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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:
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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.
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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:
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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.
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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.
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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.
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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.
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The Code of Criminal Procedure, 1973
was further amended multiple times in the years 1978, 1980, 1983,1988, 1990,
1991, 1993, 2001, etc.
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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.
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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.
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The Code of criminal procedure
(amendment) Act 2010 contained minor changes regarding the circumstances of
arresting/failing to arrest a person.
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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.
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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.
