Irrationality of penalty in the Penal Code

- Amdadul Hoque


Published On - July 9, 2014 [Vol. 1, Jul - Dec, 2014]

The penal code, applicable in Bangladesh, is a substantive Act defining various types of crimes and providing punishment of these crimes. This Act was enacted during the British regime in the Indian sub-continent in 1860. This Act, though amended several times before and after the independence of Bangladesh, appears to contain some irrational and disproportionate penalty for certain offences. This article is intended to focus on some of those penalties.

Firstly, section 279 of the penal code says that “whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to three years,………” Driving a vehicle at high speed cannot be considered and taken to be a rash and negligent act as modern technolog provides for reasonable safeguard of stopping the vehicle within no distance and time[1] . So, it is apparent that even a comparatively slower driving can be termed as rash and negligent if the concerned situation does not provide for the guarantee of safety.

At the same time section 304B[2] provides that “whoever causes the death of any person by rash or negligent driving of any vehicle or riding on any public way not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to three[3] years,……….”

Again Section 304A[4] says that “Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment eihter description for a term which may extend to five[5] years…….”

Perusing the above mentioned three sections we find the penalty under sections 279 and 304A same though the gravity of offence is not the same in both cases. Under section 279 maximum punishment for rash and negligent driving on any public way is three years imprisonment and actual damage caused to any person by such negligent or rash driving is immaterial here. So, under section 279 driving in a rash or negligent manner ifso facto is an offence, no matter, whether any actual harm is caused to any persons’ body or property. Provision of section 279 is very important by taking precautionary measures to penalize rash and negligent drivers where there is only liklihood of causing hurt to any person even though no such hurt is caused.

On the other hand under section 304B[6] if any person causes death of any other person by the same act i.e. rash or negligent driving on any public way, the maximum punishment is imprisonment of three years.

To find out the irrationality of penalty of these two offences it is not required to be a lawyer or student of law; an ordinary prudent man is capable enough to detect where the irrationality lies because the offence of only rash driving and causing death by rash driving is penalized with the same amount of punishment. It is noteworthy here that both the sections were amended in 1982 and 1985 respectively but surprisingly the matter of great regret is that the irrationality is still in existence.

However, if any person causes the death of any other person by negligent act, be it driving or other thing, not amounting to culpable homicide shall be punished with maximum five years imprisonment. So, if causing death by rash driving is punished with maximum three years imprisonment under section 304B and causing death by any other negligent act is punished with maximum five years imprisonment, where is the rationale of such punishment.

Secondly, section 497 deals with the offence of adultery and provides that “whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years……..In such case the wife shall not be punishable as an abettor”.

Under this section the offence of adultery is committed by the joint action of a man and a wife of another man. According to the wordings of the section it is very much clear that the wife was not unwilling to the alleged offence. Had she been unwilling to the act of sexual intercourse, the offence would not be adultery rather it would be rape. Here though both the man and woman were participant to the offence, maximum punishment for the man is five years imprisonment but for the same act the woman is not penalized with any sort of penalties. Again, this act of sexuality with the wife of another person is not an offence at all if the husband of the wife had consent or at least connivance to such act; and this indicates and presupposes that the wife is the property of the husband and he can use her in any ways he likes. Section 497 of the Penal Code thus encourages the patriarchal possessory attitude of men to their wives.

Thirdly, section 366A provides that “whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years……….” Under this section intentionally causing a girl to be forced or seduced to illicit intercourse is an offence only when the girl is under the age of eighteen years. But if the age of the girl is minimum eighteen in that case the offender will be purged from all stigma to the offence just for the reason that the victim is a girl of eighteen years or more, though in that case also the offender forced the victim to illicit intercourse. The humorous and at the same time reproachful provision underlying this section is that a person is allowed to force a girl to illicit intercourse when the age of the girl is eighteen or more. Again under section 366B importing a girl into Bangladesh from any other country, for the purpose of or with the knowledge that she will be forced or seduced to illicit intercourse, is a punishable offence only so long as the girl’s age is below twenty-one years; it is not an offence at all if she is a girl of minimum twenty-one years. Likewise, the act of selling, letting to hire or otherwise disposing of any person, under section 372, with the intention or knowledge that such person shall be employed or used for the purpose of prostitution, is an offence only when the age of the victim is below eighteen years not otherwise.

Fourthly, the maximum punishment for rape under section 376 and unnatural offence under section 377 of the Penal Code, 1860 is imprisonment for life. Here unlawful sexual intercourse with any woman under section 375 and with any animal under section 377 is supposed to be offence of same degree and thereby same degree of punishment is prescribed for both the offences. But human conscience demands that since the man and animal are not, in respect of status and dignity, equal so the punishment for the same act to a man and animal should not be equal.

Finally, I will say that despite the great truth of the speech of great philosopher Plato, i.e. when the ruler of a society is just law is not needed but when the ruler himself is unjust the laws are nothing but futile, people feel the necessity of that law which is free from apparent defects, irrationality, inconsistency or discrepancy and which is capable of giving birth to the optimum success to the mankind.

[1] Mushtaq alias Nikku vs State, 1998, P CriLJ, 158.
[2] This section was inserted by section 5 of Ordinance No. X of 1982.
[3] Substituted by Ordinace No. VIII of 1985, for “seven years.”
[4] Inserted by section 12 of the Indian Penal Code Amendment Act, 1870.
[5] Substituted by Ordinance No. X of 1982, section 4, for “two”.
[6] This section was inserted by section 5 of Ordinance No. X of 1982.

About The Writer

Article Author Image

Amdadul Hoque

Lecturer, Dept. of law and Justice, Southeast University

The author completed his LL.B.(Hon’s) and LL.M. from
the University of Dhaka and obtained First Class in both.


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