This article is written by Reddi Amulya Kandula of 6th Semester of BALLB of Sri Padmavathi Mahila university, Tirupati, Andhra Pradesh.
Abstract
Before independence, people in India are mostly illiterate and they do not have legal awareness but the few people who has the rudimentary knowledge of criminal law will know that it deals with the offences and liabilities as well as penalties of that particular offences. However, if any person committed to any of the crime, then the most happening criminal punishment is confining the individual liberty, imprisonment, if he was illegal and violates the most basic freedoms, and rights associated with democracy. Thus, we need the law that sets the state’s machinery regarding enforcement of law and justice for all. It lays down the principles and procedure that must be followed while investigating and prosecuting the claims of the offence committed. The provisions of this law exclusively deals with the investigation process as well as the inquiry and trail regarding the offences
KEYWORDS
Offences, magistrate, sessions court, substantive law, procedure, principles of natural justice, judicial magistrate, cognizable and non cognizable offence, bailable and non bailable offence, compoundable and non compoundable offences, trails, investigations, prosecution.
INTRODUCTION
The code of criminal procedure (CrPC) written by the THOMAS BABINGTON MACUALAY. He also regarded as the father of the CrPC. Code of criminal procedure is primarily set for governing substantive criminal law. In India, the legal system contains the code of criminal procedure, 1973 which is associated to deal with the criminal laws and this came into effect from April 1, 1974. Code of criminal procedure, 1973 contains 37 chapters, 484 sections and two schedules. The main motto of criminal law is to protect the society away from the criminals and also law breakers that is who breaches the law. Although CrPC doesn’t come under the constitution and it comes under the seventh schedule of the Indian constitution , there is a mention regarding the police and public order. According to this the state and centre can make laws and powers for the public order.
The code of criminal procedure, 1973 applicable to the whole nation including Jammu and Kashmir after the revocation of the article 370 and Kashmir reorganisation act, 2019. The basic feature of the criminal procedure code is to provide the basic structure for the cases while investigating it. Generally, the constitution of India includes three types of lists and they are state list, central list and concurrent list. The state list can make laws confining the state only, central list can make laws for the whole nation but the concurrent list which mainly includes the criminal law can make laws for both union as well as the state. Here the state can make any special laws and that shouldn’t effect the local laws or any special jurisdiction in the state. Hence state are competent to enact the laws that included in the concurrent list. The main object of the code is to provide the machinery for the criminal laws and to ensure free trail to the accused, delivering the speedy justice, ensuring same justice for all kinds of people.
The entire criminal procedure code will be on the concept of [1]
- An accused person should be given free trail in accordance with the principles of natural justice.
- There shouldn’t be any delay in the investigation processes which are determined not only to the individuals but the whole society.
- The procedure should be very fair and simple and it should be understand by the poorer sections of the society.
Since criminal acts are considered offences in rem that is against society in general so state acts as the prosecuting party in the court.there are some specific courts for the criminal trails called session court at the district level. Here the judge will act as the neutral party and the case is argued by the prosecutor suing the plaintiff and the defence attorney who defence the plaintiff.
In order to know the code of criminal procedure in detail we have to know some of the important element included in it.
HISTORY
In the medieval period due to the conquest of the Muslims. The Mohammedan criminal law had came into existence. The Britishers had introduced the regulating act in 1874 in the Supreme Court had been established in Calcutta and later in madras and Bombay as well.[2] The Supreme Court will British procedural for the Britishers and mohammedan law for the Indians which is quite desperate. Later the code of criminal procedure was first enacted in the year 1882 after the administration of British India was taken over by crown after the rebellion in the year 1857. The code was amended many a times to ensure the justice for the aggrieved most importantly in the years1898, 1923, 1955 respectively. After independence the fourteenth report had been submitted by the law commission to amend the code, later the law commission reconstituted it and given it as the fourth first report in the year 1969. That is the revised code. Later in the year 1970, the code was drafted and lapsed in the parliament, later in the year 1972, the bill was proposed in both the houses and it had passed and came into force from year 1974.
The code of criminal procedure contains various amendments. The recent amendments include the NIRBHAYA ACT in the year 2013 and LOKPAL ACT in 2014 and the LOKAYUKTA ACT in 2013 respectively.
Importance of CrPC
The major purpose of the CrPC is to provide the binding procedures that must be followed during the administration of the criminal trail. Generally, IPC is the official criminal code of India drafted in the year 1860 that is at the time of establishment of first law commission established in the year 1834 under the charter 1833, but it doesn’t contain any procedure to follow for that particular claim, so the code of criminal procedure provides the procedures to be followed while investigating or prosecuting the case. There is the free trail in the cases regarding the human rights. Many people are suffering due to the unfair trails, which effects them deeply on their personal rights, mental health and reputation. So, the right to fair trail comes under the protection of human rights.
Offence
Offence is an action which harms others and disturbs the tranquility of a society. There are some cases where the refrain is from doing it. Civil offences are against the private individuals but the criminal offences are against the state, the state is represented by the prosecutor who will argue the case against the defendant. We also have some special provisions for the first offenders. The first offender refers to the offender who had no previous convictions to his credit, apart from the offence that he had committed now. According to the section 370 of CrPC says that the person below the age of 21 years, who had committed the crime for the first time which is punishable with the fines and imprisonment for term of seven years or less . The offender can be released in the probation of good conduct.
Types of criminal offences
- Cognizable offence
- Non cognizable offence
- Bailable offence
- Non bailable offence
- Compoundable offence
- Non compoundable offence
Bailable and non bailable offence
Bailable offence is the one where the defendant may able to secure his release upon a bail which is described under section2(a) of the criminal procedure code. Whereas the in the case of non bailable offence, it is very difficult to release on the bail. But in some of the cases , the law gives some special consideration in granting the bail where the accused is sixteen year old, a woman, sick or if the court is satisfied that the just and proper can grant the bail in non bailable offences
Cognizable and non cognizable offence
These cognizable are the type of non bailable offences. These are mentioned in section 154 of criminal procedure code. Section2(c) describes the cognizable offence which means the police officer can arrest the convict without the warrant and can start the investigation process without taking permission of the court. This type of treatment can only fine in the cases which are heinous in nature they may be rape, murder, kidnapping, dowry death etc., where as section2(1) of the criminal procedure code describes the non cognizable offences which means the police officer cannot arrest the convict without issuing the warrant. These cases are not serious and petty in nature for example, defamation, forgery, assault etc these are bailable offences and can grant the bail easily.
Stakeholders and functionaries in criminal justice
They may be
- Police
- State
- Judges
- Victim
- Accused
- Advocate
- Witness
- Society or members of general public
Prosecutor
A criminal offence is an offence not only against individual but also for the society. The state represents society and participated in the criminal trail. The public prosecutor(PP) or assistant public prosecutor (APP) will represent the state not the accused. Generally, the public prosecutor acts as an agent to the state, the prosecution of the accused is the duty of the state but not the duty individually the duty of the aggrieved party Section 2(U) of the CrPC defines the public prosecutor. Section 24 and section 25 of the CrPC deals with the appointment public prosecutor and assistant public prosecutor respectively[3]. They serve the state in the principle of rule of law i.e., auld alter-am partem (no person shall be condemned or unheard)
Functions of the public prosecutor
Functions of the public prosecutor differs according to their designation
- Public prosecutor :
Generally, he supervise the function determined by the Additional public prosecutor in session court and high court.
- Chief prosecutor:
He supervise the function determined by the assistant public prosecutor as well as the metropolitan magistrate.
- Additional prosecutor :
He conducts the criminal cases in the sessions court.
- Assistant public prosecutor:
He conducts the criminal proceedings in the metropolitan magistrate. He examine the charge sheet prepared by the agencies and submit ten Aquitaine or discharge the orders.
- Director of the prosecution :
He is the head of the office. They exercise overall control and supervision on officers of directorate.
Generally, whenever the crime had been committed against any individual or group. It is assumed that it is against the state. It is the duty of the state to provide justice for that particular group. And it is also necessary that criminal law should be in the limits of the constitution. That means the public prosecutor should act on the principles of natural justice they are
Main objects of CrPC
- Equality before law.
- Equal protection of laws.
- Protection of accused against the double jeopardy.
- Protection against the self incrimination.
- Protection against the ex-post law.
- Right to life and personal liberty except the procedure established by the law.
- Speedy trails.
- Prohibition of the discrimination.
Defence counsel
As the public prosecutor represents the state, defence counsel represent the accused before the court. Section 303 and 304 of the CrPC deals that the accused can hire the lawyer own his/ her own choice and later section says that if the accused did not have the sufficient means to hire the lawyer, the court shall assign the lawyer with the expenses of the state.
Police
Police is either not defined in the CrPC nor mentioned in the constitution. The police in the state contains various powers and responsibilities towards the state as well as the public. The police act, 1861 defines the term police and the act says that “police force is an instrument for the detection of the crime and its prevention.”There are different hierarchies in the police system they are DGP ( director general of police) who is the head for state police force, IGP ( inspector general of police ) heads the zone and SP. ( super intendant ) heads the urban areas where as the sub inspector heads the police stations at the rural level. There are many powers for the police given by the state, the powers include making an ardent, investigate and search the offenders. Section 2(s) of the CrPC defines the police station and section 2(o) of CrPC deals with the officer in charge in police station.
Hierarchy of courts
There are criminal courts setup in districts as well as the metropolitan areas
District
At the district, criminal court set up there at three levels
At the lower level of the judiciary, the courts are called courts of judicial magistrate and they are of three types
- Judicial magistrate
- Judicial magistrate at second class
- Special magistrate court
At the middle level of the judiciary, the court at the sessions level will be there
- Court of sessions
- Additional court of sessions
- Assistant court of sessions
- Special courts
At the higher level of judiciary, there are high court and supreme court.
Section 6 of CrPC provides classes of criminal courts in every state apart from high courts and Supreme Court.
- Sessions court
- Judicial magistrate in first class and metropolitan magistrate in metropolitan areas
- Executive Magistrate
- Judicial magistrate at second class
The Supreme Court being the apex court of India, which was established under article 124 of the constitution. The high courts are being the second apex court in India which governs under article 141 of the constitution. High courts are bound by the orders of the Supreme Court.
Section 9 of CrPC held the state to establish the sessions court and that court is held by the magistrate appointed by the high court. Even the additional and assistant judicial magistrate are also appointed by the high court. Generally, sessions court will be empowered on the prosecution of criminals, witnesses Ee etc and they are bound by the high court. As per section 10 of CrPC additional and assistant sessions judges are answerable to the sessions judge.
Section 11 of CrPC empowers the state government after consultation with the judges of the high court to establish the court having the first and second class judicial magistrates in the district level but not the metropolitan areas.
Section 12 of CrPC says that in every district other than the metropolitan areas, judicial magistrate of first class shall be appointed as the chief judicial magistrate
Landmark judgement
- G. Vishakan Vs state of Kerala
The petitioner was the senior journalist in MANGALAM DAILY, G. Vishakan said that the police officers conducted the search operation in his home without prior information and they asked about shajan skaria who is editor and publisher of the YouTube channel named Marundan Malayali. After that the officers also cried the cellphone which was the source of his livelihood
The petitioner G. Vishakan also told that the police officers followed the provision under section 156 of CrPC ( police officers power to investigate the person for the claim in cognizable offences) and ignored section 41A of CrPC. And the petitioner also claimed that there is no link between him and skaraia’s crime. Then the Kerala high court strongly demonstrated that the state police for unlawfully confiscating the journalists phone whiteout following proper protocols.
- State of Kerala Vs Arumugham
This case mainly involved five minor girls leaving the care of their respective legal guardians with different men to the different locations. The accused had been charged with the kidnapping and sexual assault by the parents it had five different separate cases with separate set of facts. The accused had been detained under section 361 of IPC and the case come into the sessions court of that territorial jurisdiction.
The court had examined that 361 of CrPC and stated that it safeguards the minors from being kidnapped or seduced for unlawful purposes as well as it privileges and safeguards the rights of the individual. The court stated that in the similar case of state of Haryana Vs Rajaram and this case kidnap is an offence under section 361 of IPC. And awarded the punishment for the offenders of the crime.
- Ramesh Kumar Vs state of New Delhi
The FIR was filed for a hearing offence on a alleged breaches of a development agreement and the appellant was one of the accused . The high court granted the bail on the condition that appellant should deposit 22 lakhs in the trail court .however the appellant was unable to fulfill the requirement then the appellant went to the Supreme Court on the alleged amount which was burden on him. The state argued that appellant was offered to pay. Under the reference of the case Gurbaksha Singh Vs state of Punjab where the court held that courts should lean against the imposition of unnecessary restrictions on the scope of 438 of CrPC. The court stated Thata civil disagreement cannot be resolved by the use of criminal justice system . Even if the appellant promised to pay , high court should lean on them the wholesome.
EMERGING TRENDS
In recent years there had been the tremendous changes in the criminal law system. They mainly focused on the principles of natural justice. The latest amendment bill called BHARTIYA NAGARIK SURAKSHA SANHITA, 2023 which aims to introduce some significant changes to the CrPC. The bill proposes to leverage technology for various aspects of criminal justice, such as conducting trails, appeals, depositions and court recordings etc.,
CONCLUSION
The code of criminal procedure had the detail provisions regarding the arrests, warrants, compelling appearance, compelling production, ,first information report, charge, investigation processes, prosecution, the code gives us the detail and enumerative knowledge regarding the law. The code by being the strong procedural law, aids in the systematic progress of the criminal justice system as mandated in the substantial law in the penal code
References
- Code of criminal procedure, 1973
- https://www.google.com/gasearch?q=introduction%20to%20the%20criminal%20procedure%20code&tbm=&source=sh/x/gs/m2/5, last visited on oct 27, 2023.
- https://blog.ipleaders.in/crpc-law-notes/ last visited on oct 28, 2023
[1] [ blog pleaders], [https://www.google.com/gasearch?q=introduction%20to%20the%20criminal%20procedure%20code&tbm=&source=sh/x/gs/m2/5], [last visited on oct28, 2023].
[2] [ law octopus], [https://lawctopus.com/clatalogue/clat-pg/notes-on-introduction-to-crpc/amp/], last visited on oct27, 2023.
[3] [ law octopus], [https://www.google.com/gasearch?q=introduction%20to%20the%20criminal%20procedure%20code&tbm=&source=sh/x/gs/m2/5], [ last visited on oct 28, 2023]
0 Comments