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Secs. 125, 126, 127 provide against acts tending to interrupt the friendly relations of the State with other Asiatic powers. In connection with these provisions are the English Foreign Enlistment Act (33 & 34 Vic. c. 90), and the Indian Foreign Recruiting Act, IV of 1874. The Code has no provision against compassing the death of foreign sovereigns.
Sec. 129 punishes negligence (culpa) as to the custody of Stateprisoners' or prisoners of war, when it takes the form of an official misdemeanour.
The Code contains no provision like § 329 of the German Strafgesetzbuch, for punishing persons failing to perform contracts entered into in time of war or need, for delivery to Government authorities of provisions, means of transport, etc.
Nor is there any penalty for breach of official secrets, though the desirability of such a penalty has been felt by the Government of India in the Foreign Department”. Nor does it provide against unauthorised borrowing from, or lending to, Native States, which is made a misdemeanour by 37 Geo. III, c. 142, sec. 28.
Chapter VII is entitled Of Offences relating to the Army and Navy,' and the bulk of it provides for the punishment of persons who, not being military, abet military crimes.
It is obvious that a person who, not being himself subject to military law, instigates or assists those who are subject to military law to commit gross breaches of discipline, is a proper subject of punishment. But it is not desirable that the punishment of such a person should be fixed according to the principles on which the general law of abetment is framed. That law declares (section 109) that whoever abets any offence shall be punished with the punishment provided for the offence; but the military penal law is and must be far more severe than that under which the body of the people live, and the extension of such severity to persons not of the military profession would be unwarrantable.
The part of this chapter which relates to civilians who abet military crimes should be placed with the other provisions of the Code relating to abetmént, and sec. 140 (as to civilians wearing a soldier's garb) should be placed with the other sections relating to personation, viz. 170, 171, 205, and 229.
Chapter VIII, entitled 'Of Offences against the Public Tranquillity,' provides for the punishment of unlawful assemblies of persons who, whether they assemble tumultuously or otherwise, have a common unlawful purpose, the execution of which will disturb public order and excite alarm. Chapter IX is entitled “Of Offences by or relating to Public Public
Public tranh quillity.
1 See Ben. Reg. III of 1818, Mad. Reg. II of 1819, and Bom. Reg. XXV of 1827, amended by Acts XXXIV of 1850 and III of 1858.
The German rule on this subject is contained in $ 353 of the Strafgesetzbuch.
Servants. Servants. These offences naturally form an important part of the Code, as the official body in India occupies a position and is charged with functions of far greater importance than those which belong to any other body of officials in the world, with, possibly, the exception of Russia! Chapter IX deals with two classes of offences, of which one can be committed by public servants alone, and the other comprises offences which relate to public servants, though they are not committed by them. The offences which are common between public servants and other members of the community are left to the general provisions of the Code. If a public servant embezzles public money, he is left to the ordinary law of criminal breach of trust. If he falsely pretends to have disbursed money for the public, and by this deception induces the Government to allow it in his accounts, he is left to the ordinary law of cheating. If he produces forged vouchers to back his statement, he is left to the ordinary law of forgery. There is no reason for punishing these offences more severely, when the Government suffers by them, than when private people suffer.
The fact that the transgression of a public servant may always be punished by dismissal from the public service, explains the comparative leniency of some of the punishments provided by this chapter and the absence of any notice of certain mal-practices. It will be seen that sec. 161 punishes the corruption of public servants with imprisonment for a term not exceeding three years, or with fine, or with both. The amount of fine is unlimited, and this punishment enables the judges in cases of this description to compel the delinquent to give up the whole of his ill-gotten wealth. Other offences by public servants are provided for by secs. 217–223 ; and under 33 Geo. III, c. 52, sec. 62, the demanding or receiving gifts by British officials in India is a misdemeanour, and the offender forfeits the gift or its value ?.
The giving of a bribe to a public servant is punishable as an abetment under the Code, sec. 116. The comparative leniency of the punishment provided for this offence is due to the fact that in India the receiver of the bribe is almost always
Stephen, Hist. C. L., iii. 308. provision against the acceptance of * See Strange, Notes of Cases gratuities by Governors - General, (Madras 1816), 202.
In 3 & 4 Wm. Governors, and members of Council.
4 IV, c. 85, sec. 76, there is a special
the tempter and that the giver of the bribe is really acting in self-defence.
If the Governor-General or any other Indian official wilfully disobeys the orders of the home-authority he commits a misdemeanour'. And any British subject resident in India who is party to a corrupt bargain for giving up or obtaining employment under Government is guilty of the same offence ?.
Chapter X deals with contempts of the lawful authority of public servants. Under sec. 177 may be punished the giving false information (not omission to give true information) as to births, deaths, marriages, and similar matters. The only provision in this chapter which requires explanation is that contained in section 188. The Penal Code provides laws against acts which ought to be repressed at all times and places or at times and places which the legislature can define; but there are acts which at one time and place are perfectly innocent and which at another time or place are proper subjects of punishment; nor is it always possible for the legislature to say at what time or at what place such acts ought to be punishable. The Code of Criminal Procedure therefore empowers the local authorities to forbid acts which these authorities consider as dangerous to the public tranquillity, health, safety, or convenience; and the Penal Code, section 188, makes it an offence in a person to do anything which he knows to be so forbidden and which may endanger the public tranquillity, health, safety, or
convenience. Evidence Chapter XI deals with offences against public justice, including and Public the offences of giving and of fabricating false evidence. The Code Justice.
treats the giving and the fabricating of false evidence in exactly the same way, and marks the grades of those offences on the principle that the law ought to make a distinction between the kind of false evidence which produces great evils and the kind of false evidence which produces comparatively slight evils. As plaints and written statements are verified by the civil suitors who present them, the Code renders punishable the deliberate assertion of falsehoods in pleadings—which, when the Code was framed, was practised in the
Supreme Courts in the Presidency Towns. Coin and Chapter XII deals with offences relating to Coin and GovernStamps.
ment Stamps. The counterfeiting of the coin of the Government of India is punished more severely than the counterfeiting of foreign coin. This is not only in accordance with the general practice of Governments, but is peculiarly advisable under the
33 Geo. III, c. 52, sec. 65; 3 & 4 Wm. IV, c. 85, sec. 8o.
33 Geo. III, c. 52, sec. 66, and see 49 Geo. III, c. 126.
present circumstances of India. It is much to be wished that the Queen's currency may supersede the numerous coinages which are issued from a crowd of mints in the dominions of the petty princes of India. This object is in some degree promoted by the Code! That coinage the purity of which is guarded by the most rigorous penalties is likely to be the purest, and the coinage which is likely to be the purest will be the most readily taken in the course of business.
Section 235 punishes the possession of implements necessary for coining as a delictum sui generis. The offence is such a serious one when consummated that the legislator is justified in departing from the general rule and punishing it in the preparatory stage.
The distinction made in sections 240, 241 between two different classes of utterers is also marked in the French Code Pénal, and is obviously agreeable to reason and justice.
An utterer by profession, an utterer who is the agent employed by the coiner to bring counterfeit coin into circulation, is guilty of a very high offence. Such an utterer stands to the coiner in a relation not very different from that in which a habitual receiver of stolen goods stands to a thief. He makes coining a far less perilous, and a far more lucrative pursuit than it would otherwise be. He passes his life in the systematic violation of the law, and in the systematic practice of fraud in one of its most pernicious forms. He is one of the most mischievous, and is likely to be one of the most depraved of criminals. But a casual utterer, an utterer who is not an agent for bringing counterfeit coin into circulation, but who, having heedlessly received a bad rupee in the course of his business, takes advantage of the heedlessness of the next person with whom he deals to pay that bad rupee away, is an offender of a very different class. He is undoubtedly guilty of a dishonest act, but of one of the most venial of dishonest acts. It is an act which proceeds, not from greediness for unlawful gain, but from a wish to avoid, by unlawful means it is true, what to a poor man may be a severe loss. It is an act which has no tendency to facilitate or encourage the operations of the coiner. It is an occasional act, an act which does not imply that the person who commits it is a person of lawless habits. We think, therefore, that the offence of & casual utterer is perhaps the least heinous of all the offences into which fraud enters.' Secs. 255-263 deal with offences relating to Government stamps. Stamps.
See also the Native Coinage Act step towards a pure and uniform cur. (IX of 1876), which authorises the rency. Native States to send metal to any Drage, The Criminal Code of the mint in British India to be made into German Empire, 120. coin under that Act, and which is a
Other penal provisions intended to protect the stamp-revenue will be found in Act I of 1879, secs. 61-68, and in the Madras Regulation V of 1831.
Chapter XIII deals with offences relating to weights and measures which are “false,' that is which differ from those expressly or impliedly agreed upon and are substituted, or intended to be substituted, with intent to defraud, for the weights and measures agreed upon.
Chapter XV deals with offences relating to Religious Feeling. The principle on which it has been framed is this, that every man should be suffered to profess his own religion and that no man should be suffered to insult the religion of another. Most of the offences mentioned are in the nature of wanton insults to existing creeds.
The Code provides a punishment of great severity (sec. 295) for the intentional destroying or defiling of places of worship, or of objects held sacred by any class of persons.
No offence in the whole Code is so likely to lead to tumult, to sanguinary outrage, and even to armed insurrection. The slaughter of a cow in a sacred place at Benares in 1809 caused violent tumult attended with considerable loss of life. The pollution of a mosque at Bangalore was attended with consequences still more lamentable.
This chapter also contains provisions for the purpose of protecting assemblies held for religious worship.
In drafting section 298 (as to uttering words with deliberate intent to wound religious feelings) the framers of the Code had two objects in view. We wish,' they said, 'to allow all fair latitude to
' religious discussion, and at the same time to prevent the professors of any religion from offering, under the pretext of such discussion, intentional insults to what is held sacred by others. We do not conceive that any person can be justified in wounding with deliberate intention the religious feelings of his neighbours by words, gesture, or exhibitions. A warm expression dropped in the heat of controversy, or an argument urged by a person not for the purpose of insulting and annoying the professors of a different creed, but in good faith for the purpose of vindicating his own, will not fall under the definition contained in this clause.' The section should be amended so as to show more clearly that it is intended to apply only to wanton insults.
Sec. 297 punishes trespass on a place of sepulture with intent to wound the feelings of any person. The same section punishes interruption of funeral ceremonies and insults offered to corpses. But there is no special provision for body-snatching or the stealing of objects belonging to a grave.