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Municipal Acts (Bom. Acts III of
Widow-burning (Ben. Reg. XVII of
Rangoon Port (XV of 1879).
special or local laws, it will also be punishable under the Code, if
Chapter II, 'General Explanations, is for the most part an
' 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.
Of the definitions, the most important is that of offence,' which, Definiin its present amended form, provides for a large number of cases
tions. 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 him!. 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.
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 barmful 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 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).
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. Illustra- The section (27) relating to possession will be considered infra, tions,
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 provi
sions of the enactment in which they occur?. Grounds Chapter IV, entitled “Of General Exceptions,' states the facts
which negative responsibility, or justify acts otherwise criminal, punishment. 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 volun
tary 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 A, 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, lu- imbeciles, monomaniacs, and intoxicated persons when the intoximacy.
cation 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
i N. Y. Penal Code, $ 718, cl. (1). ments of Law, 3rd ed., $$ 226, 679 Negligence and rashness are considered from a jurist's point of view ? 1 Bom. 155, per West J.; who by Prof. Holland, Jurisprudence, 3rd adds that every authority may someed., pp. 93, 94, and Dr. Markby, Ele