nach oben

Erschienen in:

2019 | OriginalPaper | Buchkapitel

15. Giving Precedence to the Indian Penal Code

verfasst von : Stanley Yeo

Erschienen in: The Indian Yearbook of Comparative Law 2018

Verlag: Springer Singapore

Einloggen

Aktivieren Sie unsere intelligente Suche, um passende Fachinhalte oder Patente zu finden.

search-config

KI-gestützte Suche

Aus

Abstract

As the oldest functioning criminal code in the world, the Indian Penal Code (IPC) is to be admired for containing many features which remain attractive to this day. Nonetheless, the Code has deficiencies which the courts have periodically been called upon to rectify. This chapter contends that, when doing so, the courts should first and foremost seek to find the remedy from the internal and underlying principles of the IPC through a study of legal history, and careful examination of the provision in question and closely related provisions. Only then might they proceed to search the common law for a possible solution. Case examples from India, Malaysia, Myanmar and Singapore will be used to illustrate this contention.

Sie haben noch keine Lizenz? Dann Informieren Sie sich jetzt über unsere Produkte:

Springer Professional "Wirtschaft+Technik"

Online-Abonnement

Mit Springer Professional "Wirtschaft+Technik" erhalten Sie Zugriff auf:

über 102.000 Bücher
über 537 Zeitschriften

aus folgenden Fachgebieten:

Automobil + Motoren
Bauwesen + Immobilien
Business IT + Informatik
Elektrotechnik + Elektronik
Energie + Nachhaltigkeit
Finance + Banking
Management + Führung
Marketing + Vertrieb
Maschinenbau + Werkstoffe
Versicherung + Risiko

Jetzt Wissensvorsprung sichern!

Jetzt informieren

Springer Professional "Wirtschaft"

Online-Abonnement

Mit Springer Professional "Wirtschaft" erhalten Sie Zugriff auf:

über 67.000 Bücher
über 340 Zeitschriften

aus folgenden Fachgebieten:

Bauwesen + Immobilien
Business IT + Informatik
Finance + Banking
Management + Führung
Marketing + Vertrieb
Versicherung + Risiko

Jetzt Wissensvorsprung sichern!

Jetzt informieren

Vorheriges Kapitel A Century of Evolution of the Mexican Central Bank: The Road Towards Its Constitutional Autonomy

Nächstes Kapitel The Immutability of the Marital Exemption Clause in the Indian Rape Law

See generally, Cross 1978. Other countries where the IPC was introduced by the British colonial administration are Bangladesh, Brunei, Sudan, Nigeria and Pakistan.

Cited by Phang 1989.

Cited by Trevelyan 1923.

Gledhill 1963.

For example, see the essays in Chan et al. 2011.

Macaulay et al. 1838, p. v.

Stephen 1883.

For example, see Law Commission No. 143, Codification of Criminal Law. A Report to the Law Commission (Proquest LLC, 1985).

B Wright, “Macaulay’s Indian Penal Code: Historical Context and Originating Principles” in Chan, Wright and Yeo, above, pp. 40–43.

For example, see the Criminal Law (Amendment) Act 2013 (India); Penal Code (Amendment) Act 2007 (Singapore).

For a comprehensive discussion, see Yeo 1997.

See Ashworth and Horder 2013.

R v Woollin [1999] AC 82.

See R v Adomako [1994] 3 All ER 79.

See R v Goodfellow (1986) 83 Cr App R 23.

Section 300, firstly.

Section 300, thirdly.

Section 300, secondly.

Section 300 fourthly.

Section 299, first limb.

Section 299, second limb.

Section 304A.

Law Commission No. 304, Murder Manslaughter and Infanticide (TSO, 2006).

Macaulay, MacLeod, Anderson and Millett, above, p. iii.

Sornarajah 1991.

AIR 2010 SC 1212. The ensuing discussion comprises extracts from an article by the author entitled “Staying True to the Indian Penal Code: A Case Study on Judicial Laxity” (2011) 4 NUJS Law Review 163.

Eleventh edn., Vol 1, p. 491 and cited in Darshan Singh, ibid. at para 24. The court may well have drawn its inspiration for citing this quotation from Ratanlal & Dhirajlal’s Law of Crimes (Bharat Law House, 26th edn., 2007) which begins its chapter on private defence with this same quotation. Notably, the editor of this edition was Justice CK Thakker of the Supreme Court of India, which creates the impression that this unfortunate practice is being promoted by members of the Supreme Court both in their judgments and in leading commentaries on the IPC.

The classification of crimes under English law into felonies and misdemeanours depend on their gravity as evidenced by the stricter penalties provided for the former such as long terms of imprisonment. The IPC does not have such a classification.

See the English Court of Appeal case of R v Hussey (1924) 18 Cr App R 160, although recent English commentators contend that it no longer represents the law in England given the modern means of legal redress available in their nation to a dispossessed householder: see, for example, Ormerod and Laird 2015.

AIR 2010 SC 1212, at para 28.

See the discussion by the English Court of Appeal in R v Julien [1969] 2 All ER 856 at 858.

AIR 2010 SC 1212, at para 24.

Macaulay, Macleod, Anderson and Millet, above, p. 82.

The more accurate word is “permissible”, in order to compliment the phrase “maximum amount of force” appearing in the quotation.

AIR 2010 SC 1212, at para 35.

Ibid., at para 58, principle (vi).

[2010] 4 MLJ 72. The Federal Court is the highest court in Malaysia.

Ibid., at para 17.

(Act 56, 1971 Rev. Ed. Malaysia, 1999 Reprint). Section 105 reads: “When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Penal Code, or within any special exception or proviso contained in any part of the same Code, or in any law defining the offence, is upon him, and the court shall presume the absence of those circumstances.” A closely similar provision appears in s. 105 of the Indian Evidence Act 1872.

Some of the cases cited were Bratty v. Attorney General for Northern Ireland [1963] AC 951; R v Hennessy [1989] 2 All ER 9; R v Burgess [1991] 2 QB 92; Rabey v R [1980] 2 SCR 513 [Rabey] and Police v Bannin [1991] 2 NZLR 337.

[2002] 2 MLJ 563.

This is sometimes described as a conative defect. See Yeo 2008 for a comparative analysis of jurisdictions which have not recognised conative defects within their formulation of the insanity defence and those which have, and the arguments in favour of such recognition.

See Yeo et al. 2018 at paras 24.18–24.33 for a detailed discussion of the two limbs of s. 84 which are concerned solely with cognitive defects, with volitional disorders being regarded by the courts as merely evidentiary of the said cognitive defects.

This was the view of the Sri Lankan Supreme Court in Barnes Nimalaratne v The Republic of Sri Lanka (1975) 78 NLR 51 at 58 citing with approval the Privy Council decision in Sodeman v R (1936) 2 All ER 1138.

1982 Cri LJ 1044 at 1048, qualifying an earlier ruling by the same court in Siddheswari Bora v State 1981 Cri LJ 1005 which had recognised “impulsive insanity” as falling under s. 84.

[2010] 4 MLJ 72 at para 17.

To which, see Part 6 of this article.

See further Yeo 2017, Chan et al. 2016.

For excellent discourses on the doctrine, see Smith 1991, Simester 2006.

[2008] 3 SLR 447. The Court of Appeal is the highest court in Singapore. What follows is an extract from an article by the author entitled “Common Intention in the Indian Penal Code: Insights from Singapore” (2008) 50 Journal of the Indian Law Institute 640.

Ibid., at [183] where reference was made to a passage from Hardev Singh v State of Punjab AIR 1975 SC 179. See also Afrahim Sheikh v State of West Bengal AIR 1964 SC 1263; State of Uttar Pradesh v Iftikhar Khan AIR 1973 SC 863; Mithu Singh v State of Punjab AIR 2001 SC 1929; Lallan Rai v State of Bihar AIR 2003 SC 333; Dani Singh v State of Uttar Pradesh 2004 SC 4570; Saravanan v State of Pondicherry AIR 2005 SC 57.

[2008] 3 SLR 447 at [253].

Ibid., at [132]. Original emphasis.

[2008] 3 SLR 447 at [207]. Contra. The contention by the editors of Gour’s The Penal Law of India (Law Publishers (India), Pvt Ltd, 11th edn., 2000), Vol 1, p. 260, that the English law at the time was clear that a person who was not cognisant of the intention of his or her confederates to commit the collateral offence was never liable for that offence.

Macaulay et al. 1838.

That provision reads: “When an act is abetted and a different act is done, the abettor is liable for the act done, in the same manner, and to the same extent, as if he had directly abetted it; Provided the act done was a probable consequence of the abetment, and was committed under the influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted the abetment.”

That provision reads: “When an act is abetted with the intention on the part of the abettor of causing a particular effect, and an act for which the abettor is liable in consequence of the abetment causes a different effect from that intended by the abettor, the abettor is liable for the effect caused, in the same manner, and to the same extent, as if he had abetted the act with the intention of causing that effect, provided he knew that the act abetted was likely to cause that effect.”

For example, Queen-Empress v Mathura Das (1884) ILR 6 All 491; Girja Prasad Singh v Emperor AIR 1935 All 346(2); In re Irala Palle Ramiah AIR 1957 AP 231.

Mok Swee Kok v Public Prosecutor [1994] 3 SLR 140; Ang Ser Kuang v Public Prosecutor [1998] 3 SLR 909.

[2008] 3 SLR 447 at [241].

That provision reads: “If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.”

[2008] 3 SLR 447 at [247].

Ibid., at [250].

AIR (1940) Rangoon 129.

The adjective “general” is used here to convey two things: first that the plea is of general application to all offences and, second, the effect of successfully pleading it is a complete acquittal.

Section 97(1) of the IPC. Aspects of this general defence were previously described when discussing the Supreme Court of India case of Darshan Singh in Part 4 of this article.

Sections 102 and 105.

Mammum v Emperor AIR 1917 Lah 347; Jaspal Kunbi v Emperor AIR 1922 Nag 141.

AIR (1940) Rangoon 129 at 132 per Roberts CJ. See also Sudan Government v Mohamed Adam Onour (1963).

SLJR 157 at 158 (Court of Appeal, Sudan) interpreting an identical provision to Exception 2 contained in the Sudanese Penal Code.

Ibid., at 132 per Roberts CJ.

WC Chan, M Hor and S Yeo (Academy Publishing, 2013).

This article has considered some of these matters, for example, what constitutes “necessary” force by way of private defence; the fault element for the common purpose doctrine; defining voluntariness; and whether volitional defects should be included in the defence of unsoundness of mind.

Book Review, [2014] Singapore Journal of Legal Studies 253 at 255.

Ashworth, A., & Horder, J. (2013). Principles of criminal law (7th ed., pp. 77–79). Oxford University Press.

Chan, C. W., Hor, M., McBride, M., Morgan, N., & Yeo, S. (2016). Criminal law in Myanmar. LexisNexis.

Chan, W. C., Wright, B., Yeo, S. (Eds.). (2011). Codification, Macaulay and the Indian Penal Code. The legacies and modern challenges of criminal law reform. Ashgate.

Cross, R. (1978). The making of English criminal law (5) Macaulay. Criminal Law Review, 519.

Gledhill, A. (1963). The Penal Codes of Northern Nigeria and the Sudan (p. 19). Sweet and Maxwell.

Macaulay, T. B., Macleod, J. M., Anderson, G. W., & Millett, F. (1838). A Penal Code prepared by the Indian Law Commissioners. Pelham Richardson.

Ormerod, D., & Laird, K. (2015). Smith and Hogan criminal law (14th ed., p. 449). Oxford University Press.

Phang, A. (1989). Of codes and ideology: Some notes on the origins of the major criminal enactments of Singapore. Malaya Law Review, 31, 46 at 55.

Simester, A. P. (2006). The mental element in complicity. Law Quarterly Review, 122, 578.

Smith, K. J. M. (1991). A modern treatise on the law of criminal complicity. Clarendon Press.

Sornarajah, M. (1991). The interpretation of the Penal Codes. Malayan Law Journal, 3, cxxix at cxxxiv.

Stephen, J. F. (1883). A history of the criminal law of England (Vol. III, pp. 302–303). MacMillan.

Trevelyan, G. (1923). The life and letters of Lord Macaulay (p. 303). Longmans: Green.

Yeo, S. (1997). Fault in homicide: Towards a schematic approach to the fault elements for murder and involuntary manslaughter in England, Australia and India. Federation Press.

Yeo, S. (2008). The insanity defence in the criminal laws of the Commonwealth of Nations. Singapore Journal of Legal Studies, 241, 253–255.

Yeo, S. (2017). Penal Code defences: Lessons from Sri Lanka. National Law School of India Review, 29, 46.

Yeo, S., Morgan, N., & Chan, W. C. (2018). Criminal law in Malaysia and Singapore (3rd ed.). LexisNexis.

Titel: Giving Precedence to the Indian Penal Code
verfasst von: Stanley Yeo
Verlag: Springer Singapore
Buch: The Indian Yearbook of Comparative Law 2018
Print ISBN: 978-981-13-7051-9

Electronic ISBN: 978-981-13-7052-6

Copyright-Jahr: 2019
DOI: https://doi.org/10.1007/978-981-13-7052-6_15