Report No. 37
21. 1861 Code and other Acts upto 1872.-
The history of the Code of 1861 and other Acts upto 1872 was thus1 traced by Sir James Fitzjames Stephen (then Mr. Stephen) while presenting the Supplementary Report of the Select Committee on the 1872 Bill.
"I may perhaps be allowed to give, in a very few words, the history of the Code. It has been built up by slow degrees by the labours of successive generations of legislators ever since legislation first began in this country. The very earliest Regulations of 1793 provide for the establishment of a system for the administration of criminal justice. This system was repeatedly altered, varied and readjusted, so as to meet 'the varying wants of the country and to supply the requirements which were shown by experience to exist. The mass of legislation which thus accumulated was very large, and when the Penal Code was passed in 1860, it was considered a matter of pressing importance to prepare a Code of Criminal Procedure as quick as possible, in order to act as a companion to it. Act XXV of 1861 was the result.
It threw together all the existing law on the subject to which it related, and so consolidated an immense mass of Regulations and Acts. I will not say how many, but I think they were counted by the hundred. Act 25 of 1861 was drawn by men thoroughly well acquainted with the system with which they were concerned; but I am inclined to doubt whether they did not know it rather too well, for they certainly threw the various provisions together with very little regard to arrangement, and without any general plan. Various Acts for the amendment of the Code became necessary after it had been passed.
These were consolidated by Act XVIII of 1869. The result was rather to increase than to diminish the confusion which had previously existed. Act VIII of 1869 was not regarded as a final measure, and a correspondence on several points connected with it, and with the further reform of the system of criminal procedure took place between the Government of India and the Indian Law Commissioners, who gave their opinion on various matters submitted to them in one of their very latest reports. This report was the cause of the present Bill. I must now say what appears to be necessary upon its provisions."
1. Speech of Mr. Stephen, Proceedings of the Governor General in Council dated 16th April, 1872.
22. Mr. Stephen then proceeded to make some observations as to the changes introduced. "I wish, in the first place, to state distinctly my own position with regard to the Bill. Of course, I am fully responsible for it; but at the same time I must observe that I have not been so presumptuous or foolish as to attempt to introduce modifications of my own devising into the working of a system gradually constructed by the minute care and vast practical experience of many successive generations of Indian administrators and statesmen. I have carefully avoided that fault.
I have regarded myself, rather as the draftsman and secretary of the Committee, by whom all the important working details of the Bill have been settled, than as its author; and to them, rather than to me, is due any merit which may attach to the practical improvements which I hope this Bill will be found to have introduced in the administration of criminal .justice, and in the general maintenance of the public security. I am the more anxious to say this, because, when I last addressed the Council on this subject, I made various criticism from the point of view of an English lawyer on the administration of justice in this country."
23. Continuing his speech, Mr. Stephen then stated, "I do not wish to retract or to modify what I then said. I shall feel that the system of criminal justice in this country is open to serious objection, and would admit, in course of time, of considerable improvement. I think I could suggest means by which those improvements might be brought about quickly and gradually; but the task of the critic differs essentially in my opinion from that of the legislator. The task of the critic is to form and express his opinion as pointedly as possible, in order that they may form the subject of public discussion and gradually produce whatever effect may properly belong to them.
The task of the legislator, in reference to an existing system like that of Indian Criminal Procedure, is much more like that of the editor of a law-book. It is his duty to re-arrange, to explain what experience has proved to be obscure, to supply defects, and, to make such alterations as harmonize with, and carry out, the leading idea of the system with which he is concerned. The notion that any one could, if he would, or that he ought to wish, if by any accident he had the power, to make a new set of laws for his fellow-creatures out of his own head, and without reference to existing materials, is, to my mind, altogether wild and absurd.
This I believe to be true everywhere, but it is emphatically and peculiarly true of India. It is simply impossible to make extensive changes in the administration of this country suddenly. The reason is obvious, though I think people in England are apt not unnaturally to overlook it. It is, that the number of officers is so small, their duties so unremitting, and the nature of the engagements between them and the Government which employs them so stringent, that the whole administration would be thrown into confusion by any change which greatly altered the duties, or involved any serious modification in the position, of the officers concerned."
24. Separate Acts for High Courts and Presidency towns.-
The Code of 1872 did not extend to the Courts established by Royal Charter in Calcutta, Madras and Bombay. The position, as stated by Stokes,1 was as follows:-
"For these Courts, as well as for the High Court at Allahabad and the Chief Court at Lahore, provision was made by Act 10 of 1875 (to regulate the procedure of the High Courts in the exercise of their original criminal jurisdiction), which reduced the number of jurors to nine and the number of pre-emptory challenges to eight, dispensed with the necessity of a unanimous verdict, codified the law relating to habeas corpus, provided a simple substitute for the writ of certiorari, and repealed and re-enacted in an improved form the seven Acts2 by which the Legislature had from time to time amended the criminal procedure of the Supreme Courts, or their successors the High Courts. This Act3 was drawn by the writer and carried by Mr. (now Lord) Hobhouse.
The Code of 1872 was also inapplicable to the Magistrates' Courts at Calcutta, Madras, and Bombay. For these, provision was made by Act 4 of 1877 (to regulate the procedure and increase the jurisdiction of the Courts of Magistrates in the Presidency Towns). This Act, which increased the jurisdiction of the Presidency Magistrates, assimilated their procedure to that of the provincial Magistrates, and made many other improvements, was drawn by the writer and carried by Mr. (now Sir) Theodore Hope."
1. Stokes Anglo-Indian Codes, Vol. 2, pp.2-3.
2. Acts 31 of 1838, 22 of 1939, 4 of 1862 (except sections 26-35, 47-53), and Act 13 of 1865, a useful measure, carried by Sir H. Maine, with (inter alma) abolished grand juries. Certain other provisions relating to the criminal procedure of the Supreme Courts were contained in 9 Geo. 4, C. 74, which was repealed by Act 10 of 1875, with the exception of sections 1, 7, 8, 9, 25, 26 and 56. It also repealed certain enactments (in Acts 24 of 1866 and 13 of 1869) relating to the High Court for the N.W. Provinces.
3. Except sections 97 and 98 (Act 10 of 1882), section 305, which were drawn by Mr. Hobhouse.
25. 1882 Code.-
The position before 1882 has been thus stated:-1
"It thus appears that, before the present Code of Criminal Procedure was passed, no less than three such Codes were in operation in British India: Act 10 of 1872, amended by Act 11 of 1874, which was in force throughout the Mufassil; the High Courts Act 10 of 1875, which was in force in the Presidency-towns, Allahabad and Lahore; and the Presidency Magistrates (Act 4 of 1877), which, also, was in force in the Presidency-towns."
"Many of the provisions of these Codes merely repeated one another; many of their rules, though dealing with the same subjects, unnecessarily varied in language; and the result was that the bulk of the Indian Statute-book was far greater than it needed to be, and that the Courts when construing one Code were often deprived of the guidance of prior decisions on another."
1. Stokes Anglo-Indian Codes, Vol. 2, pp. 3-4.
26. The object of the 1882 Code has been thus described by Stokes1:-
"The primary object of the present Code, which was framed by the writer at the suggestion of the Secretary of State in his despatch (Legislative), No. 44, dated 26th October, 1876, was to recast the Code of 1872, combining with it the substance of the High Courts' Act and the Presidency Magistrates' Act, and incorporating in it the numerous reported decisions on its working, and thus at last 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.
The language and arrangement of Act 10 of 1872 were, for obvious reasons, departed from only so far as was necessary for the main purpose of the Code. But it was obviously impossible to reproduce the inartificial wording of many of the sections, and an arrangement according to which, for example, the provisions for the prosecution of crimes came before the provisions for their prevention, and the change (i.e., the written accusation of an offence) was dealt with after trials; appeal and execution."
1. Stokes Anglo-Indian Codes, Vol. 2, pp. 3-4.
27. 1898 Code.-
The Code of 1898 was a revision proposed for these reasons:1
"It has been usual to consolidate and amend the law relating to Criminal Procedure at the end of successive decades. Thus, the first Code of Criminal Procedure Act, 25 of 1861, was succeeded by Act 10 of 1872 and the latter was followed by Act 10 of 1882.
"Since 1882 there have been passed sixteen Acts2 all relating to Criminal Procedure and many of them expressly amending the Code of 1882.
"In addition to this, several matters have been brought to the notice of the Government of India in regard to necessary amendments of the law, which have been deferred until the periodical amendment of the Code shall have been undertaken. The Law Reports also have shown many defects and difficulties in administering the law and occasionally contradictory interpretations by the High Courts in giving it effect.
"On these considerations the Government of India have determined again to consolidate and amend the law relating to Criminal Procedure. Such alterations as have been made in the present law are printed in italics, and the material amendments it is proposed to introduce are referred to in the notes on clauses given below. Where changes have been made in the numbering of existing sections, their former numbers have been given on the margin."
1. Statement of Objects and Reasons to the Code of Criminal Procedure Bill, 1897.
2. Act 3 of 1884; Act 10 of 1886; Act 5 of 1887; Act 15 of 1887; Act 1 of 1889; Act 5 of 1889; Act 13 of 1889; Act 3 of 1891; Act 4 of 1891; Act 10 of 1891; Act 12 of 1891; Act 3 of 1894; Act 10 of 1894; Act 4 of 1895; Act 5 of 1895; Act 5 of 1800 and Act 12 of 1896.
28. The 1898 Code has been amended by numerous Acts of the Legislature. Of these, the most important were two Acts of 1923, the Criminal Law Amendment Act (12 of 1923) and the Code of Criminal Procedure Amendment Act, 1923 (18 of 1923). The genesis of Act 18 of 1923 dates as far back as 1914. In 1914, a Bill (No. 3 of 1914) was introduced in the Imperial Legislative Council, and was thereafter referred to the Local Governments and Administrations. Their opinions raised numerous queries. Meanwhile, in 1916 the Government referred this Bill and the opinions received thereon to a Select Committee (known as the Lowndes Committee).
The Bill (as revised by this Committee) was again introduced in the Imperial Legislative Council in 1917. Some further suggestions for the amendment of the Code were received by the Government in the meanwhile. After the termination of the war, a new Bill was prepared in 1921, which was substantially the same as the one introduced in 1917. This Bill (No. 3 of 1921) was introduced in the Council of State on the 21st February, 1921, and was referred to a Joint Committee.
29. The Joint Committee submitted its report after a year (in September, 1922); and the Bill as revised by this Committee, with certain alterations made during the discussions in the Council of State in September, 1922 and in the Legislative Assembly in January and February, 1923, ultimately passed into law, and was enacted as Act 18 of 1923.
The other major amendment was in 1955, which is too recent to require detailed discussion at this place.
30. Special laws not dealt with in this Report.-
We would like to make it clear, that though various special laws contain provisions relevant to criminal procedure, this Report does not purport to deal with revision of those provisions.