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From Customs to Criminal Procedure Code – The Great Grandeur Evolution

Abstract

The Code of Criminal Procedure which is abbreviated as CrPC in common parlance is nationally applicable legislation governing the procedure regarding the administration of criminal law in the country. The act was formulated in 1973 and came into effect in the subsequent year. This research paper particularly deals with the evolutionary background of the criminal procedural code. The paper begins with a brief legal history of the country. Then the paper progresses toward its crucial aspects that are to be discussed. This portion would include the evolution of the code and the current applicable legislation. Furthermore, it would deal with the recent progress or the amendments being made in the 1973 legislation. Additionally, the paper would discuss the cases under CrPC which have got major relevance. The paper would conclude with the suggestions of the author regarding what more can be imbibed or altered in the legislation to make it one among the best procedures globally, one that is both rigid and flexible and respects basic human rights.

Keywords – CrPC, Evolution, Arrest, Criminal Law, Courts

Introduction

“The whirlwinds of revolt will continue to shake the foundations of our nation until the bright day of justice emerges”

  • Martin Luther King

The legal history of India dates back to the Vedic ages and has primarily evolved from the customary and religious sentiments of the masses. It has its basis in the Vedas, the Upanishads, and several religious texts. With the onset of British rule, the shape of law began to alter and expand. From sliding into the country for trade to grabbing the entire rule over the country, the Britishers have played a key role in the development of the legal system of the country. Indians were made to feel minority on their lands and were subject to restrictive laws against them.  With the First War of Independence in 1857, India saw a drastic change in its legal system. This led to the establishment of the Supreme Court and in place of Mayoral courts, High Court came into being. The Privy Council was considered to be the highest court of appeal and was placed before the House of Lords. During this period, various legislations and codes were created to efficiently administer justice to the people. Among these codes was the Criminal Procedure Code which is abbreviated as CrPC. This code was enacted in 1882 for the foremost time and then through amendments and reports in 1973

Evolution of CrPC

During the bygone days, there was not a single criminal procedural law that applied to the whole of India homogeneously. The acts were there but were separate and not in a consolidated form for entire India. Given this issue, a combined Criminal Procedure Supreme Court Act came into being in 1852 which was taken over by High Court Criminal Procedure Act, 1865. All these acts and several others were all absorbed in the Criminal Procedure Code, 1861 but still the one which had uniform application over the country came not before 1882. These codes got majorly amended in 1923 and 1955. Due to constant changes that were being brought to the code, Law Commission was set up in the year 1955 to formulate an all-encompassing one with all the latest amendments. The commission did an extensive study of the prevalent code and along with recommendations and suggestions, created one detailed report which was put forth in 1969. These were incorporated in 1973 and thus the final draft came into force on 1st April 1974 which has still been amended a plethora of times owing to the changing law and order situation and crime culture throughout the country’s diaspora. The legislation consists of a total of 484 sections given under 37 chapters.

Major Provisions Under the Criminal Procedure Code, 1973

  1. Offenses – The offenses under CrPC can be classified into three broad forms – Cognizable and Non-Cognizable, Bailable and Non-Bailable, and Compoundable and Non-Compoundable offenses.
  2. Cognizable offense – It is a kind of offense where the police officer can conduct an arrest without a warrant. These offenses are usually atrocious crimes like theft, abduction, rape, murder, etc.
  3. Non-Cognizable offense – An offense where the police officer cannot arrest without a warrant is called as Non-Cognizable. The offenses are usually misdemeanors like defamation, nuisance, cheating, forgery, etc.
  4. Bailable Offenses – An offense where bail is sure-shot and indefeasible right to an individual is a Bailable offense. It can be awarded by either a police officer or the magistrate concerned. The offense is given under section 436 of CrPC.
  5. Non-Bailable offense – An offense where bail cannot be granted as a matter of right but is awarded at the discretion of the court is called as Non-Bailable. Section 437 under CrPC deals with the same.
  6. Compoundable offense – The offense where compromise can be done at the discretion of parties in good faith is called Compoundable offense. Section 320 of the CrPC deals with compoundable offenses.
  7. Non-Compoundable offense –  The offense which cannot be compounded in the sense that compromise is not possible is known as a Non-Compoundable offense. All offenses are other than those mentioned in section 320 come under this category.
  • Arrest under CrPC – The term “Arrest” per se means to take into custody by the authorities. It is done to make the accused or suspected individual go through the shackles of law and not let him escape from custody. Section 41 of the CrPC deals with arrest by a police officer without a warrant. Several rights have been granted to a person under arrest:
  • Arrest cannot be made forcefully and if required, it should not be any more than is required.
  • When the person who is being arrested is a female, the body cannot be touched unless it’s a female officer who is arresting. Also, females cannot be arrested in dark like post-sunset and before sunrise.
  • The person arrested must be acquainted with the grounds of arrest as and when he is taken into custody.
  • The medical examination under section 54 of CrPC is made compulsory for the person charged with the offense.
  • It is the right of the one arrested to be provided legal aid and also be produced before the magistrate within 24 hours.
  • Power of Courts – The intended goal of every law in force or to be brought in force is to curb the criminal acts that happen in society. Consequently, this is the reason for which CrPC too was brought and under this, several powers were given to the courts in respect of the delinquent conduct in societal setup. For example, Under sections 193 and 319 of the code, even if the name of the person is not there in the FIR or charge sheet, still he can be tried, provided there are facts in support of it. The case of Hardeep Singh v. the State of Punjab[1] can be referred to for the application of the section.
  • Bail Provisions – One of the vital and well-recognized elements of Indian Criminal Jurisprudence is the concept of Bail. The CrPC (Criminal Procedure Code) of 1973 does not define bail, instead, it defines these two types of offenses as follows: “Bailable offense means an offense which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being enforce, and non-bailable offense means any other offense”[2]. In the case of Aasu vs the State of Rajasthan, the apex court of record issued a directive that a bail application should be disposed of within a week. If the offense is bailable under section 436 of the CrPC, then the bail is granted to a person as a right before a police officer or magistrate’s court, as the case may be. The Supreme court in the case of Rasiklal vs Kishore Khanchand Wadhwani[3]held that: As soon as it appears that the accused person is prepared to give bail, the police officer or the court before whom he offers to give bail, is bound to release him on such terms as to bail as may appear to the officer or the court to be reasonable.” In the case of a Non-Bailable offense, Section 437 empowers the court and an in charge of a police officer to consider the question regarding the bail-in case of a cognizable offense. Section 438 of the CrPC has a provision for granting bail before even a person is arrested and the term used for this type of bail is Anticipatory Bail. Anticipatory bail cannot be granted to a person who is declared as an absconder under section 82 of the CrPC, 1973. This was held in the case of State of M.P vs Pradeep Sharma[4]. Factors that need to be considered while granting bail were given in the case of State of U.P. Through CBI vs Amarmani Tripathi[5]. The Supreme court in the case of State of Rajasthan vs Balchand alias Baliya[6]laid a legal doctrine “Bail is a rule, jail is an exception”. The doctrine was given by Justice v. Krishna Aiyar.

Significant Amendments in Criminal Procedure Code, 1973

The 1973 code of criminal procedure is a result of a glut of altercations and add-ons in the historic legislation of 1861 which had countrywide applicability. Though the present one had undergone a series of amendments, still some changes were brought in the Criminal Procedure Code of 1973 because society is ever-evolving and is subject to change. This proves the general saying that anything constant in the world is “change”. The crucial amendments are:[7]

  1. Code of Criminal procedure (Amendment) Act, 1978 – The amendment was majorly brought under section 468 of the CrPC. The section deals with the bar on cognizance after the expiry of the limitation period[8]. Clause 3 was added which dealt with the limitation period for offenses that can be clubbed or tried together. This period will be determined based on the offense committed and its magnitude.
  2. Code of Criminal procedure (Amendment) Act, 1980 –   The changes were brought under the provisions of security for maintaining tranquillity and good behavior. It mandated that the proceedings pending before the commencement of the Act and before the Judicial Magistrate will be dealt with in a way that the Act hasn’t been endorsed.
  3. Code of Criminal procedure (Amendment) Act, 1983 –  This was brought on the backdrop of a sensitizing and heart-breaking rape incident in Mathura commonly known as the Mathura rape case. In this case, a minor girl was raped by two policemen to whom the girl came for lodging a complaint. The police were held not guilty as the girl didn’t raise any alarm and this observation in court was deemed disgusting and led to a huge public uproar. Thus, this amendment was brought altering various provisions tackling such abuse.
  4. Code of Criminal procedure (Amendment) Act, 1990 – The amendment was brought under section 166 of CrPC that deals with “When the officer in charge of a police station may require another to issue search warrant”[9]. Two clauses were inserted in this section namely sections 166A and 166B. While section 166A deals with the requesting letter to the authority in charge of investing out of India, section 166B deals with the request to investigate inside the country from a court outside the country. It empowers territorial and extraterritorial jurisdiction.
  5. Code of Criminal procedure (Amendment) Act, 2001 – The amendment was brought under section 125 of the said code. The section in particular issues an order to the person for maintaining his wives, children, and parents. In clause (1), the ceiling of 500/- has been removed and a provision for interim maintenance along with cost incurred on proceedings has been inserted. The application for the same needs to be disposed of within sixty days.
  6. Code of Criminal procedure (Amendment) Act, 2003 – Section 320 of the code of criminal procedure deals with Compoundable offenses which are such types of offenses in which compromise is conceivable. Section 494 and 498A of IPC have been added under this category of offenses. While the former deals with the offense of marrying another person during the lifetime of a husband or wife, the latter is regarding cruelty against women. These both have been made compoundable offenses.
  7. Code of Criminal procedure (Amendment) Act, 2005 – The amendment was brought under the various heads of the code. Section 46 deals with the procedure for arrest and the provision regarding arrest was women were added mandating restriction of arrest after sunset and before sunrise. Section 50A of the code mandates the supply of information about the arrest to a person nominated. Other changes include medical examination of rape victims under section 164A, the period for which an undertrial person can be detained.
  8. Code of Criminal procedure (Amendment) Act, 2009 – The said amendment added section 41A-41D under the Criminal procedure Code regarding notice of appearing before a police officer. It inhibited the provision regarding the recording of statements in audio-visual format via provisions under sections 161, 164, and 275 of CrPC. The Victim Compensation Scheme came to vide this particular amendment and was inserted under section 357A of the code.
  9. Code of Criminal procedure (Amendment) Act, 2013 – The amendment was brought given the outrageous and dreadful gang rape case coded as “Nirbhaya”. Through this, provisions like sections 354A-354D, 357B, and 357C concerned compensation for rape victims, and sections 370 and 370A relating to the trafficking of humans were all included.
  10. Code of Criminal procedure (Amendment) Act, 2018 – Following the awful and appalling Kathua gang rape and murder of a girl, these amendments were made during the Narendra Modi government ( Bhartiya Janata Party). Punishment for rape was made a minimum of ten years (earlier 7 years) which can be extended to life imprisonment. The offense of rape against a girl below 16 years is made punishable with at least a twenty-year imprisonment. Furthermore, the provision of Anticipatory bail under section 438 is not available to one who is accused of rape of a woman under sixteen years of age. Besides these, there were some other provisions also.

Some Important Judgements

History has been a record of significant decisions being passed by the courts, be it the apex court of the country or the high courts. These courts have not only helped in justice delivery but have gone to the extent of creating a legal precedent for future cases to be decided on the same. The first case in the row is the Anuradha Bhasin v. Union of India case which is a recent case of 2020. It is regarding the imposition of internet restrictions in J&K during the Article 370 revocation issue but the thing that was the bone of contention was the imposition of section 144 of CrPC. The section states that the magistrate has the power to impose restrictions on movement or speech or both in areas of trouble. The judgment by the supreme court declared that the section cannot be imposed arbitrarily to prevent legitimate expression. In the case of Gautam Navlakha v. National Investigating Agency, the person was under house arrest for 34 days and the question before the court was whether this period will be counted under the 90 days under section 167 of CrPC. The court held that the house arrest must include a complete ban on leaving the house, an order of injunction prohibiting anyone from engaging in any activity other than that of the residents, and the appointment of guards to enforce these conditions. However, this does not fall under the purview of Section 167 of the Criminal Procedure Code.[10] In the case of Revappa v. Gurusanthawwa[11] which is a 1960 judgment, it was held that summons needs to be signed by the presiding officer and that they need to be served by the police officers. The court in the Shankroo case[12] of 1982 held that mentioning the name of a section for the accused’s charge without giving the content of the section is an offense punishable. DK Basu v. State of West Bengal[13] is one of the leading cases under the criminal procedure code. It provides a list of guidelines highlighting the rights of arrested persons. In another case of CBI v. Anupama J. Kulkarni[14], it was held that police remand cannot be more than fifteen days. The case of Sheela Barse v. the State of Maharastra[15] highlights the rights of women in arrest.

Conclusion and Suggestions

Criminal offenses are given under the Indian Penal Code, 1860 but the procedure that will be followed to convict the accused individuals is enshrined under the Criminal Procedure Code, 1973. There is a link between the Constitution and the CrPC and various sections and provisions are there that overlap. For example, section 57 of the CrPC which deals with the limit of 24 hours for the accused to be produced before a magistrate is also given under Article 22 of the constitution. Though being criminal legislation, it has to comply with the constitutional provisions or the sections will be deemed ultra vires and invalid. Thus, we can say that the procedural code for criminal acts is vast enough and takes into consideration various aspects of the law. Through extensive legislation that had gone through a glut of alterations, some lacunas still need to be addressed. Primarily, the system for advancing justice in the country is lacking in judges.  According to the recent Legislative Research by PRS, there were over 4.5 crore pending cases across all courts as of September 2021.[16] The practice of “Victim Blaming” especially in rape cases is something that is at the root cause of surging leniency among the authorities towards the conviction of the accused. “Once a criminal, always a criminal” holds when we talk about the juvenile system of trial and conviction. Labeling theory is one among the sociological concepts which state that when a person is labeled as a deviant, it is highly unlikely that the person will ever try to make corrigible his actions. Thus, if any criminal activity is suspected among children, it should be handled maturely with a mix of punishment and counseling. Some things that goes without saying includes speedy trial which does not mean rushing but avoiding unnecessary arguments and lagging by the departments, qualitative enforcement of the law, computerized and digital data usage, detention capacity enhancement, departmental checking to spectate, and restraint any unnecessary and illicit activities, etc.

AUTHOR:

Gaurang Takkar

Army Institute of Law, Mohali 


[1] (2009) 16 SCC 785

[2] Section 2(a), Criminal Procedure Code, 1973

[3] Rasiklal V/s Kishore Khanchand Wadhwani (AIR 2009 1341)

[4] State of M.P vs Pradeep Sharma (2014) 2 SCC

[5] U.P. Through CBI vs Amarmani Tripathi (2005) 8 SCC 21

[6] 1978 SCR (1) 535

[7] ShadesOfKnife, All Amendments to the Code of Criminal Procedure (CrPC) of India, at https://www.shadesofknife.in/all-amendments-to-code-of-criminal-procedure-crpc-of-india/ (Visited on 12th August, 2022)

[8] Section 468, Code of Criminal Procedure, 1973

[9] Section 166, Code of Criminal Procedure, 1973

[10] Varcaswa Dubey, 21 recent criminal law judgments, available at file:///C:/Users/DELL/OneDrive/Desktop/21%20recent%20criminal%20law%20judgments%20-%20iPleaders.html (Visited on 14th August 2022)

[11] AIR 1960 Kant 198

[12] 1983 CriLJ 63

[13] AIR 1997 SC 610

[14] 1992 AIR 1768

[15] AIR 1983 SC 378

[16] Available at https://prsindia.org/policy/vital-stats/pendency-and-vacancies-in-the-judiciary

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