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Genesis and history of criminal procedure in India

Meenakshi Nair ,
  11 June 2020       Share Bookmark

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Criminal law in India can be divided into two categories, namely, a set of substantive laws and a set of procedural laws. The first part defines what are the elements that constitute a crime and its respective punishments whereas, the latter establishes the procedure or the manner in which the authorities (judges, police, prosecution etc.) act. The Indian Penal Code, 1860 forms the substantive part of our criminal justice system, and the Code of Criminal Procedure, 1973 forms the procedural portion.

In the Ancient times, what was perceived as a crime was different for different communities and thus, there existed diverse crimes and procedural laws to deal with these crimes. Largely, most of these criminal laws were guided by the writings of Smriti and other Hindu scriptures. It was only after the Muslim occupation during the medieval times, did the Mohammedan Criminal Laws provide for how to go about the trial for crimes. The current Code of Criminal Procedure followed by the Indian Justice System was the creation of the Britishers, followed by a number of amendments through the years.

Codification of Criminal Procedure Laws in India:

It all began with the establishing of the Supreme Court in Calcutta (and subsequently in Madras and Bombay) through the Regulating Act of 1773. It was these Supreme Courts that applied the then existing British procedures - Criminal Procedure Supreme Court Act, 1851. Further, towards the end of the 18th century, as the British spread across India, several changes were made to the criminal justice system by Lord Cornwallis and thus, there existed more uniformity in the laws and court systems.

Following the Sepoy Mutiny/ First Indian Revolt of 1857 and other incidents related to it, the British parliament provided for a criminal law reform. The First Law Commission was formed under the chairmanship of T.B.Macaulay. The foundation of the current Code of Criminal Procedure was enacted in 1861 as a result of these reforms. This Code was biased towards the Britishers and it provided them with immunity to be tried for criminal charges in the district courts, further it was aimed at the trial of insurgent native Indians.

Replacement and Amendments made to the Code of Criminal Procedure:

The Code of Criminal Procedure, 1861 was amended in the year 1969, that is even after independence and was eventually placed by the Code of Criminal Procedure, 1872. This Act took away the direct bias towards the British (White people) as existed in the 1861 Act. It now allowed for British (White) Magistrates to try accused white people under their criminal jurisdiction.

Following the 2nd Criminal Code, in the year 1882 another version of the Criminal Procedure Code was formulated, followed by 16 amendments to the same.

Further, a Law Commission was set up to bring about changes in the criminal procedures followed in India, and to make the procedural laws more uniform across India. Therefore, considering the suggestions of the Commission, a new Act- The Criminal Procedure Code, 1898 was enacted.

This was finally recast by the Criminal Procedure Code, 1973 which came into effect in 1974. This Act was made as per the suggestions provided in the 41st Law Commission Report. Till date this is the Code that is in use, subject to frequent amendments.

The Code of Criminal Procedure, 1973 was further amended multiple times in the years 1978, 1980, 1983,1988, 1990, 1991, 1993, 2001, etc.

The Code of criminal procedure (amendment) Act 2005 aimed at making the act more humane. It details certain guidelines and rights regarding the arrest of a person. These changes were also made keeping the rights of women in minds, as it forbids the arrest of a woman before or after sunrise/sunset, unless in the presence of a woman officer with permission from the magistrate. It also provides for mandatory judicial inquiries into cases of custodial deaths and rapes.

The Code of criminal procedure (amendment) Act 2008 centers around the rights awarded to prisoners, as well as compensatory jurisprudence on the plight of crime. In several aspects, it has been described as an attempt to locate the victim in a crime.

The Code of criminal procedure (amendment) Act 2010 contained minor changes regarding the circumstances of arresting/failing to arrest a person.

The Code of criminal procedure (amendment) Act 2013 is also known as the Anti-rape bill, and was passed after the Nirbhaya incident in Dec, 2012. This amendment was aimed at clamping down on rape and other sexual offences in India, by defining better legislative provisions for the safety of women in India. Apart from redefining the concept of what constituted rape, the amendment also laid down stringent punishments for the offenders. It introduced new provisions for Sexual Harassment, Rape Victim Compensation Scheme and other rape laws.

The Criminal Law (Amendment) Act, 2018 also brought changes in the CrPC with respect to provisions relating to the rape of minors , as it was introduced in the backdrop of the Kathua Gan Rape incident.

One of the main objectives of the Code of Criminal Procedure is to ensure free and fair justice. It manifested the natural right of fair trial. It manifests the concept of ‘innocent until proven guilty. The same is proved through the development of this legislation through these years and remaining dynamic to cater to the needs of the society.

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Published in Criminal Law
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