The Need to Revamp the Penal Code: An Appraisal

The Need to Revamp the Penal Code An Appraisal
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INTRODUCTION

The Penal Code was enacted as back as far in 1860 being Act No. XLV of 1860. It has defined the offences and prescribed separate punishment for each offence. With the changes in society, perspectives of people, and the nature of crimes, the laws need to evolve as well. Minor amendments have been made to the Penal Code, but no substantive revisions. Some of the concepts underlying the 1860 code are either problematic or have become obsolete. This fact necessitates the identification of crimes and areas that need reforms. This article attempts to briefly outline the principles for criminal justice reforms, explore the regions of the Code where reforms are required, standardize punishment where it is uneven, and prescribe necessary adjustments to the issues encountered.

PRINCIPLED ROAD MAP FOR REFORMS1

First, in revising legislation to recognize the rights of crime victims, victimological underpinnings should be given a considerable push. Second, the construction of new offenses and the reworking of existing offense categorization must be driven by criminal law principles that have changed considerably over the last decades. For instance, liability questions in offences needs to be revisited. To apportion the severity of punishments, criminal liability might be evaluated better. Other facets of restorative and reformative justice, as well as new sorts of penalties, might be incorporated.

Third, the layout of chapters and offense categorization can be drastically reworked. Chapters of the PC are overloaded at several places. Offences like criminal conspiracy, sedition, offences against coin and stamps etc. must be abolished or replaced. Even the chapters on offences against public servants, contempt of authority, public tranquility, and trespass can be redefined and narrowed. New offences under a fresh classification scheme can be introduced. The classification of offenses must be done in a manner that facilitates future crime management.

SUGGESTED MODIFICATIONS

Acid Attack

Acid throwing is an extremely violent crime by which the perpetrator of the crime seeks to inflict severe physical and mental suffering on the victim. Furthermore, an acid attack has long-lasting consequences on the life of the victim who faces trauma, perpetual torture, permanent damage and other problems for the rest of life. The Penal Code does not recognize acid attack as a separate offence. The offence should not be clubbed under the provisions of grievous hurt which is punishable with 7 years of imprisonment. Section 326 has a pretty stringent meaning to deal with the issue of acid attack for (a) it doesn’t cover a variety of many injuries caused by the acid attack; (b) this section does not cover the act of managing acid attacks, i.e., planning it’ (c) this provision makes no mention of who should be awarded penalty; (d) it does not punish the intentional act of throwing of acid if no injuries occur.2

A new provision shall be inserted to include acid attack as separate offense punishable with imprisonment of not less than ten years but may extend to life imprisonment with fine.

Trafficking

The Penal Code does not define trafficking comprehensively since it only criminalizes trafficking for the purpose of prostitution. Sections 366A & 366B were incorporated in the Penal Code to effectuate the certain article of the International Covenant for the Suppression of Trafficking in Women and Children and to punish people involved in the export and import of girls for the purpose of prostitution. A new phenomenon termed as ‘reverse trafficking’ has also emerged in Bangladesh where instead of trafficking women; pedophiles visit the countries which are vulnerable to trafficking.3

Trafficking shall include other form such as forced labor, being used as a jockey, subjugation and removal of organs within its meaning.

Sections 140, 160, 171, 171-H, 171-I, 174, 185, 186, 187, 277, 278, 280, 282, 283, 284, 285, 286, 290, 323, 336, 337, 342, 352, 491, 510

The value of money has depreciated to a very great extent since the inception of these provisions about 162 years ago. These provisions impose fines which is nominal in the present context. They all shall be amended to include unlimited fine and henceforth, the phrase be “and shall also liable to fine”.

Section 272, 273, 274, 275, 276

Section 272-276 deals with punishment for adulteration and sale of food, drink or drug. The consequences of adulteration are two-fold for the consumers: the economic loss by paying more for lower-quality items and the health hazards.4 Adulterated consumables damage the natural expectancy of human life guaranteed by the Constitution of Bangladesh, and their producers and marketers are enemies of civilization and mankind. The problem has become so epidemic in scale that none is going to remain unaffected by it, especially the next generation. The prescribed punishment for adulteration and sale of food, drink or drugs are insufficient in light of the present situation. Given the deterioration of business ethics and morale, the Special Powers Act of 1974 has introduced a new provision section 25C inflicting heavier punishment. Therefore, these provisions have become obsolete and shall be omitted.

Section 304B

This provision has prescribed a punishment of three years imprisonment or fine or both for an offence of causing death of any person by rash and negligent driving of any vehicle or riding on any public way. The provision was added to the Penal Code by Ordinance No. X of 1982, making the offense punishable by fourteen years in prison and making it non-bailable. Following a push by bus-truck owners and drivers, Ordinance No. XXI of 1984 was passed to replace the sentence with seven years. The penalty was further reduced to three years in 1985 and the offense was made bailable. The High Court in 2014 observed that reducing the penalty for reckless driving that causes the death of others is disproportionate and unreasonable compared to the offenses.8

According to a report of Road Safety Foundation (RSF), as many as 6,284 people, including 927 women and 734 children, were killed in 5,371 reported road accidents across the country in 2021.9 Road accidents claimed more lives than Covid-19 death toll. The number of accidents has increased by 43% between 1982 and 2000, while the number of fatalities has increased by around 400% within the same period.10 Reckless driving and negligence have been key causes amongst others. In such a prevalent situation, it is recommended that this penalty be enhanced to at least seven years, with a maximum penalty of 10 years.

Section 309

Section 309 penalizes an attempt to commit suicide. Looking at the offense of attempting to commit suicide, it has been rightly observed by an English writer11:

“It seems a monstrous procedure to inflict further suffering on even a single individual who has already found life so unbearable, his chances of happiness so slender, that he has been willing to face pain and death in order to cease living. That those for whom life is altogether bitter should be subjected to further bitterness and degradation seems perverse legislation.” It is thus proposed to omit the section since such individuals need active compassion from society instead of condemnation.

Thug

The definition and punishment of a thug are detailed in sections 310 and 311. These provisions were inserted in 1860 in response to the societal settings prevalent at that time. However, a period of more than a century and a half has elapsed since then, and such a clause has become a dead letter at present.

Sections 310 and 311 shall be omitted.

Section 335

Section 334’s one-month penalty is inappropriate since short-term penalties serve no purpose. The penal provision may be amended to enhance the term to three months and the fine to Tk. two thousand.

Section 338A

Section 338A stipulates that inflicting grievous hurt by rash driving or riding on a public route in such a reckless or negligent manner as to risk human life or the personal safety of others is punishable by imprisonment of either kind for a term up to two years, fine, or both. This penal provision is incompatible with section 279, which makes the likelihood of causing harm or injury or jeopardizing human life by such driving punishable with up to three years in imprisonment. Moreover, the Road Transport Act, 2018 provides punishment of imprisonment up to three years and fine up to three lacs for risking human life due to over speeding or reckless riding. The penalties offered must be proportionate with regard to the hierarchy of stages of crime and hence, the term under section 338A either shall be prolonged up to five years or be omitted after providing for heavier punishment in the RTA.

Section 354

Currently, “assault or use of criminal force to a woman with the intent to outrage her modesty” is punishable under Section 354 of the Penal Code with 2 years of imprisonment. The offense should be well defined so as to include all forms of non-consensual non-penetrative sexual contact.

Section 361

According to this section, if a person takes away or entices a minor (i.e., a boy under the age of 14 years and a girl under the age of 16 years) or a person of unsound mind, away from his/her lawful guardian without the guardian’s consent, then that person commits the offence of kidnapping from lawful guardianship.

A 2013 study published in Cerebral Cortex agrees with the notion that men take longer to ‘act their age’ than women do.12 Males ideally use one hemisphere of their brains compared to a woman who uses the centers of both hemispheres.13 Maturity is in the brain of the beholder – but because female brains get pruned faster than males’ ones, that is why it takes a little longer for men to mature. The legal age of women at first marriage is 18 years in Bangladesh, and she remains at the care of her guardianship till such age. It is therefore advocated that the age of male and female be substituted with sixteen and eighteen years.

Kidnapping, abducting or maiming of a minor for the purpose of begging

A new section may be inserted regarding such to prevent the cruelty to minors under 18 years and making beggars of them. The executors of this heinous trade intentionally impair healthy children in various cruel methods and force them to get into beggary.14 According to norms practiced by mafia leaders, abducted children are first made dependent on drugs or alcohol before sent on the streets to desperately beg all day long in the hopes of receiving something that their addicted bodies and minds require.15 The likewise provision have long been adopted to the Indian Penal Code as section 363A. The prescribed punishment is imprisonment of either description which may extend to 10 years but not less than 3 years, and shall also liable to fine.

Sections 370, 371

Slavery and slave trafficking are no longer prevalent. Nevertheless, section 370 may be retained as a deterrent. Section 371, which punishes slave trading on a habitual basis, is unnecessary and may be omitted.

Section 373

There are differing opinions16 on whether section 373 applies perhaps to acquiring possession of a minor from a third party. For the beneficial purpose of this section, a proviso may be inserted underlying “it is not required that such possession should have been obtained from a third person”.

Section 375

Under the third clause of section 375, the consent of the woman is vitiated only when she has been put in fear of death or bodily hurt to herself. The clause does not extend to a case where death or grievous hurt is threatened to someone else present on the spot e.g., woman’s child, parent, or husband, and she is thereby compelled to submit to sexual intercourse. This clause shall be amended to hold such consent as a vitiated one.

Under the fifth clause, it is rape for a man to have sexual intercourse with a girl, not being his wife, who is over twelve years but less than sixteen years of age, even when she has consented. This offence need not be equated to and punishable as severely as, rape. It sometimes happens in such cases that the man has been led to believe, and in good faith believes, that the girl is over fourteen.17 It is advocated that this offense may be dealt with in a different section, the prescribed punishment may extend to seven years, and a defense of bona fide mistake as to age should be added in a proviso.

‘Marital rape’ is not recognized in the Penal Code. Under the exception, a husband cannot be guilty of raping his wife if she is above 13 years of age. This falls to take note of one special situation, when the husband and wife are living under judicial separation. In such case, if the husband has sexual intercourse with her against her will and consent; he cannot be charged with rape because marriage technically subsists.18 Moreover, the punishment for statutory rape is two years when the wife is between 12 and 13 years of age. It is proposed that such exception be

deleted and a new section is inserted terming such offense as ‘marital misbehavior’. The age limit shall be elevated to under 16 years and prescribed punishment is two-folded: (a) if under twelve, imprisonment for a term up to three years, or fine or both (b) in any other case, with a term which may extend to two years, or fine or both. The prosecutions for this offence are very rare.

Marriage between legal aged individuals, which has been legally entered into, is seen as irrevocable consent to sexual intercourse with the husband through the contract of marriage, which the wife could not subsequently withdraw. It is therefore advocated that marital rape or misbehavior, whatever it is, with females above the major age cannot be made a criminal offence as it could become a phenomenon that may destabilize the institution of marriage and an easy tool for harassing the husbands.

Attempt to Rape

The Penal Code does not recognize the offense of attempt to rape. The Supreme Court of  India has opined in a case that a man who is caught preparing to rape a woman cannot be  charged under section 376; he also cannot be charged with attempted rape under section 511.19 In another case, the Court held that since the acts of the respondent exceeded the stage beyond preparation and preceded the actual penetration, he was guilty of attempting to commit rape.20 Attempt shall be punishable because even an unsuccessful commission of offence is preceded by mens rea, moral guilt, and its depraving impact on the societal values is no less than the actual commission.

A new provision shall be inserted to criminalize the act of attempt to rape, or the provision of section 354 or section 511 shall be amended to include such act within its meaning. It has to be satisfied to constitute such offense that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all

events, and notwithstanding any resistance on her part.21 The prescribed punishment is imprisonment of either description for a term up to seven years and fine.

Section 377

It deals with unnatural offences, including buggery and bestiality. The punishment provided for homo-sexual acts as severe as that for rape appears to be excessive, since it falls within the sphere of private immorality.22 Nevertheless, the Bangladeshi society, by and large, disapproves of such acts and that is strong enough to justify it being treated as a criminal offense. The provision shall be amended to include a maximum custodial sentence of seven years.

Section 385

Section 385 also deals with extortion by putting a person in fear of injury punishable with imprisonment of fourteen years, which shall not be less than five years, or with fine, or with both. Where the period of imprisonment is so prolonged, the phrase “or with fine, or with both” appears to be paradoxical.

The phrase “or with fine, or with both” should be substituted with “and shall also be liable to fine”.

Section 386

Section 386 deals with extortion by putting any person in fear of death or of grievous hurt punishable with imprisonment of ten years with fine. This ten-year sentence under Section 386 appears to be incompatible with Section 385, notwithstanding the fact that the severity of offence under 386 is greater than that under 385. In light of this, it is recommended that the ten-year sentence under section 386 be extended to fourteen years.

Sections 398 & 399

Stages of commission of a crime include:

  1. Mens Rea (intentionn to commit),
  2. Preparation to commit, and
  3. Attempt to commit.

Attempt starts where preparation comes to an end, though it falls short of actual commission of the crime. The minimum punishment for preparation to commit dacoity need not be as heavy as ten years, whereas attempt to commit such is punishable with at least seven years. Hence, section 399 may be amended to reduce the minimum term to five years.

Section 408

This clause dealing with breach of trust by clerk or servant may be brought into line with section 381.23 Therefore, it shall be omitted.

Sections 426, 427, 428

The maximum punishment for mischief in its simple form under section 426 may be increased to two years. When this is done, there will be little need to regard mischief causing damage to the amount specified as an aggravated form of offense. Sections 427 & 428 are to be omitted.

Section 429

The phrases “or any animal of the value of fifty taka” and “or any other animal of the value of fifty taka or upwards” shall be deleted from the title and inside as well.

Section 435

It is hardly necessary to fix the very low limit of monetary amount. Hence, the phrase “damage to amount of one hundred or (in case of agriculture procedure) ten taka” may be substituted with “damage of amount equivalent to considerable monetary worth amounting to substantial loss”.

Section 494

The phrase “having a husband or wife living” was natural at a time when divorces were rare and bond of marriage subsisted until death of one party to the marriage severed it.24 Bigamy shall be redefined to include where a married person contracts another marriage in any case in which such marriage is void by reason of its taking place during the subsistence of earlier marriage.25

Section 497

Section 497 of the Penal Code, 1860 perceives consensual intercourse between a man, married or unmarried, and a married woman without the consent or connivance of her husband as an offense of adultery. Surprisingly, the law does not penalize women in adultery, even as accomplices. An offense of adultery can be charged only against a male and on a complaint made by the husband of the adulteress and nobody else.

Some practical complexities arise. When both woman and man are married, there should be two victims, i.e., husband of the adulteress and wife of adulterer. Under the present section, only a male victim (husband of adulteress woman) can sue another male (the adulterer) as offender. Surprisingly, neither the adulteress herself cannot be sued nor the wife of adulterer cannot sue her husband or the adulteress. In addition, a Bangladeshi Court held that adultery cannot be committed with unmarried woman, widows or prostitutes.26

Adultery is basically an act of having sexual relations outside marriage and section 497 has shown that it is not gender neutral.27 This contradicts with Bangladeshi Constitution. It indirectly denounces the legal personality of women.28 In light of the preceding, an amendment shall be made to put women on an equal footing with males. Women should be punishable with men and should have the right to file a case for adultery. This clause must be expanded to the hitherto excluded category of women to ensure that the wife of an adulterer gets the justice.

Section 509

Section 509 deals with insulting a woman’s modesty by gesture and posture, or by uttering words, or exhibiting any object, and the penalty is merely one year. Needless to say, the colonial law’s flawed wording fosters sexist preconceptions and unwarranted debates about a woman’s ‘modesty’, which might end up victimizing her rather than protecting her.29 Approximately 84 percent of Bangladeshi women bear the brunt of sexual harassment at almost every aspect of their daily lives, including on the road, in vehicles, at educational institutions, at work, and even at home.30

A nationwide survey reveals that during the course of pandemic, the majority of women were subjected to unsolicited sexual advances, inappropriate sexually explicit behavior (directly or in gestures), suggestive comments, and sexual abuse at the workplace.31 Overall, 76.30 percent of those surveyed indicated they had been sexually harassed more than once.32 The distinctive socio-cultural circumstances of Bangladeshi culture hinder the idea of women as equals, and the majority of women either accept harassment as a part of life with which they must live or ascribe guilt to themselves.33

Therefore, it is advocated that the mischief of ‘sexual harassment’ shall be defined in light of the HCD’s observations34 and the one-year sentence under this clause be elevated to three years. The infraction of institutional responsibility to prevent and redress sexual harassment of women in the workplace35 and educational institutions shall also be punishable with fine.

CONCLUSION

In 1860, the Penal Code was ahead of its time but it has not kept pace since. It is a well-known fact that law has to grow with the times in order to become more rational and practical-oriented as well as consistent with the progression of time. With evolving socio-economic settings and technological breakthroughs, it is necessary to redesign this ancient law and revise it on a regular basis. Finally, the urgency of reforming the Penal Code by introducing comprehensive legislation in Parliament rather than bringing about piecemeal changes is emphasized.


Reference:


1 G.S. Bajpai and Ankit Kaushik, ‘A Road Map For Criminal Justice ReformsThe Hindu (2019) accessed 9 May 2022.

2226Th Report On The Inclusion Of Acid Attacks As Specific Offences In …’ (Indiankanoon.org) accessed 7 May 2022.

3 Forced Prostitution and Human Trafficking in Bangladesh: A Critical Analysis of Legal and Infrastructural Framework (London College of Legal Studies (SOUTH)) accessed 8 May 2022.

4 Sharifa Nasreen & Tahmeed Ahmed. (2014). Food adulteration and consumer awareness in Dhaka City, 1995- 2011. Journal of health, population, and nutrition, 32(3), 452–464.

5Ibid.

6 TBS Report, ‘‘Adulterated And Counterfeit Drugs Are Worse Than Fake Covid-19 Reports’’ The Business Standard (2020) <https://www.tbsnews.net/bangladesh/health/fake-drugs-producers-should-be-awarded-death- penalty-speakers-109180> accessed 7 May 2022.

7 The High Court was of similar view to award life imprisonment or death penalty in a writ filed by the DG of Drug Administration.

8 Md Zakir Hossain, ‘A Potential Game ChangerDhaka Tribune (23 November 2019) accessed 7 May 2022.

9 UNB News, ‘Perilous Roads In Bangladesh; 6,284 Killed In 2021: RSFUnited News of Bangladesh (Dhaka, 8 Januray 2022) accessed 7 May 2022.

10 Louis Burger Group-BCL. Strategic Transport Plan. Dhaka Transport Coordination Board, Ministry of Communications, Government of Bangladesh. (2005). (draft).

11 H Romilly Fedden: Suicide (London, 1938), page 42.

12 Sol Lim and others, ‘Preferential Detachment During Human Brain Development: Age- And Sex-Specific Structural Connectivity In Diffusion Tensor Imaging (DTI) Data’ (2013) 25 Cerebral Cortex.

13 Kayla Denke, ‘Girls’ Brains Mature Faster Than Boys’: Fact Or Fiction?The Hiller (2021) accessed 8 May 2022.

14 Helal, M. A. (2011) “Street Beggars in Dhaka” Daily New Age Published on October 5, 2011

15 Md. Al Helal & Kazi Kabir. (2013). Exploring cruel business of begging: the case of Bangladesh. Asian Journal of Business and Economics, 3(3.1).

16 The Bombay and the Patna High Courts have taken a wider view, while the Madras and Calcutta High Courts took a narrower view.

17 Supra note 20. at 277

18 Ibid.

19Attempt To Rape Is Not A Crime: SC‘ (DNA India) accessed 8 May 2022.

20 Prachi Bhardwaj, ‘What Amounts To Attempt To Rape? Supreme Court Explains In A 2005 Attempted Rape Of Minor Girls‘ accessed 8 May 2022.

21 Koppula Venkat Rao vs. State of A.P, (2004) 3 SCC 602

22 42nd Report on the Indian Penal Code by Law Commission of India (June, 1971)

23Ibid. at 292.

24 Supra note 20. at 320

25 Ibid.

26 Nurul Huq Bahadur v. Bibi Sakina and another [1985 BLD 269]

27     Nidhi      Khare.     2010.     ‘Gender     Biasness     in     the     Law     of     Adultery     in     India’,     available    at, accessed on 28 March 2011; see also M. Alavi v. T.V. Safia, AIR 1993 Ker21.

28    Tazimul    Maruf,    ‘Adultery    Law    In    Bangladesh:    A    Reassessment    For    Contemporary Application‘ accessed 8 May 2022.

29 Taqbir Huda, ‘Sexual Harassment And The Law: Where’S The Problem?The Daily Star (Dhaka, 27 June 2019) accessed 7 May 2022.

30 UNB News, ‘84% Of Women Facing Sexual Harassment’ United News of Bangladesh (Dhaka, 30 April 2021) accessed 7 May 2022.

31 Kohinur Khyum Tithila, ‘Survey: Most Women Face Sexual Harassment At WorkDhaka Tribune (Dhaka, 29 August 2020) accessed 7 May 2022.

32 Ibid.

33 Shahnaz Huda, ‘Sexual Harassment And Professional Women In Bangladesh‘ (2003) 4 Asia-Pacific Journal on Human Rights and the Law.

34 In BNWLA v. Govt. of Bangladesh [29 BLD HCD 415]

35 In Shamsun Nahar vs. British American Tobacco Bangladesh (66 DLR AD 80), a female employee sued the organisation for such failure and its decision to dismiss her instead of the alleged perpetrators. The trial is still pending.


BIBLIOGRAPHY


  • Helal A & Kabir K. (2013). Exploring cruel business of begging: the case of Bangladesh. Asian Journal of Business and Economics, 3(3.1).
  • Huda S, ‘Sexual Harassment And Professional Women In Bangladesh’ (2003) 4 Asia-Pacific Journal on Human Rights and the Law
  • Lim S and others, ‘Preferential Detachment During Human Brain Development: Age- And Sex- Specific Structural Connectivity In Diffusion Tensor Imaging (DTI) Data’ (2013) 25 Cerebral Cortex
  • Nasreen S & Ahmed T. (2014). Food adulteration and consumer awareness in Dhaka City, 1995- 2011. Journal of health, population, and nutrition, 32(3), 452–464.
  • Tithila K, ‘Survey: Most Women Face Sexual Harassment At Work’ Dhaka Tribune (Dhaka, 29 August 2020) <> accessed 7 May 2022.

Author: Shilajit Kumar Roy

Law Discipline,

Khulna University.

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