civil, power. They were first enacted in the Code of 1872, and embody (according to Sir Fitzjames Stephen 1) the principles laid down in the charge of Tindal C.J. to the grand jury of Bristol in 1832, as to the duty of soldiers in dispersing rioters. The rules carry the law somewhat further than it has yet been carried in England, as they expressly indemnify all persons acting in good faith in compliance with requisitions under sections 128 and 130, and forbid prosecutions of magistrates, soldiers, and police officers, except with the sanction of the Governor-General in Council. In this chapter volunteers enrolled under the Indian Volunteers Act, 1869, are placed on the same footing as soldiers of Her Majesty's Army. nuisances. In Chapter X, as to Public Nuisances, section 133 has been Suppresextended to cases of keeping goods or merchandise (for example, sion of damaged rice) injurious to the public health, and of carrying on occupations offensive to the religious feelings of any considerable section of the community. The latter alteration is intended to meet such cases as that of a butcher exercising his trade in a Hindú town so as to cause risk of breach of the peace, Chapter XI deals with temporary orders in urgent cases of nuisance. The power conferred by section 518 of the Code of 1872 was intended to be exercised only in urgent cases where a speedy remedy is desirable. The present Code (sec. 144) provides that no orders under Chapter XI shall remain in force for more than two months, unless in case of danger to human life, health or safety, or a riot or affray, the Local Government directs otherwise. Where time allows, the procedure must be under Chapter X. as to im Chapter XII empowers Magistrates to interfere in disputes as Disputes to immoveable property likely to cause a breach of the peace, to moveable decide whether any of the parties is then in actual possession of property. the subject of dispute, and if so, to declare him entitled to retain possession until evicted in due course of law, and has been expressly restricted to cases in which the property is tangible. It is founded on Act IV of 1840 and the seven Regulations mentioned in that Act, and is of great use in India, where disputes as to boundaries, water-courses, alluvion and diluviated land are frequent and sometimes sanguinary. The section seems to require amendment so as to render it impossible to decide (as the Calcutta High Court has decided 2) that a dispute as to the right to collect rent is a dispute concerning tangible immoveable property. Doubts had been raised as to whether the report of the person 211 Cal. 413. 1 Hist, Crim. Law, iii. 343. Preventive action of police. Searches. of the accused. deputed (under section 148) to make a local inquiry may be read as evidence in the case. The Code settles this in the affirmative. Chapter XIII treats of the action of the police in preventing the commission of cognisable offences, injury to public property, and the use of false weights and measures. V.-INFORMATION TO THE POLICE, AND THEIR POWER TO INVESTIGATE. Part V consists of a single chapter (XIV) relating to information to the police concerning the commission of offences, and their power to investigate cases. It corresponds with Chapter X of Act X of 1872, and sections 379 and 380 of the same Act. It deals with the examination of witnesses by the police, searches, and sending cases to the Magistrate when the evidence is sufficient. Precautions are taken (secs. 162, 163) against abuse by the police of their powers under this chapter. The words or that immediate arrest is not necessary,' which were contained in section 117 of Act X of 1872, have been omitted from section 158 of the present Code, as it is not apparent why a police-officer should be debarred from investigating a case of a cognisable offence because he does not at starting feel himself justified in arresting any person. Section 164 makes it clear that confessions to Magistrates shall not only be taken,' but signed and certified, like examinations of accused persons. In the form of memorandum relating to confessions words have been introduced to show that the confession was taken in the Magistrates' presence and hearing, and that it contains a full and true account of the statement. In sections 165 and 166, dealing with searches by the police, the law has been amended so as to meet difficulties which had arisen in practice. In section 167 it has also been amended. On the one Detention hand, there is strong objection to allowing an accused person to be detained at a police-station longer than is necessary, and, on the other, to insist on his being forwarded to the Magistrate, when his presence on the spot may be indispensable for tracking out crime or recovering property, might be a serious impediment to justice. Under proper precautions, the detention of the accused for sufficient reasons is allowed, but the period of detention has been limited to fifteen days in the whole. Inquiries into deaths. Part V also requires (sec. 174) the police to inquire and report on suicides and deaths caused by another person, an animal, machinery or an accident. Power resembling that conferred on Coroners by Act IV of 1871, section 11, has been given (sec. 176) to Magistrates authorised to hold inquests to disinter and examine corpses in order to discover the cause of death. VI.-PROCEEDINGS IN PROSECUTIONS. Having thus dealt with the means of preventing inchoate offences and arresting the course of such as are in operation, having also dealt with information to the police of offences and the consequent preliminary investigation, the Code next sets forth the mode of conducting prosecutions for consummated offences. Part VI treats of proceedings in prosecutions up to appeal, and is divided into sixteen chapters, arranged as follows: XV. Jurisdiction of Criminal Courts in Inquiries and Trials; XVI. Complaints to Magistrates; XVII. Commencement of Proceedings before Magistrates; XVIII. Inquiry into cases triable by the Court of Session or High Court; XIX. The Charge; XX. Trial of Summons-Cases by Magistrates; XXI. Trial of WarrantCases by Magistrates; XXII. Summary Trials; XXIII. Trials before High Courts and Courts of Session; XXIV. General Provisions as to Inquiries and Trials; XXV. Evidence; XXVI. The Judgment; XXVII. Submission of Sentences for Confirmation; XXVIII. Execution; XXIX. Suspensions, Remissions, and Commutations of Sentences; XXX. Previous Acquittals or Convictions. It will be seen that the above-mentioned chapters are arranged, as nearly as may be, according to the chronological order of the events in a prosecution.. Courts in Chapter XV (as to the jurisdiction of the Courts in inquiries and Jurisdictrials) deals, first, with the place of inquiry or trial. Here the tion of general rule is (sec. 177) that every offence shall be inquired into inquiries and tried by a Court within the local limits of whose jurisdiction it and trials. was committed. But there are special provisions for cases where the act has been done in one local area and the consequence has ensued in another (sec. 180): where the act, e.g. an abetment, is an offence by reason of its relation to another act which is also an offence where it is uncertain in which of several local areas an offence has been committed: where an offence is committed partly in one local area and partly in another: where the offence is a continuing one and continues to be committed in more local areas than one where it consists of several acts done in different local areas (sec. 182): where it is committed on a journey (sec. 183). There are also special rules as to inquiry into and trial of the offences of thuggee, dacoity, escape from custody, criminal mis appropriation, criminal breach of trust and theft (sec. 182), and as to offences against the laws relating to railways, telegraphs, the post office, and arms and ammunition (sec. 184). Sections 9 and 10 of the Foreign Jurisdiction Act (XXI of 1879), which deal respectively with the liability of British subjects for offences committed out of British India, and with the reception in evidence of depositions made before Political Agents, have been transferred to this part of the Code (sections 188 and 189), which is obviously their proper place. To the provisions contained in the previous law regarding the transfer of cases the present Code adds a clause (sec. 192), providing that, when any Magistrate of the first class, specially empowered in this behalf by the District Magistrate, has taken cognisance of any case, he may transfer it for inquiry or trial to any other competent Magistrate in such district. This enables such Magistrates to distribute the work in their Courts, when it is necessary to do so, with less delay than was formerly unavoidable. Chapter XV deals, secondly, with the conditions requisite for the initiation of proceedings,-the receipt of a complaint: a police-report information from any other person: the Magistrate's own knowledge or suspicion; or, in the case of a contempt, the sanction or complaint of the public servant concerned or of his official superior. Section 195 requires that the sanction to entertain complaints of contempts and certain offences against public justice or relating to documents given in evidence shall, so far as practicable, specify the place in which, and the occasion on which, the offence complained of was committed. The sanction may be revoked or granted by any authority to which the authority giving or refusing it is subordinate. And in order to remove doubts which had been felt on the point, it is declared that, for the purposes of this section, every Court shall be deemed to be subordinate to the Court to which appeals from the former Court ordinarily lie. Sanctions or complaints are also required in the case of prosecutions for acts done in dispersing unlawful assemblies (sec. 132), for state-offences (sec. 196), for acts committed by judges and public servants as such (sec. 197), and for breach of contracts of service, defamation, and certain offences relating to marriage and married women (secs. 198, 199). Limitation No sanction under sec. 195 shall remain in force for more than of prosecu six months from the date on which it was given; but of course tions. The Code contains no other rule for the limitation of prosecutions. All other offences under the Penal Code,-even mere attemptseven those offences which are compoundable without the permission of the Court-may be prosecuted after any lapse of time, because allowing such prosecutions to be barred would (to use the words of Livingston) hold out a reward to ingenious villainy and address in concealment.' But in the absence of a law of limitation there is danger that innocent men may be convicted owing to the death of their witnesses or the destruction of their documentary evidence; and sundry special and local laws have prescribed periods within which offences against their provisions must be prosecuted. Of these laws the chief are as follows: they are here classified according to the periods which they respectively prescribe : Five Years. 21 Geo. III. c. 70, sec. 7 (prosecution of the Governor-General, etc.) Three Years. 24 Geo. III. c. 25, sec. 82 (prosecution of British subjects guilty of offences in India). Two Years. Act XV of 1872, sec. 76 (Marriage of Christians). One Year. The Army Act, 1881 (44 & 45 Vic. c. 58), sec. 170. XX of 1847, sec. 16 (Copyright). XIII of 1857, sec. 26 (Opium, Bengal). Ben. Act V of 1866, secs. 15, 24 (Hackney Carriages, Calcutta). Six Months. VI of 1879, sec. 9 (Preservation of Elephants). XXII of 1881, sec. 47 (Excise, Northern India, Burma, Coorg). XII of 1882, sec. II (Salt). XVIII of 1882, sec. 16 (Burma Steam boilers). V of 1886, sec. 13 (Mirzapur Stone Mahál). Mad. Act II of 1886, sec. 87 (Madras Harbour). Bom. Act VII of 1873, sec. 62 (Salt). Ben, Act VII of 1864, sec. 37 (Salt). Ben. Act VII of 1878, sec. 72 (Excise). Ben. Act III of 1879, sec. 12 (Steam boilers). Four Months. Bom. Act V of 1878, sec. 67 (Excise). Three Months. XIX of 1850, sec. 18 (Binding Apprentices). |