The Penal Code, which became law in 1860, was followed in 1861 by the Code of Criminal Procedure. Substantially, the whole criminal law of British India is contained in these two laws.

6

In regard to the merits of the Indian Penal Code no one can speak with higher authority than Sir James Stephen, and in forming his judgment he has not only had the advantage of his English experience, but of personal knowledge gained by observation in India. He has pronounced it to be by far the best system of criminal law in the world,' and I cannot doubt that he is right in his prediction that it will prove the most remarkable and lasting monument of Lord Macaulay, its author. The authority of his other writings is hardly as indisputable as it was, but his Penal Code has (in Sir James Stephen's words) ' triumphantly supported the test of experience for upwards of twenty-one years, during which time it has met with a degree of success which can hardly be ascribed to any other statute approaching the same dimensions.'

I cannot do better than continue my quotation :

'The Indian Penal Code may be described as the criminal law of England freed from all technicalities and superfluities, systematically arranged, and modified in some few particulars (they are surprisingly few) to suit the circumstances of British India. . It is practically impossible to misunderstand the Penal Code, and, though it has been in force for more than twenty years, and is in daily use in every part of India by all sorts of courts and amongst communities of every degree of civilisation, and has given rise to countless decisions, no obscurity or ambiguity worth speaking of has been discovered in it. . . . Since its enactment it has been substantially the only body of criminal law in force in India, though a few other statutes contain penal provisions on various special subjects. I have already expressed my opinion that the Indian Penal Code has been triumphantly

success.

successful. The rigorous administration of justice of which it forms an essential part has beaten down crime throughout the whole of India to such an extent that the greater part of that vast country would compare favourably, as far as the absence of crime goes, with any part of the United Kingdom, except perhaps Ireland in quiet times, and apart from political and agrarian offences. Apart from this, it has met with another kind o Till I had been in India I could not have believed it to be possible that so extensive a body of law could be made so generally known to all whom it concerned in its minutest details. I do not believe that any English lawyer or judge has anything like so accurate and comprehensive and distinct a knowledge or the criminal law of England as average Indian civilians have of the Penal Code. Nor has all the ingenuity of commentators been able to introduce any serious difficulty into the subject. After twenty years' use it is still true that any one who wants to know what the criminal law of India is has only to read the Penal Code with a common use of memory and attention.''

Until 1861 the Supreme Courts established by Royal Charter in Calcutta, Madras, and Bombay exercised original criminal and civil jurisdiction over all classes within the limits of the three Presidency towns. The principal criminal and civil courts established by the Company's Government in the Mofussil (as everything outside the Presidency towns was termed) were called respectively the Sudder Nizámat and Sudder Diwáni Adálat. They were the supreme courts of appeal, and capital sentences were referred to the Nizámat Adálat for confirmation.

In 1861 these Supreme and Sudder courts were abolished by Act of Parliament, and in substitution for them High courts with both criminal and civil jurisdiction were established, one for each of the provinces of Bengal, Madras, Bombay, and the North-Western

1 History of the Criminal Law, vol. iii. p. 332.

2 24 and 25 Vic. c. 104.

Provinces. For parts of India not included in either of those provinces, High courts were formed under other names by the legislative authority of the Government of India; in the Punjab there is a Chief court, with three judges; in the other provinces the chief appellate authority is an officer called the Judicial Commissioner. The judges of the High courts are partly English barristers and partly members of the Indian Civil Service, and there are usually in each court one or more Native judges chosen from the Native judicial service or from the pleaders. The High courts in each province are the courts of appeal from the District courts, criminal and civil, and their decisions are final, except in certain civil cases in which an appeal lies to the Judicial Committee of the Privy Council in England. Sentences of death require the confirmation of the High court.

The High courts exercise constant supervision over all the subordinate courts. Elaborate returns are regularly sent to them at short intervals, showing in great detail the business disposed of, and, as the whole of the evidence in every case, or a memorandum of its substance, has to be taken down by the judges or magistrates with their own hands, and a record made of every order that is passed, the High courts are able, by examining the returns, by sending for proceedings, and by calling for explanations, as well as from the cases that come before them in appeal, to keep themselves acquainted with the manner in which all the courts are discharging their duties.

The Code of Criminal Procedure, which became law in 1861, has been recast and amended from time to time, but in essential respects it has not been much altered. It is in force throughout British India, although

a few of its provisions have, in some parts of the country, been modified to meet special requirements. Among all the laws of India there is no one more important than this, which regulates the machinery by which peace and order are maintained, and by which crime is prevented and punished. It describes the constitution of all the criminal courts; it defines the powers which each court can exercise; it classifies the offences under the Penal Code or other laws which each judge or magistrate can try; it regulates the manner in which police investigations are to be carried on; the powers of the police to make arrests with or without the warrant of a magistrate; the proceedings to be taken for keeping the peace and for preventing unlawful assemblies; for the removal of public nuisances; the manner in which accused persons are to be brought before the magistrate, in which inquiries and trials are to be held, in which evidence is to be heard and recorded, in which commitments to the superior courts are to be made; it contains rules for the trial of cases with juries and assessors, for the admission of appeals, for the revision of sentences and orders by the superior courts, and for many other matters more or less directly connected with criminal procedure. As Sir James Stephen said in one of his speeches in India, this code is really the principal means through which the practical everyday business of governing the empire is carried on. The system which it lays down is complete, efficient, and successful.

In every province there are a certain number of divisions, in each of which a Court of Session is established, presided over by a Sessions judge. Additional, joint, and assistant Sessions judges may be appointed. Every sessions division consists of a certain number of

districts, to each of which a magistrate, called the District magistrate, is attached. Any number of subordinate magistrates that may be required are appointed in the district, subject to the general control of the District magistrate. In the towns of Calcutta, Madras, and Bombay there are magistrates called Presidency magistrates. To enable a magistrate or judge to exercise jurisdiction over European British subjects, he must be appointed a justice of the peace, and a justice of the peace must himself be a European British subject. There are certain exceptions to this rule. The judges of the High courts, the Sessions judges, District magistrates, and Presidency magistrates are justices of the peace ex officio, and the law does not require that they shall be European British subjects.

A High court may pass any sentence authorised by the Penal Code or other law. All trials before the High court are by jury.

A Sessions judge may pass any sentence authorised by law, but sentences of death are subject to confirmation by the High court. All trials before the Court of Session are either by jury or with assessors.

There are three classes of magistrates:

(1) Courts of Presidency magistrates, and of magistrates of the first class, in which District magistrates are included; they can pass sentences of imprisonment not exceeding two years, and of fine not exceeding 1,000 rupees. In cases which they are not competent finally to decide, they commit for trial to the Court of Session or High court.

(2) Courts of magistrates of the second class. They can pass sentence of imprisonment not exceeding six months, or of fine not exceeding 200 rupees.

(3) Courts of magistrates of the third class. They