1860 Penal Code

[Reggie Lamborn]

ThePenal Code of Bangladesh is the official criminal code of Bangladesh. It is based on the Indian Penal Code enacted in 1860 by the Governor General-in-Council. 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.

The code was drafted on the recommendations of first law commission of British India. It was presented to the Governor of Bengal in 1837. While based on the law of Victorian England, it derived elements from the Napoleonic Code and Louisiana Civil Code of 1825. It was adopted on 6 October 1860.[2] 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.

Sedition and seditious libel has been criticized as an outdated law. While the United Kingdom has phased out penalties for seditious libel, its continued presence in the Bangladeshi penal code has been used by the government to target to leading journalists and politicians.[3]

Pakistan Penal Code 1860 [PPC] is the main criminal code of Pakistan. It is a comprehensive code intended to cover all substantive aspects of criminal law. The Code has since been amended several times and is now supplemented by other criminal provisions. Every person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof, of which such person shall be guilty within Pakistan.

Khalid Zafar Graduated in commerce from Hailey College of Commerce, University of the Punjab, Lahore, Pakistan and obtained his law degree from University of the Punjab, Lahore, Pakistan. He has a diversified experience of over 21 years as a litigator and corporate lawyer and has worked with leading law firms including Cornelius, Lane & Mufti; Mandviwalla & Zafar; Surridge & Beecheno; and Hassan & Hassan in the years 1999 through 2012.

Ms. Aleena Waheed Hashmi obtained her graduation in Law from Punjab University Law College, Lahore and later pursued her Masters in Social Work. Ms. Waheed holds practicing license of Punjab Bar Association. The area of expertise is corporate, banking, commercial and transactional practice. Aleena is advising and providing legal services to the clients of her law firm and represents her law firm in all sorts of commercial, corporate and banking matters. Ms. Waheed has an ability and extensive experience of drafting more complex documents like persuasive briefs and motions that require comprehension of complicated fact patterns, analysis of numerous legal issues or questions of law and review of voluminous transcripts and records. With such a broad understanding of law, she has been able to better assist every client with her variety of activities.

Hamza graduated from Punjab University Law College (PULC) and also holds a Masters degree in Political Science. He is a practicing member of Punjab Bar Association. He handles all the civil, banking and commercial litigation of the firm. Hamza has expertise in revenue and land matters and has been doing land records due diligence. He is handling the corporate matter like Intellectual Property Rights, registration of limited liability companies, partnership matters, trademarks and copyrights etc. Hamza is handling the transactional banking matters including but not limited to property opinions, structuring and execution of the transactions. He has legal acumen and skills for solving various kinds of legal propositions and issues successfully.

Before the advent of the British, the penal law prevailing in India, for the most part, was the Muhammedan law. For the first few years of its administration, the East India Company did not interfere with the criminal law of the country and although in 1772, during the administration of Warren Hastings, the Company for the first time interfered, and henceforth till 1861, from time to time, the British Government did alter the Muhammedan law, yet up to 1862, when the Indian Penal Code came into operation, the Muhammedan law was undoubtedly the basis of the criminal law excepting in the presidency towns. The epoch of the administration of Muslim criminal law in India extended for a considerable period and has even supplied many terms for the vocabulary of Indian law.

The chapter deals with all kinds of offences which can be committed against the human body, from the very lowest degree i.e. simple hurt or assault to the gravest ones which include murder, kidnapping and rape.

These crimes are defined and punished under Chapter XVII and range from Section 378 which defines theft, to Section 462 which prescribes punishment for the offence of breaking upon an entrusted property. The offences that are dealt with under this chapter include, among others, theft, extortion, robbery, dacoity, cheating and forgery.

The definitions and punishment for this category of offences are provided in Chapter VIII which ranges from Section 141 to 160. This chapter lays down the acts which are considered to be criminal in nature because they disturb and destroy public tranquillity and order. This chapter includes offences like being a member of an unlawful assembly, rioting and affray.

Chapter VI, which deals with offences of this nature, and includes Sections 121 to 130 are some of the most rigorous penal provisions of the entire code. This includes the offence of waging war against the state under Section 121 and the much-debated, criticised, and abused offence of Sedition under Section 124A. The offence defined under this Section has been much maligned as it was used by the British to prosecute many freedom fighters; it has also been used post-independence to silence critics of the government and continues to date which is why many experts advocate repealing the same.

Sections 76-106 (Chapter IV) embody the general exceptions which are exceptional circumstances where the offender can escape criminal liability. A basic example in this context is the Right of Private Defence (Section 96-106). Other concepts that are elaborated upon in this chapter include Insanity, Necessity, Consent, and acts of children below a certain age.

The IPC has been successful by and large in its attempt to prosecute and punish individuals who commit the crimes that are defined in this Code, but like Sedition there have been certain other provisions that have invited scrutiny time and again. Some of these provisions are as follows:

This Section, among other things, punished consensual sexual acts between consenting adults belonging to the same sex. With the advent of time, several voices advocated for the decriminalisation of this part which punishes homosexuality. The Supreme Court, finally in the case of Navtej Johar, obliged and decriminalised the portion of this Section which punished consensual acts of this nature.

This Section prescribed punishment of up to one year for attempting suicide. There is a longstanding recommendation of the Law Commission to decriminalise attempting suicide by dropping Section 309 from the statute books. But the amendment to this effect has not been carried, albeit, the use of the provision has minimized, by the coming into force of the Mental Healthcare Act, 2017.

As per the non-obstante clause contained in Section 115(1) of the Mental Healthcare Act, 2017, there is the presumption of severe stress on a person who attempted suicide and such person is not to be punished under Section 309 IPC.

But the reports about the use of Section 309 IPC are not unknown and continue to be reported from almost all parts of the country. As such, it is the need of the hour that the police authorities should be sanitized about the issue.

This Section, which criminalised and prescribed punishment, was criticised for treating a woman as the private property of her husband and imposing moral principles on married couples. This Section was finally struck down by the Supreme Court in September 2018 while disposing of the case of Joseph Shine v. Union of India. Watch a video lecture on the adultery judgement below:

The Code also provides for imposing the death penalty in certain offences like murder, rape, and waging war against the government. Several human rights groups call for the abolition of the death penalty citing data to suggest that the imposition of this punishment, in addition to being arbitrary, is also against the very human rights of the offender.

By application for relief through the writ of habeas corpus petitioner attacks the adjudication that he is an habitual criminal, punishable under section 644 and related sections of the Penal Code. We have concluded that petitioner is an habitual criminal twice previously convicted and "shall be deemed to be imprisoned for life and shall be eligible for release on parole after he shall have served a minimum term of seven calendar years." (Pen. Code, 3048.5, ad. Stats. 1945, ch. 934, 4.)

It appears that petitioner was charged with the primary offense of grand theft, allegedly committed on or about August 3, 1943, and with three prior convictions of felony, as follows: "Entering and Larceny" in Pennsylvania in 1913, for which he allegedly served a term of imprisonment "in a penal institution"; "Larceny and Receiving Stolen Goods" in Pennsylvania in 1930, for which he allegedly served a term "in the State Prison"; "Forgery" in New Jersey in 1923, for which he allegedly served a term "in the State Prison." Petitioner pleaded guilty to the primary crime, denied the 1913 prior conviction, and admitted the 1930 and 1923 prior convictions as charged. The trial court found that petitioner had suffered the 1913 prior conviction. It rendered its judgment of conviction of the primary offense, recited the three prior convictions suffered by petitioner, and declared that petitioner "is adjudicated to be an habitual criminal." It is such determination of status that petitioner attacks. [30 Cal. 2d 23]

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