According to Collins dictionary, Penal Laws or Penal Codes of a country consist of all laws related to crime and punishments. In this article, we will talk about the historical background of Penal laws in Germany, India and Canada respectively.
We will further discuss the Jurisdiction of these courts in criminal cases followed by theories of Punishments in Penal laws.
Historical Background
The Indian legal code was first drafted by Lord Thomas Macaulay, he was the Law Member of the Governor General’s council during 1834-38. Macaulay primarily relied on the prevailing English case laws because England itself had no Code to rival this, at that time. Few parts of IPC have taken from reforms of Napoleon and French law too. All this took lots of time and it had been not ultimately adopted till 1862. The draft was finalized in 1860 and thus the Code is known as the IPC, 1860.
The German legal code of 1870 was abolished, generally all the Penal codes of separate states united of that point to make legal code of German. Among the all codes, the foremost important was Prussian Code of 1851. This code was taken because the basis for preparation for drafting German code, and it’s no great exaggeration to understand that German legal code of 1870 was just a revision of Prussian legal code 1851. The German legal code of 1871 was incomplete with reference to its system of punishment. the rationale of this defectiveness was to be found-as is often the case in Germany-in difficulties concerning the overall principles of Criminology. The authors of the legal code adhered to the ideas of retaliation and deterrence. They believed that the legal code must deal only with the precise offense of which the prisoner stands convicted, which this offense should be punished in line with the degree of guilt which it shows. On 24 November, 1933, within the variety of a Criminal Code Amendment Act. This Statute introduces into the legal code several measures of protection and reformation.
Macdonald believed strongly within the need for one, uniform regime of legal code for the whole country. In fact, the Canadian constitution which he helped write, gave the federal the express authority to codify the legal code. An initial set of nine statutes was glided by the federal House of Commons in 1869 to a minimum of consolidate the law for coinage offences, forgery, offences against a person, malicious injuries to property, perjury and procedure. A finalized and completed Criminal Code was eventually achieved in July, 1892, under the leadership of the Minister of Justice and Sir John Thompson , the prime minister. This was a serious event in Canadian legal history.
Codification of legal code of any country was never a diluted process. It had to travel through many appraisal to form it possible. Implementation of Penal Codes in these three countries was in around almost same phase.
Criminal Courts
The hierarchy of the Courts has been developed in such a way that it becomes easy for everybody who resides in these countries to knock the doors of the courts whenever a dispute arises. It provides a platform for the citizens for appealing to higher courts, just in case they feel that justice has been denied to them by the lower courts. Germany, Canada and India are countries with an enormous population in it. So, it requires this existing judiciary system to achieve and makes its process easier, so that people can easily approach it and Justice is served to all or any citizens of those countries.
Jurisdiction of Indian Legal Code
Jurisdiction is defined as the limitation within which the respective Court of law can exercise its powers related to appeals, suits, actions, proceedings, etc.
Under Indian Law, there are 5 types of jurisdiction:
- Subject-matter Jurisdiction – This jurisdiction places a limitation on Courts to exercise their powers over a specific type of case or on a particular subject matter.
- Territorial Jurisdiction – This places a limitations on Courts to exercise their powers within a territorial limit.
- Pecuniary Jurisdiction – This type of jurisdiction sees with limitations of Courts regarding the monetary value or cost of suits or cases.
- Original Jurisdiction – This type of jurisdiction allows Courts to hear new cases that have been initiated.
- Appellate Jurisdiction – This type of jurisdiction allows and permits Courts to re-hear or review judgments given by lower courts.
The Indian Penal Code, 1860 places an intra-territorial as well as extraterritorial jurisdiction for offences committed under the IPC.
Section 2 deals with intra-territorial jurisdiction while Sections 3 and 4 deal with extra-territorial jurisdiction.
Jurisdiction of Canadian Penal Code
As mentioned above, Jurisdiction generally refers to the legal authority or power of the court to decide an issue. In case of Canadian Penal Code, it has been observed that criminal law, in contrast with civil law, is “highly territorial” and that countries should not “enforce the criminal law of other countries”. Under Canadian Penal Code, there are three types of Jurisdiction.
The three forms of jurisdiction consist of:
- Prescriptive jurisdiction (also called legislative or substantive jurisdiction): The authority “to make rules, issue commands or grant authorizations that are binding upon persons and entities”
- Enforcement jurisdiction: The authority to “use coercive means to ensure that rules are followed, commands are executed or entitlements are upheld” and
- Adjudicative jurisdiction: The authority to “resolve disputes or interpret the law through decisions that carry binding force”.
Jurisdiction of German Penal Code
The criminal courts have an identical structure of three instances. The jurisdiction within the first instance of either the District Court or the Regional Court is set by the gravity of the crime. If there are indications of against the law, the public prosecutor or the department of local government must initiate a political candidate investigation. If the matter involves an effort, it’s the court’s duty to pursue further official investigations. The court is obliged to appear for evidence, whether or not defense counsel or the prosecutor ask that evidence is heard.
German legal code applies to offences committed on German territory. If that place isn’t subject to any legal code jurisdiction and if the offender, it doesn’t come under its jurisdiction.
Punishment Theory
German legal code theory enjoys widespread influence within the civil law world. Its impact extends from countries like Spain, Portugal, Switzerland, Croatia, Greece to Israel, Spanish and Portuguese speaking countries of Latin America. One proposed definition is that a criminal offense, also called an offence or a criminal offence, is an act harmful not only to some individual, but also to the community or the state (a public wrong). Such acts are forbidden and punishable by law.
The idea that acts like murder, rape and theft are prohibited exists all round the world. What precisely could be a criminal offence is defined by legal code of every country. While many have a list of crimes called the criminal code, in some common law countries no such comprehensive statute exists. Under the common law of England, crimes were classified as treason, felony or misdemeanor, with treason sometimes being included with the felonies.
Section 53 to 75 of the Indian legal code 1860 deals with the scheme of Punishment.
Punishment could be a process by which the state inflicts some pain to the person or property of one that is found guilty of Crime. the item of punishment is to guard society from mischievous and undesirable elements by deterring potential offenders, by preventing the particular offenders from committing further offences and by reforming and turning them into law abiding citizens.
Theories Of Punishment
Punishment is primarily deterrent when its object is to indicate the futility of crime, and thereby teach a lesson to others. Deterrence acts on the motives of the offenders, whether actual or potential. Deter means to abstain from doing at act. the most objective of this theory is to discourage (prevent) crimes. It serves a warning to the offender to not repeat the crime within the future and also to other evil-minded persons within the society. This theory may be a workable one although it’s some defects.
1. Retributive Theory
Retribute means to administer reciprocally. the target of the speculation is to form the offender realise the suffering or the pain. within the Mohmmedan legal code, this sort of punishment is termed ‘QISAS’ or ‘KISA’. Majority or Jurists or Jurists, Criminologists, Penologists and Sociologists don’t support this theory as they feel it’s brutal and barbaric. Retribution basically means the wrongdoer pays for his wrongdoing, since an individual who is wronged would really like to avenge himself, the State consider it necessary to inflict some pain or injury on the wrongdoer so as to otherwise prevent private vengeance.
2. Preventive Theory
The idea behind this theory is to stay the offender removed from the society. The offenders are punished with death, imprisonment of life, transportation of life etc. Some Jurists criticize this theory because it could also be done by reforming the behavior of criminals.
3. Reformative Theory
The objective is to reform the behavior of the criminals. the thought behind this theory is that nobody is born as a Criminal. The criminal could be a product of the social, economic and environmental conditions. it’s believed that if the criminals are educated and trained, they’ll be made competent to behave well within the society. The Reformative theory is provided to achieve success in cases of young offenders.
4. Expiatory Theory
Expiatory theory of Punishment is predicated on morals. in step with this theory repentance or expiration by offender itself could be a punishment. If the offender expiates or repents, he must be forgive. Expiatory theory of Punishment was prevalent in ancient Indian legal code. Expiations were performed by way of uttering mantras, fasting or perhaps burning oneself to death.
5. Theory Of Compensation
According to theory of compensation the article of punishment must not be merely to forestall further crimes but also to compensate the victim of the Crime.
Principles Of Legal Codes
The traditional approach to legal code has been that a criminal offense is an act that’s morally wrong. the aim of criminal sanctions was to create the offender give retribution for harm done and expiate his moral guilt; punishment was to be distributed in proportion to the guilt of the accused. In nowadays more rationalistic and pragmatic views have predominated. Writers of the Enlightenment like Cesar in Italy, Montesquieu and Voltaire in France, Jeremy Bentham in Britain, and P.J.A. von Feuerbach in Germany considered the most purpose of legal code to be the prevention of crime. With the event of the social sciences, there arose new concepts, like those of the protection of the general public and also the reform of the offender. Such a purpose may be seen within the German criminal code of 1998, which admonished the courts that the “effects which the punishment are going to be expected to possess on the perpetrator’s future life in society shall be considered.” within the U.S.A. Model legal code proposed by the American Law Institute in 1962 states that an objective of legal code should be “to give fair warning of the character of the conduct declared to constitute an offense” and “to promote the correction and rehabilitation of offenders.” Since that point there has been renewed interest within the concept of general prevention, including both the deterrence of possible offenders and also the stabilization and strengthening of social norms.
Conclusion
The Penal Law in Germany, Canada and India are somewhat similar to each other. These countries have different criminal procedures, and code of conducts. The development of Penal Laws emerged in early eighteenth century and European countries started maintaining it. Scope of these laws are specifically large and can be practiced with all expectations under the supervisions of respective courts.
REFERENCES:
Websites visited:
https://germanlawarchive.iuscomp.org/?p=752
https://www.jstor.org/stable/3473845?seq=1#metadata_info_tab_contents
https://en.wikipedia.org/wiki/Judiciary_of_Germany
https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/
https://www.law-faqs.org/national-faqs/criminal-code/criminal-code/
http://www.efc.ca/pages/law/cc/cc.html
https://www.legislationline.org/documents/section/criminal-codes/country/38/Canada/show
Books referred:
Indian Penal Code by K.D. GAUR
Statues Referred:
Indian Penal Code, 1860, Penal Code of Canada, 1869, Strafgesetzbuch (German Penal Code)
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