During the period of 1772 to 1860 Muslim criminal law developed as under:-
1. Reforms by Hastings
In 1772 Warren Hastings made many proposals but made no reform except one viz., a severe punishment was introduced for committing dacoity. It was provided by the Plan of 1772 that the dacoits were to be executed in the village fined and the family of the dacoit were made slave to the State.
2. Reforms by Cornwallis
(i) In 1790 Cornwallis abolished the rule by which a murderer was not liable to capital punishment if he committed the murder by strangling, drowning or poisoning. He abolished the distinction between amd and sabih amd. The intention was made the criterion for making such distinction. The option of the next of kin of the deceased to pardon the murderer was taken away. If the kin had pardoned the murderer or claimed Dyut, he would be tried in Sadar Nizamat Adalat.
(ii) In 1791 Cornwallis replaced the punishment of mutilation of limb by temporary hard labour or fine and imprisonment according to the circumstances of the case.
(iii) In 1792 the law of homicide was modified. The refusal of the kin to prosecute the offender would not be a bar to the trial. By this provision the murderer could not escape the punishment by bribing the kins. The rule which did not permit a Hindu to testify was abolished. The right of the heir of the murdered man, was taken away. Now only the State had the right to take action against the offender.
(iv) In 1793 Cornwallis made only one change i.e., in murder. If the heir of the slain had not attained the age at which he is competent to claim Kisa, the trial was to take as if their was no heir.
(v) In 1797 it was provided that if the person commits a murder wilfully, he would be tried without any reference to his heirs. Diya was substituted by the imprisonment. A sentence for life imprisonment had to be referred to Sadar Nizamat Adalat. The Governor-General-Council was empowered to pardon or mitigate the punishment.
(vi) Reforms from 1799 to 1802 – Regulation of 1799 provided that it would be no justification for a wilful murder that the person slain denied to kill him. In such a case prisoner was to suffer death. The rule that the murderer would not be convicted on the ground that his accomplice was exempt from Kisa Regulation of 1802 declared infanticide punishable as willul murder.
(vii) Changes in the Doctrine of Tazir (1803) – In many cases the penalty imposed had no relationship with the offence. Thus, the discretionary element was abolished. The minimum and maximum punishment for the crimes had been laid down.
(viii) Reform from 1807 to 1832 – By the Regulation of 1807 punishment for perjury and forgery was enhanced. Exemplary punishments were provided through the Regulation of 1808. By Regulation of 1817 the law of adultery was rationalised and modified. It provided that the offence of adultery was made punishable with 30 stripes and imprisonment with hard labour for seven years.
(ix) Reform after 1832 – During the period from 1833 to 1860 only a few changes were made in the criminal law.
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Question
Discuss in detail the development of criminal law in India before the codification of Indian Penal Code, 1860.
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