Law

Concept of Criminal Law in India

Crime is an act of disobedience of law forbidding or commanding it. Disobedience of all laws may not be a crime, for instance, not following civil law or law of inheritance or contract. As per Stephen, ‘crime is an act which is both forbidden by law and revolting the moral sentiments of the society’.

1. The concept of Crime :-

Of all the branches of law, the branch that closely touches and concerns a man in his day to day life is criminal law, yet the law is not in a satisfactory state. Perhaps, this is because of the changing notions about crime from time to time and place to place. 

The concept of time varies not only according to the values of a particular group and society, its ideals, faith, religious attitudes, customs, traditions and taboos but also according to the form of government, political and economic structure of the society and endless number of factors.

→ An act which is a crime today, may not be a crime tomorrow if the legislature so decides.

• For instance Polygamy, Dowry, Untouchability are now crimes that were not so a few years ago, also suicide was a crime in England until the Suicide Act, 1961.
• The sale and purchase of liquor is now a crime.
• Also abortion was a crime under IPC until 1971 and is now legal under specified circumstances under the Medical Termination of Pregnancy Act,1971.

2. Theories of crime : Natural Law vis-a-vis Positive Law

Crime may be defined as a commission of acts prohibited by penal laws and criminals as persons who commit such acts.

• God’s connection with natural law
• Natural Law relies heavily on feeling, on moral sense and on individual instinct for the fitness of things.
• Under Natural Law Theory, an act that violates the ethical and basic moral code is a crime and its violation is wrong.
• According to Positive Law Theory ‘crime is a man made creation’.
• The virtue of Positive Law lies in its precision and its predictability.
• Crime is a violation of man made command of sovereign, a violation identified as a public wrong.
• The killing or mutilation or seduction of a neighbour is a crime only if sovereign authority has so declared.

3. True Crime Identified  :-

It comprises those violations of the natural order, which if unchecked makes it impossible for men to live together. Such violations may be identified as invasions of primary personal rights.

I. Criminal Law as Protection of Primary Personal Rights :

• Criminal law exists to protect primary rights of person against intentional invasion by others.
• The government’s principal task is to protect the personal rights against external invasion by means of armed forces and to protect against internal invasion by means of criminal law.
• The ultimate end of criminal law, therefore is protection of primary personal rights against intentional invasion by others – protection of the weak against the strong, the law abiding against the lawless, the worker against the predator, the peaceable against the violent.

II. Criminal Law as Protection of Secondary Personal Rights : 

The secondary function of the state is the protection of fundamental rights guaranteed in Part III of the Constitution. 

4. Origin of Criminal Law

• The ‘ Civil Wrong Theory ’ , regards criminal law as wrongs to individuals.

Later, wrongs came to be regarded as harmful to the society at large.

Example : False Imprisonment, Deceit, Defamation, etc.

• The ‘ Social Wrong Theory ’ when wrongs occur, society makes regulations in order to prevent the repetition of such wrongs. 

Example : Murder , Rape, Robbery, etc

• The ‘ Moral Wrong Theory ’ says that criminal law originated and is a crystallization of mores, tradition and customs.

Example : Offences against person, property, reputation etc 

but it does not deal with evasion of taxes, licensing, hoarding, etc

• The ‘ Group Conflict Theory ’ tells that criminal law developed due to conflict of rival groups in order to protect each other’s interest. 

Example : Offences related to property interests not the offences against state and public tranquility, etc.

5. Criminal law in Ancient India – Hindu Period

The criminal law jurisprudence came into India through Manu

• Recognised assault, battery, theft, robbery, false evidence, etc as crimes.
• King either used to himself dispense justice or used to appoint judges.
• Manu was biased towards upper caste
• The right of private defence was fully developed

6. Mohammedan Criminal Law 

• Mohammedan Rule was established – people were forced to Criminal jurisprudence of Muslim
• Origin in the Quran, which is said to have been revealed by God to the Prophet Mohammed
• Administration was given to the Quazis
• Punishment varied according to the nature of crime and power of the culprit.
• No uniformity in the administration of criminal justice – a chaotic state

7. Origin and nature of criminal law in modern times

• When Britishers came to India, it followed Mohammedan law for criminal jurisdiction, but since it had no uniformity, many difficulties were faced.
• The court gradually began to dispense justice with the help of English Law which later began to be used extensively. 
• Different courts adopted different systems of administration of criminal law, and their presidencies differed widely in their scope and contained different provisions. Thus, creating a disorder and confusion in the administration of criminal justice

8. Indian Penal Code – History 

• The Governor – General of India in Council appointed the ” Indian Law Commissioner’s ” in 1834 to enquire about existing state of the law and suggest Penal Code for India.
• In 1845 a Second Law Commission was constituted after the end term of the First Law Commission. Report was submitted into parts – Draft Code went through revision and was submitted to Legislative Council in 1856 and the IPC came into force on 1st January, 1862.

9. IPC- A Unique Monumental Work

IPC is a comprehensive piece of legislation. The code embodies to the whole of the country and its somebody acts against this code and is punished by the authority. it covers all kinds of behaviour or acts which are punishable in nature.

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