The
Penal Code, 1860 is the main substantive criminal code of Bangladesh.
It was introduced replacing the then Islamic Criminal Law to be applied
as a general criminal law for all, Muslims and non-Muslims, alike. The
purpose of the Penal Code was to express a formal social condemnation of
forbidden conduct buttressed by sanction calculated to prevent that.
The code had been rightly remarked as a piece of masterly legislation.
But more than a century and half have elapsed since its enactment and
the nature and scope of criminology and penology have made much progress
since then.
Though amendments have been made in the Penal Code
by modifying some of its sections and adding few others due to
administrative reasons or to bring the law in accord with the
international requirements and conventions, substantially the Code has
remained unaltered during these years. The code, undoubtedly, is an
admirable compilation of substantive criminal law and most of its
provisions were suitable in 1860. But, with the flux of socio-economic
and political changes and the Code requires a thorough revision to make
it more progressive and pragmatic.
Some obsolete offences need
substantial changes to fit into the liberty model. In section 120A,
criminal conspiracy was made a substantive offence in 1913. Criminal
conspiracy postulates an agreement between two or more persons to do, or
cause to be done, an illegal act, or an act, which is not illegal, by
illegal means. It differs from other offences in that, here mere
agreement has been made a crime, even if, no step is taken to carry out
that agreement.
Again, sections 370 and 371 prescribe for
offences related to slavery, the practice of which has now become
superfluous. Similarly, liability under 'common object' in section 149,
under the principle of 'constructive liability,' has been pushed to
unduly harsh lengths as mere membership of the unlawful assembly without
any participation in the actual crime, has been made punishable.
Another
polemic provision of the Penal Code is the section 124A, sedition,
which was incorporated, to stop 'hatred or contempt" against the
monarch, her heirs, the government or its officials. But in a modern
democratic country like Bangladesh, section 124A is simply an old
fashioned and outrageous provision that works as an impediment to
freedom of thought, conscience and expression. Recently, the UK
parliament abolished the offences relating to seditious libel. But, how
long will we embrace such a silent killer?
Distinction between
'culpable homicide' and 'murder' is also criticised as the 'weakest part
of the code' as definitions are obscure. 'Culpable homicide' is defined
in section 299, but 'homicide' is not defined at all. Indeed, 'culpable
homicide', the genus, and 'murder', the species, are defined in terms
so closely resembling each other that it is really difficult to
distinguish them. Moreover, sections 493, 497 and 498, offences relating
to marriage, clearly prove gender discrimination. Nevertheless, the
penal code attaches undue importance to the protection of property.
More
than 100 sections deal with property and the code, even, give the right
to kill not only to protect one's property but also to safeguard the
property of others and the code goes out of the way to protect just
'possession' and does not care for 'ownership'.
On the other
hand, there are many special laws which deal with some offences
specifically. But, in some cases, same act or omission has been made
punishable under both Penal Code and special act and sometimes,
surprisingly, different punishments have been provided. Such diversity
in punishment gives the prosecutor ample opportunity to discriminate the
wrongdoer while prosecuting. Likewise, many offences with slight
verbal alterations frequently occur in many special acts; hence, there
is a need for harmonisation between the Penal Code and those special
laws.
Now, the time has come to thoroughly examine the
substantive criminal laws and to streamline them. So, as far as
possible, the same act or omission should not be made punishable,
ordinarily, under two or more provisions of law, especially when
different punishments are provided. Obsolete and superfluous provisions
need to be deleted. Moreover, same set of offences being spread over in
many sections can be regrouped into one section per set, for instance-
Sections 131 to 135; 224, 225 and 225B; 284 to 289; 312 and 313 etc. and
the punishment prescribed may have to be re-examined. Scope of Section
75 should be extended to cover the whole code.
Amount of fine
should be considered according to the socio-economic condition.
Stringent provision regarding medical negligence is badly needed.
Nevertheless, legal age of a wife in sections 375 and 376 needs to be
examined. New modes of punishment like, prohibition from holding public
offices, community service, public censure, reparation by the offender
in terms of compensation, prohibition from practicing a profession for a
period etc. can be introduced.
In 21st century, criminal
legislation has become diverse and somewhat unscientific. It needs
reformation. Because, a criminal legislation like Penal Code must
reflect the changing nature of society, both domestically and
internationally, in order to remain relevant and to effectively and
efficiently deliver justice.
The writer is a Student of LLM, Department of Law, University of Chittagong
