Society is a group of people living with each other. The basic need of human being is peace and security through human beings nature is competitive and self-assertion, due to this nature, conflicts in society is the common problem. Peace and security needed for the development. Certain moral sentiments develop in the history of human society. There is a relationship between crime and immorality. In early societies, these crimes arrow out of the feeling and conduct that offended, which direct threatened to the general security. Crime is a changing phenomenon dependent upon the social development of a people that are upon the fundamental interests and values dominating their common beliefs. Due to the different common beliefs, conflict arises among the individuals, to resolve a conflict the set patent rule is to require therefore the laws are developed in every society.
With the development of society, the laws are known as criminal laws, civil laws. The act which is prohibited by that different laws is known by the different name that is civil wrong or crime. Initially, the concept is not as wrong but it is recognized as a sin, and mostly it generally regulated by the religious institution. Because the religious institutions are more powerful, then the sovereignty concentrates towards the kings, and the source of law has undergone a change. Now the king or crown is the law-making authority and for the settlements of the conflicts, he set the pattern, which divides the wrongs into civil wrongs and criminal wrongs. In other words, on the basis of the gravity of the wrongful act, it is going to meager, and more grievous acts are considered against the state and going to be regulated by different laws of the rule of patter. This rule of set patterns are known as criminal law, thought the criminal act directly affects the individual but it reflects on the entire society therefore the state is taking its cognizance more seriously and it gives more importance to the criminal law
DEVELOPMENT OF CRIMINAL LAW IN INDIA
CRIMINAL JUSTICE IN ANCIENT INDIA
The development of the Legal systems in India ascends from the ancient period when various kings ruled the land of India right from 3000 B.C.E to 1001 C.E and beyond. India had a similar system of law for over 4000 years. The Neethi and Dharma gave by the great Hindu lawgiver Manu were common or similar in nature The Dharmasutras and the Kautilya‟s Arthashastra, however, present a more detailed and well-developed system of criminal adjudication prevailing in their time. The Niti shastra mentions King as the fountain of justice and it was his sacred duty to punish the wrong-doers and if he flinched from discharging this duty, he was bound to go to hell. In early society, the victim was supposed to punish the offender in a manner that was rather retaliatory and revengeful. This was, naturally, governed by chance and personal passion. The advanced Rig-Vedic period highlights that the punishment of a thief rested with the very person wronged. These rules helped in determining the appropriate behavior of people and the action that was to be taken against those who disobeyed. The code of conduct governing the affairs of the people came to be known as Dharma or law. With advancing stages, the man felt that it was more convenient to live in society rather than in small groups. Organizations based upon the principle of blood relationship yielded, to some extent, to larger associations in the societies. In the very early period of the Indian civilization great importance was attached to Dharma. Everyone was acting according to Dharma and there was no necessity of any authority to compel obedience to the law.
CRIMINAL JUSTICE IN THE SULTANATE PERIOD
The sultans implemented Shariat or the Islamic Criminal law and provided punishments as the main sources of which were the Quran, the Hadis, and Ijma. The ecclesiastical cases were separated from the criminal and civil suits. The durbar of the sultan constituted the highest civil and criminal court of justice which took original as well as appellate cases. The sultan was superior to the court which consisted of the qazi-i-quzat or the chief justice of the empire. Muhtasib the censor of public morals acted as police cum judge in the observance of the canon law by the Muslims. The village panchayats were provided with the sanction of the state to administer justice according to the customs, traditions, and the personal law of the populace. The penal code was strict and provided physical torture and capital punishment.
CRIMINAL JUSTICE SYSTEM IN BRITISH INDIA
- Changes in Criminal Law 1772
Warren Wastings brought to light, his judicial strategy for the administration of justice in Bengal, Orissa, and Bihar. In justification of the rigorous punishment proposed to be inflicted it was pointed out that dacoits were very different from the robbers in England, they are robbers by birth. In 1773 a certain proposal for its modification was formulated and Hastings suggested abolition of the privilege granted by the Muslim law to the son or nearest the kin to pardon their murderers of their parents. Warren Hasting contended that it was a law of Barbarus construction and contrary to the ideology of civil society and yet the matter did not proceed to any conclusion for the rest of his tenure as the governor-general.
- Changes in Criminal law 1790-93
The first initiative for the modification of the Muslim Criminal law was taken by Cornwallis in 1790. He abrogated crucial Muslim laws which were then formulated by Abu Hanifa which illogically maintained that a person was not liable for punishment of murder if the crime was committed by strangling, drowning, poisoning, or with a weapon that was not made of iron. According to the law of then, the kin of the deceased didn’t have any right to remit the sentences of the person convicted. Also, earlier the Muslim law did not allow a Hindu witness to testify against the Muslim accused. However, this law was abolished.
- Changes in 1797
There were times when certain confusions and overlaps arose in the law of homicide and it was restated in 1797 for the purpose of regulation. The intention was to do away finally with all operations of the will of the heirs. In the case of murder, it was laid down that a prisoner convicted of willful murder was to be punished without any reference to the heirs of the person killed. Another innovation made at that time was to substitute imprisonment for blood money. According to Muslim law, a person convicted of homicide was liable to pay blood money. The court of the circuit was to commute the fine to imprisonment for such period as it’s considered adequate for the offense. The Regulation XIV of 1791 was an important measure that was inspired by humanitarian and benevolent spirit as it granted relief to the person already in prison on account of their inability to pay blood money. Regulation 17 of 1797 brought out the concept of rigorous punishment for it.
- Changes in the Criminal Reform 1807-32
The process of modifying and adapting the Muslim law of crimes continued. Punishments for perjury and forgery were enhanced through Regulation II of 1807. Exemplary punishments were prescribed for Dacoity through Regulations VIII of 1808 as the crime has increased enormously. By Regulations XVII of 1817, the law relating to Adultery was modified. The need for four competent male witnesses was rigorously insisted upon and the presumptive proof was not regarded sufficient to warrant a conviction for the offense. The regulation laid down that conviction for the offense of adultery could be based on confessions, creditable testimony, or circumstantial evidence. The maximum punishment to be inflicted for the offense was fixed at thirty-nine stripes and imprisonment with the hard labor of up to seven years. Married women were not to be prosecuted on such charges.
THE CODIFICATION OF THE LAWS
An All India Legislature was created after 1833 and through subsequent reforms, the Indian Penal code in 1860 was enacted. During the period from 1833-1860, the criminal law was enhanced and it was developed that thugs came to be punished with imprisonment for life the hard labor, the concept of slavery was declared to be non-recognizable in any court of the company, transportation for life for dacoits was introduced with imprisonment for any shorter term with hard labor. It may also be mentioned punishments prescribed for offenses by the British Administrators were very strict in nature at first, with an intent to suppress crime. But as society stabilized, and law and order situation improved, and the incidence of crime lessened, liberalizing tendencies set in and the rigors of punishment were somewhat mitigated.
THE INDIAN PENAL CODE 1860
The government in Britain in 1833 appointed a commission known as the „Indian Law Commission‟ to inquire into the jurisdiction, powers, and rules of existing courts and to make reports setting forth the results of the inquiries and suggesting reforms. The law commission worked on the developments of Anglo-Indian Codes from 1834 to 1879 and one of the most important contributions of the First Law Commission was submitted by Macaulay in 1837 as the Indian Penal Code which was passed into law in 1860. Another important law that was codified was the code of criminal procedure. When it was first passed in 1861, the Code of Criminal Procedure fiercely guarded “privileges” or “rights” as they were alternatively described as and made the law both a symbolic and an actual marker of imperial power The code secured the legal superiority of “European-born British subjects” by reserving to them special privileges such as the right to a jury trial with a majority of European jurors, amenability only to British judges and magistrates, and limited punishments, all this while maintaining and displaying European power and prestige. As Legislative Council Member Thomas was of the view that whether the planter gets justice or not at the hand of the Native Magistrate is rather a secondary consideration; the mere fact of his having, on some trifling charge, had to appear before and be tried by a Native Magistrate, of the same caste and family. The codification of such law of the criminal motion established a structure in the Legal System of India and it continued to dominate through the years of British Rule in India.
CRIME IN PRESENT ERA
Initially, criminal law preserves public order and morality. Then the phase of civilization comes, during that period also, criminal law was plain and crime was simple and limited in nature. The jurisprudence today knows that no crime can be committed unless there is a mens rea and actus reus. Almost all the crime requires proof of a mental element of some sort. Some court has held that all crime exists primarily in the mind. Every offense requires a particular state of mind expresses in the particular provision of the law by the words, ‘with intention’, ‘recklessly’, ‘unlawful’, ‘malicious’, ‘willful’, ‘knowingly’, ‘knowing or believing’, ‘fraudulently’, ‘dishonestly’, ‘corruptly’ etc. there is the various state of mind which are different from each other. However, these all states of mind are coming under the fundamental tenets of criminal liability. Due to the technical development, human activities are subjected to statutory liability whenever any person performs an act though he is not having any special state of mind, as required in the initial period, then also still he is criminally liable. This is called strict liability; a statute imposes such a liability.
Thus, criminal law has evolved from the times immemorial to the cyber age and is being developed constantly. It should not forget that criminal law is an instrument of criminal law that is gearing up for a revolution. This revolution gives a common way to commit a crime without going to a particular place that is the computer. In present days the offenses regarding money or documents can be committed by way of a computer or by using cyberspace or by trespassing the authorized cyberspace without the permission of the concerned person or legal occupier. It means the criminal law though not change along with the time but the way of committing the same crime has undergone a change.
The essential object of criminal law is to protect society against criminals and law-breakers. For this purpose, the law holds out threats of punishments to prospective lawbreakers as well as attempts to make the actual offenders suffer the prescribed punishments for their crimes. Therefore, criminal law, in its wider sense, consists of both the substantive criminal law and the procedural (or adjective) criminal law. Substantive criminal law defines offenses and prescribes punishments for the same, while the procedural law administers the substantive law.
- Criminal Justice system, Science Direct, available at: https://www.sciencedirect.com/topics/psychology/criminal-justice-system , last visited on 23rd March, 2021.
- The Criminal Justice System, Introduction to Sociology, Lumen Learning, available at: https://courses.lumenlearning.com/wm-introductiontosociology/chapter/the-criminal-justice-system/ .
- History of Criminal Law Procedure and Criminal Justice Reforms in India, Legal Service India, available at: http://www.legalserviceindia.com/legal/article-2096-history-of-criminal-law-procedure-and-criminal-justice-reforms-in-india.html#:~:text=By%20the%2018th%20century%2C%20European,govern%20a%20group%20of%20people.
- Evolution of Criminal Justice Systems, Criminal Lawyer group, available at: https://www.criminallawyergroup.com/the-evolution-of-criminal-justice/ .