PREFACE TO THIRD EDITION. I REGRET very much that those who have occasion to consult Chapter II, Part II, of this edition will not find in it any reference to the Indian Extradition Act of 1903; that Act received the assent of the Governor-General on the 4th November, 1903. Long before that date Chapter II had not only been passed by me for the Press, but had been passed through the Press, and finally and irrevocably struck off. Fortunately, there is nothing in the Act which affects the general principles of extradition, and the case itself is one which comes more frequently before the Executive than before the Criminal Courts. I wish to express my best thanks to Mr. William Francis Grahame, late of the Madras Civil Service, who has not only passed these sheets through the Press, but has relieved me of the heavy and repulsive labour of adapting to the new edition the index, table of cases and other prefatory matter in the old edition. GOODREST, JOHN D. MAYNE. PREFACE TO FIRST EDITION. THIS work is entirely different, both in arrangement and scope, from my Commentary on the Penal Code, which it will supersede. It is divided into two parts. The first contains the Indian Penal Code, with some notes, which seemed most suitably placed in connection with the text. References are appended to every section which is discussed in Part II., so as to enable the reader to find at once everything that has been said about it. In Part II. I have attempted to offer a methodized view of the Criminal Law at present administered in India, so far as it is based on the Penal Code, the Criminal Procedure Code, and the Evidence Act. I have not touched upon Local and Special Acts. I have only dealt with Procedure so far as it affects the actual trial and matters incident thereto. It will be observed that I have made a more extensive use of the decisions of the Civil Courts than is usual in works on Criminal Law. This seems to me necessarily to follow from a perception of the fact that Criminal Law is itself only a branch of the general law of the country. With the exception of purely statutory offences, nothing is a crime which has not previously been a wrong, and in most cases, before the accused can be convicted of a crime, it is necessary to show that he has committed an act which would be treated as illegal by a Civil Court. In England, where knowledge is highly specialized, and where every practitioner has ready access to extensive libraries, it may be sufficient to cite decisions of the Criminal Courts. In India, where, outside of the Presidency Towns, law books are often unattainable, both Advocates and Judges will, I think, be assisted by being supplied with information of a more wide and ample character. It may, perhaps, be charged against me, that I have adopted a line of discussion which has frequently been reprobated by the Judicial Committee -that of attempting to explain the Code by reference to English authorities. My chief answer must be that, in doing so, I am following the example of the Indian Courts, as will be seen in every volume of their reports. It is quite certain that whenever an appeal is preferred to the High Courts, if any question of law is not covered by Indian authority, it will be discussed with reference to English text-books and decisions. I have attempted to supply the local Bar and Bench with the authorities by which their proceedings will undoubtedly be tested on appeal. In most cases, however, the objection is itself inapplicable. The Penal Code supplies a series of clear and definite rules, which are to be found in numbered sections, instead of having to be hunted for through a library of law books. The application of the rules depends upon the facts of each case, which shade away by infinite degrees from absolute certainty to the slightest suspicion. In such cases the recorded experience of centuries of English experts must be of the highest importance. I have to acknowledge my continual obligation to the great works of the late Sir James Stephen, which can never be overlooked by anyone who is interested in Criminal Law. I have also constantly borrowed from the Code of English Criminal Law, drawn up and reported on in 1879. The first draft of this Code was prepared by Sir James Stephen under instructions from the Government. It was introduced as a Bill in the House of Commons by the Attorney-General, and was at once referred to a Committee, consisting of Lord Blackburn, Lord Justice Lush, Mr. Justice Barry (an eminent Irish judge), and Sir James Stephen. By them it was minutely examined, line by line, and again issued with their emendations, and with a report, which was written by Sir James Stephen. There the matter ended as regards Parliament; but although the draft Code will probably never become law, it and the Report upon it will remain as an authentic record of what the English Criminal Law was believed to be by the greatest criminal lawyers of the day. As regards matters of Procedure, I have availed myself largely of the labours of Messrs. Agnew and Henderson and Mr. Sohoni, in their works on the Criminal Procedure Code, and of Mr. Stokes, in his great collection of the Codes of India. To them I tender my grateful thanks. JOHN D. MAYNE. 1, CROWN OFFICE ROW, TEMPLE, |