ABOUT PENAL LAW

• There was no criminal law in uncivilized society. Every man was liable to be attacked in his person or property at any time by any one. The person attacked either succumbed or overpowered his opponent. “A tooth for a tooth, an eye for an eye, a life for a life” was the forerunner of criminal justice. As time advanced, the injured person agreed to accept compensation, instead of killing his adversary. Subsequently a sliding scale came into existence for satisfying ordinary offences. Such a system gave birth to archaic criminal law. For a long time, the application of these principles remained with the parties themselves, but gradually this function came to be performed by the State.
• The Criminal Law of Bangladesh has been codified mainly in the Penal Code and Code of Criminal Procedure; the former code deals specially with offences and states what matters will afford an excuse or defense to a charge of any offence. The Penal Code is the main body of substantive law and the Criminal Procedure Code, the adjective law.
• Prior to 1860, the English Criminal Law, as modified by several Acts, was administered in the presidency-towns of undivided India. In the mufassil, the courts were principally guided the Muslim Criminal Law. The first Indian Law Commission of which Lord Macaulay was the president and McLeod, Anderson and Millet were the commissioners drafted the Penal Code. The drew not only upon English and Indian laws and regulations but also upon Living stone’s Louisiana Code and the Code Napoleon. It under went further revision. On being completed in 1850, it was passed on October 6, 1860.
• The penal Code, however, does not exhaust the substantive Criminal Law of Bangladesh. As such there are special statutes dealing with specific topics, like Arms Act, which penalizes the manufacture possession and sale of firearms save and except under license; the Explosives Act, the Explosive Substances Act, contain comparable provisions in respect of the substances indicated by their titles. The Opium Act and the Dangerous Drugs Act, punished unauthorized possession and dealing in narcotics.
• In the most cases, the Criminal Law recognizes a particular intention or state of mind mens rea as a necessary ingredient of criminal offence. Ignorance of law on the part of an accused person is not accepted as an excuse. The law punishes not only criminal acts but also attempts or conspiracies-steps towards the commission of a crime, which may never take place.
• The classification of crimes may be based on the type of harm done. There are crimes, for example, against the person or individual, such as assault, hurt, rape, kidnapping, murder; offences against property such as cheating, cheating, extortion, theft, robbery and mischief; against state, such as sedition; and against public rights which belong common to all citizen, such as based on the method of trial.
• The Penal Code is a substantive law and the then British rulers enacted it in 1860.We adopted this law with some few amendment after the independence of Bangladesh. It deals with the penal offences. Now some important penal offence will be discussed below.

1.            CULPABLE HOMICIDE            Whoever cause death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

Illustration

A’ lays sticks and turf over a pit, with the intention of thereby causing death, or with the knowledge that death is likely to be thereby caused. ‘Z’ believing the ground to be firm, treads on it, falls in and is killed. ‘A’ has committed the offence of culpable homicide.

2.            MURDER            Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-

2ndly. If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-

3rdly. If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-

4thly. If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Exception 1.

Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, cause the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

            The above exception is subject to the following provisions:-

First. That provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly. That the provocation is not given by anything done in obedience to the law, or by a public servant in a lawful exercise of the powers of such public servant.

Thirdly. That the provocation is not given by anything done in the lawful exercise of the right of private defense.

Illustration

‘A’, under the influence of passion excited by a provocation given by ‘Z’, intentionally kills ‘Y’, ‘Z’s child. This is murder inasmuch as the child did not given the provocation, and the death of the child was not caused by accident or misfortune in doing an act caused by the provocation.

Exception 2.

Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defense of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defense without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defense.

Illustration

‘Z’ attempts horsewhip ‘A’, not in such a manner as to cause grievous hurt to ‘A’. ‘A’ draws out a pistol. ‘Z’ persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped shoots ‘Z’ dead. ‘A’ has not committed murder, but only culpable homicide.

Exception 3.

Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.

Exception 4.

Culpable homicide is not murder if it is committed without premeditation in a sudden fight, in the heat of passion upon a sudden a quarrel and without the offender’s having taken an undue advantage or acted in a cruel or unusual manner.

Exception 5.

Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.

3.            ATTEMPT TO MURDER            Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder.

Illustration

‘A’ shoots at ‘Z’ with intention to kill him, under such circumstances that, if death ensued, ‘A’ is liable to punish for attempt to murder.

4.            ATTEMPT TO COMMIT SUICIDE            Whoever attempts to commit suicide and does any act towards the commission of such offence shall be punished.

5.            HURT            Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.

6.            GRIEVOUS HURT            The following may be defined as grievous hurt

First-            Emasculation.

Secondly- Permanent privation of the sight of either eye.

Thirdly- Permanent privation of the hearing of either eye.

Fourthly- Permanent privation of any member or joint.

Fifthly- Destruction or permanent impairing of the powers of any member or joint.

Sixthly- Permanent disfiguration of the head or face.

Seventhly- Fracture or dislocation of a bone or tooth.

Eighthly- Any hurt which endangers life or which cause the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.

7.            KIDNAPPING            Whoever conveys any person beyond the limits of Bangladesh without the consent of that person, or of some person legally authorized to consent on behalf of that person, is said to kidnap that person from Bangladesh.

Whoever takes or entices any minor male or female or any person of unsound mind, without the consent of such guardian is said to kidnap from lawful guardianship.

8.            RAPE            A man is said to commit ‘rape’ who has sexual intercourse with a woman

(1)               Against her will; or

(2)               Without her consent; or

(3)               With her consent when the consent has been obtained by putting her in fear of death or of hurt; or

(4)               With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is married; or

(5)               With or without her consent when she is under sixteen years of age.

9.            THEFT:            Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is to commit theft.

Illustration

‘A’ cuts down a tree on ‘Z’s ground, with the intention of dishonestly taking the tree out of ‘Z’s possession without ‘Z’s consent. Here, as soon as ‘A’ has severed the tree in order to such taking, he has committed theft.

10.            EXTORTION:            Whoever intentionally put any person in fear of any injury and dishonestly induces the person to put fear or deliver any property or valuable security, commits extortion.

Illustration

‘A’ threatens to publish a defamatory libel concerning ‘Z’ to give him money. ‘A’ has committed extortion.

11.              DACOITY:            When five or more persons conjointly commit or attempt to commit robbery, or where the whole number of persons conjointly committing or attempting to commit robbery, and persons present aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit dacoity.

12.              CRIMINAL MISAPPROPRIATION:            Whoever dishonestly misappropriates or converts to his own use any moveable property, shall be punished with imprisonment of either description for a term which extend to two years, or with fine, or with both.

Illustration

a.‘A’ finds a rupee on the high road, not knowing to whom the rupee belongs. ‘A’ picks up the rupee. Here ‘A’ has not committed the offence of criminal misappropriation.

b.         ‘A’ finds a letter on the road, containing a bank note. From the direction and contents of the letter he learns to whom the note belongs. He appropriates the note. He is guilty of this offence.

13.              CRIMINAL BREACH OF TRUST:            Whoever, being in any manner entrusted with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits criminal breach of trust.

Illustration

‘A’ being executor to the will of a deceased person, dishonestly disobeys the law, which directs him to divide the effects according to the will, and appropriates them to his own use. ‘A’ has committed the offence of criminal breach of trust.

14.              RECEIVING STOLEN PROPERTY            Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as “stolen property” whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without Bangladesh. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property.

15.              CHEATING:            Whoever, by deceiving any person, fraudulently or dishonestly induces the person to so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit anything which he would not do or omit he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.

Illustration

‘A’ , by falsely pretending to be in the Civil Service, intentionally deceives ‘Z’, and thus dishonestly induces ‘Z’ to let him have on credit goods for which does not mean to pay. ‘A’ cheats.

15.              FORGERY:            Whoever makes any false document or part of a document, with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.

Illustration

‘A’ has a letter of credit upon ‘B’ for Tk. 10,000 written by ‘Z’. ‘A’ in order to defraud ‘B’, adds a cipher to the 10,000 and makes the sum 1,00,000 intending that it may be believed by ‘B’ that ‘Z’ so wrote the letter. ‘A’ committed forgery.