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Sec. 196, corrupt attempt to use as true evidence known to be false.
Secs. 198 and 200, corrupt attempt to use as true a certificate or declaration known to be false in a material point.
Sec. 213, attempt to obtain a gratification to screen an offender from punishment.
Secs. 239 and 240, attempt to induce a person to receive counterfeit coin.
Sec. 241, attempt to induce a person to receive as genuine counterfeit coin which, when the offender took it, he did not know to be counterfeit.
Secs. 385, 387 and 389, attempt to put a person in fear of injury or accusation in order to commit extortion.
Sec. 391, conjoint attempt of five or more persons to commit a robbery
Sec. 460, attempt by one of many joint housebreakers by night to cause death or grievous hurt.
In each of the above cases the attempt is punishable with the full penalty annexed to the crime attempted.
Secs. 307, 308, attempts to commit murder and culpable homicide.
Secs. 393, 394 and 398, attempts to commit robbery.
Under each of these five sections the attempt is punishable with a penalty less than that annexed to the crime attempted.
Sec. 309, attempt to commit suicide. This is punishable with simple imprisonment for a year, fine or both.
Sec. 511 provides generally for attempts to commit most of the offences punishable by the Code, where no special provision is made for such punishment. It runs thus : “Whoever attempts to commit an offence punishable . . . with transportation or imprisonment, . . . and in such attempt does any act tovards the commission of the offence, shall, where no express provision is made . . . for the punishment of such attempt, be punished with transportation or imprisonment . .. for a term which may extend to one half of the longest term provided for that offence, or with such fine as is provided for the offence, or with both.'
On this arise three questions to which the Code affords no
1. What is the nature of the act 'towards the commission of the offence'? May it be merely preparatory? May it be a threat ?
2. The illustrations show that there may be an attempt though the object of the intended offence is absent. But can there be an attempt when the object is mistaken? If, for example, the kakovpyóTATOS A of the Code strikes a block or shoots at a shadow, supposing the block or shadow to be the body of his enemy Z, and intending to murder Z, is A guilty of an attempt to murder ?
3. Can there be an attempt when the means employed are insufficient? And if so, is there any distinction between the case where the means are absolutely insufficient (as where A intending to murder Z by poison, by mistake puts sugar instead of arsenic into Z's cup) and the case where they are relatively insufficient (as where A, intending to murder Z by poison, puts into Z's cup some arsenic, but not enough to kill him) ?
The answers I would give to these questions are embodied in the following Explanations, which might be added to sec. 511-the words and in such attempt does any act towards the commission of the offence' being omitted :
Explanation 1. In every attempt punishable by this Code there must be an outward visible act done towards the commission of a particular offence. The procuring or arranging the means or measures necessary for the commission of an offence is not an act done towards the commission of that offence.
Explanation II. There may be an attempt to commit an offence although the object of the intended offence be absent. There cannot be an attempt to commit an offence where such object is mistaken.
Explanation III. There may be an attempt to commit an offence though the means employed be relatively insufficient. There cannot be an attempt to commit an offence when such means are absolutely insufficient.
Explanation I rests on the doctrine that thoughts and intentions, unless expressed by will, are outside the province of criminal law. It is supported by the following Indian decisions :
Incendiarism produced by a ball of rag containing burning charcoal occurs on several occasions in a certain village. A is found at night by the villagers carrying hidden in his dhoti a ball of rags in which is a piece of burning charcoal. This is not an attempt to commit mischief by fire. (3 Ben. Cr. 55, per Mitter, J.)
A, intending to forge a document in the name of Z, purchases a stamp-paper in Z's name and causes the stamp-vendor to endorse Z's name as purchaser. This is not an attempt to forge. (4 N. W. P. 46, and see 2 All. 106, 107; 3 Mad. 4.)
A prints and corrects a receipt-form intended, by additions which are to be made to it, to be a false document. This is not an attempt to commit forgery. A procures Z to make A a false key of a house where he intends to commit housebreaking. This is not an attempt to commit housebreaking. (7 Cal. 352, 357.)
A having a wife causes the publication of banns of marriage between himself and another woman. This is not an attempt to commit bigamy. (1 All. 316.)
So when A intending to shoot Y and poison Z borrows a gun and buys poison. These are not attempts to commit murder. (M. & M. 456.)
But when A digs a hole, intending to place salt therein, so that the discovery of the salt so placed may be used in evidence against B in a judicial proceeding, A is guilty of an attempt to fabricate false evidence. (4 N. W. P. 133.)
Explanation II rests on the authority of the illustrations to sec. 511 and of Bramwell B. in 1 D. & B. 201. Though the object be absent, still the act is commenced. But where the object is mistaken, nothing is done 'towards' or in the direction of the offence : there is, in other words, no commencement of the act.
The reasons for the two propositions in Explanation III are, 1, that though the means are relatively insufficient, still the act is commenced; but, 2, where they are absolutely insufficient, there is no such commencement.
Under the Indian Code there is no punishment for attempts to commit offences for which fine is the only punishment, i. e. offences under secs. 137, 154, 155, 156, 278, 283, 290, and
mencement of the actual crime. Prescrip- On the ground of public welfare, the Code, unlike other systems tion.
of criminal law, recognises no limit within which offences must be prosecuted. Certain special laws, however, prescribe periods of
limitation for prosecutions for minor offences 1. Strict con- Lastly, as the Code is a penal law, the Indian Courts, folstruction.
lowing English decisions, have laid down that it must be construed strictly?. That, in other words, its language when ambiguous should be interpreted in the manner most favourable to the liberties of the subject,'—a sounding phrase which simply means 'so that it may embrace as few cases as possible;' and that this is more especially so when the penal enactment is of an exceptional character 3. When the Code is revised, it would be
1 See the Introduction to the Criminal Procedure Code in Vol. II. of this work.
7 Suth. P. C. 19, where the Judi
cial Committee applied the rule to Ben. Reg. xi. of 1796.
3 See Reg. v. Bhista, i Bom. 308, 311.
well to insert a section resembling § 11 of the New York Penal Code: “The rule that a penal statute is to be strictly construed does not apply to this Code, or to any of the provisions thereof; but all such provisions must be construed according to the fair import of their terms, to promote justice and effect the objects of the law'
The Indian Penal Code was framed by Macaulay with the assistance of Mr., afterwards Sir J. M. Macleod. As in the case of the other Codes contained in this work, its basis is the law of England, stript of technicality and local peculiarities, shortened, simplified, made intelligible and precise; but suggestions were derived from the French Code Pénal and from Livingston's Code of Louisiana. Something, too, seems to have been taken from Austin's Province of Jurisprudence, the first edition of which was published in 1832. Before becoming law the Indian Code was revised by Sir Barnes Peacock, assisted by Mr., afterwards Sir Walter Morgan. In spite of the forebodings of many of the Indian judges and advocatesgeneral, it has been, in the words of Sir James Stephen, 'triumphantly successful.' Besides repressing the crimes common to all countries, it has abated, if not extirpated, the crimes peculiar to India, such as thuggee, professional sodomy, dedicating girls to a life of temple-harlotry, human sacrifices, exposing infants, burning widows, burying lepers alive, gang-robbery, torturing peasants and witnesses, sitting dharna. Translated into almost all the written languages of India, it has familiarised the Native mind with ideas of justice and humanity, the maintenance of public order and public morality, the rights of the individual to life, health, freedom, honour and property, the possibility of expressing a law with clearness and authority, and of dealing systematically with a vast and complicated subject. And from its lucid style and accurate wording the many Hindus and Muhammadans who study it in English find in it one of their most useful instruments of self-education. · But, fortunately for critics and theologians, all known work, whether human or divine, has its defects. In the case of the Penal Code, some of the defects were unavoidable. “Such is the relation which exists between the different parts of the Law, that no part can be brought to perfection wbile the other parts remain rude. The Penal Code cannot be clear and explicit while the substance of Civil Law and the Law of Procedure are dark and confused. While the rights of individuals and the powers of public functionaries are uncertain, it cannot always
be certain whether those rights have been attacked or those powers exceeded.' So Macaulay wrote in 1837. Since then the two Codes of Procedure have been passed, and, with the exception of actionable wrongs, every important branch of the substantive Civil Law has been codified in India. Since then, too, the elaborate and instructive Penal Codes for the State of New York and for the German Empire have been prepared and enacted; the art of constructing legislative measures has made much progress; and in particular the rules as to the arrangement of the subject-matter have been ascertained. Methodical arrangement is of practical importance as it aids the memory, facilitates reference, lessens the bulk of the law, and enables the student to comprehend the whole plan and future legislators to make amendments with greater ease? No one can say that the Indian Penal Code is as well arranged as it might be. Besides this, a large number of important, but sometimes conflicting, decisions on the construction of the Code have been delivered during the last twenty-four years, by the High Courts now established at Calcutta, Madras, Bombay, and Allahabad. Macaulay himself was of opinion that no point of law ought to continue to be a doubtful point more than three or four years after it has been mooted in a Court of justice. The time therefore has apparently come for repealing Act XLV of 1860, and for re-enacting it with the changes made by the Acts amending it, and with such further improvements in arrangement, wording, and substance as may commend themselves to the Government of India, after consulting the learned judges of the High Courts, and the ablest of the officers by whom the Code is administered in the Mufassal.
1 A bill to codify this subject has been prepared for the Government of India by one of our
ablest draftsmen and most learned lawyers.
Livingston's Works, i. 30.