History of Bangladesh Penal Code, 1860

The Penal Code of Bangladesh is the official criminal code of Bangladesh. It is a comprehensive
code designed to govern all areas of criminal law. The code is largely derived from the penal
code of the British Indian Empire enacted in 1860 by the Governor General-in-Council of the
Bengal Presidency. It is similar to the penal codes of countries formerly part of the British
Empire in South and Southeast Asia, including Singapore, India, Pakistan, Sri Lanka and
Malaysia. After the ‘Sipahi Bidraha’ of 1857 when the British Raj brought the whole India under
direct government, some important law was introduced and Penal Code, 1860 is one of them.
The still major penal law for the time being in force, it has travelled a long historical
development discussed below-

 Ancient Period:
In the ancient India the prevailing penal law was known as ‘Manu Sanghita’. But the
system was affected by biasness and caprice. Consequently, there was lack of balance or
consistency between crime and its punishment. In addition, starting from immemorial
time till the Hindu period the traditional penalties were quite unreasonable and
ineffective. Gradually, a sort of compatibility was tried to be introduced during ‘Morya
Period’ and pecuniary punishment or fine was added in ‘Gupta Period’ as a common
mean of penalty.

 Medieval Period: Muslim regime started in 9th century and the trial as well as penal
system was mainly religion based. The Sultan played the role of judge in his court. In
course of time judicially was separated from department and ‘kazi’ used to maintain
judicial activities.

 British Period: After winning the ‘War of Palashy’ the East India Company started to
interfere in the legal system of the sub-continent. In initial state muslim penal system
was in force and regional penal system was also available in some princely states. Then,
by the regulation no. 09 in 1793 the power of snubbing, declaring small penalty and
imprisonment was given to magistrate and gross crimes were dealt by Nizamat Adalat.
The regulation was amended in 1807 to increase the power of magistrates to 1 year’s
 imprisonment and 200 taka penalty, and the post of Circuit Judge was created to deal
serious crimes. Before the enactment of the present penal code, the English Penal Code
was applied in the precedency of Bombay, Madras and Calcutta. In the rest areas Islamic
Criminal Law was followed.

 Present Period(final form): In 1833 after taking over the power from company the British
Government constituted Indian Law Commission. The First Law Commission prepared
the draft of the Indian Penal Code chaired by Thomas Babington Macaulay in 1834 and
was submitted to Governor-General of India Council in 1835. Based on a simplified
codification of the law of England at the time, elements were also derived from the
Napoleonic Code and from Edward Livingston's Louisiana Civil Code of 1825. The first
final draft of the Indian Penal Code was submitted to the Governor-General of India in
Council in 1837, but the draft was again revised. The drafting was completed in 1850 and
the Code was presented to the Legislative Council in 1856, but it did not take its place on
the statute book of British India until a generation later, following the Indian Rebellion of
1857. The draft then underwent a very careful revision at the hands of Barnes Peacock,
who later became the first Chief Justice of the Calcutta High Court, and the future puisne
judges of the Calcutta High Court, who were members of the Legislative Council, and
was passed into law on 6 October 1860. The Code came into operation on 1 January
1862.
When East Bengal became part of Pakistan after the Partition of British India, the code
was known as the Pakistan Penal Code. The code was re-enacted in Bangladesh after the
country's independence in 1971.
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 ABSTRACT:
The Indian Penal Code, which is the official criminal code of India, consists of a list of
all the punishments and cases that a person who commits any kind of crime is to be held
liable and charged with. It covers any Indian citizen or a person of Indian origin except
military or armed forces crimes. The objective of the Indian Penal Code is to provide a
general penal code for India. The fundamental premise of the substantive law Code is
influenced by British law; however, elements from the Napoleonic Code (1804) and
Louisiana Civil Code (1825) have also been derived. The Code is recognized as a
pertinently drafted code, relatively revolutionary, which has survived for approximately
160 years in a jurisdiction without major amendments.

 INTRODUCTION:
The Indian Penal Code, 1860 is divided into 23 chapters, which comprise of 511 sections.
It starts with an introduction, provides explanations and exceptions used in it, and covers
a range of offences in it.

 HISTORY AND DEVELOPMENT:

There was no criminal law in uncivilized society. The history of criminal law in India can
be studied under three headings, namely:

· Ancient Hindu criminal law:

The penal law of ancient communities wasn’t the law of crimes, but the law of wrongs
because there was no such classification of wrongs as torts and crime in ancient times.
The Code of Manu was the complete manual which dealt with law, religion, custom, and
usages then prevalent; assault, battery, defamation, theft, robbery, gambling and cheating,
trespass which were the main offences in the ancient times and the punishment was based
on scientific principles, which was decided by the king.
Mohammedan criminal law:

After the conquest of the country by Muslims, this law was introduced in our country.
The Muslims imposed criminal law, ‘Sharia’, which they levied on the Hindus, whom
they have conquered. It was based on the ‘Quran’, hence was believed to be of divine
origin but as these laws were inadequate to meet all the requirements, so certain rules of
conduct called ‘Sunna’ were introduced. Crimes were divided into two classes: Crimes
against God and Crimes against man. The offences against God were punished by the
community and the offences against the man were punished by individuals.

· English criminal law and Development of the Indian Penal Code:

When the East India Company acquired the Nizamat of Bengal, Orissa, and Bihar,
Mohammedan criminal law was in force. Gradually, defects of Mohammedan law were
realized, some changes were introduced but, they were not applicable to all the
presidencies. Later on, it was realized that a penal code was necessary.The draft of the
Indian Penal Code was prepared in 1834 by the First Law Commission, chaired by
Thomas Babington Macaulay (the Law Minister, that time) and was presented to
Governor-General of India Council in 1835. Some elements were derived from the
Napoleonic Code and from Edward Livingston's Louisiana Civil Code of 1825. The first
final draft of IPC was submitted to the Governor-General of India in Council in 1837, but
it was again revised. The drafting was completed in 1850 and was presented to the
Legislative Council in 1856, but it did not take its place on the statute book of British
India, following the Indian Rebellion of 1857. After a very careful revision at the hands
of Barnes Peacock, who later became the first Chief Justice of the Calcutta High Court,
and the future judges of the Calcutta High Court, was passed into law on 6th October
1860. The IPC came into force on 1st January, 1862. Macaulay died near the end of 1859.
The code came into operation in Jammu and Kashmir on 31st October 2019, by virtue of
the Jammu and Kashmir Reorganisation Act of 2019, and replaced the state's Ranbir
Penal Code.
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Criminal law in the Vedic age

In ancient India, Hindu religious laws contained many provisions for
governing criminal as well as civil matters. The Vedas, Shrutis, Smritis and
even other documents like Manusmriti contain provisions regulating
criminal law. The practice of codifying criminal offences existed in this
period as well.

These laws also contained detailed procedural rules and regulations for
trials. There are some records which also show the existence of principles of
evidence to govern these trials.

Criminal law in the Islamic age

With the advent of Islamic rule in India, criminal laws in several parts of the
country saw major changes. Even prior to the Mughal rule, the Delhi
sultanates had already introduced offences based on Islamic laws of Shariat.
The main influence of these laws was Islamic religious texts like the Quran,
Sunna, Hadis, Ijma, Qiya, etc.

During the Mughal rule, the codification of criminal law of law became
more sophisticated. Muslim criminal law came under three broad categories:
crimes against God, crimes against sovereignty, and crimes against
individuals.
The law even divided modes of punishments into categories. These included
death, dismembering of limbs, stoning, levy of fines, confiscation of
property, the punishment of exile, etc.

After the British arrived in India, they initially decided not to interfere much
with existing Muslim criminal laws. They implemented changes in a phased
manner so as to not upset the locals.

Criminal law in the British period

When Warren Hastings introduced his Judicial Plan of 1772, he did not
many any severe changes to substantive criminal law. In 1773, he slowly
started changing rules of procedure and evidence in existing criminal laws.
For example, he abolished the practice of allowing male relates of victims to
pardon their killers.

During this time, serious offences like homicide became crimes against the
state instead of being private offences. This laid the foundation of the
modern practice of the state prosecuting people who commit public offences.

From 1790 onwards, Lord Cornwallis extended the process of codifying

criminal law. Major changes took place in the subject of sentencing. As a
result, the process of levying punishments physically harming and
dismembering convicts slowly started fading.

Lord Wellesley made even more changes to the offences of murder and
homicide in the early 1800s. For example, the law now made distinctions
between intentional and unintentional killing.
Furthermore, rules of evidence became stricter and the threshold of proof to
indicate guilt increased greatly. In presidency towns like Madras, Bombay
and Calcutta, the British made many changes keeping local conditions in
mind.

Codification of Substantive Criminal Laws

According to the Charter Act, 1833, India’s first law commission in 1834
recommended drafting of the Indian Penal Code. Lord Macaulay, who was
the chairman of that law commission, spearheaded its drafting. The Code
was basically a comprehensive enactment describing all major crimes in
existence at that time.

Despite several revisions over almost thirty years, the law did not come into
force until 1860. It was only after the Rebellion of 1857 that the British
decided to implement it.

IPC has seen several amendments since it first came into existence.
Although it largely relied on British laws and practices, many of its
provisions are still the same.

Even the Indian Evidence Act came into existence in 1872 under the
guidance of Lord Macaulay. Its foundation was largely the British law of
evidence, but it has seen many changes since then.
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Hindu Period:

In ancient Hindu Period punishment was considered to be a sort of expiation which

removed impurities from the man of sinful promptings and reformed his character. Manu
states that man who are guilty of crimes and have been punished by the king go to
heaven, becoming pure like those who perform meritorious deeds.

The punishments served four main purposes.

(i) to meet the urge of the person who suffered.

(ii) for revenge or retaliation.
(iii) as deterrent and preventive measures.
(iv) for reformation and redemption of the evildoer.

Manu, Yajnavalkya and Brihaspati state that there were four methods of punishment.
Namely-

(i) by gentle admonition

(ii) by severe reproof
(iii) by fine
(iv) by corporal punishment

These punishments may be inflicted separately or together according to the nature of

offence.
Judges always considered the relevant circumstances before deciding the actual
punishment. Kautilya lays down that the awarding of punishment must be regulated by a
consideration of the motive and nature of the offence, time and place, strength, age,
conduct (of duties), learning and monetary position of the offender and by the fact
whether the offence is repeated.

Here are mentioned some crimes with their punishment in ancient Hindu period.
___________

★ Theft:
On a large scale serious thefts were punished with death. In certain cases the whole
village was held liable to make restitution of lost property if they were unable to prove
that the lost property was taken away from their village. The king or his local
representative was held liable to pay for the missing property or theft, as they were
responsible for the poluce and maintaining law and order.

★ Adultery /Rape:
In adultery or rape punishment was awarded based on the caste considerations of the
offender and the woman.

★ In abuse or contempt cases, eact higher caste got due respect from persons of
the lower caste. Gautam, Manu, Yajnavalkya state that a Kshatriya or a Vaisya abusing or
defaming a Brahmin was to be punished respectively with a fine of 100 panas and 150
panas. A Sudra was punushed by corporal punishment (cutting off the tongue). While a
Brahmin defaming a Kshatriya or Vaisya was to be fined 50, 25 or 12 respectively.

According to Goutama, a Brahmin could flout a Sudra with impunity.

If a person of a lower caste sat on the same bench with a man of higher caste, the man of
lower caste was branded on the breech.
★ For committing murder the murderer had to pay fine according to the caste of the
person murdered. Mostly the penalties were based on caste considerations as informed by
Baudhayana. Other ancient law books lay down the punishment for murder was death
with confiscation of the murderer's property. The Arthashastra prescribes death penalty
for the murder even if it occured in a quarrel or duel. Capital punishment was given in
varied forms namely roasting alive, drowning, trampling by elephants, devouring by
dogs, cutting into pieces, impalement, etc.

★ Mutilation, torture and imprisonment were common penalties for many other
crimes.

Exemption:
---------
Certain classes of persons were exempted from punishment under ancient criminal law in
India.

Angrias quoted by Mitakshara states that -

- An old man over 80 years, a boy below 16 years, woman and persons suffering
from diseases are to be given half prayaschitta and sankha.
-A child less than 5 years commits no crime nor sin by any act and not to suffer
any punishment nor to undergo any prayaschitta.

Certain Smriti writers prescribe that as a gdneral rule a Brahmin orrender was not to be
sentenced to death or corporal punishment for any offence deserving a death sentence.
But in such cases other punishments were substituted.

Katyayana and Kautilya were against exempting Brahmins.

1.2 Changes brought in India (The shift from Mohammedan Penal Law to English
Penal Law).
With the advent of British into India they laid their rules and regulation on Indians and
captured people according to their words and English law was prevailing in the country,
but before their advent Mohammedan Penal Law was prevailing in most of the parts
which was because of the conquest by Muslim rulers by which they imposed their
criminal law. The primary source of the Muslim rulers was ‘Quran’ but the laws in it
were inadequate to supply the needs of large civilized community due to which they had
brough the Sunna or rules of conduct. Cruel and severe punishments were imposed by the
Muslim rulers which were broadly classified into 4 Kisas, or retaliations, Diyut or blood
money, Hadd or fixed punishment and Tazeer and Siyasa or discretionary or exemplary
punishments. The evidence rules were also difficult to prove to make a person to get
convicted. The severity of the punishments is such that Warren Hastings opined that such
punishments from Mohammedan Penal Law were not being continued basing on the
grounds of justice and humanity. Only in few cases the Mohammaden law prevailed over
the English Penal Code. The Muslim Criminal Law System is broadly classified into:

a) “Crime against the Sovereign

b) Crime against a private individual (Robbery, theft etc,)

c) Crime against the God: This class of crime included consuming intoxicants, adultery
etc”,

In the initial years there was no interference by the East India Company onto the criminal
Law, but with Warren Hastings administration, Company interfered and altered
Mohammedan law up to 1862- which was the year in which the Indian Penal Code came
into operation. So, the British Government eventually modified Muslim Penal System by
exercising their powers to make regulations.

The story behind the incorporation of 1860 IPC

From the year 1832 people belonging to Bombay, Orissa, Bengal, Bihar and Madras
Presidencies were absolved from professing Mohammedan faith if they desired. The
Britishers tried to have uniform control over British India, and then the Governor-General
became the authority for promulgating laws for everyone. “At a later point of time a
legislative council was established to enact all laws and this was continued until 1861
when the Government of Bombay and Madras restored the legislative power and due to
the provincial governments, there was a growth of the heterogeneous system of laws that
led to the difficulties in the administration of justice as a whole, to resolve this the statute
of 1833 appointed law commissions to enquire into the state of laws and to make reports
on them. The 1st Indian Law Commission under the president ship of T.B.Macaulay and
J.M.Macleod, with members G.W. Andarson and F.Millet submitted their report on the
Penal Code on 2nd day Pay 1837 as per the British Government orders” .

The Law Commission commented that the Mohammedans law was superseded by the
Hindu Criminal Law long ago and the Commission drafted a draft penal code and
submitted the same to the British India Government in 1937. This draft penal code was
completed with slight modifications, which was then sent to the judges of the Supreme
Court of Calcutta in the year 1851 for their observations and suggestions to bring any
changes in the provisions of the code. Two eminent English judges of the Supreme Court
gave their observations which were again revised in the year 1852. “This revised edition
of Penal Code was sent to the company in London in 1851. Finally, a committee
consisting of 5 members had given conclusion that the originally proposed penal code
should form the basis of the penal law system which has to be enacted for India. Then
Indian Penal Code was passed by the Legislative Council of India and got the assent of
Hon’ble Governor General on 6th October, 1860 and came into force on May 1st 1862”.

Since then, we see the Penal Code as one of the much-praised Acts of the Indian
Legislature that was serving its purpose well. Though the India Penal Code was enacted
in the year 1860, from then many developments have taken place new forms of
punishments, crimes came into existence. So due to its very long application from 1862
to till now in addition to the advent of technological developments and globalization
taking place there is a need to bring reforms to the Penal Code.