Some Preliminary Considerations of Criminal

1. Object of Criminal Procedure:

The law of criminal procedure is intended to provide a mechanism for the enforcement of criminal law. Without proper procedural law, the substantive criminal law which defines offences and provides punishments for them, would be despicable. Because, in the absence of enforcement machinery, the threat of punishment held out to the law-breakers by the substantive criminal law would remain empty in practice. Without deterrent effect, the law of crimes will not have any meaning. If the “thieves” and “murderers” are not detected, prosecuted and punished, then there is no use of meticulous definition of “theft” and “murder” and prescribing “deterrent” punishments for them.

Thus, the law of criminal procedure is meant to be complementary to criminal law and has been designed to ensure the process of its administration. In view of this objective, the law of criminal procedure creates the necessary machinery for the detection of crime, arrest of suspected criminals, collection of evidence, determination of guilt or innocence of the suspected person and the imposition of proper punishment on the guilty person. The law of criminal procedure also aims at providing safeguard against possible harms and violation of human rights of innocent persons in its process of shifting criminals from non-criminals. It further attempts to strike a just balance between the need to give discretionary powers to the functionaries under the Code to make the investigative and adjudicatory processes strong and effective and the need for controlling the probable misuse or abuse of these powers. The Supreme Court has said that it is the procedure that spells much of the difference between the rule of law and the rule of whim and caprice.

2. Importance of Criminal Procedure:

The law of criminal procedure is significantly important for three main reasons:

a) It is more constantly used and affects a greater number of persons than any other law.

b) The nature of its subject-matter is such that human values are involved in it to a greater degree than in other laws.

c) As the law of criminal procedure is complementary to the substantive criminal law, its failure would seriously affect the substantive criminal law which in turn would considerably affect the protection that it gives to society.

3. Classification of Offences:

For the purposes of the Code all the offences have been classified into different categories. A general overview of these categories may be useful for better appreciation of the provisions of the Code.

First, all offences are divided into two categories- cognizable offences and non-cognizable offences. A “cognizable offence” means an offence for which a police officer may, in accordance with the First Schedule of the Code or under any other law, arrest without warrant; and a “non-cognizable” offence means an offence for which a police officer has no authority to arrest without warrant. The Schedule refers to all the offences under the Indian Penal Code.

In case of a cognizable offence it appears to be the responsibility of the State(and the police) to bring the offender to justice; whereas in case of a non-cognizable offence it is more in the nature of private wrongs.

Secondly, offences are classified into bailable and non-bailable offences. According to Sec 2(a),“bailable offence” means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law; and “non-bailable” offence means any other offence. Here again the Code has not given any criterion to determine whether any particular offence is bailable or non-bailable. It all depends upon what is shown in First Schedule. According to the First Schedule offences under laws other than the Indian Penal Code which are punishable with imprisonment for three years or more, have been considered as “non-bailable” offences and others which are punishable with less than three years, imprisonment are considered as “bailable” offences.

Thirdly, the Code classifies all criminal  cases into summons cases and warrant cases. A warrant case means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years; and a summons case means a case relating to an offence and not being a warrant case. The basis of the classification is the seriousness of the offence to which the case relates. The classification is useful to determine the type of trial procedure to be adopted in the case. The trial procedure prescribed for a warrant case is much more elaborate than that provided for a summons case.

ANWESHA SAHA

HALDIA LAW COLLEGE