DISSERTATION TOPIC ON

THE CRIMINAL LEGAL JUSTICE ETHICS:- THE ROLE OF CRIMINAL LEGAL

JUSTICE SYSTEM IN INDIA........

The details of this above mentioned topic of the thesis like chapter wise are as given below:-

CHAPTER 1:-DEVELOPMENT OF CRIMINAL LAW OR CRIMINAL LEGAL JUSTICE SYSTEM IN INDIA:-

1.1- INTRODUCTION
1.2-CRIMINAL LAW IN ANCIENT INDIA
1.3-CRIMINAL LAW DURING MUGHAL PERIOD
1.4-ROMAN CRIMINAL LAW
1.5-DEVELOPMENT OF CRIMINAL LAW IN ENGLAND
1.6-CRIMINAL LAW DURING BRITISH PERIOD
1.7-IN POST INDEPENDENCE INDIA OR DEVELOPMENT OF CRIMINAL LAW IN POST INDEPENDENT
INDIA.
The elaborate details of the above chapter are as follows:-

1.1:- INTRODUCTION:-

Crime is an act that is detrimental not only to some person but also to a community, state or
society (a public wrong).P S A PILLAI (CRIMINAL LAW). It is a myth to think of a crimeless society. In
fact, there can be no society without the problem of crime and criminals. Crime is a dynamic concept
changing with the social transformation. Prof.n.v.Paranjape/Criminology.

Originally Crimes were not defined officially and involved no official action but were
private matters. Individuals who were wronged would seek retribution against the wrongdoer or his
family. This concept of personal justice is clearly visible in all early laws, including the code of
Hammurabi from 1900 B.C., the Roman laws from 450 B.C., the Mosaic code, law in early Greek
society as revealed in the Iliad and the Odyssey, and the law of Tacitus prevalent among the
Germanic peoples in A.D.98. Herbert A.Bloch, Man, Crime and Society [New York: Random
House,1962],p.5.The system broke down only when the family structure changed and private
vengeance became difficult if not impossible to enforce. But while system existed, the harmed person
and family would get revenge-if not from the wrongdoer, than from one or more members of that
person’s family.

The most basic definition of a crime is “an act committed in violation of a law
prohibiting it, or omitted in violation of a law ordering it”. The concept of crime and criminal law of
today owe its origin to the epics and other authoritative sources, such as Manusmriti, Naya
Mimamsha and Kautilya’s Arthashastra. These sources clearly show that a well defined criminal
policy existed in early days of Hindu society. Later the concept of crime developed but was confined
to acts committed against the king (for example, Treason), and private revenge remained the only
punishment for acts against private citizens. Eventually the king, representing the state, realised that
the peace of the community was at stake and decreed that when a person is wronged, that act
should be reported to the king, who would take action for punishment. Thus, anyone who injured on
of the king’s subjects was considered to have injured the king.
 Gradually the payment of compensation replaced family feuding and other forms of
private revenge. If, for example, a neighbour stole your cow, you were permitted to take one of his or
her cows. If, after the money system developed, he or she had no cow, you were entitled to the
monetary value of the stolen cow. And because the king wanted some of the money too, the fine
system developed; the fine going to the king and the repayment for the stolen cow to the owner of
the cow.

Writers on English legal history have often mentioned that in early law there was no
clear distinction between criminal and civil offences. The two have been called Winfield, Province of
the Law of Tort (1931), 190. ‘a viscous intermixture’, and it has been explained Allen legal
duties(1931),222 that the affinity between tort and crime is not in the least surprising when we
remember how late in the history of law there emerged any clear conception of a punishment
difference between them, as was pointed out by Sir Henry Maine. There is indeed no fundamental or
inherent difference between a crime and a tort. It is very difficult to define what is criminal or to
distinguish a crime from a tort. One cannot even declare that crimes are always more serious in their
effects either on the individual or on the society. For example, the negligent manufacture and
marketing of a product which turns out to be dangerous may be far more injurious to both
individuals and society than the theft of a pencil, yet the former would normally only constitute a tort
whereas the latter is criminal. There are similarities: each is a wrong, each is a breach of a legal
obligation or rule. Any conduct which harms an individual to some extents harms society, since
society is made up of individuals and therefore all though it is true to say of crime that it is an offence
against society this doesn’t distinguish crime from tort.

If we go through the detail relationship between the tort and crime then it must be say
that, A crime is an act forbidden by the law, the punishment for which is provided by the state. In
order to an act being labelled a crime, it is necessary that the man committing the act must have a
guilty intention unless it is an offence of strict liability provided by the statute.

In ancient days, many wrongs which are today crimes, were considered only acts against
the persons injured and their relatives and the compensation was a remedy. In course of
development of human civilisation, these acts were considered as crimes because of gravity of their
nature and adverse effect on the public peace and the acts were regarded as the acts against the
public and consequently the punishment was provided by the state. The punishment is either corporal
or fine or forfeiture of property or sometimes more than one.

In every society of any point of time, whatever may be the type of offender, a crime
is being taking place and it is witnessed since the early dawn of human civilization. Crime is a social
eccentricity and is made punishable by the society. It is vital need punishment for the unjust and
wrongful activities of the wrongdoers as to protect the society and to have a tranquil and peaceful
life. In India too a criminal justice system progressed in all aspects of fields like Socio-economic and
political conditions which evolved during different phases of the history of India. Accordingly, the
purpose and goals of the criminal justice and methods of its administration changed from time to
time and from one period of history of another period. Even in the advanced Rig-Vedic period, there is
a mention that punishment of a thief rested with the very person wronged. This code of conduct,
which administered the affairs of the people, came to be known as Dharma or Law. Manu smriti is
regarded as the oldest codification of rules of Dharma which is a comprehensive term for rules of
righteous conduct in every sphere of human activities. Dharma regulates the rights and duties of
every individual in order to ensure peace and happiness for all, by harmonizing the interest of the
individuals and the society.

Historically, the concept of crime seems to have always been changing with the
variations in social conditions during the evolutionary stages of human society. In the early age,
where people were not so civilized and educated, there was no criminal law in an uncivilized society.
Anybody can attack anyone and take the property of anyone as in the name of revenge. The attacked
persons are either be helpless or take revenge as they were like on this path particularly. “A tooth for
a tooth, an eye for an eye and a life for a life” was the forerunner principle of law. After sometime,
the injured party agreed to accept compensation from the guilty party instead of taking revenge. So,
that the law of tort came into existence(Website).

Generally, the law of crimes has been known to us through all ages of our
civilisation. In fact, it is as old as our civilisation whenever men and women formed themselves into
an organised society, the need for a criminal law has always been felt there. If we start with the
lightning of the real fact that having little or no contacts with other fellow beings, or a man living in a
itself smaller group would naturally have very less opportunities to commit any evil deeds .The truth
of this observation can still be verified when we come in close contact with someone or the so called
aborigines and the primitive races of mankind. In every organised society, however certain acts of
commission or omission are forbidden on pain of punishment which may extend to the forfeiture of
life.

Since human society is possible only when individuals comply with its rulers. By studying Hindu
Criminal Law one gets an insight into the political, social, economic and religious conditions of the
country in ancient times. The Criminal Laws laid down by Gautama, Vasistha, Apastamba and
Baudhayana represent a stage which was even earlier than those of Manu. The Criminal Laws laid
down by them are as yet rudimentary. Hence, it becomes difficult to understand the laws. It was
during the Manu’s time, that criminal law reached a stage of development. Among the oldest of the
known legal codes with schedules of penalties for specific crimes, are those of ancient Sumarians and
Babylonians. Out of these, the code of Hamburabi, the 6 th king of Babylon, has been most completely
preserved and is dated around 2000 B.C. While the Sumarian codes are thought to be somewhat
older and the Mosaic Code is about 800 years later or around 1400-1200 B.C. Although it seems that
the ancient criminal law is a haphazard code, but if we look a little closer, we come to know that it is
in fact based on scientific principles.

India’s culture is one of the oldest culture of the world. Danda was considered to be a very crucial
constituent of legal and social system. Anybody who violated law of the society was served with a
danda or the so called punishment. The laws of the society were framed by the ruling classes and on
many points, the principle of Varna or class legislation was followed. The Smritis prescribe various
rules relating to punishments to be awarded for different crimes. Smritis lay down punishments for
offenders according to his caste.

The Arthashastra gives a point by point record of prison organization. It was given that a
correctional facility ought to be developed in the proceeded with: Capital and ought to have isolate
convenience for people. The Dharmashastras were accused of the obligation of shielding detainees
from attack and discharging the meriting ones. It was additionally endorsed that detainees ought to
be utilized in helpful work. Infringement of criminal laws by any individual from the general
population was considered as an offense against the state. Any individual could carry this into the
notice of lord.

The king could also take cognizance on his own, with or without any complaint of criminal
offences. It was the duty of the king to apprehend and punish the offender. Anybody could complain
about the offences, not necessary the injured party. The individual who voluntarily identified
commission of offenses and answered to the lord was known as stobhaka i.e. Source and he was
qualified for get compensation from king. The law neglects to react the need of changing society and
stifle its encouraging or if the general public is sufficiently fiery, it will cast away the law which
obstructs its development, law should along these lines continually be moving embracing itself to the
quick changing society and not linger behind- Justice Bhagawati.

For the social control and prevention and control of crime , there is need to change Criminal
justice system as per the need of the society ,the law is an instrument through which it could possible
to amend the law and to protect rights of the people as protection of Human Right concept. The
concept of crime has been changing with the change in the socio-economic background of the
society. The definition of crime and administration of criminal justice are the subject matter of
criminology. During the early ages, Crimes were very few, since the society was more simple. With
the passage of time, society has become very complex and so is the nature of crimes. As we have
already discussed that the concept of crime is essentially concerned with the conduct of individuals in
society. Crime is an act of an individual associated with anti-social elements who for some reasons or
the other deviate from the normal behaviour pattern of individuals. Since, man’s interest are best
protected in the social life of society. Therefore, every member of society owes certain duties towards
the other members and also has certain rights and privileges, which he insures for him from others. It
is the obligation on the state to maintain normalcy in society through Crime control Machineries.

A criminal law is an arrangement of lawful and social organizations for authorizing the criminal
law as per a characterized set of procedural standards and confinements. Criminal law incorporates a
few noteworthy subsystems, made out of at least one open establishment and their staffs: police and
other law authorized organization, trial and re-appraising courts indictment and open protector
workplaces, probation and parole offices, custodial offices and the most imperative researching
offices: Likewise, there are various regulatory offices whose work incorporates criminal law
requirement.

An act, which is a crime today, may not be a crime tomorrow. For instance, Polygamy, the Hindu
Marriage Act,1955,section 5 and 17.dowry,the dowry prohibition act,1961, Untouchability,
Protection of civil rights act,1955, section 3 are now crimes that were not so a few years ago, suicide
was a crime in England until the Suicide Act,1961,Smith and Hogan Criminal law.and in India from
1994 to early 1996, when it became lawful to kill oneself. After prohibition laws are promulgated in a
particular area, the sale and purchase of liquor becomes a crime.

1.2:- CRIMINAL LAW IN ANCIENT INDIA:- There was no criminal law in Ancient time. The society was
uncivilised. Neither the life nor the property was safe in that society. At that time people believed
only on one thing i.e., life for a life. Time changed and the people made law based upon their religion.
They segregated law according to their Holy book and their culture.
 In ancient Indian Primitive societies, the administration of justice was the concern of
the common people through their various associations such as Kula, Sreni, Guilds etc. The king was
not involved in the administration of justice at that time. It was the Dharma Sutras in which it was
mentioned for the first time that administration of justice was one of the primary functions of the
king. Sen Gupta: Evolution of Ancient Indian law, (1950) p.3

Manu’s comprehensive Code contained not only ordinances relating to law, but a complete
digest of the prevailing religious precepts, legal philosophy, customs, usages etc. He, in his criminal
law seems to have recognised assault, theft, robbery, breach of trust, false evidence, slander,
adultery, homicide, libel, gambling, etc. as crimes. These were the principal offences against person
and property which were recognised under the ancient Indian Criminal Law. The gravity of the
offences, however, varied with the caste and creed of the offender and so also was the sentence. The
Brahmins were treated with exceptional leniency in matter of punishment. See Manu: Institutes of
Hindu Law, Chapter VIII, p. 380.

The Ancient Criminal Law in India did not recognise any distinction between public and private
wrongs. Murder and homicides were regarded as private wrongs. The right to claim compensation
from the wrongdoer was generally accepted. A distinction was, however, made between casual
offenders and habitual criminals. Again, provisions for exemption from criminal liability existed where
the act was done in self-defence, without intention or by mistake of fact or by consent or it was a
result of an accident which are now incorporated in the Indian penal code as general exceptions.

In the Ancient time, however the separation amongst common and criminal laws are not
being plainly characterized but rather the boundary can be recognized at the seriousness of the
disciplines bestowed, like for instance, in the time of Mahabharata, a ruler who in the wake of having
sworn that he might ensure his subjects, neglect to secure them ought to be executed like a frantic
puppy.

Kautilya additionally portrays the obligations of the lord in the Arthashastra along these
lines ‘in the bliss of his subjects lies the rulers joy, in their welfare his welfare whatever satisfies him
he might not consider as great, whatever satisfies his kin he should consider to great.

India has brilliant history more than 5000 years ago. Along these lines an exhaustive
investigation of Indian lawful history contains the chronicled procedure of improvement of legitimate
establishment in Hindu and Muslim Periods. The lords around then depended upon the different
wellsprings of law, like Sruti, Smriti, Puranas, Dharmasutra, Dharmashastra, Manu Smriti and so
forth.

Puranas is any of the class of Sanskrit written work on Hindu folklore and old stories of shifting
date and sources, the most antiquated of which dates from the fourth century AD. As indicated by
Wikipedia, Puranas truly signifies “old, old”, and it is a tremendous kind of India writing about an
extensive variety of subjects.

The Dharmasutras manage the obligations of men in their different relations. They don’t put on
a show to be much else besides the arrangements of mortals in light of the instructing of the Vedas,
on the choice of the individuals who were familiar with law, and on the traditions of the Aryans.
 The Dharmashastra deal with the subject matter in a very systematic manner. Most of the rules of
religious observances. The last with the penace of expiation. The second part deals with the civil law.

Manusmriti and Arthashastra were considered authoritative legal guidance.

Ancient Source:

Sruti:

The word Sruti artistic means what was heard. The Vedas in this way contain the awesome
disclosure. The term remains for four Vedas, The Rig, The Yajur, The Sama and The Atharva alongside
their individual Brahmanas. The Brahmanas resemble supplements to Vedas which are included later.
The arrangements with different services, customs, and penaces. Since the Vedas are said to contain
the voice of god, they are thought to be the essential or the essential wellspring of law. The Sruti is
thought to be key wellspring of Hindu law. The Vedas delineate the lifestyle of our initial progenitor.

Smritis:

The word smriti actually implies what has been recalled. Smriti is divided into two sections, early
Smriti and later Smriti. The previous are called Dharmasutras and later the Dharmashastra. The
Dharmasutra manage the obligations of men in their different relations. The Dharmashastras are
metrical verses; they manage the topic in an extremely precise way.

Manu Smriti:

The Manu Smriti has been thought to be incomparable expert in the whole nation. The surviving
Manusmriti is separated into 12 parts and contains 2694 slokas. In the eight section contain eighteen
titles of law which included both common and criminal law.

Body Content:

In historical context, criminal law has been seen as a repressive regime of the state which
sanctions to enforces its definitions right and wrong. Thus a critical approach is to give same
explanation about the justification and limits of criminal law. It questions the legitimacy and rational
of criminal law as an instrument of state power. This perspective is quite oppose to the mainstream
theme in criminal law where criminal is considered to be an essential feature of social order. In the
critical legal study perspective, the choices of explanation fall between the realistic and left idealistic
positions. In this sense, the critical writers focus precisely on the ideological significance of criminal
law.

The bigger critique of criminal law stands from fact that it has been used reinforce slavery, to
secure the labour force, to maintain religious political hierarchies to convert customary rights in the
poaching and so on the grant tradition in criminology also question the culpability, it is process and
its necessity in dealing with the challaneges of crime. The whole debate in contemplating idea of
criminal law also situated between the two notions of ‘law and context and normative law’. The law
and context approach brings in several external factors into play which may have some bearing of
the functioning of criminal law and its institutions. Thus, the context in criminal law has now become
a major point of defining element. Indian history uncovers that since from antiquated circumstances,
the situation of the law of wrongdoing was at that point in presence. The old Hindu law as set down
in Smritis, the code of Manu and Yajnavalka, the discourses by Narada, Vyas, Brihaspati and
Katyayana gives nitty gritty investigation because of law of wrongs, both common and criminal.

Manu has portrayed the whole plan of common and criminal law he likewise
characterized offenses like an ambush, criticism, burglary, theft trespass. In Indian Criminal equity
framework has no degree for private retribution or striking back. In the definitive content of Dharma-
shastras the managerial of equity in which the lord who cared for his subject and kept up Dharma in
his kingdom. The main King was engaged to rebuff the guilty parties and his obligation is to keep up
and maintain the law in the public arena. In the Hindu Dharma Shastra the Hindu law of wrongdoing,
particularly the law of Prayaschitta or discipline is of significance. The main aim of the law in the
Vedic period was to preserve “Dharma” which means righteousness and duty. Dharma consists of
both legal duties and religious duties. It is not only includes laws and court procedures, but also a
wide range of human activities like ritual purification, personal hygiene regimes, and modes of dress.
Dharma provided the principal guidance by which one endeavoured to lead his life.

The Manu smritis is a vital finish code managing the laws, custom and utilizations of the day.
At the seasons of Yagnavalka and Brihaspati, the thorough discipline was diminished and even the
relax fine for the customary offenses the standard discipline was given. The Hindus had very much
created and methodical criminal law in India. In the Kautilya’s Arthashastra which characterize
diverse type of criminal law infringement amid his opportunity.

In ancient India, punishments were generally sanctioned by the ruler, but other legal officials
could also play a part. The punishments that were handed out were in response to criminal activity.
Whereas Danda is sanctioned primarily by the king, prayascitta is taken up by a person upon his or
her own volition. Furthermore, danda provides a way for an offender to right any violations of
dharma that he or she may have committed. In essence, danda functions as the ruler’s tool to protect
the system of life stages and castes. Danda makes up a part of Vyavahara, or legal procedure, which
was also a responsibility afforded to the king.

From the above it is clear that, the Hindu rulers took after the criminal law and methodology for
administration of criminal equity.

1.3:- CRIMINAL LAW DURING MUGHAL PERIOD/ MUSLIM/MOHAMMEDAN CRIMINAL LAW:-

The Mohammedan Criminal Law was based on the Koran, which is believed to be of divine
origin and was the first source of Muslim Law. After the triumph of the nation by Muslims,
Mohammedan criminal law was presented in our nation, and the Indian courts applied
Mohammedan criminal law in the organization of equity. At the point when East India company
assumed control over the domain of Indian territory, Mohammedan criminal law was in power.

Criminal law as found in Manu’s Code prevailed in India until the Moghul rule was
established. The administration of criminal justice was entrusted to Kazis under Moghul rulers. It
provided punishment in the form of Kisa or retaliation, Diyut or blood money, Hadd or fixed
punishment, and Tazir or syasa which means exemplary punishment. The notion of Kazis, however,
varied according to the power of culprits, hence the law lacked uniformity. In general, the criminal
justice administration suffered from many inherent defects during Moghul rule in India.
 In the dark period of history when nothing but ruin, squalor and desolation remained of
what were once great civilizations, when oppression, exploitation and the right of might prevailed,
when human rights had ceased to be recognised, when superstitious and hedonic cults were followed
at many places and man was still terrified of the forces of nature and gave a very low place to himself
in the scheme of creation, was born Muhammad, the prophet of Islam in the desert country of
Arabia. Athar Hussain, the prophet of Islam, p.1, a booklet published by the Hamdard National
Foundation. The importance of the study of Muslim Law can be estimated from the fact that it is
applicable to some 15 crore Muslims in India, 12 crore in Pakistan and 13 crore in Bangladesh.
Muslims in some twenty countries of Asia, Africa and Europe, follow Muslim law. In other words, one
sixth of the total world population is following Islam and if there is anything which is characteristic of
and fundamental to that religion, it is the Shariah, or the Islamic Law.

During the Mughal rule in India, Muslim criminal law was the law of the land for the
administration of criminal justice. When the company assumed the responsibility for administering
Bengal, Bihar and Orissa, the Muslim criminal law was very well entrenched in that territory. The law,
however, had a number of glaring defects. Many of its principles were not in accord with the British
notion of Justice, common sense and good government. Exemplary punishment imposed on habitual
offenders or dangerous character. The law was designed to sub serve the needs of a society
profoundly different from the one which was in the process of revolving in Bengal after the advent of
the British in the later half of the 18 th century. The British administrators were therefore gradually led
to effect modifications in the Muslim Criminal law by using their power to make regulations. Ibid pg
363.preamble to Regulation 53 of 1803. They adopted the Muslim Criminal Law to the needs of the
society in Bengal and also according to their own concept of justice, policy and social behaviour.

The Muslim Criminal Law formally remained in operation in the mofussil of Bengal, Bihar
and Orissa for over 100 years after the company had taken over the administration. Nevertheless, it
underwent so many changes during this period when in 1860, the Indian penal code was enacted, It
is a commentary upon the Bidyul-ul-Moobtadee composed by Sheikh Boorhan-ud-Din Ali, son of
Abu Bukr. The law prevailing at the time could hardly be characterized as the Muslim criminal law. It
had become transformed by then into anglo-muslim kaw of crime; it had been detached from its base
in Muslim Jurisprudence. It consisted of 61 books which were composed in Arabic under the
authority of Emperor Aurangzeb and was later on translated into Persian.

The traditional Muslim Criminal Law broadly classified crimes under three heads: (i) Crimes
against Gods (ii) Crime against Sovereigns and (iii) Crime against private individuals. The first
category included such crimes as apostacy , drinking intoxicating, liquors, adultery etc. The third
category included such crimes as theft, highway robbery and robbery with murder etc., i.e. offences
against the human body . Accordingly, the Muslim Criminal Law arranged punishments for various
offences into four categories, viz., Hadd, Tazeer, Kisa, which was commutable into Diya Hidaya and
while the latter was the collection of case law.

Hadd etymologically meant boundary or limit. In criminal law, it means specific penalties for specific
offences. The underlying idea was to prescribe, define and fix the nature, quantity and quality of
punishments for certain particular offences which the society regarded as anti-social or anti-religious.
These offences were characterized as being ‘against God’ or in other words against ‘public justice’.
 Tazeer is discretionary punishments. These punishments were inflicted at the discretion of the
judges as they were no fixed rules to prescribe such punishments. Usually, these punishments
consisted of imprisonment, exile , corporal punishments, boxing on the ear or any other humiliating
treatment. Tazeer punishments were thus inflicted for meeting the end of the public as well as
private justice. Even for cases falling under Hadd or Kisa, this punishment could be inflicted in certain
situations.

A English observer describe the doctrine of tazeer as a supplementary document which is well
known and admitted in the practice of the courts in Bengal. First the law was very uncertain and on
many points there were different opinion among the Muslim jurists that gave relaxation to the kazi to
interpret the law. A corrupt Kazi always twist the law and misapply the same according to his own
wish.

If the heirs of a murdered man pardoned, or did not complain against the murderer, the
sovereign could not compel them to demand Kisa. Warren Hasting characterized this this as a law of
barbarous construction and contrary to the principle of civil society.

Apart from the above, the Muslim Administration of Justice in Medieval India suffered from many
defects also. It was defective as there was no separation between the executive and judiciary. In
many cases Muslim Criminal law was not certain and uniform in practice and it was there that the
law which laid down Fatwa-i- Alamgiri was more conflicting . There were difference of opinions
among Muslim Jurists which gave the Qazi a freedom to interpret the law and apply it. Thus we can
say that in each case the Qazi interpret according to their own will. In many cases, the murdered
escaped simply by paying money to the defendants of the murdered person. The law of evidence
under Muslim law was very defective,unsatisfactory and of primitive nature because no muslim could
be given capital punishment. In case of evidence of one muslim was regarded as being equivalent to
those of two Hindus.

1.4: ROMAN CRIMINAL LAW:- Roman law, the law of ancient Rome from the time of the founding of
the city in 753 BCE until the fall of the Western Empire in the 5 th century CE. The Roman law is the
legal system of ancient Rome, including the legal developments spanning over a thousand years of
Jurisprudence, from the twelve tables. During the period of the republic (753-31 BCE), the Jus Civile
(Civil law) developed. Another type of law, Jus genitum (law of nations), was developed by the
Romans to be applied both to themselves and to foreigners. Jus genitum was not the result of
legislation, but was a development of the magistrates and governers who were responsible for
administering justice in cases in which foreigners were involved. The oldest part of Roman criminal
law was contained in the twelve tables(420 B.C.) The eight of these tables is devoted to De Delictis ,
namely, to what may be termed as Crimes. It contains twenty six items dealing with different crimes.
These twelve tables can be said to be more important for the institutions . Originally, Criminal
jurisdiction was vested in Comitia Centuriata or Tributa and sometimes in the senate. Their powers
were different. The comitia centurita or tribute was empowered to award the death penalty; while
comitia tribute was empowered to award the penalty of banishment. The comitia and the senate
exercised their powers directly in important cases but in other cases they could delegate their powers
to Quaestors or commissioners. Thus, we see that after the Twelve tables, the codes which we have
described above and later on also the volumes of law that emperors enacted were collected together
in books known as Digests and also in the Ninth Book of the Theodosian Code. They give us sufficient
knowledge about the criminal law and procedure of the Romans before the advent of Justinian.

The Roman lawyers in their times gave criminal law a scientific basis and precision. They divided
crimes into three classes , i.e. (i) Publica Judicia, (ii) Extra-ordinaria criminal, and private Delicta.
Now, we shall study these three briefly.

Publica Judicia:- These related to crimes which were specifically forbidden by particular laws under
defined penalties like death or exile. These offences were treason or felony. They were tried by judges
who were representative of the old permanent commission.

Extra-ordinaria crimina:- Extra-ordinaria criminal were offences for which no special quaestio and
no special punishment were provided. In such offences punishments were left to the discretion of the
judge. They may be compared to what are known to common law as offences of misdemeanour.

Privata Delicta :- Privata Delicta were offences for which a special action was set apart involving a
definite result for the injured party such as action furti or action injuriarum.

Among Publica Judicia were included those offences which were forbidden by various laws
passed from time to time. Four of the most important laws were (a) Lex Julia Majestatis, i.e. offences
against the state. It was known to the twelve tables also. It included the offence of a governer of a
province for not giving up the command of his forces. (b) Lex Julia De Adulteriis, which covered sexual
offences of every sort , e.g. adultery on the part of the wife and not on the part of the
husband( which is quite contrary to our present law contained in the Indian penal code where wife is
exempt from punishment),fornication, unnatural offences, pimping and polygamy. Under Roman Law
a father had a right to kill both his married daughter and her accomplice if she was caught in
adultery either in his house or in her husband’s house. The husband has no such right, but he could
inflict the punishment immediately when she was caught in the act. (c) Lex Julia De VI Publica et
Privata, This act consolidated several earlier laws which punished acts of violence that did not fall
under the offences against the state. (d) The Lex Cornilia De Sicariis et Veneficiis. The main subject
dealt with by this law was homicide. Killing by negligence. Other minor offence known under this
head were Parricide, i.e. Killing of any relation, forging a will or counterfeiting of money, giving false
evidence in court of alw etc.

Extra-Ordinaria Crimina were lies in the Family offences, introducing new religion, abortion,
vagrancy, offences relating to tombs, abigei or theft and Prevarication, which was closely connected
with the administration of justice.

The offence included under Privata Delicta were private wrongs. As we have seen above, furtum or
theft was considered as a Privata Delicta. It meant taking of movables or even valuable security.
Under Roman law of theft, if a man deceived another by impersonation and so obtained his property,
the offence amounted to theft. Married persons could not steal from each other, nor was a married
person guilty of theft, who helps someone else to steal from his wife or husband. In order to
constitute the offence of theft, it was necessary that it should be in possession of some person.

Injuria or tort was also included in this class of offences. Four private wrongs were well known to
them, namely, (a) injury to the person which consisted not only in blows but in threatening gestures
or in administering anything hurtful to the mind – it was more or less akin to tort of assault under the
present law; (b) injury to dignity; (c) injury to reputation- it was just like the law of libel and slander.

We have surveyed, very briefly the development of the criminal law of the Romans beginning with
the twelve tables. The twelve tables made a distinction between a manifest and a non-manifest thief.
The former was punished capitally or banished, while the latter one was punished with a fine equal to
twice the value of the goods stolen. The punishment was not proportioned to the gravity of crime,
rather it was measured according to the feelings of the aggrieved. This is, in brief, the history of the
development of the Roman Criminal Law.

1:5:- DEVELOPMENT OF CRIMINAL LAW IN ENGLAND: The criminal law of England can hardly be
traced from early times. In the earliest criminal law, we can hardly discover any definition of crimes.
To cite a few illustrations:- Plotting against the king’s life, of himself or by harbouring of exiles or of
his men; fighting in a church or breaking the king’s peace and protection, offences against public
justice like perjury , offences against religion and morals; offences like unchastity, adultery, incest
and simple fornication; offences against the persons of individuals like homicide, different kinds of
wounds, rape and indecent assaults. The punishments for these crimes were either fines or corporal.
The corporal punishment was either death, mutilation or flogging. Imprisonment as a punishment
was not known. The fines were called wer, bot and wite. The wer was a price set upon a person
according to his position in life, if the man was killed, the relations were paid the value fixed on his
life. If a man was convicted of theft, he had to pay his own wer to his feudal lord or to the king or if
he was outlawed, his sureties had to pay his wer.

Bot was compensation paid to a person injured by a crime. It might be either at a fixed rate or at
the market price of the stolen goods.

Wite was a fine paid to the king for a crime committed by the accused. It may be observed that all
crimes on a first conviction were punishable by wer, bot and wite.

Suppose a man was murdered and compensation had to be paid to his relations, it was to be
measured on the price set upon the deceased, namely, the relations were paid the wer by the
accused on his first conviction. After a previous conviction, bot might no longer be paid. The
punishment upon a second conviction was either death or mutilation. The punishment were very
severe.

1:6:- DEVELOPMENT OF CRIMINAL LAW IN INDIA UNDER THE BRITISH RULE:- Under the colonial
rule of the British everything changed, in 1833 the British government appointed the ‘Indian law
commission’ that would study the existing laws in India, jurisdictions of the court present at the time
and the basis and principles of the current laws. This commission was to give a report and suggest
necessary changes and reforms that would be required to codify laws in India. One of the most
important contribution of the Indian Law Commission was the Formation of Indian Penal Code; this
was submitted by Lord Macaulay in 1837 which became a law in the year of 1860 after almost thirty
years of heavy deliberations. At the same time, they also wrote the Code of Criminal Procedure, 1861.
Most procedural laws came after this code.

This legislations were criticized at that time, but when we study history and look back these
laws became the basis on which our justice system functions, the principles of justice, equity and
good conscience from the basis of the laws that are detailed in these Acts. There was deliberate need
to understand the people that this law was being written for, right from punishments for sati, bride
burning, abolishing untouchables or infringing on human rights, these laws thus uplifted the
underprivileged and provided a chance of justice for those who were trampled upon.

The Mohammedan system of administration of criminal justice was in force when the East
India Company spread its dominion in India. As we have seen above, the British Judiciary were
enjoined to preserve status quo in the matter of civil and criminal justice and their administration but
later on they realised that Mohammedan criminal law was defective in many respects. It gave no
weight to the testimony of unbelievers. In cases of sexual offence, the testimony of four man, who
must be eyewitnesses to the fact and of ascertained credit, were required to be produced. This was
all very harsh and cruel in many cases. The result was, as Stephen remarked “a hopelessly confused,
feeble indeterminate system of which no one can make anything at all.

Before we trace the stages of the imposition of British criminal law in our country , we have to
sketch very briefly certain historical events connected with it. Under the Mughal rule, civil and
revenue justice was administered under the authority known as Diwani, whereas military and
criminal justice was under the Nizamat. Clive obtained from the emperor of Delhi, whose power was
decliming, a grant of the Diwani of Bengal, Bihar and Orissa in 1765.

Under the Nizamat, the hierarchy of courts was as follows. Nazim was the supreme magistrate
having jurisdiction to try capital offenders. Below him was Naib Nazim who tried lesser offences, for
example, affrays, riots and the like, and under him was the Foujdar, an officer of police, who was
empowered to try all non-capital offences. Then there was the Kotwal who was , in fact , a peace-
officer of the local unit depending on the Foujdar. This hierarchy prevailed in the cities and the capital
towns. In the mofussil, the zamindars had their own civil and criminal courts in their districts. Only in
cases of death sentence, the matter had to be reported to the capital town before actual execution.

The first attempt to reform the criminal justice was made after the passing of the Regulating Act,
1773 under which new courts were also set up. In each district, a criminal court was set up composed
of a Kazi, a Mufti and two Molvis, who used to try criminal cases in presence of a collector, an
European supervisor, who was deputed to see that the trial was fairly conducted. A superior court of
revision was set up. It was composed of a Darogah, the chief Kazi, the chief Mufti and three Molvis.
They used to sit as a court of criminal revision as well as in capital cases, they used to confirm and
approve the conviction. In 1973, another reform was made. Under this reform, in each district a court
was set up composed of a European Judge assisted by a Hindu law expert and a Mohammedan law
expert. Four appellate courts were set up at different towns: Calcutta, Dacca, Patna and
Murshidabad. Each court consisted of three judges and three native experts of Hindu and
Mohammedan law, namely, a Kazi, a Mufti and a Pundit. This set up of the courts laid the foundation
of the existing system of administration of criminal justice. In the Presidency towns, the system was
different. There were Mayor court and then came the supreme court and justices of peace.

Now the Britishers began gradually to refer to the English law of Crimes for the9ir guidance
and information but each of the presidencies followed a system of their own. Of course, regulations
were framed for each presidency containing the laws which were to be administered. But since the
presidencies had different laws, the discrepancies became more noticeable when all were united
under a central government. Then a commission was appointed for an examination of the conflicting
features and for suggesting modification. Such was the state of affairs of the Criminal law
administered by the Britishers in the early part of their rule in India in the presidency towns.

1.7:- DEVELOPMENT OF CRIMINAL LAW IN POST INDEPENDANT/COLONIAL CHANGES IN INDIA:-

We are observed it as the history of the enactment of the penal code and here it is the first important
observation that the Bombay was the first province in India in which a brief penal code was enacted
in 1827 under the guidance of Elphinstone- the then governer of Bombay- for the Mofussil. When
Punjab was annexed in 1844, a short code was drawn up for that province by the then Governer
general, as the Mohammedan Criminal law which was in force in Bengal was not recognised in the
Punjab. In the province of Madras, Bengal, Bihar, Orissa and other territories acquired by the
Britishers, then known as North-west Provinces, the Criminal law as introduced by Regulations was
enforced. These regulations were more or less similar.

Then came the Charter Act of 1833, which introduced a single legislature for the whole of British
India with jurisdiction to legislate for all persons and the Presidency towns. Under section 40 of the
Charter Act of 1833 the first Law Member, T.B.Macaulay, was appointed , who assumed charge of his
office on June 27, 1834. Section 53 of the said Charter Act of 1833 also made a provision for the
appointment of a law commission to inquire into the state of laws in force and to make reports
thereon. Accordingly, a law commission was appointed in 1834, which is known as the First Law
Commission with Macaulay, J.M. McLeod, G.W. Anderson and F. Millett as commissioners. They
submitted their report on june 15, 1835 and the draft penal code on May 2, 1837.

On receipt of the report and the Draft penal code, the Governer-general-in-council was of the
opinion that some steps be taken to revise it. For this purpose, the opinions received from the several
presidencies were referred to the commission and the draft penal code was revised clause by clause
by the commissioners, C.H. Cameron and D. Eliot,who submitted their first report on July 23, 1846.
The second report was submitted by these commissioners on June 24, 1847. The final and revised
penal code was prepared and brought in by Peacock, William colvile, J.P. grant, D. Eliot and Sir Arther
Buller. It was read for the first time in the Legislative Council on December 28, 1856 and there for a
second time on January 3, 1857 and thereafter, it was referred to a select committee which was to
report thereon after April 21, 1857. The Indian Penal Code Bill after its second reading was published
in the Calcutta Supplementary Gazette on January 21, 24 and 28, 1857. It was finally passed by the
Legislative council of India and received the assent of the Governer-general on October 6, 1860.
Originally it was scheduled to come into force on May 1,1861. But the date of its enforcement was
deferred till January 1, 1862 by the amending act in order to enable the people, the judges and the
administrators to know the provisions of the new penal code.

The Indian Penal Code (IPC) is the main document which governs all criminal acts and the
punishments they ought to be charged with. The objective of enacting the IPC was to provide a
general and exhaustive penal code for crime in India. However, there are several other penal statutes
that govern various other offences in addition to the IPC. In animal law, a notable statute is the
Prevention of Cruelty Against Animals Act. In order to be held liable under the IPC, the accused must
possess both mens rea (guilty mind) and actus reas( guilty act).

The IPC extends to the whole of India . Punishments under the IPC can be extended both to
offences committed within India as well as offences committed beyond, but which by law may be
tried, with in India. The provisions of IPC apply also to any offence committed by any citizen of India
in any place without and beyond India and by any person on any ship or aircraft registered in India
wherever it may be.

According to the famous philosopher, Henry Maine, he states that ‘ Penal law of ancient society
was not the law of crime but the law of wrong’. In the beginning, there was no distinction drawn
between laws, there was no division such as civil law or criminal law, any law broken was treated in
the same manner. Whether you steal a piece of ornament or if you steal a domestic animal belonging
to your neighbour, you had to make good the wrong done, whether by compensation or other
prevalent forms of punishment. There was a price set on the life of a man, all societies did not follow
the principle of an eye for an eye, some set a monitory value on the life of each person, and that
would have to be repaid.

As the famous words go, one who takes the life of another forfeit’s his own. In the wake of this,
it was important for there to be a justice system, a system that did not let the victim face injustice
and neither did a wrongfully accused person get punished. Today we still follow the same rules and
laws; with different amendments as time and culture changes, but this text has been the backbone
for delivering justice to those violated. Criminal law in India aims to punish the guilty and build a
society that is free from the clutches of evil, getting rid of them one by one. Even though today’s
society does not practice retributive justice, justice today is not only for the victim but for the society
at large.

It is extremely important to understand humans and the need for criminal law, the need for any
law, to bring order to chaos that exists in this world. Dostoyevsky the author of Crime & punishment
beautifully writes “ Man is a mystery. It needs to be unravelled, and if you spend your whole life
unravelling it, don’t say that you’ve wasted time. I am studying that mystery because I want to be a
human being.” Owing to this, today we maintain order, fight for justice and punish the criminal
based on the history and evolution of criminal law.