The criminal justice system in our country has been inherited from the colonial era and even though 63 years have been passed since we gained Independence, we are still following the pre-established trends. The colonial rulers enacted; Indian Penal Code, (45 of 1860), Indian Evidence Act, (1 of 1872) and the Code of Criminal Procedure, 1898 which was later modified by Code of Criminal Procedure, 1973 (2 of 1974) of the Indian Parliament in order to simplify the procedure to an extent possible and to introduce a uniform system in the country in relation to judicial and executive functions of the Magistrates and to make the separation of judiciary more effective. The Code of Criminal Procedure, 1973 (2 of 1974) was enacted to remove anomalies and ambiguities brought to light by conflicting decisions of various High Courts or otherwise to consider local variations with a view to secure and maintain uniformity throughout the country, to consolidate laws wherever possible in order to improve the criminal justice system of our country.
The object of the Criminal Procedure Code is to provide a machinery for the punishment of offenders for their crimes; Ganesh (in re:), ILR 13 Bom 590 (FB); Ramaswami (in re:), MANU/TN/0075/1922 : AIR 1922 Mad 443. It prescribes the procedure for the trial of offences which the Indian Penal Code defines; Surendra Nath Banerjee v. Chief Justice and Judges of the High Court of Fort, William in Bengal, (1882-83) 10 Ind App 171: ILR 10 Cal 109 (PC). Section 4 of this Code provides that all offences under the Code shall be investigated, enquired into, tried and otherwise dealt with according to the provisions of this Code. It also provides that offences under a law other than the Indian Penal Code will also be tried according to the provisions of the Criminal Procedure Code, but subject to any other provision in the law with regard to investigation, inquiry or trial.1 The Indian Penal Code is thus the substantive law, of which the Criminal Procedure Code is otherwise an adjective law to put in force its provisions. This Code is a procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The prime object of the Code is to ensure that an accused person gets a full and fair trial in order to ensure the basic notions of natural justice in our country.
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1. See section 4(2), Cr PC, 1973.
The Code does not merely consolidate previous enactments but is the "law" on the subject. Further, it does not merely consolidate pre-existing law but also "amends" it, which taken with consolidation of it, implies both addition to and derogation from the pre-existing law. It follows that it is a complete Code in itself as regard to the subject it deals with; Shanthanand v. Basudevanand, MANU/UP/0001/1930 : AIR 1930 All 225 (247) (FB). The very object of consolidation is to collect the statutory law bearing upon a particular subject, and to bring it down to date, in order that it may form a useful Code applicable to the circumstances existing at the time when the consolidating Act is passed; Administrator-General v. Prem Lal, 22 IA 107.
So far as it deals with any point specifically, the Code must be deemed to be exhaustive and the law must be ascertained by reference to its provisions. But the Code is exhaustive only with regard to matters specifically dealt with by it. Where a case arises which obviously demands interference and it is not within those for which the Code specifically provides, the court has power to make such order as the ends of justice require; Rahim Sheikh v. R., MANU/WB/0501/1923 : AIR 1923 Cal 724.
Inherent power is conferred under the code only on the High Court and subordinate Criminal Courts have no inherent powers; Bindeshwari Prasad Singh v. Kali Singh, MANU/SC/0100/1976 : AIR 1977 SC 2432. But this inherent power is not capriciously or arbitrarily exercised; it is exercised ex debito justitiae to do that real and substantial justice for the administration of which alone courts exist; but the court in the exercise of such inherent power must be careful to see that its decision is based on sound general principles and is not in conflict with them or with the intentions of the Legislature as indicated in statutory provision; Bandhu Lal v. Chattu Gope, AIR 1918 Cal 850. Inherent power cannot be exercised in matters for which the statute has made express provisions, and in a manner calculated to defeat the statutory provisions; Khushi Ram v. Hashim, AIR 1959 SC 542.
Article 21 of the Constitution of India guarantees that "no person shall be deprived of his life or personal liberty except according to procedure established by law". "Procedure established by law" mentioned herein means the manner and form of enforcing the law which is prescribed by the Legislature. This Article, therefore, simply means that you cannot deprive a man of his personal liberty unless you follow and act according to the law which provides for the deprivation of such liberty; Gopalan v. State of Madras, MANU/SC/0012/1950 : AIR 1950 SC 27. It is open to the Parliament to change the procedure by enacting a law and that procedure becomes the procedure established by law within the meaning of that expression in Article 21; Krishnan v. State of Madras, MANU/SC/0008/1951 : AIR 1951 SC 301. What is prohibited under Article 20 of the Constitution of India is only conviction or sentence under an ex post facto law and not the trial thereof. Such trial under a procedure different from that obtained at the time of the commission of the offence or by a court different from the one that had competence at the time cannot ipso facto be held unconstitutional. A person accused of the commission of an offence has no fundamental right to trial by a particular court or by a particular procedure, except in so far as any constitutional objection by way of discrimination or the violation of any other fundamental right is involved; Shiv Bahadur Singh v. State of Vindhyachal Pradesh, MANU/SC/0081/1953 : AIR 1953 SC 394 (398).
The Code of Criminal Procedure, 1973 provides, inter alia, some of the measures to secure greater benefit to the accused. These are: firstly, every person arrested with or without warrant should be informed of the ground(s) of arrest and, in bailable cases, of his right to be released on bail. Secondly, no accused person can be kept under detention by the police for more than 24 hours without being produced before a magistrate, whether the arrest is for preventive purposes under section 151 or in pursuance of a warrant of any court or otherwise. Thirdly, any accused person cannot be kept in police custody during investigation for more than 15 days even by an order of the Court. Fourthly, bail provisions have been liberalized. When any accused person is arrested outside the jurisdiction of the court concerned, he can be released on bail by the nearest Magistrate instead of being taken into custody to the court having jurisdiction. Even anticipatory bail can be granted in certain cases by the competent courts of law.
Lastly, as I have mentioned earlier, the Code of Criminal Procedure, 1973 not only provides a machinery for the punishment of offence committed, but also aims at preventing crimes. It also formulates the duties of the police in investigating an offence and prescribes the mode in which arrests are to be made. Besides, it empowers a Magistrate or police officer to take assistance of general public in preventing the escape of an offender in the prevention or suppression of a breach of peace. This Code, is mainly, an adjective law or procedural law, inasmuch as it contains in a large measure, the body of rules whereby the machinery of the court is set in motion for the punishment of offenders. However, certain provisions in the Code provided in Chapters VIII to XI, which deal with prevention of offences and create a statutory right for the maintenance of wives, children and parents are mainly the nature of substantive law.
After the brief introduction of the Code of Criminal Procedure, 1973 and before we start the main Chapters of this book, it is pertinent to define certain terms/words/expressions in order to understand the different nuances of the Code more clearly. Therefore, let us start with the definitions of few important terms/words/expressions which you will find time and again while reading this book.
Generally speaking, the meaning of the word 'complaint' in common parlance is 'a grievance'. According to section 2(d) of the Code, complaint means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
For a document to come within the ambit of 'Complaint', the following essential conditions have to be satisfied:
(i) It must be made to a Magistrate and not to a Judge or any police officer;
(ii) It must be made with a view to the Magistrate's taking action under the Code;
(iii) It must contain an allegation that some person, whether known or unknown, has committed an offence meaning thereby the complaint need not specify any offender or even the section of the law; and
(iv) It must not be the report of a police officer.1
(v) Where the order of the Munsif was communicated to the District Magistrate with a view to action being taken under the Code, and had set out the facts constituting an offence, it amounts to a complaint; Chamukuttan Nair v. State of Kerala, (1965) 1 Cr LJ 387 (2).
The word "offence" has been defined under section 2(n) of the Cr PC as: It means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle Trespass Act, 1871.
The definition of "offence" in the Code is meant for the Code itself, and is controlled by the restrictive words of section, namely, "unless a different intention appears from the subject or context", no act or omission even though made punishable by any law for the time being in force will amount to an offence for the purpose of the Code if a different intention appears either from the subject or context.
An offence is constituted as soon as it is found that the acts which constitute that offence have been committed by the person accused of the offence. It remains an offence whether it is triable by a court or not. If a law prescribes punishment for that offence, the fact that the trial of that offence can only be taken up by courts after certain specified conditions are fulfilled, does not make that offence less than any kind of offence; M.L. Sethi v. R. P. Kapur, MANU/SC/0098/1966 : AIR 1967 SC 528 (536, 537).
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1. Vide Explanation to Clause (d) of section 2 and Chittaranjan Das v. State of West Bengal, MANU/WB/0039/1963 : AIR 1963 Cal 191.
One important point should be noticed that, the definition provided herein is wider than the definition of 'offence' contained under section 40 of I.P.C., wherein the word "offence" denotes a thing made punishable by the Indian Penal Code. The definition provided in the Code, however, is the same as provided in section 3(37) of the General Clauses Act, 1897.
According to section 2(c) of Cr PC, 1973, a cognizable offence means an offence for which, and cognizable case means a case in which a police officer may, in accordance with the First Schedule of the Code or under any law for the time being in force, arrest without warrant. To bring an offence within the definition of "cognizable offence" under section 2(c) of the Code, the offence by itself should be such for which the offender can be arrested without a warrant of arrest; State of West Bengal v. Joginder Mallick, 1970 Cr LJ 539.
The words "a police officer" used in the definition do not mean "any and every police officer". The power of arrest may be limited to only particular class of public officers; State of Gujarat v. Lal Singh, MANU/SC/0233/1980 : AIR 1981 SC 368 (371). Before the decision of the Supreme Court in the case there was a divergence of judicial opinions with regard to the connotation of the words "a police officer" used in section 2(c) of the Code. In this case, it was viewed by the apex Court that the words "a police officer" do not necessarily mean any and every police officer, and that it is sufficient to bring an offence within the definition of a "cognizable" offence, if the power to arrest without a warrant was vested under the law in a police officer of a particular class only.
A "non-cognizable offence" has been defined under section 2(l) of the Code in the following manner:
Under this section, non-cognizable offences are those for which a police officer has no authority to arrest without warrant. Section 2(l) [Schedule I] specifies which offences are cognizable and which are non-cognizable, uses the word 'non-cognizable' for offences for which "a police officer shall not arrest without warrant". Non-cognizable offences are minor offences where the injury done to the society is comparatively small and as such the aggrieved party is expected to lodge a complaint before criminal proceedings are initiated.
'Inquiry' means every inquiry, other than a trial, conducted under this code by a Magistrate or Court.1 It relates to proceedings of Magistrate prior to trial. The purpose of inquiry is to ascertain truth of the facts alleged.
The term 'inquiry' has a very wide connotation under the code and includes every inquiry other than a trial. A trial within the meaning of the Code is a judicial proceeding which ends in either conviction or acquittal; T.P. Singh v. State of Bihar, 1978 Cr LJ 1080 (Pat). Section 159 of the Code empowers a Magistrate on receipt of a police report under section 157 Cr PC, to hold a preliminary inquiry in order to ascertain whether an offence has been committed and, if so, whether any person(s) should be put upon trial.
Investigation includes all the proceedings under this code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.2
Note: The topic 'investigation' has been dealt with in great detail in a separate Chapter in this book.
The word 'charge' has not been defined under the Code but section 2(b) Cr PC, mentions that "charge" includes any head of charge when the charge contains more heads than one. A charge is the precise formulation of the specific accusation made against a person who is entitled to know its nature at the earliest stage; Reily v. R., ILR 28 Cal 434 (437). This topic also constitutes a separate Chapter in this book.
The term 'Judicial proceeding', according to definition provided in the Code includes any proceeding in the course of which evidence is or may be legally taken on oath.3 To constitute a 'judicial proceeding', therefore, evidence need not have necessarily been taken. It is sufficient if evidence is contemplated to be taken on oath; E. Pedda Subba Reddy v. State, MANU/AP/0079/1969 : AIR 1969 AP 281. 'Judicial proceeding shall include the acts of the court which are passed judicially, i.e., after hearing the parties, and which affect the rights of parties; Subramaniam v. Commissioner of Police, MANU/TN/0202/1963 : AIR 1964 Mad 185.
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1. Vide section 2(g) of the Cr PC, 1973.
2. Vide section 2(h) of the Cr PC, 1973.
3. Vide section 2(i) of the Cr PC, 1973.
It includes, when the officer-in-charge of the police station is absent from the station house or unable from illness or other cause to perform his duties, the police officer present at the station house, who is next in rank to such officer and is above the rank of a constable or, when the State Government so directs, any other police officer so present.1
A clerk attached to a police station and a charge of it, when the sub-inspector and other senior officers are away on other duty, is an 'officer in charge of the police station.'2
This constitutes an important part in the criminal justice system and the same has been dealt with in the separate Chapter in this book.
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1. Vide section 2(o) of the Cr PC, 1973.
2. Pyli Yacoob v. State, AIR 1953 TC 466.
"Remand" means to 'to send back'; in the context of the Cr PC, remand is always meant to be the custody of the accused after he has been produced before the Magistrate. Police remand is often sought on the ground that further investigation is required and that the accused is likely to disclose more facts or he might be instrumental in enabling the police to get the roots of a particular case. If the Magistrate is satisfied, he allows the request of the police; in case the argument of the accused regarding persisting torture etc., by the police is accepted, but the presence of the accused is required by the police, the medial course is to remand the accused to judicial custody. In such a case, the police officials can continue their investigation but under the overall supervision of the judicial machine so that the legal rights of the accused are not smothered.
Remand is, however, always before bailing out an accused where the offence is bailable. The idea behind 'remand' is that the investigating officers must be given sufficient time to complete the investigation and prepare the case for prosecution.
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