Elaborate provision is made for the prevention of offences, as regards security for keeping the peace and for good behaviour, the dispersion of unlawful assemblies, the suppression of nuisances, disputes as to immovable property, which in all Oriental countries constitute one of the most frequent causes of a breach of the peace.
Ample provision is thus made for the prevention of offences, and the code next deals with the mode of prosecution of offences actually committed.
As a general rule, every offence is inquired into and tried by the court within the local limits of whose jurisdiction it was committed. Differing from the practice of continental countries, all offences, even attempts, may be prosecuted after any lapse of time. As in England, there is no statutory limitation to a criminal offence.
A simple procedure is provided for what are called summons cases, as distinguished from warrant cases—the first being offences for which a police officer may arrest without warrant, the second being offences where he must have a warrant, or, in other words, minor offences and important offences. In summons cases no formal charge need be framed. The magistrate tells the accused the particulars of the offence charged; if he admits his guilt, he is convicted; if he does not, evidence is taken, and a finding is given in accordance with the facts as proved. When the complaint is frivolous or vexatious, the magistrate has the power to fine the complainant. The code gives power of criminal appeal which goes much further than the system in England.
In cases tried by a jury, no appeal lies as to matters of fact, but it is allowed as to matters of law; in other cases, criminal appeal is admitted on matters of law and fact.
In addition to the system of appeal, the superior courts are entrusted with a power of revision, which is maintained automatically by the periodical transmission to the High Courts of calendars and statements of all cases tried by the inferior courts; and at the same time, whenever the High Court thinks fit, it can call for the record of any trial and pass such orders as it deems right. All sentences of death must be confirmed by the High Court. No appeal lies against an acquittal in any criminal case. This system of appeal, superintendence and revision would be totally inapplicable to England, but it has proved eminently successful as applied to the present social condition of the inhabitants of India. The appeals keep the judges up to their work, revision corrects all grave mistakes, superintendence is necessary as a kind of discipline over the conduct of judges, who are not subjected, as in England, to the criticism of enlightened public opinion.
These Indian codes form the basis of the penal, &c., codes in force in Ceylon (superseding there the Roman-Dutch law), the Straits Settlements, the Sudan and the East Africa protectorates.
It has already been stated that most European states have codified their criminal law. The earliest of continental codes is that of Charles V., promulgated in 1532, and known as Constitutio Criminalis Carolina. Austria made Foreign codes. further codes in 1768 (Constitutio Criminalis Theresiana) and 1787 (Emperor Joseph’s code). A new code was framed in 1803, and amended in 1852 by reference to the Code Napoléon; and in 1906 a completely new code existed in draft. The Hungarian penal code dates from 1880. The Bavarian code of 1768 of Maximilian, revised in 1861, and the Prussian code of 1780, have been superseded by the German penal code of 1872.
The most important of the continental criminal codes are those of France, the Code Pénal (1810) and the Code d’Instruction Criminelle (1808)—the work of Napoleon the Great and his advisers, which professedly incorporate much of the Roman law.
The Belgian codes (1867), and the Dutch penal code (1880), closely follow the French model. In Spain the penal code dates from 1870, the procedure code from 1886. The Spanish American republics for the most part also have codes. Portugal has a penal code (1852). In Italy the procedure code and the penal code, perhaps the completest yet framed, are of 1890. The Swedish code dates from 1864. The Norwegian code was passed in May 1902, and came into force in 1905. Japan has a code based on a study of European and American models; and Switzerland is framing a federal criminal code.