to Clause 232, a definition of what is meant by counterfeiting coin, including the substance of that explanation as follows:-"A person is said to counterfeit See Clause 20. "coin who makes a false coin to resemble a genuine coin, or a genuine coin to "resemble a different coin, intending to deceive by means of that resemblance." 218. It seems to us also, that a definition should be given of the coin designated as the Queen's coin, as well of that which is designated as Company's coin, which should be in accordance with the definition in Section XXI. of the Statute 2 Will. IV., chapter XXXIV. viz. “any coin coined in any of Her Majesty's mints and lawfully current in any part of Her Majesty's dominions, "whether within the United Kingdom or otherwise." 330. F 4 CHAPTER Second Report on the Indian Penal Code. 66 CHAPTER XIII. OF OFFENCES RELATING TO WEIGHTS AND MEASURES. 219. MR. NORTON observes, that "there are redundancies of language in "this chapter from which misconceptions may possibly arise," as, for instance, fraudulently using weights known to be false," and with reference to the word dealing" particularly, he says, he is doubtful whether by using this word rather than selling, it is meant "that all persons using in any manner false weights, &c., are to be brought within the chapter." We apprehend that not "all persons using in any manner," but, "all persons fraudulently using in any "manner false weights, &c." are meant. The word " dealing" is used instead of "selling" obviously as being more comprehensive. We do not agree with Mr. Norton that there is any redundancy in the set of words cited by him as above- every word appears to us to be necessary. 220. With reference to Clause 255, Mr. Norton suggests that the possession of a false balance, &c., would be enough to show guilt without evidence of intention to use them fraudulently. The intention, however, must be alleged in laying the charge, though it may be a matter of inference only, from the fact of the possession, and the attending circumstances as manifesting the purpose, and the inference may, of course, be rebutted. 221. Mr. Blane suggests that the provisions in Clause 253, &c., ought not to apply to scales but only to weights and measures, as Indian scales are generally of the rudest construction, seldom correct, and the incorrectness always visible to the purchaser. "No doubt," he remarks, "the intent of fraud is specified, yet it appears doubtful how that intention is to be ascertained." But where the incorrectness of the scale is so visible, and there is no attempt to cover or conceal it, there can be no ground for imputing fraud from that defect alone; the circumstances negative the intention of fraud, and no charge would lie against the party using such a balance. On the other hand, a false balance artfully contrived to elude detection in the use of it, carries with it a presumption of fraudulent intention, which properly brings it within the scope of the chapter. 222. It has been suggested that it may be expedient to provide in this chapter for the fraudulent use of a true balance. This it appears to us is an offence which falls within the definition of "cheating," under which head it will be liable to the same punishment as the offence of using a false balance under this chapter. Chapter XII. 4 and 6, CHAPTER XIV. OF OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY AND CONVEnience. 223. THIS chapter comprehends provisions on subjects which in the Digest of the English Criminal Law are distributed in two chapters, under the heads of "Offences against Public Health, Comfort and Convenience," and "Common "Nuisances." 224. The first Clause in the Chapter (257), for the punishment of persons doing what is likely to spread the infection of any disease dangerous to life, corresponds with Article 6, Chapter XII. of the Digest, but is more comprehensive, the said Article being limited to the offence of exposing in public places persons labouring under infectious and contagious diseases. What is wanting in this Article appears to be supplied by the generality of the definition of common nuisance, in Article I. of Chapter XIII. The punishment in the Digest is imprisonment, which may extend to one year, or, if the offence fall under nuisance, to two years, or fine, or both; whereas in the Code, the term of imprisonment is limited to six months. We think that the word "human" should be inserted before "life" in Clause 257, as it is in Clause 265 and elsewhere, for though in Clause 33 it is explained that the word "death" denotes the the death of a human being, unless it be otherwise expressed, there is no such explanation in regard to "life" as denoting human life exclusively. Second Report on the Indian Penal Code. 225. Clause 258 provides for breaches of the law of quarantine, limiting the penalty to imprisonment for six months, or fine, or both. For the greater Chap. XII., Art. 1. breaches of the quarantine law, the penalty in the Digest is transportation for seven years or imprisonment not exceeding three years. For the minor offence of quitting a vessel liable to quarantine before it is discharged, the penalty is imprisonment for six months and fine of 300 l. 226. Many gentlemen have expressed an opinion that the limitation of the term of imprisonment in Clauses 257 and 258, renders the penalty inadequate. Mr. Pyne, Judge of the Bombay Sudder Court, particularly observes that malignantly committing the offence defined in Clause 257, appears to be deserving of the penalties provided for the offence described in Clause 294, voluntary culpable homicide. He asks," could a person malignantly propagate plague in "a populous town without believing it to be likely to cause death." If any person died of the plague, and his death could be traced to infection so caused maliciously, the person who caused it, we apprehend, would be chargeable with homicide under Clause 294. It is contrary to the principle of the Code to punish acts which the doer when he committed them knew to be likely to cause certain evil results, if in fact such results were not produced, in the same manner as if such evil consequences had actually flowed from them, but we are inclined to think that the term of imprisonment in these clauses, which is the same as for adulteration of food or of medicines, is too limited. 227. There are two Clauses (259 and 260) regarding the adulteration of food or drink, one for adulterating, and the other for selling and offering for sale adulterated food or drink, and two Clauses (261 and 262) as to the adulteration of medicines, with an additional Clause (263) for selling, &c. any drug as a different drug. The term of imprisonment in all these clauses is limited to six months; but the fine, which in the clauses respecting food is limited to 500 rupees, is extended to 1,000 rupees in those relating to medicine. 228. In the Digest there is an express provision for selling unwholesome food Art 4. or provisions, but not for adulterating food, &c. ; but it would seem that there Stephens' Summary are statutory provisions prescribing penalties for the adulteration of both food of Criminal Law, and drink. The punishment laid down in the Digest for selling unwholesome p. 100. food is imprisonment, which may extend to one year, or fine, or both. 229. The adulteration of drugs, &c., and the selling of adulterated drugs, does not appear to be provided for specifically in the Digest of the English Criminal Law. 230. Clause 264 provides for the punishment of any person who "voluntarily "causes the atmosphere in any public way to be in a state noxious to health or "offensive to the senses." It has been asked why is this provision confined to "a public way?" We are not aware of the reason for this limitation. In the Chapter XIII., Digest there is a provision for this kind of offence as affecting the neighbourhood, Art. 8. 46 and another corresponding with the one under consideration, as affecting the Queen's subjects "using any public highway or thoroughfare, or frequenting any market or other place of public resort." It appears to us that the former provision is as much required as the latter. Exception has been taken to the term "offensive to the senses" as "likely to give rise to capricious prosecu"tions." The word "offensive" is used in the corresponding Article of the Digest in the same sense apparently. The punishment in the Code is limited to imprisonment for one month, or fine to the amount of 500 rupees, or both. The punishment provided in the Digest is imprisonment not exceeding one year, or fine at discretion, or both. It seems to be worthy of consideration whether the punishment in the Code should not be extended. Art 12. 231. Clause 265 provides for the offences of driving or riding in a public way in a manner so rash or negligent as to indicate a want of due regard for human life. The English Law does not distinctly provide for this offence except when some injury has been caused by it, and then the provision is limited. The Digest contains a special provision taken from the Statute Law for injury Chap. XV., Sec. 5, caused by the furious driving of a stage coach or any public carriage, except Art. 40. a hackney carriage. 330. G 232. We Second Report on the Indian Penal Code. Chap. XIII., Art. 1. Art. 18. 232. We think it highly expedient to punish the offence defined in Clause 265, which is always dangerous and terrifying, irrespectively of actual mischief caused by it. If grievous hurt is caused, the offender will be liable to additional punishment for it under Clauses 327 and 328. If death is caused, his punishment will be cumulative, under Clauses 304 and 305. 66 233. Perhaps the terms of the definition of "nuisance" in the Digest of the English Law, may be construed to include this offence as "tending to cause common injury, damage, inconvenience or annoyance to the Queen's subjects," in respect of their personal safety;" in which case the offender will be liable to the same punishment as is provided for the offence in Clause 256 of the Code, namely, imprisonment not exceeding six months, or fine, or both, except that the fine, which is limited in the Code to 2,000 rupees, is left to discretion in the Digest. 66 66 6 234. Mr. Norton says, "As regards those criminal acts-such as driving violently, negligently using fire or combustible matter; leaving buildings in a dangerous state; the criminality of which is made to depend on 'want of regard to human life,' it appears to me that such want of regard is hardly capa"ble of proof, except from the result. At the same time other acts, such as "'rash and negligent dispensing poisonous substances,' are such as by their "inherent nature indicate such want. The mere doing of such acts I consider "to be offences of a greater or minor shade; and if actual death does follow thereby, of course the offence becomes of a different quality." 235. We cannot agree with Mr. Norton that want of regard for human life is hardly capable of proof, in the instances he specifies, except from the result. Supposing, to take the first instance, that a person driving a vehicle in a crowded thoroughfare urges the horses to such speed that it is impossible for him to stop their course suddenly, and that a passenger is knocked down by them and killed on the spot, no doubt under the law of England the driver would be found guilty of manslaughter, because of the reckless manner in which he drove. Now if the passenger was just saved by the timely effort of another person pulling him out of the way, would not a want of due regard for human life on the part of the driver be as justly inferred from the manner of his driving, proved as we may assume by the evidence of those two persons, the one who had been in imminent peril of his life and the other who happily saved him, as if the result had been a fatal accident? So in the other instances, the want of due regard for human life upon which the criminality depends, is a matter of inference from the circumstances, and wherever the circumstances proved are such that if loss of life had ensued the party committing the act would be answerable for it criminally, the same circumstances will sufficiently warrant a conviction of the simple offence where no injury has resulted. The certainty of punishment, though it be small, for the acts or omissions dangerous to life, specified in the Clauses from 265 to 273 of this chapter, will be far more efficacious, we conceive, in restraining men from such acts, and preventing such omissions, than the distant apprehension of severe punishment in the event of an accident resulting therefrom, by which a life may be lost or some serious injury suffered. The Code combines both. 236. Mr. Norton remarks that the words "knowing" and "knowingly" "seem "to be used in this chapter indiscriminately, and without any ruling principle," that they are" inserted where they had better have been spared," and omitted "where the guilty knowledge is of the substantive essence of the offence," "for "I imagine," says he, "that the adulteration of food or drugs can hardly be "criminal unless shown to have been of wilful knowledge.' "" This criticism appears to us to be quite gratuitous. With respect to the adulteration of food or drugs, a guilty knowledge is plainly implied in the definitions in Clauses 259 and 260. 237. Mr. Fagan proposes a general clause for acts such as are described in Clauses 265 to 273, done so rashly and negligently as to indicate a want of due regard for the safety of property, rendering persons so acting punishable with imprisonment to the extent of one month, or fine to 500 rupees. We are of opinion that the Commissioners exercised a sound discretion in making the want of due regard for human life the criterion of criminality in such acts. 238. Mr. Second Report on the 238. Mr. Fagan also proposes a clause for the punishment of a person keeping a house of entertainment for travellers, refusing to entertain any traveller without reason. There is a provision to this effect in the Digest,* in which the offence Indian Penal Code. is declared to be a common nuisance, but it does not appear to us that such an enactment is called for in this country, where there are so few establishments to Chap. XIII., which it would be applicable. 239. Again, Mr. Fagan suggests that there should be a provision for the punishment of any person who in any public way pursues any means of livelihood, or performs any act which is repugnant to the religion, subversive of the morals, or opposed to the feelings of the public. Partly, and perhaps as far as is necessary, the purpose intended appears to be provided for between Clause 274 of this Chapter, Clause 282 of Chapter XV., and Clauses 486 and 487 of Chapter XXVI. * Art. 16. CHAPTER XV. OF OFFENCES RELATING TO RELIGION AND CASTE. 240. THE principle on which this chapter has been framed is stated and explained in Note J. "It is this, that every man should be suffered to profess his own "religion, and that no man should be suffered to insult the religion of another." The Commissioners have well said that this is a principle " on which it would be "desirable that all Governments should act, but from which the British Govern"ment in India cannot depart without risking a dissolution of society." "There "is perhaps no country in which the Government has so much to apprehend "from religious excitement among the people. The Christians are numerically " a very small minority of the population, and in possession of all the high posts " in the Government, in the tribunals, and in the army. Under their rule are placed millions of Mahomedans, of different sects, but all strongly attached to "the fundamental articles of the Mahomedan creed, and tens of millions of "Hindoos, strongly attached to doctrines and rites which Christians and Maho"medans unite in reprobating. Such a state of things is pregnant with dangers "which can only be averted by a firm adherence to the true principles of "toleration." * 241. Though objections have been made to this chapter by many persons, it does not appear to us that the general principle has been impugned. We understand the objections to apply mainly to the special provisions contained in Clause 282, and the following clauses, to the end. 242. With respect to Clause 282, we shall quote the words of the Commissioners, "In framing Clause 282 we had two objects in view. We wish to "allow all fair latitude to religious discussion, and at the same time to prevent "the professors of any religion from offering, under the pretext of such discus"sion, intentional insults to what is held sacred by others. We do not conceive "that any person can be justified in wounding with deliberate intention the "religious feelings of his neighbours by word, gesture or exhibitions. A warm expression dropped in the heat of controversy, or an argument urged by a person not for the purpose of insulting and annoying the professors of a "different creed, but in good faith for the purpose of vindicating his own, will not fall under the definition contained in this clause." 66 66 243. Mr. J. F. Thomas submits the following observations, "It appears to ❝me a dangerous novelty liable to extensive abuse, that a man should be subject "to a criminal prosecution for every gesture or sound that he may utter, offen"sive to the religious feelings or prejudices of another. There can be no limit "to criminal prosecutions, nor to the variety of sentences under Clause No. 282. "One judge may, in his charity, assume that there could be no 'deliberate " "intention' of wounding the feelings, and so absolve all offenders; another may adopt the maxim that the act itself indicates such intention. And if the criminal courts are to be at all times open to the zealots of differing sects on every trifling occasion, the result must be to foster bigotry, and to keep the "religious animosity of sects at its height, as well as to interfere with individual security and peace. I give, as an instance of the evil which might result from 330. G 2 "the |