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Introduction of Criminal Procedure Code 1973

Brief history and development of the code

In the old days, there was no uniform law related to criminal procedure for the whole of India. The Presidency — separate acts for courts within and outside the towns, were rudimentary in their character.

Later, the Acts enacted in the Presidency-towns were consolidated into the Criminal Procedure Supreme Court Act, 1862, which was later replaced by the High Court Criminal Procedure Act, 1865. Many of the acts prevalent in Mofussil were absorbed into all.

The Criminal Procedure Code, 1882 gave a uniform law procedure for the whole of India, both in the Presidency Town and Mofusil, and was supplemented by the Code of 1898. The last mentioned code was amended several times in 1923 with major modifications. And 1955.

The Law Commission, established in 1955, extensively studied the old code and in its detailed report submitted in 1969, made various recommendations and suggestions. These suggestions were incorporated into the Code of Criminal Procedure, 1973, which came into force on 1 April 1974. Since which 1978, 1980, 1983, 1988, 1990, 1991, 1993 and 2001, 2005, 2006, 2008, 2010 and 2013 were amended.

While drafting the Code, the following three basic considerations have been taken into consideration.

  • That an accused person should get a fair hearing as per the principles of natural justice.
  • That every effort should be made to avoid delays in investigation and testing, which is harmful, not only to the person involved, but also to the society.
  • This process should not be complicated, and should be possible to the extent that there is a fair trial deal for poor sections of the community. 
Procedural nature of the code

Every criminal law is either a substantive law, or a procedural law. Basic law determines rights and liabilities, while procedural law defines procedure to trail in the court. The Indian Penal Code is a substantive law, as it amounts to various offenses and determines the punishment concerned. The Criminal Procedure Code, on the other hand, is procedural law, as it presents elaborate the procedure to punish offender. Procedure is to be followed to try all criminal offenses under the Indian Penal Code. The same procedure is applied for offenses under any other law, unless any act prescribes a particular form of procedure for such offenses.

The Code of Criminal Procedure does not affect the special or local laws applicable in India.

  • The function of procedural law is fourfold.
  • To select the appropriate jurisdiction;
  • To locate the appropriate court; 
  • To speed up the machinery of justice; And 
Providing ways and means to effectuate the decision of the court.

The Criminal Procedure Code is not fully procedural in nature. There are many provisions in the Code, which provide for basic rights. For example, section 125 of the Code confers maintenance rights on the wife, children and parents. The code also grants the authority of Habeus Corpus. Similarly, the right of appeal is also available under the Code.

Procedural law is not in any way less important than substantive law. In fact, both are equally important and complement each other. In a given case, basic penal law can be the perfection of reason and knowledge, and yet the worst offenders can avoid the flaws and loopholes of the process. It is therefore necessary that procedural law must be as more effective as possible.

Application of the Code:

This new Act received the assent of the President on 25.01.1974 and came into force from 1 April 1974. This method was based on the 41st report of the Commission. The 41st Law Commission was given the task of preparing the new Cr.P.C. in the year of 1955.

Fundamental changes in the new Code:

The following are the basic changes to the new code:
  1. Trial by jury has ended
  2. Scope of summary trial is increased
  3. Have given free legal aid in all session matters to poor.
  4. Before sentencing under the new code, the accused are given an opportunity to present their case.
  5. The judiciary is separated from the executive. 
Now there are two types of magistrates in the new code:

Judicial: - The task of deciding the case
Executive: - has been given the power to prevent crimes and maintaining peace. They have no power to decide the case.

There are two classes of magistrates:
  1. 1st class Magistrate
  2. 2nd class Magistrate 
There is no provision for third-class magistrates in the new Cr.P.C., 1973, The scope of the summon case has been expanded with the new code. This will facilitate a quick hearing of small cases, as they take less time than the warrant case. 

Sections and schedule 

Currently, the Act has 484 sections, 2 schedules, 56 forms and 37 chapters.

Territorial Jurisdiction

The Criminal Procedure Code is applicable throughout India. The power of Parliament to legislate with respect to Jammu and Kashmir was removed from Article 370 of the Constitution of India. But now Parliament has repealed Article 370 from Jammu and Kashmir. In this way Crpc is applicable all over India

Provided that the provisions of this Code, other than those relating to Chapters 8, X and XI, shall not apply-
  • Nagaland state and
  • tribal areas,

Bailable and Non-Bailable Offences [Section 2(a)]:

A bailable offense is an offense, which is shown in the First Schedule to be bailable for the Code, or which is bailable for the time being in force of any other law.

Non-bailable offense means any other offense. The First Schedule to the Criminal Procedure Code contains a list of bailable offenses, for example, rioting, being a member of an unlawful assembly, committing a crime, giving false evidence.

All remaining offenses which are not bailable will thus be bailable. The Criminal Procedure Code does not lay down any criteria on which it classifies bailable and non-bailable offenses. However, the classification can be explained on the basis that bailable offenses are generally less grave and serious than those which are non-bailable. The yard stick pursued under the Indian Penal Code to classify offenses into two categories is as follows:

If an offense is punishable with imprisonment less than three years or with fine only, it is bailable. On the other hand, a non-bailable offense is one which is punishable by death penalty or imprisonment of three years or more or imprisonment. But these concepts are based on myth, actual bailable case is given in schedule first and apart from the first schedule all are non bailable


Bailable offence

Non-bailable offence

1. Bailable offences are less grave and    serious in nature.

1. Non-bailable offences are grave and serious in nature.

2. Bailable offences are punishable with less than 3 years imprisonment or fine.

2. Non-bailable offences are punishable with imprisonment or 3 years or more.

3. Bail van be claimed as a matter of right.

3. Bail can be granted at the discretion of the court.


Charge [Section 2 (b)]: After disclosure in criminal investigation, prima facie case of certain offenses or crimes committed by the accused, charges are framed by the court.

This includes any head of charge when the charge has more than one head.

The charge is not defined in the code. In law, this charge is the exact formulation of specific charges made against a person who is has right to know its nature at an early stage. It is formulated against the accused after enquiry. Charges must be specific and precise. In a case of summary / summons case, framing of formal charges are not necessary, but in warrant cases, it is necessary.

Cognizable and Non-Cognizable Offences [Sections 2(c) & 2 (l)]: Cognizable offence means an offence for which a police officer may in accordance with Schedule I of the Code or under any other law for the time being in force, arrest without warrant. A non-cognizable offence is one where a police officer has no such authority to arrest without a warrant. Non-cognizable offences are more trivial and less serious than cognizable offences. In non-cognizable case, the officer cannot investigate without the authority of the Magistrate under Section 155(2) nor can he make a search under Section 165.

Cognizable offence means an offense for which a police officer may be in accordance with Schedule I of the Code or under any other law for the time being in force, can arrest without warrant. A non-cognizable offense is one where a police officer has no right to arrest without a warrant. Non-cognizable offenses are more trivial and less serious than cognizable offenses. In a non-cognizable case, the officer cannot conduct an investigation under section 155 (2) without the authority of the magistrate nor can he execute a search under section 165.

Bases of Distinction 

Bases

Cognizable

Non-Cognizable

1. Nature

Serious

Non-serious

2. Quantum of     punishment

More

Less

3. Arrest

Without Warrant

By warrant only

4.  Duty of Police            officer

Police officer is duty-bound to investigate even without order/direction of the Magistrate

Police officer has neither duty nor power to investigate without direction of Magistrate

5. Nature of wrong

Public wrong and prosecution is left at the discretion of State.

Private wrong and prosecution is left at the initiative of parties.


The distinction between Cognizable and Non-Cognizable offences

Cognizable offences

Non-Cognizable offences

1. All serious offences are cognizable.

1. Non-cognizable offences are less serious.

2. Offences punishable with imprisonment for3 years or more. Eg. Waging war against govt., murder, culpable homicide not amounting to murder. Theft, extortion, etc.

2. Offences punishable with imprisonment with less than 3 years. Eg. Absconding to avoid service of summon, giving false information to public servant, etc.

3.  Police officer may arrest without warrant.

3. Police officer has no authority to arrest without warrant.

4.  Police officer can investigate without orders/directions from the Magistrate.

4. Police officer has no power to investigate without authority of the Magistrate

5. They are considered as public wrongs, prosecution is left at the discretion of the court.

5. They are considered as private wrongs,  prosecution is left at the initiative of parties.


A case cannot be partially cognizable and partially non-cognizable. If one or more offenses are cognizable and the rest are non-cognizable. This would be a cognizable offense.

Complaint [Section 2 (d)]: A complaint defines any allegation either orally or in writing to the magistrate with a view to take his action under the code, that some person, Whether known or unknown, has committed the crime.

The word 'complaint' does not include the police report. But if a police report is made by a police officer in a case disclosing the commission of a non-cognizable offense, it is considered a complaint, and the police officer by whom such a report is made is considered a complainant.

A complaint in a criminal case is a plaintiff in a civil case. This is one of the ways where a magistrate can take cognizance of a crime.

Ingredients of complaint
  • There must be allegation about commission of offence.
  • It must be made to the Magistrate either orally or in writing.
  • It must have been made for taking action against person who has committed an offence.
  • It must be against some person, whether known or unknown.
A complaint can be filed by any person except in cases of offences related to marriage, defamation and offences under Section 195 to 197, which can be filed by an aggrieved person or any other person mentioned there in. A complaint need not contain all details or prosecution evidence.

Distinction between Complaint & F.I.R 

                      Complaint

                     F.I.R.

1. Complaint is made orally or in writing to a Magistrate.

1. F.I.R. is given to officer in charge of a police station.

2. Complaint may relate to cognizable/non-cognizable offence.

2. FIR must relate to a cognizable offence a case.

3.  Magistrate may take cognizance of an offence on complaint made to him.

3. Magistrate cannot take cognizance on first information report.

4. Complaint does not include police report.

 4 .FIR may be given by police officer.


Police Report: When a police investigates a non-cognizable case under the order of a Magistrate and makes a report at the end of investigation then that report being a police report is not a complaint. But if without order of the Magistrate the police investigates and reports a non-cognizable offence to a Magistrate with a view to Magistrate taking action, then it is a complaint.

Inquiry: Section 2(g):- It is a kind of investigation made by a Magistrate or Court. Inquiry and Trial are two different things. Trial is also a kind of investigation by a Magistrate or Court but that is not considered inquiry. There is a difference between stages and result, generally inquiry precedes trial i.e. inquiry stops where trial begins. All those proceedings before Magistrate prior to framing of charge for the purpose of coming to the truth is said to be an inquiry. In other words inquiry is preparatory to cognizance and framing of charges.

In Sessions Trial, the trial begins when the charges are framed.

In warrant cases the trial begins when the accused is called upon to plead the charge.

In summons cases the trial begins when the accused is brought/appear before the Magistrate (since it is not necessary to frame a formal charge).

Distinction between Inquiry & Trial 

Inquiry

Trial

1.     In inquiry if judicial process is completed it will not result into acquittal/conviction. It may result into discharge or committal for trial.

  1. Trial leads either to conviction or acquittal

2.       Inquiry may relate to an offence or a matter which is not an offence. For eg. Inquiry for deciding the issue of maintenance, possession or Public nuisance

2. Trial is always of an offence.

3.       Inquiry is used in a wider sense to include every kind of inquiry other than trial.

 

3. Trial denotes two things:

Trial of a controversy arising from an issue.

Trial of a complaint or an action from beginning to end.



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