Chapter I then declares the title of the Code, the day on which

it was to come into force, and its local extent. The day (originally Commence1st May, 1861) was changed by Act VI of 1861 to 1st January, ment. 1862. The Code is in force throughout what is called British Local India,' and though it did not at first apply to the Straits Settle- extent. ment, it was extended to that Settlement by Act V of 1867. The Code is also in force, by virtue of executive orders (express or implied), in the Pargana of Mánpur, the cantonment of Morár, Mysore, Ákalkot, Játh, the Haidarábád Assigned Districts, and several British cantonments in Native States1.

classified, and punishments appor-
tioned, have been less regarded than
in the legislation of Bengal and
Madras. The secret destroying of
any property, though it may not
be worth a single rupee, is punish-
able with imprisonment for five
years.
Unlawful confinement,

though it may last only for a quarter
of an hour, is punishable with im-
prisonment for five years. Every
conspiracy to injure or impoverish
any person is punishable with im-
prisonment for ten years; so that a
man who engages in a design as
atrocious as the Gunpowder Plot,
and one who is party to a scheme for
putting off an unsound horse on a
purchaser, are classed together, and
are liable to exactly the same punish-
ment. Under this law, if two men
concert a petty theft, and afterwards
repent of their purpose and abandon
it, each of them is liable to twenty
times the punishment of the actual
theft. All assaults which cause a
severe shock to the mental feelings
of the sufferer are classed with the
atrocious crime of rape, and are
liable to the punishment of rape, that
is, if the Courts shall think fit, to
imprisonment for fourteen years.
The breaking of the window of a
house, the dashing to pieces a china
cup within a house, the riding over a
field of grain in hunting, are classed
with the crime of arson, and are
punishable, incredible as
appear, with death...

it

may

'By the Bombay Code the con

cealment after the fact of murder is punishable as murder:-the concealment after the fact of gang-robbery is punishable as gang-robbery:— and this, though the concealment after the fact of the most cruel mutilations, and of the most atrocious robberies committed by not more than four persons, is not punished at all.... We have said enough to show that it is owing, not at all to the law, but solely to the discretion and humanity of the judges, that great cruelty and injustice is not daily perpetrated in the Criminal Courts of the Bombay Presidency.' As Dr. Markby truly says, 'The only successful legislation has been the work of lawyers;' Elements, § 194.

1 Ábú and Anádra, Ágar, Bangalore, Baroda, Deoli, Dísah, Ellichpur, French Rocks, Gunáh, Indore Residency, Naogaon, Nímach, Rájkot, Sikandarábád, and probably others. It is in force as regards subjects of Her Majesty in the Salt Sources of the Rájputána Agency. It has also been extended to the head-works of the BhawalwahLodran Canal (Bhawalpur), and to the lands in Native States occupied by the following railways: Bhaunagar-Gondal; Bombay, Baroda and Central India; Great Indian Peninsula; Káthíawár; Madras; Nágpur and Chhatisgarh; Nizam's; Western Rájputána-Malwa; and Western Rájputána. Outside India it is in force, so far as regards subjects of Her Majesty, in Zanzibar by virtue of the

Personal application.

Extraterritorial operation.

Sec. 2 declares that 'every person' shall be liable to punishment under the Code, and not otherwise,' for violating its provisions in British India on or after the 1st January, 1862. Here the words 'every person' include members of ancient sovereign houses residing in British India', and subjects of foreign states entering that country; and there is no exception in favour of ambassadors' or other public ministers of foreign princes. But notwithstanding sec. II, they mean in most places natural persons, and do not include juridical persons, such as a corporation. A crime if committed by such a body is, as a rule, only punishable as committed by such members of it as took part in the act. The words 'and not otherwise' virtually repeal all former laws for the punishment of any offence made punishable by the Code 3. And the words 'on or after the 1st of January, 1862,' leave offences committed before that day to be punished under the old regulations*.

Sections 3 and 4 relate to the extra-territorial operation of the Code. The former section declares that any person liable by any law passed by the Governor-General of India in Council' to be tried for an offence committed beyond the limits of British India shall be dealt according to the provisions of the Code for any act committed beyond those limits in the same manner as if it had been committed within them; and section 4 makes the Code apply to offences committed by servants of the Queen (sec. 14) within the

Zanzibar Order in Council of 1884; and
the legislature of Ceylon has recently
enacted a Penal Code in which much
has been borrowed from the Indian
Act; Law Quarterly Review, Jan.
1886, p. 44.

1 As, for instance, the Nawab of
Surat (Act XVIII of 1848), the
Nawab Názim of Bengal (Act
XXVII of 1854), the Nawab of the
Carnatic (XXXVII of 1858), the
King of Oudh. This last-named
personage is, however, exempt from the
jurisdiction of criminal courts except
for capital offences (Act VIII of
1862). The Governor-General and
members of his Council are exempt
from the criminal jurisdiction of
Indian High Courts, 13 Geo. III,
c. 63, secs. 15, 17: 21 Geo. III, c. 70,
sec. I. Offences committed by them
are triable in England, 11 & 12 Wm.
III, c. 12: 13 Geo. III, c. 63, s. 39:
21 Geo. III, c. 70, secs. 4, 5, 7. As
to the exemption of the Governors and

Councils of Fort St. George and Bombay, see 37 Geo. III, c. 142, S. II, and 39 & 40 Geo. III, c. 79, s. 3. As to the Judges of the Supreme (High) Courts, see 13 Geo. III, c. 63, ss. 17, 39: 37 Geo. III, c. 142, 8. 11. As to the procedure in Parliament against Indian offenders, see 24 Geo. III, sess. 2, c. 25, secs. 64-85: 26 Geo. III, c. 57, secs. 1-28.

2 As to these messengers and their domestic servants, see 7 Ann. c. 12, secs. 3, 4, 6. The N. Y. Penal Code, sec. 27, expressly exempts ambassadors, their families, secretaries, messengers and servants, and the Indian Courts would probably hold them to be privileged by the law of nations.

3

They were expressly repealed by Act XVII of 1862, but, of course, with proper savings as to offences committed before Jan. 1, 1862.

I All. 599, 601; and see 2 Cal. 225. 5 This extends to illegal omissions, sec. 32.

dominions of any Native prince or foreign state in alliance with the Queen.

The effect of the words 'by any law passed' etc. is apparently to restrict the operation of section 3 to the classes specified in the Foreign Jurisdiction and Extradition Act, XXI of 1879, and the Criminal Procedure Code, that is to say, European British subjects committing offences in allied States in India, and Native Indian subjects of Her Majesty committing offences at any place outside British India.

Act XXI of 1879, sec. 9, declares that-' when a European British subject1 commits an offence in the dominions of a Prince or State in India in alliance with Her Majesty, or when a Native Indian subject of Her Majesty commits an offence at any place beyond the limits of British India, he may be dealt with in respect of such offence as if it had been committed at any place within British India at which he may be found': provided that the Political Agent, if any, for the territory in which the offence is alleged to have been committed certifies that the charge ought to be inquired into in British India. The Criminal Procedure Code, Act X of 1882, sec. 188, contains a like provision.

This, it will have been seen, does not include (a) European British subjects who are not servants of the Queen and commit offences outside the limits of British India and of allied Indian States, as, for instance, on the high seas, and (b) foreigners who commit offences in foreign states, even though those offences take effect, or have a continuing operation, in British India. For the law (where there is any) applicable to such cases we must look to the following Charters and Acts of Parliament ::

1. The Charters and Acts conferring Admiralty jurisdiction on the late Supreme and present High Courts at Calcutta, Madras, and Bombay, (33 Geo. III, c. 52, sec. 156: 33 Geo. III, c. 155, sec. 110: 9 Geo. IV, c. 74, sec. 25: 12 & 13 Vic. c. 96: 13 & 14 Vic. c. 26: 24 & 25 Vic. c. 104, sec. 9: 26 & 27 Vic. c. 24: 30 & 31 Vic. c. 45; and the Letters-Patent of 1865, secs. 32 and 33), and on the Mufassal Courts (12 & 13 Vic. c. 96, and 23 & 24 Vic. c. 88), or regulating that jurisdiction. See also the Merchant Shipping Act (17 & 18 Vic. c. 104, sec. 267, and 3 & 31 Vic. c. 124, sec. II) as to offences committed by masters, seamen, and apprentices on British ships, and 18 & 19 Vic. c. 91, sec. 21, as to all British subjects;

2. The Colonial Courts Act (37 & 38 Vic. c. 27), sec. 3;

3. The Slave-trade Act (39 & 40 Vic. c. 46); and

1 As defined in the Code of Criminal Procedure.

Acts saved.

4. The Territorial Waters Jurisdiction Act, 1878 (41 & 42 Vic. c. 73).

The law applicable to extra-territorial offences depends on the Statute or Act under which they are tried. Thus in cases coming under the Slave-trade Act, the Penal Code, sec. 4, Act XXI of 1879, sec. 8, or Act X of 1882, sec. 18, the law applicable is the Indian Penal Code. But in cases coming within the Admiralty jurisdiction of the High Courts the English criminal law applies generally1. There is, however, a distinction in cases of homicide, according as the death happened on land or at sea. When any one dies in India of a stroke etc. inflicted within the Admiralty jurisdiction, every offence committed in respect of such case may be dealt with as if it had been wholly committed in India. But when the death occurs at sea, or within the Admiralty jurisdiction, then such offence shall be held, for the purpose of this Act, to have been wholly committed upon the sea' (12 & 13 Vic. c. 96, sec. 3). 'In the former case, apparently,' says Mr. Mayne, 'the criminality would be tested by the Penal Code; in the latter by the criminal law of England.' Moreover, as to the punishment following on conviction, the Colonial Courts Act provides that when, by virtue of any existing or future Act of Parliament, any person is tried in a British Indian Court for any extra-territorial offence, he shall be liable to such punishment as might have been inflicted upon him if the offence had been committed within British India and the local jurisdiction of the Court, and to no other punishment; and that if the offence is not punishable by the law of British India, the offender shall be liable to such punishment (other than death) as seems to the Court most nearly to correspond to the punishment to which he would have been liable in case he had been tried in England.

Where foreigners have committed certain crimes outside British India and are arrested within British India they may be delivered up in pursuance of an international compact".

Section 5 saves 3 & 4 Wm. IV, c. 85, and all subsequent Acts of Parliament relating to India. It also saves the Mutiny Act3. It saves, lastly, special and local laws, which contain criminal enactments, and of which the principal appear in the following lists:

1 7 Bom. H. C. Cr. Ca. 128: I Ben.
O. Cr. 1: Mayne, P. C. (12th ed.),
14, 15.

See the Extradition Acts, 33 & 34
Vic. c. 52, 36 & 37 Vic. c. 60 and c.

88, s. 27, and the Indian Acts XXI of 1879 and IV of 1880.

3 The Army Act, 1881, 44 & 45 Vic. c. 58.

SPECIAL LAWS.

1 This Act, framed by General Strachey, has, unfortunately, not yet been
brought into force by the Executive.