LOCAL LAWS.

(a) Madras Presidency.

Chap. II.

Ferries (XVIII of 1878, III of 1886).

Frontier Police (Reg. II of 1882).

Garo Hills (Reg. I of 1882).

Glanders and Farcy (XX of 1879).

Hackney Carriages (XIV of 1879).

Inland Emigration (I of 1882).

Prisons (XXVI of 1870, Reg. II of

1875).

Rural Police (Reg. I of 1883, sec. 20)

Vaccination (XIII of 1880).

Whipping (Reg. III of 1875).

Though an offence is expressly made punishable by one of these

special or local laws, it will also be punishable under the Code, if

the facts show that it is an offence under the Code1. But of

course a person cannot be punished for the same offence twice,

under the Code and also under a special or local law2.

Chapter II, 'General Explanations,' is for the most part an

elaborate interpretation clause, but begins with a section which

should properly commence or end Chapter IV, and contains four

sections (34, 35, 37, 38) which, as they relate to conspiracy,

should properly be placed along with the provisions as to abet-

ment and concealment. Sir James Stephen suggests that the

object of Chapter II is to prevent captious judges from wilfully

1 6 Mad. 249, and see Mayne, P. C. 17, citing Madras Rulings, 1865, on

Act X of 1841, sec. 5.

25 N. W. P. 49.

misunderstanding the code and cunning criminals from evading

its provisions.

tions.

Of the definitions, the most important is that of 'offence,' which, Definiin its present amended form, provides for a large number of cases omitted by the Code as passed; but still is defective in not declaring that in certain sections (e.g. 216, 221, 224, 225) 'offence' shall include acts or omissions punishable by the law of England. Thus if a British sailor committed a murder on the high seas, when he reached Madras a public servant could not be charged under sec. 221 for omitting to apprehend him, nor could the sailor or any friend of his be charged under sec. 224 or sec. 225 for resisting apprehension, nor could he be charged under sec. 216 for escaping from custody, nor could any one be convicted under that section for harbouring him1. The definition of 'human being' should exclude a child not wholly born; and that of 'animal,' (sec. 47,) which, according to Sir James Stephen, includes 'an angel, frogspawn, and perhaps a tree,' should run thus: The word "animal" does not include a human being.' Other definitions not contained in this chapter, are those of 'criminal force' (sec. 350), 'thug' (sec. 310), 'abduction' (sec. 362), 'affray' (sec. 159), 'aiding' (sec. 107, expl. 2), 'cheating' (sec. 415), 'coin' (sec. 230), etc. Of these the first should be transferred to Chapter II.

6

Some of the expressions found in the Code, which involve moral considerations, are defined with exactness. For instance, 'wrongful gain' (sec. 23), and 'dishonestly' (sec. 24). But 'fraudulently' (sec. 25) is defined imperfectly, and 'corruptly' (secs. 196, 198, 200, 219, 220), 'deceitful' (sec. 362), 'immoral' (secs. 361, 372, 373), 'maliciously' (secs. 219, 220), 'malignantly' (secs. 153, 270), 'negligently' (secs. 129, 223, 282, 284-289), 'negligent' (sec. 304 A), 'rash' (secs. 279, 304 A), 'rashly' (secs. 336-338), and 'wantonly' (sec. 153), are not defined at all. Corruptly' is applied to the doing of acts with the intent of gaining some advantage inconsistent with official duty or the rights of others. 'Corruption' includes bribery, but is more comprehensive. Malice,' or 'maliciously,' according to Mr. Justice Holmes, imports not only that a wish for the harmful effect is the motive for the act, but also that the harm is wished for its own sake. Malignantly' I find nowhere defined: in secs. 153, 270 it seems to imply extreme malice. 'Negligent' and 'negligently' import 'an acting without consciousness that an illegal or mischievous effect will follow and without such attention to the nature or probable consequences of

1

1 Mayne, P. C. 199.

2 Livingston's Works, ed. Chase, II. 645. 'The Common Law, p. 52: compare the N.Y. Penal Code, § 718 (3).

Illustrations.

Grounds

punish

ment.

the act as a prudent man ordinarily bestows in acting in his own concerns 1.' 'Rash' and 'rashly' imply, according to Holloway J., acting with the consciousness that mischievous and illegal consequences may follow, but with the hope that they may not, and often with the belief that the actor has taken sufficient precautions to prevent their happening.

The section (27) relating to possession will be considered infra, when we come to deal with Theft.

In this chapter we first meet with the illustrations so characteristic of Indian legislation. Their object has been explained in the general introduction. It will be remembered that they make nothing law which would not be law without them; but that they rank as cases decided, by the highest authority, upon the provisions of the enactment in which they occur2.

Chapter IV, entitled 'Of General Exceptions,' states the facts excluding which negative responsibility, or justify acts otherwise criminal, and thus obviates the necessity of repeating in every penal clause a considerable number of limitations. Most of these 'exceptions' Command require no explanation or defence. Sec. 79 excludes responsiof the State. bility in the case of persons who are, or who justifiably believe themselves to be, acting under the authority of law. Sec. 80 deals Accident. with casus, and rests on the theory that when there is no voluntary connection between the act and its author there can be no responsibility. It would cover a murder or grievous hurt committed by a somnambulist, or that of a mother overlaying her child, provided of course no negligence on her part be proved. The Code says nothing of vis major naturae. Here, too, there would be no responsibility. Sec. 81 seems to mean that where 4, reasonably believing that injury to either B or C is inevitable, honestly does that which he thinks will cause the smallest amount of harm, A is not liable for the harm actually caused. Secs. 82-85 Tender age, exclude responsibility in the case of children, idiots, lunatics, idiocy, luimbeciles, monomaniacs, and intoxicated persons when the intoxication is produced without their knowledge or against their will. This rests on the theory that the subject of a criminal action must not only be capable of willing, but he must also know what he is doing and be able to judge of the consequences of his act. But sec. 86 is a rider to sec. 85, and declares that where an act is not an offence unless 'done with a particular

nacy.

1 N. Y. Penal Code, § 718, cl. (1). Negligence and rashness are considered from a jurist's point of view by Prof. Holland, Jurisprudence, 3rd ed., pp. 93, 94, and Dr. Markby, Ele

ments of Law, 3rd ed., §§ 226, 679 et seq.

2

1 Bom. 155, per West J.; who adds that every authority may sometimes err.