ISSN: 2581-8503 · ISSN: 2581-8503 6 holder of danda (the holder of punishment and protector of...

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VOLUME 1: ISSUE 7

|| December 2019 ||

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ABOUT US

WHITE BLACK LEGAL is an open access, peer-reviewed and

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issues, thereby generating a cross current of ideas on emerging

matters. This platform shall also ignite the initiative and desire of

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With this thought, we hereby present to you

WHITE BLACK LEGAL: THE LAW JOURAL



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Development of criminal law Author: Samyak Mudgal

Abstract Criminal law is the body of law that prohibits and punishes those acts that are against the

very nature of society and possess a threat to life and property of the people of society. But

what kind of acts can be classified as criminal in nature, what kind of conduct is forbidden in

society? According to Terrence Morris crime is what society says is crime by showing that

an act is in contravention of criminal law without law there may be no legal wrong at all,

although there may be moral discontent1 i.e. the concept of crime has always been dependent

on public perspective. Criminal law is the reflection of public opinion.

In ancient Indian society, crime was violation of dharma. Dharma meant “a behaviour

approved by god”. Throughout medieval period Islamic law was the law of the land for

administration of criminal justice. When Britishers arrived in India they embraced a different

set of rules in accordance with British pattern, but it was not consistent throughout India, thus

the first law commission was constituted in 1834, through the charter of 1833 passed by

British parliament, under the leadership of Lord Macaulay.

CRIME DURING ANCIENT SOCIETY

Our knowledge about the legal system of the ancient society is not evident but it is confirmed

that the idea of divine cosmic order existed. ‘Dharma’ was considered to be the foundation

of law. In Ashoka’s pillar edict 2 and some other Buddhist sources, it has an immense

meaning of ‘Righteousness’. It may be defined as ‘actions approved by god’ but in legal

terms it meant the divinely established set of rules of virtuous behaviour, varying in

consonance with caste hierarchy. In this context we can interpret it as the sacred law.

In ancient society crime was departure from dharma, the person was considered not believing

in god and religion because dharma was divinely originated and the king was entrusted by

god to maintain dharma .The king’s chief duty was protection of dharma, and as protector of

dharma he personified dharma. The kings subsequently after Ashoka assumed the title of

Dharmaraja which was the name of Yama, the god of death and deceased. King used danda

to maintain dharma; Danda may be defined as military force, coercion, punishment and fine

etc. Manu, the author of Manusmriti, described the king as Danda Chhatra Dhari i.e. the

1 THE CONCEPT OF CRIME, available at: http://www.abyssinialaw.com . (last modified on 02 may 2012)


http://www.abyssinialaw.com/


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holder of danda (the holder of punishment and protector of society), for Manu punishment

was a crucial feature of law and he justified the punishment to keep the people under control

and protect them, human nature was believed to be innate evil and corrupt.2 Megasthenes in

his book indica mentioned that Indians outstandingly comply with law, crime was very rare

throughout India however Hsuan-tsang, a Buddhist monk who travelled to India from china

in 627AD during the reign of Harsavardhana, ruled north India from 606-647 AD, paints

some less favorable pictures.

CRIME DURING MEDIEVAL PERIOD During medieval period, crime was contravention of ‘Sharia’. The term sharia literally

meant the road to the watering place, the path to be followed .In practical terms it may be

defined as the canon law of Islam, the entireness of Allah’s commandments each of such

command is called Hukum. Basically it is a precept of duties and a code of accountability.

Islamic law arranged crime under three heads:

1. CRIME AGAINST GOD

➢ Apostasy, Drinking liquor, Adultery etc.

2. CRIME AGAINST SOVEREIGN

➢ Theft, robbery etc.

3. CRIME AGAINST PRIVATE INDIVIDUAL

➢ Murder, Maiming etc.

PUNISHMENTS IN ISLAMIC CRIMINAL LAW:

Islamic criminal law categorized punishment for various offences into four different kinds: 1. QISAS

• The term ‘Qisas’ meant ‘retaliation’, hand for hand, life for life etc. It was based on

the retributive theory of criminal law.

• Qisas was reserved for crime against private individual i.e. cases of wilful killing and

certain type of grave offences.

• Qisas was regarded to be a right of men.

2. DIYAT

• The term ‘Diya’ or ‘Diyat’ meant ‘blood money’.

2 PROF.N.V.PARANJAPE, CRIMINOLOGY & PENOLOGY WITH VICTIMOLOGY, (central law publication, 15th edition pg.263)



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• The injured party could claim Diyat in exchange of Qisas. In a hadith portrayed by

Imam nissai, provided that every part of the human body has blood money, e.g. blood

money for eyes is equal to 50 camels etc3.

• Diyat was awarded only in cases of crime against private individual.

3. HADD

• The term ‘Hadd’ meant ‘boundaries’ (plural hudud). In criminal law it denotes

specific punishment for specific crime.

• The objective of hadd was to deter the criminal and set an exemplary punishment for

the rest of society. It fixes the nature and extent of punishment for certain crimes

which were detrimental to society and were regarded as anti-religious and against the

society.

• Punishment laid down under hadd was very harsh as it was regarded to be an act

against god, the nature and extent of punishment could not be modified

E.g. stoning, amputation etc.

• Seven types of offences were held within the purview of hadd. These offences

included zina (illicit sexual relation), baghy (revolt against the government), qazaf

(false accusation of zina), sariqah (theft), hirabah (highway robbery), shrub al-khamr

(consuming alcohol), riddah (apostasy).4

• Hadd was considered to be a public right and the king was supposed to enforce it, thus

claim by the injured party was not condition precedent to bring the trial and in

infliction of punishment.

• Proof for conviction of an offender under hadd punishment was very difficult. Two to

four eyewitnesses were required for conviction of offender.

4. TAZEER

• The term ‘Tazeer’ meant ‘discretionary punishment’.

• Tazeer was inflicted for offences against the state. Usually the punishment comprised

of imprisonment, banishment, corporal punishment etc. The nature and extent of

punishment depended solely upon the prudence of the judge. Certain factors had to be

considered while awarding punishment, these included; circumstances in which the

offence was committed, whether the offender had committed such type of crime in the

past or not?

3 PUNISHMENT IN ISLAMIC LAW, available at: https://www.ukessays.com . (modified on 03/05/17) 4 Supra note 3


https://www.ukessays.com/


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• Tazeer could be provided as a form of punishment in the following situations;

1. For offences against which punishment by way of Hadd or Qisas was not laid down. Such

offences were not regarded serious in nature. E.g. use of abusive language, counterfeiting

of deeds and offences against human body, property etc.

2. Tazeer could also be imposed as a form of punishment in offences falling under Hadd or

Qisas, if the evidences available did not satisfy the conditions as required for conviction

but were sufficient to institute a strong presumption of culpability; then instead of Hadd

or Qisas, some other kind of punishment was inflicted as in the prudence of judges.

3. Tazeer could also be imposed for horrible and grievous crimes, crimes having a

propensity of causing serious injuries to life and property of society. Such kinds of

offences were punished with exemplary punishment, also known as siyasat, so as to deter

the offenders.

The purpose behind infliction of tazeer punishment was to meet the ends of private as well

public justice.

CRITICISM: 1. The disposal of criminal justice during medieval period suffered from many defects. It

was not certain and uniform in practice. There was disagreement among jurist which gave

them a freedom to interpret the law according to their own understanding. Thus corrupt

and fraudulent qazis could misinterpret the law and apply the same in a specific

situation5.

2. The principle that only the heir of the deceased person could claim Qisas created

problems because in those cases where the deceased man did not leave behind any heir,

none would come forward to prosecute the offender. And if the heir of the deceased

person was a minor, whether it was necessary to wait till the heir become major and come

forward to claim Qisas or not? Abu hanafi (Islamic jurist) maintained that it was not

necessary for major heir to wait until all minor heirs become major. On the other hand

Abu Yusuf and Mohammad Imam held that the offender must be kept in jail until all

minor heirs become major6.

3. Crime against god was treated to be an act of barbarity in which the state came forward to

prosecute the offender however in cases of crime against private individual the injured

party had to himself take an initiative demanding prosecution of the offender and were

regarded as private wrong.

5 M P JAIN, OUTLINES OF INDIAN LEGAL HISTORY 366 ( wadhwa & company law publishers, Nagpur, 5 th edn,1997) 6Id. 367



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Ex- Murder was regarded to be an act against private individual whereas drunkenness was

deemed as crime against god and thus considered to be a public offence7.

4. Muslim law maintained that if one of the heirs of the murdered man had pardoned the

offender, then all other heirs were debarred from claiming Qisas. They were entitled only

to the share of blood money (Diyat) paid by the criminal.

E.g.-suppose A had killed his wife B, heir of B had pardoned A but sister of the deceased

claimed qisas, she was entitled only to the share of Diyat.

5. In certain cases murder and homicide were regarded as justifiable

E.g. - a husband could kill a man who tried to commit the offence of sexual assault with his

wife; Parents could not be sentenced to death penalty for murdering their children. A master

could kill a slave8.

6. Muslim law provided the distinction between intentional murder (amd) and homicide

(sabih amd) and this distinction was based on the nature of weapon used to commit the

offence of murder. The test was not based on the intention of the parties.

For instance, a person who committed the offence of murder by throwing the victim from

upper floor of house, striking him with a fist, stone, etc the offence was not regarded to be an

act of intentional killing . In such type of cases, Diyat was claimable in place of Qisas. The

offence was regarded as homicide (sabih amd) not willful murder (amd). On the other hand if

the murder was carried out with a sharp weapon such as knife or sword made of iron, the

murder was considered to be willful (amd), and the offender could be made punishable with

Qisas.

CHANGES IN CRIMINAL LAW: IN 1772 In 1772 when Warren Hasting initiated the judicial plan for administration of criminal

justice in Bengal, Bihar and Orissa, he did not make many changes in the substantive law of

crimes apart from providing harsh punishment for dacoity. In justification to severe

punishment he pointed out that dacoits of Bengal were not like robbers in England, they were

considered to be hereditary addicted to crime9.

In 1773 warren hasting proposed certain proposals10:

7 Supra 5

9 M P JAIN, OUTLINES OF INDIAN LEGAL HISTORY 372 (wadhwa & company law publishers, Nagpur, 5th edn, 1997). 10 Id. 372,373



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1. Abrogate the privilege granted by law to the son of the deceased to forgive the murderer

of his parents. According to warren hasting it was against the fundamentals of civil

society and natural justice. A heir could not absolve the offender from criminal liability

for his own benefit.

2. The test to distinguish between intentional murder (amd) and homicide (sabih amd)

should not be based on the nature of weapon used to commit the offence.

3. Fine imposed on the criminal should be increased and depend on the barbarity of the

offence and medium used to commit the offence.

Warren hasting gave the above proposals to the council for consideration but the council did

not give any response as it was regarded to be a difficult task to change the settled law.

CHANGES IN CRIMINAL LAW: 1790-93 The first organized step in the modification of the criminal law system was initiated by Lord

Cornwallis. In 1790 He abrogated the Muslim law that absurdly maintained that the

murderer was not liable for death penalty if the crime was committed by poisoning, drowning

or by use of weapon not made of iron. Regulation passed on December 3, 1790, abolished the

rule made by Abu hanafi that illogically made the distinction between wilful murder and

homicide on the basis of nature of instrument used to commit the offence but from then

onwards the test to distinguish between them would be based solely on the intention of

accused11.

Regulation of 3 December, 1790, provided that the kindred of the deceased would be

prohibited from pardoning the offender and if he does so the trial court had not to give

judgment but to forward the case to Sadar Diwani Adalat for sentence. Muslim criminal law

provided infliction of brutal punishment amputation of legs and arms for most type of

offences. On 10th October 1791 Governor General in council abrogated such cruel

punishment of amputation and replaced it with imprisonment for 14years (with hard labour)

if the punishment is for amputation of 2 limbs, if it is for 1 limb then imprisonment would be

for 7 years12.

On 13 April 1792, the Governor-General in council prescribed certain prepositions; the denial

by kindred of deceased person to prosecute the criminal would no longer be a barrier for the

trial, the court of circuit would go ahead with the trial as if the deceased person had no heir.

It helped in the conviction of the criminal. The focus shifted more toward public justice

11 M P JAIN, OUTLINES OF INDIAN LEGAL HISTORY 374 (wadhwa & company law publishers, Nagpur, 5th edn, 1997). 12 Id. At 375



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instead of private justice. The Muslim law officer associated with the court was required to

provide with the fatwa on the assumption that the heir had been the prosecutor13.

The Muslim criminal law did not allow a Hindu to give evidence against a Muslim accused.

On 27April 1792 the Governor-General in council proposed that religious beliefs of witnesses

would no longer be a barrier for conviction of the offender.

Regulation IX of 1793 provided that if the heir of the deceased person is incompetent to

claim Qisas because of being a minor according to Mohammedan law, then the court of

circuit would go ahead with the trial as if the slain had no heir. The Muslim law officer

associated with the court was required to provide with the fatwa on assumption that the heir

of the deceased person is competent of demanding Qisas14

CHANGES IN CRIMINAL law: 1797 Regulation IV of 1797 eradicated the uncertainty existed in the law of homicide. As it

restated that a person convicted of intentional killing was liable to be punished without any

suggestion of the heir of the deceased person. If after trial, the Muslim law officer associated

with the court declares the accused innocent, the judge had to release him; but if the judge did

not assent to the verdict, the case was referred to the Sadar Nizamat Adalat for further

proceedings15.

In Muslim law, an offender convicted of homicide was liable to Diyat (blood money) as a

form of punishment. The court of circuit had substituted the blood money to imprisonment

for such term as the court may consider adequate for the offence.

Regulation XIV of 1791 was a crucial measure, inspired by philanthropist and benevolent

spirit as it provided relief to the people convicted to pay blood money but on account of their

inability to pay blood money they were imprisoned for an indefinite period. In those cases

blood money was replaced with imprisonment for such term as the court may consider

adequate. Regulations XVII of 1797 provided severe punishment for the offences of

perjury16.

CHANGES IN CRIMINAL LAW: 1799-1802

13 Supra 12 14 M P JAIN, OUTLINES OF INDIAN LEGAL HISTORY 376 (wadhwa & company law publishers, Nagpur, 5th edn, 1997). 15 M P JAIN, OUTLINES OF INDIAN LEGAL HISTORY 377 (wadhwa & company law publishers, Nagpur, 5th edn, 1997). 16 Ibid.



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Lord Wellesley, Governor General of India from 1798-1805, managed to boost the process of

modernization of criminal law. Regulation VIII of 1799 revised the doctrine of justifiable

murder and laid down that from then onwards no murder was to be justified on the ground

that the offender being the father, mother, grandfather or any ancestor of the deceased person.

It also provided that no defence would be given to the offender on the ground that that

deceased person desired the murder and in all such cases the offender was to be punished

with death penalty17.

The regulation VIII of 1801 provided that a person convicted of having deliberately and

malevolently intended to kill an individual but accidently he killed another individual was

liable to be punished with death penalty. In Indian society, there prevailed an abhorrent

proceeding of infanticide; the government found that there was no religious ground for such a

practice. By regulation VI of 1802, the government abrogated the criminal and barbaric

proceeding of sacrificing children and declared infanticide punishable as intentional murder,

the offender liable to be punished with death penalty18.

CHANGES IN CRIMINAL LAW: 1807-1832

The punishment for robbery was enhanced through the Regulation III of 1805. Regulation II

of 1807 enhanced the punishment for willfully giving false representation under oath

(perjury) and counterfeiting of documents, signature etc. Regulation VIII of 1808 provided

exemplary punishment for the crime of dacoity as the crime had increased enormously in the

society.

Regulation XVII of 1817 modified the law related to adultery. It had become more

reasonable from previous condition. Earlier a person convicted for the offence of adultery

was punished under the category of hadd which included stoning, scourging etc as a form of

punishment and for conviction at least four competent male eye-witnesses were required

mandatorily. The regulation prescribed that from then onwards conviction for the offence of

adultery could be made by avowal, testimony, and circumstantial proof. The maximum

punishment to be imposed for the offences of adultery was 39 stripes and imprisonment up to

seven years (with hard labour). Married women could not be sued on such charges saved by

their husbands. The regulation also provided that if the evidence given by the witness was

declared invalid by the Islamic law which the judge consider as irrational and inconsistent,

17 M P JAIN, OUTLINES OF INDIAN LEGAL HISTORY 378 (wadhwa & company law publishers, Nagpur, 5th edn, 1997). 18 ibid



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that was not to be followed any further. From then onwards the Muslim law officer associated

with the court was required to provide with the fatwa on assumption that there was no

disapproval against the witness19.

In 1829 the regulation XVII abrogated the sati system in India during the tenure of Governor-

General Lord William Bentinck. Sati, evolved from the Sanskrit term ‘asti’ which means

‘unadulterated’ was an odious practice among Hindu community in which a recently

widowed woman was burnt alive either forcefully or willingly. The evil practice was declared

to be illegal and was made punishable in the same way as culpable homicide. The reason

behind abrogation of sati practice was that it violated the principles of human justice. Those

who abetted the act were also be punished by imprisonment or fine or with both. Sati was

declared a criminal act in 1830.

Regulation VI of 1832 made a remarkable change in the criminal justice system. It provided

that from then onwards the Muslim criminal law was not a general and obligatory system of

law applicable to all whether they were Muslims or not. It was addressed to the government

that non-muslims felt inferiority on being punished under the muslim criminal law. And also

the English and Indian judges had obtained sufficient confidence to continue the

administration of criminal justice without the help of Muslim law officer. To achieve this

goal, a judge was authorized to assist himself with the help of reputable Indians in one of the

three methods while operating the criminal trial;

1. The judge could associate the entire case or any part of it to a panchayat of persons who

performed their investigation apart from the court and address their result to the judge.

2. The judge could incorporate two or more persons as auditors so that he could obtain the

benefit which might be derived from their investigation particularly in the interrogation of

witnesses. Each auditor was to give his opinion separately.

3. The judge could recruit Indians more closely as jury. The procedure of selecting the

jurors, the number to be recruited, and the manner in which their verdict was to be

delivered were left on the prudence of judges20.

If any of the above three ways was embraced in a case then the fatwa of Muslim law office

become irrelevant. It could be avoided by the judge. Thus the concluding authority would rest

19 M P JAIN, OUTLINES OF INDIAN LEGAL HISTORY 380 (wadhwa & company law publishers, Nagpur, 5th edn, 1997). 20 Id. At 383



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within the judge to decide the case. But if in a case due to any regulation judge was not

authorized to give the sentence he could refer the case to the Sadar Nizamat Adalat.

CODIFICATION OF THE LAW To accomplish the goal of systematic and codified system of law in India, the charter of 1833

provided for the establishment of All India Legislature. From 1833 to 1860 crucial changes

were made in the criminal law and these included; thugs were punished with imprisonment

for life (with hard labour), slavery was declared to be non-recognizable in any court, the

offence of dacoity was punished with transportation for life or with imprisonment for any

term in the discretion of the judge with hard labour. Punishment prescribed for offences were

very severe in the beginning with a view to create deterrence in society. But as law and order

situation began to improve in society the severity of punishment was reduced gradually.

E.g. earlier burglary was punished with imprisonment for 14 years but later on the

punishment was reduced to imprisonment for 7 years.

INDIAN PENAL CODE, 1860 In 1834, the British Government under Lord Grey (Prime Minister) through the charter of

1833 established a commission known as “Indian Law Commission” under the leadership of

Thomas Babington Macaulay to inquire into the power, jurisdiction and rules of existing

Courts. The commission submitted the draft of Indian penal code on October 14, 1837 to the

Governor-General of India in council. The draft of IPC was send to the judges, renowned

jurists and legal advisers for examination. The second law commission was constituted on

April 26, 1845 which again scrutinized the draft of IPC. The commission gave its report in

two portions, one in 1846 and the other one in 1847. The draft was again scrutinized by John

Elliot Drinkwater Bethune and Barnes Peacock, law members of the s of India in council, and

was submitted to the legislative council in 1856.

Finally the Indian penal code bill was approved by the legislative council and it got the

acquiescence of Governor-General on 6 October, 1860 and it came into operation on January

1, 1862.

Conclusion

In society, protection of life and property of every individual is one of the crucial tasks of

state and it can only be attained through implementation of criminal law. Islamic criminal law



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had many faults; it was not uniform throughout India thus the British introduced the system

based on British pattern. The regulations introduced by the British were based on the

principle of natural justice. In 1860 we got the final result when Indian penal code was passed

by the legislature.


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