Report No. 154
The Code of Criminal Procedure, 1973
1.1. After coming into force of the Constitution of India, the First Law Commission in its Fourteenth Report on Reform of Judicial Administration made extensive recommendations on the reform of criminal justice system in 1958.1 The Commission had examined the subjects of organization of criminal courts, police investigation, prosecuting agencies, delays in criminal trials, committal proceedings, criminal appeals, revisions and inherent powers, procedure for trial of perjury cases, etc.
As a result, the Code of Criminal Procedure, 1898 was amended to give effect to some of the recommendations. On reconstitution, the Law Commission was asked by the Government of India to undertake a comprehensive review of the Code. While this review was in progress, the Commission rendered certain reports on specific problems arising out of certain provisions of the Code. Those were:
(1) Report on the Evidence of Officers of the Mint and of the Indian Security Press regarding Forged Stamps, Currency Notes, etc., (section 510 of the Code).2
(2) Report on section 9 of the Code regarding the Appointment of Sessions Judges, Additional Sessions Judges and Assistant Sessions Judges.3
(3) Report on section 44 of the Code and a suggestion to add a Provision relating to the Reporting of, and the Disclosure in Evidence about, Offence relating to Bribery.4
(4) Report on sections 497, 498 and 499 of the Code with reference to the Question of Granting of Bail with Conditions.5
(5) Report on the first fourteen Chapters comprising sections 1 to 176 of the Code.6
1. 14th Report: submitted on September 26, 1958, see Vol. 11.
2. 25th Report: submitted on September 27, 1963.
3. 32nd Report: submitted on May 29, 1967.
4. 33rd Report: submitted on December 15, 1967.
5. 36th Report: submitted on January 9, 1968.
6. 37th Report: submitted on February 19, 1968.
1.2. The Fifth Law Commission undertook a detailed study of the Code from where the previous Commission had concluded its Report, viz., section 177 and rendered the Forty-first Report representing a comprehensive review of the Code in 1969. Consequent to that Report, the Parliament enacted the Code of Criminal Procedure, 1973 which came into effect on April 1, 1974.
1.3. Subsequent to the coming into force of the new Code, the Law Commission has given the following Reports on specific subjects relating to the criminal justice system.
1. Some Questions under the Code of Criminal Procedure Bill, 1973.1
2. Delay and Arrears in Trial Courts2
3. Congestion of Under-trial Prisoners in Jails.3
4. Rape and Allied Offences-Some Questions of Substantive Law, Procedure and Evidence.4
5. Section 122(1) of the Code of Criminal Procedure, 1973: Imprisonment for Breach of Bond for keeping the Peace with Sureties.5
6. Need for Amendment of the Provisions of Chapter IX of the Code of Criminal Procedure, 1973, in order to Ameliorate the Hardship and Mitigate the Distress of Neglected Women, Children and Parents.6
7. Concessional Treatment for Offenders Who on their Own Initiative Choose to Plead Guilty Without Bargaining.7
8. Report on Custodial Crimes.8
1. 48th Report: submitted on July 25, 1972.
2. 77th Report: submitted on November 27, 1978.
3. 78th Report: submitted on February 2, 1979.
4. 84th Report: submitted on April 25, 1980.
5. 102nd Report: submitted on July 2, 1984.
6. 132nd Report: submitted on April 19, 1989.
7. 142nd Report: submitted on August 22, 1991.
8. 152nd Report: submitted on August 26, 1994.
1.4. With a view to removing certain difficulties experienced in its working, the Code of 1973 underwent several amendments in 1974, 1978, 1980, 1983, 1988, 1990, 1991 and 1993 for specific purposes.
1.5. In May 1994 the Government of India introduced the Code of Criminal Procedure (Amendment) Bill, 1994 in the Rajya Sabha incorporating many amendments in the Code. The Bill is at present before the Parliamentary Standing Committee on Home Affairs.
1.6. In the meantime, the Government of India has made a reference to the Law Commission to undertake comprehensive revision of the Code of Criminal Procedure and suggest reforms in the law.
In view of the above, the Law Commission has undertaken a study of comprehensive revision of the Code of Criminal Procedure, 1973 so as to remove the germane problems leading to consequential delay in disposal of criminal cases.
In order to elicit public opinion on the subject, the Commission circulated a working paper, a detailed questionnaire on the Code of Criminal Procedure, 1973 (Annexure I & II) setting out various aspects of the subject under study. The questionnaire was sent to all the State Governments, Director General of Police of all States, Supreme Court and High Court Judges, Bar Associations, Professors of Law, Advocates and Non-Governmental Organisations. Varied responses received on the questionnaire are summarised in Annexure III.
The Commission had also organised workshops under the auspices of High Courts at Allahabad, Ahmedabad, Bombay, Chandigarh, Delhi, Hyderabad, Kochi, Madras and Patna. At all these places the Commission had the benefit of discussions with the High Court Judges, senior lawyers, District and Sessions Judges, police officers, legal academicians and non-Governmental organisations on the subjects identified by the Commission for review and reforms.
At Jaipur, the Central Law Commission and the Rajasthan State Law Commission had organised the workshop. At Guntur and Thiruvananthapuram, the Commission had meetings with local Bar Associations and Judges on the scope of the amendment of the Code (Annexure IV). The Commission has, while formulating this Report, taken into consideration the views expressed at various workshops.
1.7. The Code of Criminal Procedure (Amendment) Bill, 1994 contains 49 clauses incorporating amendments. The significant amendments pertain to the following subject-matter:
Grant of autonomy to the prosecution agency (section 2), setting up of the Directorate of Prosecution (section 25A), Procedure of arrests and safeguards thereon for arrest of women (sections 45, 46, 50A);
medical examination of the accused generally (sections 53 and 54) of the person accused of rape (section 53A);
identification of arrested persons (section 54A);
proclamation of absconded persons committing grave offences under I.P.C. (section 82);
Dealing with offences under the Foreigners Act, 1946 to check the flow of undesirable foreigners into the country (section 110);
raising the ceiling of maintenance of parents, wives and children (section 125);
empowering the district magistrate to prohibit mass drill or mass training with arms in a public place in order to check communal tension and foster a sense of security for the public (section 144A);
medical examination of the victim of rape by government registered medical practitioner or in their absence, by any other registered medical practitioner (section 164A);
to facilitate compounding of offences at the stage of investigation for quick disposal of cases (section 173);
mandatory judicial inquiry in case of death or disappearance of a person or rape of women in police custody and conducting of post mortem examination within 24 hours of death (section 176);
empowering the magistrate to authorise further detention in custody of an accused for a limited period after recording reasons (section 190);
protection given to members of Armed Forces accused of offences to be extended to other public servants charged with the maintenance of public order (section 197);
making it obligatory on the magistrate to inquire or direct investigation of the case before summoning the accused residing beyond his jurisdiction (section 202);
empowering the Sessions Court also to hold joint trial on the application of the accused persons (section 223);
empowering the Sessions Judge to transfer a case not only to the Chief Judicial Magistrate but also to any other judicial magistrate (section 228);
expansion of the category of cases for summary trials (section 260) making memorandum of identification memo prepared by magistrate admissible in evidence without formal proof of facts stated therein, with a discretion conferred in the court to examine the magistrate on the subject matter of the memorandum on the application of the prosecution or the accused (section 291A);
empowering magistrates to issue directions to any one including an accused person to give specimen signatures and handwriting (section 311A);
permission to file an appeal in the Sessions Court instead of High Court on the basis of inadequacy of sentence passed by a magistrate (section 377);
provision for appeal against acquittals by magistrate to the Sessions Court (section 378);
appellate court to give notice so the prosecution before releasing on bail a person convicted of an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years (section 389);
provision that the period for which the life convict remained in detention during investigation, inquiry or trial be setoff against the period of 14 years of actual imprisonment (section 433A);
an arrested person accused of a bailable offence, if indigent and cannot furnish security, be released on execution of bond without sureties (section 436);
detention of under-trial prisoner, except the one accused of an offence punishable with death, not to exceed one-half of the maximum period of imprisonment for the offence; mandatory release on his personal bond with or without sureties;
absolute ban on detention beyond the maximum period of imprisonment for the offence (section 436A);
certain restrictions in the grant of bail to previous convicts of grave offences and other conditions on the grant of bail with a view to ensuring that the accused on bail does not interfere or intimidate witnesses (section 437);
provision for more stringent conditions for the grant of anticipatory bail by the Sessions Court and High Court (section 438);
surety to disclose to the court as to in how many cases he has already stood surety for accused persons (section 441A);
forfeiture of bond for appearance before a court and the court's powers thereon (section 446);
amendments to First and Second Schedules of the Code of Criminal Procedure;
amendments to Indian Penal Code, namely,
(i) section 153AA punishment for violation of prohibitory order on mass drill or training with arms in public places,
(ii) section 174A prescribing punishment for proclaimed offenders,
(iii) section 229A prescribing punishment for persons released on bail failing to appear and surrender to custody.
1.8. The Law Commission had also undertaken an intensive study of the Code with a view to eliminating the problems and bottlenecks leading to delay in the disposal of criminal cases as well as other remedial measures. The Commission set about its task by identifying the following areas in the Code which needed redesigning and restructuring:
(i) Establishment of Separate Investigating Agency.
(ii) Independent Prosecuting Agency.
(iii) Law of Arrest.
(iv) Custody, Remand and Changes in section 167(2).
(v) Bail, Anticipatory Bail and Sureties.
(vi) Bail-Attendance of Accused-Appellate Stage.
(vii) Summons cases-Warrant Cases-Summary Trial: Changes in Procedure.
(viii) Examination of Witnesses and Record of their Statements under sections 161 and 162.
(ix) Protection and Facilities to Witnesses.
(x) Examination of Accused under section 313.
(xi) Compounding of Offences: section 320.
(xii) Plea Bargaining.
(xiii) Setting up of Nyaya Panchayats: Scope of Jurisdiction and Nature of Offences to be Tried by them.
(xiv) Victimology and Compensating the Victims: Insertion of new provisions.
(xv) Inquiry and Trial of Persons of Unsound Mind.
(xvi) Procedure for Maintenance of Wives, Children and Parents.
(xvii) Special Protection in respect of Women.
(xviii) Punishment of Imprisonment for Life, Sentencing and Set-off.
(xix) Code of Criminal Procedure (Amendment) Bill, 1994: proposed changes.
(xx) Speedy Justice.
We have examined the aforesaid problems in detail keeping in view the various responses received on the questionnaire and the views expressed in the workshops. Accordingly, we have made our recommendation particularly from the point of view of "speedy trials".