Report No. 37
11. Materials studied.-
The materials studied by the Commission for the revision of the Code may be briefly classified as-
(b) local amendments;
(c) law in other common-law countries, wherever practicable and relevant, and the literature thereon;
(d) effect of the constitutional provisions, particularly those dealing with fundamental rights;
(e) Report of the Commission on the Reform of Judicial Administration (14th Report).
(f) Suggestions received from time to time by the Commission being
(i) suggestions forwarded by the Government of India or State Governments or High Courts;
(ii) opinions or suggestions which were received by the Joint Committee which examined the Amendment Bill of 19541;
(iii) other suggestions relating to sections of the existing Code made directly to the Law Commission;
(g) academic literature.
1. Several suggestions forwarded to the Joint Committee were not embodied in the Amending Bill of 1954. The Joint Committee stated, that some of these raised important issues and opportunities for eliciting general opinion thereon had not yet been given. The Joint Committee recommended that these should be taken up for consideration after circulating them for public opinion, and, if necessary, Government might bring before the House another suitable Amending Bill (Report of the Joint Committee dated 3rd September, 1954, para. 55).
12. We have found that in many cases it was necessary to examine in detail not only the Codes of 1861, 1872, 1882 (predecessors of the present Code), and the Code of 1898 as it stood before the amendments of 1923 and 1955, but also the debates and discussions relating to those Codes in the Legislature, and the suggestions and opinions which were considered by the various Committees which were entrusted with examining the Bills which ultimalely, led to the Codes of 1861, 1872 and 1882 and the present Code, and the Amendmeht.
Acts of 1923 and 1955. It may not, perhaps, be out of place to mention here, that the Amendment Act of 1923, which made important amendments in numerous sections of the Code, was the result of a long period of discussion and consideration, extending over a period of 12 years.
13. Lines on which Code revised in the past.-
Some idea of the lines on which the Code should be revised may be obtained from the lines on which its revision has been done in the past. The Code of 1861, was the first general Code1 of Criminal Procedure applicable to the whole of British India (excepting the Presidency Towns and the High Courts), while the first revision was done in 1872. The revision attempted in 1872 appears mainly to have been directed at a re-arrangement of the sections in more convenient and useful form, together with changes of substance in a few sections. Case-law on the previous Code had not, at that time, accumulated to such a great extent as to require detailed examination from the point of view.
1. For detailed historical discussion, see para. 17 et seq, infra.
14. The primary object of the Code of 1882 was to re-cast the Code of 1872, and also to consolidate with it the substance of the High Courts Act and the Presidency Magistrates Act, and to incorporate in it the numerous reported decisions on its wording, and thus give to India "a single and complete Code of Criminal Procedure, and carry out, so far, the policy of providing a simple and uniform system of law for that country."1
The language of the Code of 1872 was departed from in 1882 only so far as was necessary for the main purpose.
The secondary object of the Code of 1882 was to consolidate portions of certain special enactments (7 in number) dealing with the execution of process, the police, justices of the peace, inquiries into crimes committed abroad by British subjects etc. Thus, the process was in the nature of consolidation of statutes plus amendment.
The Code of 1898 was mainly a revising measure, intended to-
(a) incorporate changes made by several Acts which amended the law of criminal procedure;
(b) deal with matters brought to the notice of the Government of India, in regard to necessary amendments of the law; and
(c) to remove defects and difficulties in administering the law and contradictory interpretations, as shown by the Law Reports.2
1. Stokes Anglo-Indian Codes, Vol. 2, p. 4.
2. See Statement of Objects and Reasons to the Bill of 1897.
15. The Amending Act of 1923 had its genesis in the Bill of 1914. In the Statement of Objects and Reasons,1 the object of the amendment was thus stated. "Since the existing Code was passed, a number of suggestions for the amendment of particular points have, from time to time, reached the Government of India, and the Police Commission has also made various recommendations. The present Bill is the outcome of the examination of this accumulation of proposals, and is one of the series of revisions which experience of the actual working of the Code has necessitated from time to time."
The Amendment Bill of 1955 was mainly intended to ensure speedy disposal of cases, and to make certain other amendments on certain matters of importance.
1. Statement of Objects and Reasons to Bill No. 3 of 1914, Gazette of India, 1914, Pt. V, p. 119.
16. Thus, the process began with consolidation in 1882. After consolidation, the main revision of the Code has been in the direction of re-arrangement, incorporation of case-law and changes on certain matters of policy. After the Amendment of 1923, a lot of case-law has accumulated. It may also be stated, without meaning any disrespect to those who framed the Amending Act of 1923, that on certain sections, fresh controversies have arisen by reason of some of the amendments introduced in 1923.1 The task of revision now is a stupendous one, involving, as it does, a study of
(i) hundred years of case-law;
(ii) the genealogy of many sections of importance; and
(iii) local amendments, particularly of the field of separation.
1. The controversy regarding definition of "complaint" is one such example.
17. Historical survey.-
A historical survey of the Code itself is not out of place before we deal with the major changes. History of the Code seems to represent four stages-
(a) The period of formation;
(b) The period of consolidation;
(c) The period of revision; and
(d) The period of refinement.
18. Position before 1861.-
An idea of the diversity in the structure of criminal courts and their procedure, in 1855, can be had from the fact that in their First Report1 the Commissioners on the Reforms of the Judicial Establishment had to prepare as many as 8 parts, outlining the Constitution and procedure of the various Courts as follows:-
1. See First Report of the Commissioners on the Reform of Judicial Establishment in India, (1855), p. 208 (Appendix B).
1. Outline of the Constitution and Procedure of Her Majesty's Supreme Courts of Judicature at Calcutta, Madras, and Bombay.
2. Outline of the Constitution and Powers of the Justices of the Peace and Magistrates of the Presidency Towns of India.
3. Outline of the Constitution and Procedure of the East India Company's Courts of Civil Judicature in the Presidency of Bengal.
4. Outline of the Constitution and Procedure of the East Indian Company's Courts of Criminal Judicature in the Presidency of Bengal.
5. Outline of the Constitution and Procedure of the East India Company's Courts of Civil Judicature in the Presidency of Madras.
6. Outline of the Constitution and Procedure of the East India Company's Courts of Criminal Judicature in the Presidency of Madras.
7. Outline of the Constitution and Procedure of the East India Company's Courts of Civil Judicature in the Presidency of Bombay.
8. Outline of the Constitution and Procedure of the East India Company's Courts of Criminal Judicature in the Presidency of Bombay."
19. 1861 Code.-
The Code of 1861 was the result of long labours spread over a number of years. We quote from Stokes1,-
"So long ago as the 20th March, 1847, the President in Council instructed the Indian Law Commissioners to prepare a scheme of pleading and procedure with forms of indictment adapted to the provisions of the Penal Code, and such a scheme, together with several forms, was prepared by Messers Cameron and Elliott, and submitted with a report dated 1 Feb., 1848.2 Their draft was examined and considered by a new set of Commissioners appointed in 1854 under 16 and 17 Vict, c. 95, section 28, and comprising Sir John Romilly M.R., Sir John Jervis C.K., Sir Edward Ryan, and Messers Cameron, Ellis, Lowe (now Lord Sherborne), and Millett.
These Commissioners produced a draft Code which was presented to Parliament in 1856, and was in the following year introduced into the Legislative Council by Mr. (now Sir) Barnes Peacock. It ultimately was passed by the Legislative Council as Act XXV of 1861. This Code came into force on 1 January, 1862: it applied in the first instance only to the territories subject to what were called the general regulations, but was gradually extended to the rest of British India except, the Presidency-towns. It was amended by Acts 33 of 1861, 15 of 1862, 8 of 1866, and (very largely) by Act 8 of 1869."
1. Stokes Anglo-Indian Codes, Vol. 2, pp. 1-2.
2. There was a previous report dated 4 Nov., 1843 regarding the qualifications, summoning, and challenging assessors and jurors. This I have not seen.
20. 1872 Code.-
In 1872, the principal Code and its amending Acts were repealed and replaced by Act 10 of 1872. The Code was drawn partly by Mr. (later Sir) Fitzjames Stephen (who framed the sections corresponding with sections 221-240 of the present Code)1-2 and partly by Mr. H.S. Cunnigham,3 but chiefly by Captain Newbery, Personal Assistant to the Inspector General of the Punjab Police.4
1. Stephen History of the Criminal Law, iii. 337n.
2. Mr. Stephen also drew Chapters II-VII, XXIII (chief) and XXXVI.
3. Mr. Cunningham drew section 90, most of Chap. XIX, and Chap. XXXIV.
4. See Stokes Anglo-Indian Codes, Vol. 2, pp. 1-2.