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Criminal Procedure

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Purpose of Criminal Procedure

Essential object of criminal law-protection of society against criminals and

law breakers; Consists of both substantive criminal lawand procedural or adjective law

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S ubstantive law

Defines offences and prescribespunishment for offences;

IPC;Prevention of Food Adulteration Act;Protection of Civil Rights Act;Dowry Prohibition Act

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Procedural Criminal Law

Administers substantive law Administration and enforcement of

substantive law

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S pecial importance of Criminal

Procedure It is the procedure that spells much of thedifference between rule of law and rule by

whim and caprice; More constantly used and affects a greater number of persons than any other law

The nature of subject matter is such thathuman values are involved to a greater degree than other laws

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S ince the law of criminal procedure iscomplementary to substantive law, its failurewould seriously affect the substantive criminallaw. This in turn would considerably affect theprotection it gives to society;

Hence it is said that too much expense, delayand uncertainty in applying the law of criminalprocedure would render even the best penallaws useless and oppressive

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Criminal procedure in India

No uniform law of criminal procedure for the whole of India

S eparate and rudimentary acts to guideprocedures in Court in erstwhilePresidency towns and provinces

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Those laws applying to presidency townswere first consolidated by CriminalProcedure S upreme Courts Act, 1852; It made way to High Court CriminalProcedure Act,1865

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Acts that were being applied to provincesreplaced by General Criminal ProcedureCode 1861; Replaced later by General criminalProcedure Code 1872

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Criminal Procedure Code, 1882 for thefirst time gave a uniform law of procedurefor the whole of India both in thepresidency towns and provinces;

Criminal Procedure Code, 1898 replacedthe earlier Act; though amended many

times important amendments were madein 1923 and 1955 but remainedunchanged for a longtime

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Law commission in its 41 st report inS eptember 1969 recommendedconsiderable changes in the law of criminal procedure

A draft bill introduced in 1970 and wassubsequently passed by the parliamentand Criminal Procedure Code,1973 camein to existence

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Criminal Procedure Code,1973

Came in to force with effect from 1 st April1974

While formulating the Cr. P.C 1973 theconsiderations kept in mind were(i ) an accused person should get a fair trialin accordance with the accepted principlesof natural justice

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(ii) every effort should be made to avoiddelay in investigation and trial which isharmful not only to the individuals involvedbut also to society;(iii) the procedure should, to the utmostextent possible, ensure fair deal to thepoorer sections of the community

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Criminal Procedure Code,1973

Provides the machinery for the detection of crime

Apprehension of suspected criminals Collection of evidence Determination of guilt or innocence of the

suspected person and imposition of suitable punishment on the guilty person

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Also controls an regulates the working of the machinery set up for investigation andtrial of offences;

While adequate powers have to be givento make the investigative and adjudicatoryprocesses strong precautions need to betaken against errors of judgment andfailures and

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Provide safeguards against probableabuse of powers by the police or judicialofficers;

This often involves nice balancing of conflicting considerations and decidingwhich of he claims need to be recognised

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Criminal Procedure Code,1973 is not apure adjective law

Certain provisions partake the nature of substantive law as can be seen in a fewsections

Prevention of offences sections 106 to124; sections 129 to 132 and sections 144to 153

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Maintenance of wives, children andparents in sections 125 to 128

Public nuisances in sections 133 to 143

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Territorial extent and scope

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Territorial extent

Extends to the whole of India except theS tate of Jammu and Kashmir and sometribal areas.

It extends to the whole of India except theS tate of Jammu and Kashmir section 1(2)

Refer Art.370 of the Constitution

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Provisions shall not apply to the S tate of Nagaland and tribal areas. But the followingprovisions are applicable to these

S ections 106 to 124 in chapter VIII dealing withsecurity for keeping peace and good behaviour S ections 129 to 148 in chapter X dealing withmaintenance of Public order and tranquility

S ections 149 to 153 in chapter XI dealing withthe Preventive Action of the Police proviso to s1(2)

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The S tate Governments of the S tate of Nagaland and the tribal areas areempowered to apply all or any of theprovisions of the code to any part of theS tate or such tribal area by issuing anotification - proviso to section 1(2)

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Tribal areas

Means the territories which were included in thetribal areas of Assam before 21 st January 1972other than those within the limits of S hillong

municipality. Referred to in paragraph 20 of 6th

schedule - Explanation to s1(Provisions of 6 th schedule applies to theadministration of the tribal areas in the S tate of

Assam, Meghalaya, Tripura and Mizoram Art.244(2);provisions of 5 th schedule applies toadministration of and control of scheduled areasand scheduled tribes of other states Art.244(1)

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Naga Peoples Movement of Human Rightsv Union of India (1998) 2 S CC 109S

rinivas Gopal v Union territory of Arunachal Pradesh 1988 S CC (Cri) 889 The authorities have also to satisfy thestandard of fairness as is implicit in Art.21(Zaraoliana v Govt. of Mizoram 1981CriLJ1736 (Gau))

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All offences under any other law shall beinvestigated, inquired into, tried, and dealtwith according to the same provisions, butsubject to any enactment for the timebeing in force, regulating the manner or place of investigating, inquiring into, trying

or otherwise dealing with such offencess4(2)

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Nothing contained in this code shall, in theabsence of a specific provision to thecontrary, affect any special or local law for the time being in force, or any special

jurisdiction or power conferred, or anyform of special procedure prescribed, by

any other law for the time being in forces.5

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A combined reading of ss4 and 5 indicatethat if a special procedure is prescribed ina special and local law that proceduretakes precedence over the provisions of CrPCS uch special procedure does exist incertain enactments

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Not applicable in respect of departmental proceedings -RP Kapur v P ratap Sing h Ka i r on 1964(1) CriLJ 224( S C)

Does not apply to contempt of court proceedings.Contempt of court is not an offence under section 4(2) -S tat e v P adma Ka n t Mala viy a AI R 1953 All 523 (FB)

Proceedings under the contempt of Courts Act, are in theexercise of special jurisdiction of the High Court withinthe meaning of section 5 and hence the provisions of CrPC are not applicable to such proceedings S ukhd ev Sing h So dh i v C h ief J ust ice a nd J ud ge s P e psu H C AIR1954 S C 186

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FEMA, 2000 contains provisions for investigation, enquiry, search, seizure, trialand imposition of punishment for offences.S ection 5 CrPC not applicable-CB I v S tat e of R ajastha n 1996 S CC (Cri)1090

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JJ (care and Protection of Children) Act,2000) prescribes special procedurewhile dealing with delinquent children. Thisprocedure would override the provisions of section5

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Narcotic Drugs and Psychotropicsubstances Act

offences are triable by special courts. All offences are cognizable Provisions of bail in CrPC to be read with

the bail provisions in NDPS

Act

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Prevention of corruption Act Investigation to be done by officers of particular rank

-Inspector of police in respect of Delhi S pecial PoliceEstablishment; In Metropolitan Cities and in Metropolitanareas an Assistant Commissioner of Police; in other places a police officer of the rank of DeputyS uperintendent of police or equivalentS pecial judges to hear cases

Previous sanction necessary for prosecution of publicservants

Certain provisions in CrPC would apply subject to certainmodifications

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S C &S T (Prevention of Atrocities) Act, Certain provisions of CrPC not applicable

cannot get anticipatory bail Cannot be released on probation of goodconduct or after admonition(s360)