A CRITICAL ANALYSIS OF INDIAN PENAL CODE, 1860

ABSTRACT

The Indian Penal Code remained the parent act in the criminal justice administration system. The article was written with the intent of critically analyzing the Indian Penal Code and providing how efficiently the Code has worked to maintain social order, peace, and tranquillity in society. The study was mainly based on secondary data sources with extensive support from the bare text of the Indian Penal Code. The Indian Penal Code is relevant and enumerative to the changes in society as it is accommodative to new provisions on modern crimes. The study has been relevant as a new act named the Bhartiya Nyaya Sanhita has been passed by the parliament to have its effect from 2024, which is posed with the express implication of completely replacing the Indian Penal Code. The exhaustiveness of the Code has made it limited to throwing a restrictive analysis on the Code.

Many subordinate legislations have been made as an extension of the provisions in the Indian Penal Code, having explicit application to special interest groups such as the Dowry Prohibition Act, 1961, The Protection of Women from Domestic Violence Act, 2005, The Immoral Traffic (Prevention) Act, 1956, The Protection of Children from Sexual Offenses (POCSO) Act, 2012, etc., The Indian Penal Code turned out to be the rooting cause for the creation of these legislations. The purpose was to explicitly cover all the substantive aspects of criminal law and bring it under the same roof to facilitate implementation. The Indian Penal Code has served its very purpose all through its existence as the supreme criminal regulating act of the country. It is efficient, enumerative, and accommodative to add the penal provisions for new and modern-day crimes.

KEYWORDS

Offense, Penal, Code, Offender, Crime, Punishment.

INTRODUCTION

The Indian Penal Code, of 1860 is the law of the land of India which regulates all the aspects of criminal law. This was an Act that was originally established based on the recommendations of the first Law Commission report deriving its validity from the Charter Act of 1833[1]. This pre-independence law was adopted by, formerly known as the British Indian Penal Code was adopted by both India and Pakistan and known by the name of Indian Penal Code in India. The British Indian Penal Code is also the basis of the criminal code of some other British colonies. This Act is the foundation for forming the Indian Criminal Justice Administration system.

The Indian Penal Code is the principal law governing all criminal offenses. The Act consists of 511 sections in 13 corresponding chapters[2]. Offenses covered by the Indian Penal Code include assault, murder, extortion, and theft, which affect the peace of the public order such as rioting and unlawful assembly, etc., The Indian Penal Code has been amended multiple times to include and omit many sections. There exist state amendments to the effect of the Indian Penal Code. The law commission reports suggest changes to the Indian Penal Code continuously to make its application more effective.

Criminal Law includes the offenses that are committed against the world at large. The objective would be to penalize the acts and the ultimate goal would be to punish the offender. Certain examples of murder, rape, counterfeiting of bank-notes, theft, etc.,

In the words of Sir William Blackstone, “Crime is an act committed or omitted in violation of a public law either forbidding or commanding it.[3]” The components or the elements of a criminal act are said by the maxim of, “Actus Non Facit Reum, Nisi Mens Sit Rea” which means that the elements that constitute a crime include,

The Guilty Act (the physical element), and
The Guilty mind (the mental element).

This provides that, to constitute a crime, the guilty act should be committed with the guilty intention to commit it. In the case of C. K. Jaffer v. State through CBI[4], the Supreme Court held that to hold a person criminally liable for the commission of any act, the illegal act and the unlawful intention to cause it should be proved before the doubt of law. The criminal law is operated to protect the interest of the society and to maintain the peace and stability of the society.

The Indian Penal Code provides the following types of punishments: capital punishment, imprisonment for life, Imprisonment for a specified term by law or by the courts, fine, and forfeiture of the property. A few other types would include deportation and corporeal punishments (flogging, branding, mutilation, chaining)[5]. Other Laws which govern the Criminal Administration system include the Code of Criminal Procedure, 1974, and the Indian Evidence Act, of 1872. The Indian Penal Code extends its applicability to the whole of India[6]. Other criminal offense laws have also been enacted concerning specific interest groups. Recently, the Indian Penal Code is to be replaced with The Bharatiya Nyaya Sanhita, 2023[7], where major provisions from the Indian Penal Code were retained, some were repealed, and changes have been made to some provisions to regulate and increase the effectiveness of such provisions.

OBJECTIVES

To analyze and understand the effectiveness of the Indian Penal Code.
To analyze the changes made to the Indian Penal Code in response to the evolution of time.
To analyze the differences between the Indian Penal Code and the Bharatiya Nyaya Sanhita.
To understand the penalizing scope of the Indian Penal Code and its applicability to cases.

ANALYSIS OF THE INDIAN PENAL CODE, 1860

APPLICABILITY OF THE CODE

The Indian Penal Code extends its scope to punish any person within the territory of India, due to the commission or omission of any act against the provisions of the Code. A person who is a subject of the Indian law, when committing any offense, within or outside the territory of India, is liable to be held liable under this Code. This code limits the applicability in effect on laws made for the officers, sailors, soldiers, or Airmen in Government services, and any other local or special laws. In the case of Mobarik Ali v. The State of Bombay[8], the offense was inducted into the country through telephone, telegram, and letter, demanding money, the offender was not physically present at the place of the offense. The court held that the physical presence of the offender is not mandatory for the offense to be considered under the jurisdiction, the commission of the offense to have its effect within the territory is enough to be admitted under the pursuance of the court.

SUBJECT MATTER OF THE CODE

This code comprises 23 chapters and 511 sections. The section which is titled as a definition clause in other legislations has been termed under Chapter II of the Indian Penal Code where the explanations for the terms used in the code have been defined. It further emphasized that the definitions are subject to the exceptions as mentioned under Chapter IV of this code. This chapter confers its explanation from the respective Sections 6 to 52 of the Indian Penal Code. These explanations have their superior scope extended to the provisions of the Indian Penal Code.

PUNISHMENTS

The punishments for the offenders are the Death penalty, imprisonment for life including long-term transportation for life), which might be rigorous or simple, forfeiture of property, and fine. Punishment can be under any theory of justice such as retributive, restorative, and deterrent theories.

The death penalty is also known as capital punishment, where the court orders a person to be put to death. 106 countries have abolished death punishment while only 56 countries have retained it. The methods of a death sentence are hanging and shooting to death. In the case of Bachan Singh v. State of Punjab[9], the court held that the death penalty can be provided only in the rarest situations. These rarest situations have not been made explicit. The exception against this punishment can be claimed by persons with disability, pregnant women, and minor children. In the case of Machhi Singh v. State of Punjab[10], the categories where the death penalty can be provided were given based on how the murder was committed, the motive behind it, the extremity of the crime, the nature of the crime, and the murdered victims’ personality were concerned. The death penalty is not violative of the fundamental rights under the Constitution of India has been upheld in Sher Singh v. State of Punjab.[11] The death punishment can be commuted for any other punishment[12].

Transportation has been substituted to the terms of imprisonment for life[13]. Imprisonment for life is to put the convict behind bars till his breath. However, the fraction for calculation of imprisonment has been provided in the Code and several interpretations have been made concerning the term of imprisonment for life. This can also be commuted[14]. The decision as to the fine amount shall be unlimited to the discretion of the court but should not be excessive. Imprisonment and fines go hand in hand. Both can be imposed for a single crime, imprisonment can be imposed for the non-payment of the fine, to terminate the fine, and to reduce the term against the payment of a fine. Imprisonment can be simple or rigorous.

Solitary Confinement shall be provided against the convicts who are provided the punishment of rigorous imprisonment. However, the term for a person to be kept in solitary confinement is limited as per code to not exceed three months and this varies according to the total term of the punishment. This part of the code further deals with the limits on the punishment awarded and the punishment for one or more offenses.

EXCEPTIONS UNDER THIS CODE

The exceptions provided under this code as to the crime include acts done by mistake of fact in good faith to believe it to be under the law. This shouldn’t be a mistake of law. Acts of judges to pronounce decisions judiciously. Accidental acts that are committed without any criminal intention and to complete a lawful act. Acts where there is the non-existence of criminal intention such as acts done in good faith to protect another person/property, offense by a child under seven, where it is essential to protect others, or due to lack of maturity. Act by the insane offender, or due to intoxicated state of mind posed upon him without his will, acts done in good faith, for self-defense, consent of the affected, etc., In the case of Krishna Bhagwan v. State of Bihar[15], the time when the decision arrived, the child accused had attained seven years of age, the court held that he could be convicted on the pretext of his understanding of the crime committed by him. These exceptions have been misused to escape from the crime in many instances.

ABETMENT

Abetment is the act of accompanying or aiding (facilitating) a person in the commission of an offense or instigating to do the same, the person is called the abetter. Concealing the offense is also subjected to punishment. Abetment whether committed within or outside the territory is an offense. The Indian Penal Code, of 1860[16] provides the punishments for an abetter when the clear establishment of the same (mens rea) has been proved. When two or more commit an offense in agreement, that which is illegal, all will be punished for the same. In the case of Sanju Singh Sengar v. State of Madhya Pradesh[17], in retardation to a quarrel between husband and wife, the husband told the wife to go and die, and she died after two days committing suicide, the court held that mere saying without the intention for the same cannot be accused as to be abetment.

OFFENCES UNDER THE INDIAN PENAL CODE, 1860

Against State[18]: State includes the maintenance of public order and peace of the society. The punishments against such offenses are rigorous such as imprisonment for life and death. The offenses against the state include waging war (collecting arms and concealing in the facilitation of war), Sedition which refers to any act instigating and resulting in dissatisfaction towards the government, destroying the peace at the territories to emote the war from those countries and receiving property concerning it, public servant voluntarily or negligently allowing a prisoner to escape or aiding him for the same. In the case of Ram Nandan v. State of Uttar Pradesh[19], the punishment against sedition was declared ultra vires to the constitution as it restricted the fundamental right to freedom of speech and expression. This was overruled in the case of Kedar Nath v. State of Bihar[20], where the decision was reversed stating that the section limited only the acts which were done to cause disturbance to the society.

Although there exist special laws to govern the defense segment of the government when the offenses tried before the courts are severe and rigorous, this can be governed by this code. This is provided under the Sections 131-140. The defense segment includes the Army, Navy, and the Air Force.

Against Public Tranquillity[21]: The society needs to be calm and peaceful to lead it towards development. If the tranquillity is disturbed by any person, it is punishable under this code. The intention of the offenders or solely to disturb society’s peace. If society is disturbed, this disturbs individuals and restricts their growth and development. The Indian Penal Code categorizes certain offenses punishable as being against public tranquillity. They are, unlawful assembly or being a member of it with an unlawful intention as specified in Section 141 of the Code, rioting where force is involved in unlawful assembly, provocation to form assembly with illegal motive, and to riot, carrying arms and involving in mass training with it, accusations or assertions made to destroy the national integration, commission of affray where two or more person fight in a public place disturbing the public peace[22]. In the case of Sunil Kumar Mohamed v. The State of Orissa[23], the court held that only the offenses committed by the public to disturb its peace shall be termed as affray and not all offenses.

By Public Servants: Certain provisions to this effect have been repealed to be made towards the Prevention of Corruption Act, 1988. These are the offenses committed by the public servants. The punishable offenses under this Code include acts of the person against the law, such as framing incorrect documents, engaging in unlawful trade, bidding for property, and causing injury to others. One who personates any public servant is also punishable. In the case of Bishan Dass v. State of Punjab and Anr[24], for a person to be prosecuted under Section 177, the person who produced false documents should have been under the legal obligation to produce the document and should be aware of the information being false.

Other Offences categorized as punishable under The Indian Penal Code, 1860: The Indian Penal Code is too wide and exhaustive to include penal provisions for every such offense that existed being witnessed many amendments about the inclusions and exclusions. The provisions penalizing offenses relating to elections[25], misuse, or contempt of law by public servants[26], production of mala fide evidence before the justice[27], offenses in the context of coins and government stamps[28], weights, and measures[29], public health, safety, convenience, decency and morals[30], religion[31], etc., have made stratified as chapters under the Code.

Further offenses include offenses affecting the human body[32] such as murder, culpable homicide, suicide, danger to the unborn child, hurt, wrongful restrain, or confinement, assault, and impulsion of force, voyeurism, stalking, kidnapping, abduction, Trafficking, Rape, forceful sexual compulsion are penalized. Offenses against the property[33] may refer to theft, extortion, robbery, dacoity, misappropriation of property, breach of trust, cheating, mischief, criminal trespass, are such. Offenses relating to the documents as to property[34] include forgery, counterfeiting, Tampering, etc., Other such offenses protected by the scope of the code are those relating to marriage, defamation, criminal intimidation, insult, annoyance, and the attempts to commission the offenses.

Besides having these many provisions and accepting a larger number of amendments, the Indian Penal Code of 1860 has now been amended to the Bharatiya Nyaya Sanhita of 2023 which has been passed in the parliament and will have its effect from the year 2024. The objective of replacing the code with the new Act has been propounded to regulate and improve the current criminal administration system by increasing the quantum of punishments and including and excluding many provisions. The need for such an Act will have a clearer view only when its progress has been accessed post-implementation. The landmark cases that led to the exhaustive code will be entailed hereafter.

SOME LANDMARK JUDGEMENTS BY THE APPLICATION OF INDIAN PENAL CODE, 1860

Suresh Kumar Koushal & Anr v. Naz Foundation[35], Section 377 of the Indian Penal Code criminalized unnatural sexual offenses. This was contended to be against the fundamental rights of those who are homosexual as well as the LGBTQ community. This case upheld the constitutionality of the provision. Whereas in the case of Navtej Singh Johar v. Union of India[36], this decision was overruled and the part of the provision that criminalized consensual sexual relationships between same-sex individuals was struck down as being unconstitutional, the other parts of the provision relating to the sex with minors, non-consensual sexual acts are still in force.

State of Uttar Pradesh v. M. K. Anthony[37], the husband killed his wife and children, the reason stated by him was he was unable to provide for the operation expenses of his wife and there was no one to take care of his children. The court held that the intention of the murder was not lust, gain, or vengeance but only poverty. He was punished with life imprisonment and not the death penalty.

State of Maharashtra v. Mayer Hans George[38], The Indian government issued for order banning the transportation of gold outside the country to prevent the smuggling of gold, a foreign national was apprehended by the customs at the Mumbai airport for carrying gold, he stated that he wasn’t aware of the law of the land. He was held liable, as the ignorance of the law was not an excuse, and as the plane landed over on the territory of India, he was held under the jurisdiction of the Code.

Deena Lal v. State of Rajasthan[39], The people in the procession stopped the police from stopping the act of Sati against a widow. All those who restricted the police were held liable for abetting.

Shakthi Vahini v. Union of India[40], the case was based on addressing the issue of honor killings, the court focused on protecting the couples. The Supreme Court provided extensive guidelines to prevent honor killings and to protect the couples. The court stated that the right to choose a life partner is a fundamental right, and directed the state government and the police department to construct a mechanism to curb the presence of honor killing.

Dhananjoy Chatterjee v. State of West Bengal [41]was a case where a person was provided a death sentence for raping an 18-year-old girl. He was ordered the same under Section 302 of the Indian Penal Code. This court held it to be one of the rarest of the rare cases and held there would be no commutation on the punishment be provided.

DIFFERENCE BETWEEN THE INDIAN PENAL CODE, 1860 & THE BHARATIYA NYAYA SANHITA, 2023

The number of sections has been fairly reduced in the case of the Bharatiya Nyaya Sanhita, 2023 to 358 Sections with many provisions being repealed, and reconstructed to meet the objectives and reasons of the latter Act. Many provisions have been left unchanged, with changes and inclusions as to the quantum of punishment and the provisions towards the inclusivity of women, etc., The Bharatiya Nyaya Sanhita, 2023 is still not in effect, and the Indian Penal Code prevails till the Act comes into force as per the official notification.

Some of the changes include the structuration of the definition clause which was not present in the Indian Penal Code, the addition of transgender to the definition of the term gender[42], the definition of the term child[43], community service as a type of punishment[44], punishment for mob-lynching as death or imprisonment for life where the murder is committed on the grounds of race, caste, community, sex, place of birth, language, etc., the definition for organized crime, economic offense and the punishment against these, Definition for petty organized crime, terrorist act and the punishments for it, Increased quantum of punishment of hit-and-run, etc.,

CONCLUSION

The Indian Penal Code was widely accepted and universally accepted for its accountability. Having been one of the oldest surviving legislations, still being relevant to the force of the changes in the society, it has been applauded for its efficacy. The drafting of the Code is wide enough to enumerate itself to add many new offenses to its scope and jurisdiction. The exhaustiveness of the Code had made it reliant on the commission of the variety of offenses made and presented before the courts of law for decision. The Indian Penal Code served the best of it to procure the best criminal administration system. However, the need for the change to rename and structurize entirely new legislation in place of the existing legislation is still a question of concern, this is because every change that has been made would have been made to the existing legislation without the complete replacement of the old act. The challenges resultant of this will have its roots only when it is effectuated into the force. The Indian Penal Code as such any other law demanded continuous changes and reforms to suit the changes to its application in the changing phenomena and evolution. But the performance of the Code remained phenomenal together in its application.

REFERENCES

Indian Penal Code, https://en.m.wikipedia.org/wiki/Indian_Penal_Code (Feb. 28, 2024).
Oishika Banerji, Actus Non Facit Reum Nisi Mens Sit Rea, BLOG IPLEADERS, https://blog.ipleaders.in/actus-non-facit-reum-nisis-mens-sit-rea/ (Feb. 28, 2024).
Bharatiya Nyaya Sanhita, https://en.m.wikipedia.org/wiki/Bharatiya_Nyaya_Sanhita (Feb. 28, 2024).
Nidhka Kamath, Criminal law in India, https://blog.ipleaders.in/criminal-law-in-india/ (Feb. 28, 2024).
Shivangi Tiwari, Jurisdiction under IPC, https://blog.ipleaders.in/jurisdiction-under-ipc/ (Feb. 28, 2024).
Ninisha Agarwal, General Exceptions under the IPC, https://blog.ipleaders.in/general-exception-under-ipc/ (Feb. 28, 2024).
Lakshmi V. Pillai, Punishment under IPC: All you need to know about it, https://blog.ipleaders.in/punishment-under-ipc-all-you-need-to-know-about-it/#Case_laws_on_Death_Sentence_When_the_death_sentence_is_confirmed (Feb. 28, 2024).
Subodh Asthana, Abetment under Indian Penal Code, https://blog.ipleaders.in/abetment-ipc/ (Feb. 28, 2024).
Hema Modi, Abetment: Important Pointers you must know about, https://blog.ipleaders.in/abetment/#Person_Abetted_Need_not_be_Capable_of_Committing_an_Offence (Feb. 28, 2024).
Shriya Sehgal, Offences against the State: All you need to know about it, https://blog.ipleaders.in/offences-against-the-state-all-you-need-to-know-about-it/ (Feb. 28, 2024).
Ashu Kumar, Offences Against the State, https://www.legalserviceindia.com/legal/article-8341-offences-against-the-state.html (Feb. 28, 2024).
Sachi Ashok Bhiwgade, Offenses relating to Army, Navy, and Air Force, https://blog.ipleaders.in/offences-relating-to-army-navy-and-air-force/ (Feb. 28, 2024).
https://www.taxmann.com/post/blog/top-10-changes-made-by-bns-vis-a-vis-ipc/?amp
Nishtha Pandey, Offences against Public Tranquillity, https://blog.ipleaders.in/offences-against-public-tranquility/ (Feb. 28, 2024).
Sri Sai Kamalini, Contempts of the Lawful Authority of Public Servants, https://blog.ipleaders.in/contempts-of-the-lawful-authority-of-public-servants/ (Feb. 28, 2024).
https://lddashboard.legislative.gov.in/sites/default/files/A1860-45.pdf

[1] Indian Penal Code, https://en.m.wikipedia.org/wiki/Indian_Penal_Code (Feb. 28, 2024).

[2] Id.

[3] Nidhka Kamath, Criminal law in India, https://blog.ipleaders.in/criminal-law-in-india/ (Feb. 28, 2024).

[4] 2013 (1) SCC 205.

[5] Lakshmi V. Pillai, Punishment under IPC: All you need to know about it, https://blog.ipleaders.in/punishment-under-ipc-all-you-need-to-know-about-it/#Case_laws_on_Death_Sentence_When_the_death_sentence_is_confirmed (Feb. 28, 2024).

[6] The Indian Penal Code, 1860, § 1, No. 45, Acts of Parliament, 1860(India).

[7] Bharatiya Nyaya Sanhita, https://en.m.wikipedia.org/wiki/Bharatiya_Nyaya_Sanhita (Feb. 28, 2024).

[8]1958 SCR 328.

[9] (1982) 1 SC 145A.

[10] 1983 AIR 957.

[11] 1983 AIR 465.

[12] The Indian Penal Code, 1860, § 54, No. 45, Acts of Parliament, 1860(India).

[13] The Indian Penal Code, 1860, § 53A, No. 45, Acts of Parliament, 1860(India).

[14] The Indian Penal Code, 1860, § 55, No. 45, Acts of Parliament, 1860(India).

[15] (1991) SCC AIR 567.

[16] Oishika Banerji, Actus Non Facit Reum Nisi Mens Sit Rea, BLOG IPLEADERS, https://blog.ipleaders.in/actus-non-facit-reum-nisis-mens-sit-rea/ (Feb. 28, 2024).

[17] AIR 2002 SC 1998.

[18] The Indian Penal Code, 1860, § 121-130, No. 45, Acts of Parliament, 1860(India).

[19] AIR 19959 ALL 101.

[20] 1962 AIR 955.

[21] The Indian Penal Code, 1860, § 141-160, No. 45, Acts of Parliament, 1860(India).

[22] The Indian Penal Code, 1860, § 160, No. 45, Acts of Parliament, 1860(India).

[23] 2008 (I) OLR 744.

[24] AIR 1962 SC 1570.

[25] The Indian Penal Code, 1860, § 171A-171-I, No. 45, Acts of Parliament, 1860(India).

[26] The Indian Penal Code, 1860, § 172-190, No. 45, Acts of Parliament, 1860(India).

[27] The Indian Penal Code, 1860, § 191-229, No. 45, Acts of Parliament, 1860(India).

[28] The Indian Penal Code, 1860, § 230-263, No. 45, Acts of Parliament, 1860(India).

[29] The Indian Penal Code, 1860, § 264-267, No. 45, Acts of Parliament, 1860(India).

[30] The Indian Penal Code, 1860, § 268-294, No. 45, Acts of Parliament, 1860(India).

[31] The Indian Penal Code, 1860, § 295-298, No. 45, Acts of Parliament, 1860(India).

[32] The Indian Penal Code, 1860, § 299-377, No. 45, Acts of Parliament, 1860(India).

[33] The Indian Penal Code, 1860, § 378-462, No. 45, Acts of Parliament, 1860(India).

[34] The Indian Penal Code, 1860, § 463-489, No. 45, Acts of Parliament, 1860(India).

[35] AIR 2014 SC 563.

[36] AIR 2018 SC 4321.

[37] AIR 1985 SC 48.

[38] 1965 AIR 722.

[39] 1988 (1) WLN 6.

[40] AIR 2016 SC 1601.

[41] 1994 SCC (2) 220.

[42] TAXMANN, https://www.taxmann.com/post/blog/top-10-changes-made-by-bns-vis-a-vis-ipc/?amp, (Feb. 28, 2024).

[43] Id.

[44] Id.

Disclaimer: The materials provided herein are intended solely for informational purposes. Accessing or using the site or the materials does not establish an attorney-client relationship. The information presented on this site is not to be construed as legal or professional advice, and it should not be relied upon for such purposes or used as a substitute for advice from a licensed attorney in your state. Additionally, the viewpoint presented by the author is of a personal nature.