The code of criminal procedure
better known as Cr.pc is aimed to provide a mechanism for the enforcement of
criminal law. In India law of criminal procedure is mainly contained in the
code of criminal procedure,1973 which came into force from April 1,1974.It
provides the machinery for the detection of crime ,apprehension of suspected
criminals ,collection of evidence ,determination of the guilt or innocence of
the suspected person ,and the imposition of suitable punishment on the guilty
person. In addition, the code also deals with prevention of offences,
maintenance of wives, children and parents, and public nuisances.
Purpose of criminal procedure
The essential object of criminal
law is to protect society against criminals and law breakers .For this purpose
the law holds out threats of punishment to prospective law breakers and as well
as attempts to make the actual offenders suffer the prescribed punishment for
their crimes .Therefore, criminal law, in its wider sense, consists of both the
substantive criminal law and the procedural criminal law.
Substantive criminal law defines
offences and prescribes punishments for the same, while the procedural criminal
law is to administer the substantive law.
In India the
Indian penal code, 1860, together with other penal laws like the Prevention of
Food Adulteration Act, protection of Civil Rights Act, Dowry Prohibition Act,
etc., constitute our substantive criminal law. Obviously, this substantive
criminal law its very nature, can not be self operative. For example, if a
person commits murder, he will not automatically be punished. To get him
punished it require procedure of arrest
,collection of evidence, a fair trial etc.Here code of criminal procedure comes
into picture which deals with these aspects in a detailed manner.
Without the
enforcement mechanism, the threat of punishment held out to the law breakers by
the substantive criminal law would remain empty in practice. Empty threats do
not deter, and without deterrent effect, the law of crimes will have hardly
meaning or justification. If thieves and murderers are not detected,
prosecuted, and punished, what is the use of meticulously defining the offences
of theft and murder and prescribing deterrent punishments for them.
The code of
criminal procedure also controls and regulates the working of the machinery set
up for the investigation and trial of offences. On the one hand it has to give
adequately wide powers to make the investigative and adjudicatory processes strong,
effective and efficient, and on the other hand, it has to take precautions
against probable abuse of powers by the police or judicial officers. It is
therefore right to say, as the Supreme Court has said, that it is the procedure
that spells much of the difference between the rule of law and the rule of whim
and caprice.
Importance of criminal procedure
The law of criminal procedure is significantly important for three main
reasons:
(1)It is more constantly used and
affects a great number of persons than any other law.
(2)The nature of its
subject-matter is such that human values are involved in it to a great degree
than in other laws.
(3)As the law of criminal
procedure is complementary to the substantive criminal law, its failure would
seriously affect the substantive criminal law which in turn would considerably
affect the protection that it gives to society. Therefore it has been rightly
said that too much expense, delay and uncertainty in applying the law of
criminal procedure would render even the best of penal laws useless and
oppressive.
Basic considerations in the formulation
of the code of 1973:
While formulating the code of
criminal procedure, 1973, the following considerations were therefore kept in
view:
(i) An accused person should get
a fair trial in accordance with the accepted principles of natural justice;
(ii) every effort should be made
to avoid delay in investigation and trial which is harmful not only to the
individuals involved but also to society; and
(iii) the procedure should, to
the utmost possible extent, ensure fair deal to the poorer sections of the
society.
Territorial
extent
The code of criminal procedure
extends to the whole of India
except the state of Jammu and Kashmir .Further
some of the provisions of the code have not been made applicable at present to
the state of Nagaland, and the tribal areas in Assam because of the peculiar
conditions prevailing there. (Section 1 of cr.pc)Further section 1 empowers the
concerned state government to apply any or all of the provisions of the code to
any part of the state or such tribal area.
According to the
Supreme Court, since the code is not in force in these areas, the procedure to
be followed is according to the spirit of the code and not strictly according
to the terms of its provisions. It has also to satisfy the standard of fairness
as is implicit in Art 21 of the constitution. [Zarzolina v/s Govt of Mizoram, 1981 cri LJ 1736, 1740(Gau HC)].
Scope of the applicability of the code
The provisions of the code are
applicable in respect of every investigation, inquiry or trial of any offence
under the Indian Penal Code or under any other law. However the rule is not
unduly rigid .If the exigencies of the subject matter or of the local
conditions require a special procedure to be followed in respect of certain
offences, the code makes room for such special law and procedure and generally
gives it precedence over the normal procedure provided by the code.(Ss.4 and
5).
The code of criminal procedure
does not apply to contempt of court proceedings as contempt of court is not an
offence within s.4 (2)[State v.Padma Kant
Malviya,AIR1953 ALL 523(FB)].Further
,if the contempt proceedings are taken by the High Court under the Contempt of
courts Act, the proceedings are in the exercise of “special jurisdiction”
within the meaning of S.5 and hence the provisions of the Cr.pc are not
applicable to such proceedings.[Shukhdev
Singh Sodhi v.Chief Justice and Judges,Pepsu High Court, AIR 1954 SC 186].
The code has been passed by
thee Parliament; but as the subject of criminal procedure has been included in
the Concurrent list in the Seventh Schedule appended to the Constitution, a
State Legislature may, in accordance with the provision of he Constitution
modify the provisions of the code. The modified provisions of the code would
then apply to that State. Thus it would be seen that while the code provides
for a uniform criminal procedure applicable throughout India, Sections 1, 4, and 5 of Code and the
provisions of the constitution of India make it sufficiently flexible
to adjust itself to the special local needs and conditions.
Functionaries under the code:
The main functionaries exercising
powers and discharging duties under the Code are as follows:
(a)Police;(b)Prosecutors;(c)Defence
Counsel;(d)Magistrates and Judges of higher courts; and (e) Prison Authorities
and correctional services personnel.
Main segments of Criminal Procedure
1. Pre-trial Procedure:
Information
regarding commission of offences; Arrests; Examination of persons; Search and
Seizure; and similar other aspects of investigative process.
.
2. Jurisdiction of police and in respect of investigation and trial of
offences
3. Bail
4. Trial Procedure:
cognizance of
offences; Initiation of proceedings; Attributes Of fair trial and other general
provisions regarding trials; Charge; Types of trials; Judgment.
5. Review procedure:
References;
Appeal; Revision; exercise of inherent powers of High court.
6. Execution of the
final decision of the court
Apart from these above said main
segments the Cr.pc also deals with (a) the prevention of offences, (b)
maintenance of wives, children and parents, (c) public nuisance. Though these
provisions do not really pertain to the mechanism for the administration of criminal
law but are helpful indirectly for achieving the main objective of the
administration of criminal justice, and therefore they may be given their due
importance.
