Report No. 37
The Code of Criminal Procedure, 1898 (Sections 1-176)
1. Genesis of the report.-
Revision of the Code of Criminal Procedure, 1898, has been undertaken by the Law Commission in the following circumstances.
After the Law Commission submitted its report on the Reform of Judicial Administration,1 Government asked the Law Commission to undertake examination of the Code, not merely from the point of view of implementing the recommendations made in the Report referred to, but also with the object of attempting a general revision. Work on the subject was started immediately, and has been continuously going on since then.
The process of revision took time because of the vastness and importance of the subject-matter, the prolific case-law that had accumulated on the Code, the several important matters of constitutional importance that had to be considered, the voluminous suggestions received on the subject, the detailed study that was needed for examining the effect on the Code of the separation of the Judiciary from the Executive, and the preoccupation of the Commission with certain other subjects which were urgent.
1. 14th Report of the Law Commission (Reform of Judicial Administration),
2. Objectives of revision.-
In the revision of the Code, as proposed here, we have proceeded generally on the lines usually followed in the Commission's other Reports on the revision of statutes. Attention, however, should be drawn to some important aspects. First, a law of Criminal Procedure affects a larger number of persons than most other laws; secondly, criminal law is an instrument for the protection of society, and criminal procedure is its chief means. Criminal Courts are the main agencies for its administration. The ordinary citizen is, or is likely to be brought, directly or indirectly, into contact with the criminal law, more often than with most other laws. He may appear as a witness, a juryman, or, often, as an accused or a complainant.
If he is the accused, he may be faced with the possibility of loss of personal liberty (and sometimes life) and in most cases, even if he is acquitted, a harm to his reputation. Beginning with arrest and ending with appeal to the highest appellate court, the stages of a criminal proceeding touch the individual in vital matters. A decision as to the policy to be adopted in the procedural law, therefore, often involves a nice balancing of conflicting considerations, a delicate weighing of opposing claims clamouring for recognition, and the extremely difficult task of deciding which of them should pre-dominate.
The very nature of the subject-matter is, thus such, that human values are involved to a greater degree than in other laws. On any responsible body of persons, this work would impose considerable mental and moral strain. We hope that our recommendations as to the changes to be made or not to be made in the existing law have done justice to the subject, though we do not expect that all of them will find universal or general acceptance.
3. Some of the problems which we had dealt with are of a recurring nature; such as, the law of arrest; the questioning of the accused; the use in evidence of statements recorded during investigation by the police; and so on. The consideration of speed and the demands of justice had to be harmonised, in dealing with these and similar problems. Often, the solution was not easy, as each of the alternatives had weighty arguments in support. What appears in this Report as our conclusion on some of the important matters was not arrived at without some hesitation.
4. Importance of the code.-
The importance of a Code of Criminal Procedure is based on two considerations:-
First, expense, delay or uncertainty in applying the best laws for the prevention and punishment of offences would render those laws useless or oppressive; secondly, the law relating to Criminal Procedure is more constantly used and affects a greater number of persons than any other law.1
1. Stokes Anglo-Indian Codes, Vol. 2, p. 1.
5. Object of the code.-
Very briefly stated, the object of Criminal Procedure is the ascertainment of the guilt or innocence of the accused. Therefore, the matters dealt with in a Code of Criminal Procedure would mainly pertain to the various stages incidental to the process of ascertainment of the guilt. From the legal point of view, the law of Criminal Procedure is the law dealing with the process of applying the instrument of Criminal law-punishment-to the facts of a particular case.
6. The object of the Code of Criminal Procedure is, (to state it in a different form), to provide a machinery for the punishment of offences against the substantive law.1-2 Thus, a Code of Criminal Procedure would mainly deal with the judicial process in so far as it pertains to the institution, conduct and disposal of criminal prosecutions.
1. Ganesh Narain, 1889 ILR 13 Bom 590 (598).
2. Q.E. v. Abdul Rehman, 1891 ILR 16 Bom 580 (584).
7. If the law of Criminal Procedure had only to deal with the chronological stages of a criminal trial, it would have been very simple and short. That is not so, however, because human values are involved.
8. Because a criminal trial involves human issues, the right to a fair trial figures prominently. The requirements of a fair trial, speaking broadly, relate to the character of the court, the venue, the mode of conducting the trial (particularly trial in public), rights of the accused in relation to defence, and other rights.1
1. Cf. David Harris The right to a fair trial in criminal proceedings as a human right, (April 1967), 16 ICLQ 352.
9. Moreover, before the actual trial, there are stages of some importance, namely,-
(i) investigation, which is the gathering of facts;
(ii) the magisterial inquiry in important cases-which is the unfolding and testing of the prosecution case;1 and
(iii) the charge which is the final instrument giving a precise shape to the accusation. The law has to deal with them also.
These matters increase the field and volume of the inquiry to be embarked upon, when revising a Code of Criminal Procedure.
1. See Devlin The Criminal Prosecution in England (E.L.B. Edn., 1966), p. 111.
10. Reports submitted.-
On some of the important sections of the Code, the Law Commission has already submitted reports separately. These Reports deal with some matters which required detailed and separate examination or urgent consideration.1-2-3
Besides these, the Commission also had to study the procedural provisions in various special laws, in connection with its report on Socio-economic offences.4
1. 25th Report, (Report on Evidence of Officers about forged stamps, currency notes etc. (Section 509A, Code of Criminal Procedure, as proposed).
2. 32nd Report (Section 9, Code of Criminal Procedure, 1898).
3. Report on section 44 of the Code-Proposal to insert provision for disclosure of offences relating to bribery etc. (The Report is under submission).
4. 29th Report (Report on the proposal to include certain Social and Economic Offences in the Indian Penal Code).
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