The Code Of Criminal Procedure:An Overview

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.

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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.