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to the cruel depredations of gang-robbers, and to trespass and mischief committed in the most outrageous manner by bands of ruffans, is one of the most remarkable, and at the same time, one of the most discouraging, symptoms which the state of society in India presents to us.

Under these circumstances we are desirous rather to rouse and encourage a manly spirit among the people than to multiply restrictions on the exercise of the right of selfdefence. We are of opinion that all the evil which is likely to arise from the abuse of that right is far less serious than the evil which would arise from the execution of one person for overstepping what might appear to the Courts to be the exact line of moderation in resisting a body of dacoits.'

The Indian Code does not except from the operation of its penal clauses acts committed in good faith from the desire of self-preservation (nothstand). Here it agrees with the English law as laid down in the Mignonette case ?. But where a man to save his own life jumps from a sinking ship into an overloaded boat and thereby causes the death of others, it has been thought that he is not punishable

The preliminary portion of the Code may be left with the remark that there is nothing in Indian law corresponding with the English rule that the civil remedy for a wrong which also amounts to a felony is suspended till the felon has been convicted'.

PART II. OF PUNISHMENTS. Chapter III enumerates the six kinds of punishment (death, transportation, penal servitude, imprisonment, forfeiture, fine) to which offenders are liable under the Code as passed. To these a seventh, namely whipping, has been added by Act VI of 1864, and an eighth (detention in a Reformatory) by Act of 1876, which Act, however, has not yet been extended to many parts of India. The provisions of Act XXVII of 1871 as to the detention of criminal tribes in reformatory settlements apply only to the North-Western Provinces, Oudh, and the Panjáb. Putting under recognizances is regarded by the Indian Legislature as a measure of prevention, not as a punishment; the provisions as to this matter are accordingly placed in the Code of Criminal Procedure, Chap. VIII.

First among the punishments provided for offences by the Penal Code stands Death. It is employed only in cases where either murder or the highest offence against the State has been committed. In no case save one (sec. 303) is it absolute, but the Court máy sentence to transportation as an alternative. When a woman sentenced to death is found to be pregnant, execution is postponed, and the High Court may commute the sentence to transportation for life". Death when inflicted is simple privation of life by hanging', and the body is usually delivered to the surviving relatives of the deceased. If none are forthcoming it is burnt or buried, according to his religion 3.

1 R. v. Dudley, 14 Q. B. D. 273. 36 Suth. Civ. Ref. 9: 3 Mad. 6: But see the Strafgesetzbuch, $ 54. i Bom, H. C. 2.


M. & M. 71.

Where any offence is punishable by transportation, the trans- Transporportation as a rule must be for life.

tation, The consideration which chiefly determined the framers of the Code to retain that mode of punishment is the fact that it is regarded by the natives of India, particularly by those who live at a distance from the sea, with peculiar fear. "The pain which is caused by punishment is unmixed evil. It is by the terror which it inspires that it produces good : and perhaps no punishment inspires so much terror in proportion to the actual pain which it causes as the punishment of transportation in this country. Prolonged imprisonment may be more painful in the actual endurance : but it is not so much dreaded beforehand; nor does a sentence of imprisonment strike either the offender or the bystanders with so much horror as a sentence of exile beyond what they call the Black Water. This feeling, we believe, arises chiefly from the mystery which overhaugs the fate of the transported convict. The separation resembles that which takes place at the moment of death. The criminal is taken for ever from the society of all who are acquainted with him, and conveyed by means of which the Natives have but an indistinct notion over an element which they regard with extreme awe, to a distant country of which they know nothing, and from which he is never to return. It is natural that his fate should impress them with a deep feeling of terror. It is on this feeling that the efficacy of the punishment depends, and this feeling would be greatly weakened if transported convicts should frequently return, after an exile of seven or fourteen years, to the scene of their offences, and to the society of their former friends.'

The sentence does not specify the place of transportation“, which is appointed by the Governor-General in Council, and directions for the removal of each convict are given by the Local Government, unless in the case of a person undergoing a previous

· Cr. P. C. sec. 382,

sentenced to death under that Act • Ibid. 368.

may be disposed of as the judge • Under Act XXIII of 1867, sec. 8, directs. the bodies of Muhammadan fanatics 4 Cr. P. Code, sec. 368.

Penal servitude.


sentence of transportation? Where an offender under the age of sixteen years is sentenced to transportation, the Court may direct that, instead of undergoing his sentence, he be sent to a reformatory school, and there detained for a period not less than two years and not more than seven”.

Unlawful return from transportation is punishable under sec. 226.

Section 56 provides that Europeans and Americans punishable with transportation shall be sentenced to penal servitude instead of transportation, according to the provisions of Act XXIV of 1855.

Sentences to this punishment are carried out in such prisons within British India as the Governor-General in Council from time to time directs; and he may grant to convicts sentenced to be kept in penal servitude licences to be at large during such portion of the term of servitude and on such conditions as he thinks fits. Breach of such conditions is punishable under the Penal Code, sec. 227.

Of Imprisonment there are two grades-rigorous imprisonment and simple imprisonment: the former corresponds with the English imprisonment with hard labour, the latter with imprisonment without hard labour.

Imprisonment is rigorous in the case of the offences mentioned in sections 194, 226, 364, 382, 392–396, 399-402, 412, and 449. It is simple in the case of the offences mentioned in sections 129, 163, 165, 166, 168, 169, 172-180, 187, 228, 291, 309, 358, 500-502, 509, and 510. It is simple, also, when the Court imposes it in default of payment of a fine (Act VIII of 1882, sec. 3), or for failure to give security to keep the peace (Act X of 1882, sec. 123). In all other cases it is either rigorous or simple, or partly rigorous and partly simple (section 60) at the discretion of the Court. And whenever the Court has power to sentence to rigorous imprisonment, it may order that the offender be kept in solitary confinement during a certain portion of his imprisonment (secs. 73, 74).

In all cases of imprisonment the following rules apply :

(a) The term is to be calculated from the date on which the sentence is passed.

(6) The law neglects fractions of a day.
(c) A calendar month expires at midnight of the day of the next

1 Act IX of 1882.
Act V of 1876, sec. 7.

here means · High Court,' Court of
Session,' 'Magistrate of the First
Class,' and in the Presidency towns,

• Magistrate of Police or Presidency Magistrate.


3 Act V of 1871, secs. 21, 23.

* Compare 7 Will. IV & 1 Vic. c. 90, sec. 5.

following month numerically corresponding with the day from which it counts as having commenced : and if there is no day so corresponding, then at midnight of the last day of the next following month!..

(d) Except in the cases provided for by the Criminal Procedure Code, secs. 35, 396, 397, the imprisonment should commence when sentence is passed.

(e) Except in case of an appeal, imprisonment which is to commence at once cannot be suspended?.

(f) The period during which a sentence may be suspended peuding appeal is not to be reckoned in calculating the term, if the appeal is rejected'.

(9) The Local Government, or (subject to its control) the Inspector-General of Jails, may order any person sentenced to imprisonment to be removed during the term from the jail in which he is confined to any other jail within the territories subject to the same Local Government". And under 14 & 15 Vic. c. 81 prisoners acquitted or not tried on the ground of insanity may be removed from India to any part of the United Kingdom, there to abide Her Majesty's order concerning their custody ..

Total Forfeiture of Property is a punishment inflicted only on Forfeiture. persons guilty of an offence punishable with death, and of the high political offences mentioned in secs. 121 and 122. The territorial possessions of such persons often enable them to disturb the public peace and to make head against the Government; it seems reasonable that they should be deprived of so dangerous a power.

Partial Forfeiture of Property may be inflicted for the minor political offences mentioned in secs. 126 and 127, and for the fraudulent transfers and claims mentioned in 206 and 207.

The effect of section 62 is, says Mr. Mayne, to combine, for the benefit of the Government?, the English doctrines of forfeiture and escheat. But forfeiture under the Code does not corrupt the blood; the Government takes nothing which the offender could not have assigned. When therefore a sentence of forfeiture is passed on the father of a Hindu undivided family subject to the

Thus, a month's imprisonment • Act V of 1871, sec. 20. given on the 31st January would 5 See also the Colonial Prisoners count from midnight on the 30th Removal Act, 1884 (47 & 48 Vic. January and expire at midnight of c. 31). the 28th February or (in leap-year) of the 29th February.

21 & 22 Vic. c. 106, sec. 39. ? 3 Ben. App. Cr. 50 (S. C. 12 Suth. The Governor-General in Council Cr. 47).

may grant property forfeited * Mayne, P. C. 33.

escheated, 16 & 17 Vic. c. 95, sec. 27.

6 P. C. 35




Mitákshara, the rights of his sons who take as his co-heirs are not affected. How this would be in the case of an impartible zamíndárí descending always to the eldest son, seems doubtful'.

Forfeiture under sec. 62 must be adjudged as part of the sentence.

The sixth class of punishment to which an offender is liable under the Code is Fine. The Courts are authorised to inflict it in every case, except where forfeiture of all property is necessarily part of the punishment. This punishment is open to some objections. 'Death, imprisonment, transportation, banish

• ment, solitude, compelled labour, are not, indeed, equally disagreeable to all men. But they are so disagreeable to all men that the legislature, in assigning these punishments to offences, may safely neglect the differences produced by temper and situation. With fine the case is different. In imposing a fine it is always necessary to have as much regard to the pecuniary circumstances, of the offender, as to the character and magnitude of the offence. The mulct which is ruinous to a labourer is easily borne by a tradesman, and is absolutely unfelt by a rich zamíndár.'

As to the limiting of fines the Code provides (section 63), in imitation of the Bill of Rights, that where no sum is expressed to which a fine may extend the amount is unlimited but shall not be excessive. In cases which are not very heinous the Code limits the amount of fine which the Courts may impose, but in serious cases the amount is left absolutely to their discretion : misuse of this discretion may be remedied by appeal.

When more offenders than one are fined, the Court must impose a specific fine upon each”, and where the Code provides that an offender shall be punished with imprisonment and shall also be liable to fine (infra, p. 26) the sentence must inflict some period of imprisonment, if only a moment'

Fines when recovered belong to the Government; but the Code of Criminal Procedure, sec. 545, empowers the Court imposing or confirming a sentence of fine to order the fine to be applied in defraying the expenses of prosecution and in compensation for the injury caused by the offence.

Sections 64 to 70 contain the measures to be adopted in default of payment for a fine. The Code directs that at the time of imposing a fine 'the Court shall also fix a certain term of imprisonment which the offender shall undergo in default of payment. In

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