The Criminal law in India has passed through three main periods the Hindu Criminal Law, the Muslim Criminal Law and the English Criminal Law.
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(1) Hindu Criminal Law:
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Mayne in his well known treatise on criminal law has in strong words recognised the greatness and soundness of the Hindu System of Criminal Law. The known history of India starts after the settlement of Aryans in this country.
In course of time Aryan society developed its political and social organisation and other institutions. They established a mature legal system. Their laws including the criminal law were fully developed. P.N. Sen in his Hindu Jurisprudence says: “In the Hindu Law punishment of crimes occupied a more prominent place than compensation for wrongs or the penalties. Although under certain circumstances wrong-doer had to compensate the person wronged but it was generally levied in addition to and in substitution for the penalty”.
It was the duty of the king to punish offenders. Manu says that it was the duty of the king to punish those who deserve to be condemned. So penal law of Hindus was law of crimes and the law of Torts. It recognised various kinds of offences, namely, assault, adultery, defamation, theft, robbery and violence as crimes. These crimes were recognised by Manu, Yagnavalkya and Nilkanta.
Further various kinds and degrees of punishments were prescribed to be rendered flexible and kept in the proportion to the enormity of the offence. Measure of punishment varied according to the gravity of the offence.
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In meeting out punishment a number of factors were to be taken into consideration. According to Yagnavalkya some such factors were: nature of the offence, time and place of the offence, strength, age, avocation of the offender, wealth (value of the article stolen) etc.
End of punishment, according to Hindu law, was protection of the people and purification of the culprit. No one was exempt from punishment. Even the king himself was liable if he committed an offence. However, inflicting the punishment, caste was a very important factor.
Brahmins was immune from bodily punishment, persons of higher castes were generally given a lighter punishment. This aspect of Hindu Criminal Law has been greatly criticised. But one thing has been generally overlooked. It is that the men of higher castes were given higher punishments for immoral offences. In this way equality in the matter of punishment was maintained.
Many principles which are corner-stones of Modern Criminal Jurisprudence were well known to Hindu jurists and were made parts of Hindu Criminal Law. A criminal could never acquire immunity. Right of private defence, infancy, lunacy and many other conditions, were recognised as grounds for exemption from criminal liability.
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(2) Muslim Criminal Law:
After the conquest of the country by Mohammedans they introduced their own system of criminal law which was based on Quran. The elucidation and expounding of law was left to the Kazis, Kazis in the determination of the offences and punishment did not proceed on fixed rules but shaped their judgment according to the power and financial condition of the offenders before them.
Thus, law was not certain and known to majority. The crimes against God were deemed worthy of the public vengeance but offences against men were left to be taken care of the individuals.
(3) English Criminal Law:
When India came under the domain of East India Company, Britishers wanted to preserve status quo but the defects of Mohammedan Criminal Law were noticed and before the Indian Penal Code came into force the English Criminal Law, modified by various Acts was applied in the Presidency-town of Bombay, Calcutta and Madras while courts in the interior were mainly guided by Muslim Criminal Law.
The local Governments in the interior framed Regulations to remove the glaring defects of the Muslim Criminal Law. In the Presidency of Bombay there was a revision of the administration of Justice in 1827 and the law to be followed in criminal cases was set forth in a Regulation but the position in the other Presidencies remained precisely where it was.
The Indian Penal Code drafted by the first Indian Law Commission presided over by Lord Macaulay and the draft was submitted to the Governor-General of India-in-Council in 1837 and after revision by several persons Sir Barnes Peacock, Sir J.W. Colville and other Judges of the Calcutta High Court—The draft was finalised in 1850.
It was submitted to the Governor-General-in-Council in 1856 and received the assent of the Governor-General on October 6, 1860. It was intended to put it into force from the 1st May, 1861 but enforcement was postponed till the 1st January, 1862, the interval being utilised by the publication of the Code in vernacular for general information and mastery of grasp by Indian Judges and officers of the new law contained in the Code.
These steps were found necessary as the Indian Penal Code completely revolutionised the then existing Criminal Law. Livingstone’s Code and the Code of Napoleon as also English and Indian law provided the background on which the Indian penal Code has been prepared. Constitutional changes since August, 1947 have led to revisions and change, in many sections of the Code. The members of the Law Commission which prepared the draft when submitting the draft made the following observations as to nature of the proposed law: “We cannot admit that a Penal Code is by any means to be considered as a body of Ethics that the Legislature ought to punish acts merely because those acts are immoral, or that because an act is not punished at all, it follows that the Legislature considers that act as innocent.
Many things which are not punishable are morally worse than many things which are punishable. The man who treats a generous benefactor with gross ingratitude and insolvence deserves more severe reprehension than the man who aims a blow in a passion, or breaks a window in a frolic; yet we have punishments for assault and mischief, and none for ingratitude.
The rich man who refuses a mouthful of rice to save a fellow-creature from death may be a far worse man than the starving wretch who snatches and devours the rice; yet we punish the latter for theft and we do not punish the former for hard-heartedness”.