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MODULE – I:

Object, Purpose, History, Of Code of Criminal Procedure Code 1973

Brief History and Development of the Code of Criminal Procedure

Brief History and Development of the Code of Criminal Procedure

The Criminal Procedure Code, 1861 was passed by the British parliament. The Crpc was
created first time ever in 1882 and then amended in 1898, then According to 41st law
commission report in 1973.

In the olden days, there was no uniform law relating to criminal procedure for the whole of
India. There were separate Acts, mostly rudimentary in their character, for the Courts within
and outside the Presidency-towns. Later on, the Acts in force in the Presidency-towns were
consolidated into the Criminal Procedure Supreme Court Act, 1852, subsequently replaced by
the High Court Criminal Procedure Act, 1865.

The numerous Acts prevailing in the mofussils were all absorbed in the Criminal Procedure
Code, 1861, which was subsequently replaced by the Code of 1871. The Criminal Procedure
Code, 1882, gave a uniform law of procedure for the whole of India, both in the Presidency-
towns and in the mofussils, and it was supplemented by the Code of 1898. The last mentioned
Code was amended several times, with major amendments in 1923 and 1955.

The Law Commission, set up in 1955, studied the old Code extensively, and made various
recommendations and suggestions in its detailed report submitted in September 1969. These
suggestions were incorporated in the Criminal Procedure Code, 1973, which came into
force on 1st April 1974, and which has since been amended several times thereafter.
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While drafting the Code, the following three basic considerations have been kept in mind,
viz.—

(a) That an accused person should get a fair trial in accordance with the accepted principles
of natural justice;

(b) That every effort should be made to avoid delay in investigation and trial, which is
harmful, not only to the individual involved, but also to the society;

(c) That the procedure should not be complicated, and should, to the utmost extent possible,
ensure a fair deal to the poorer sections of the community.

Codification of Law of Crime in India

The history of codification of modern criminal law in India generally begins from the advent of
the British rule. However, its roots date back to the Vedic age and the rule of various Hindu and
Muslim dynasties. The modern criminal justice system is based on English laws and practices.
These practices are practical as well as contemporary. As a result, a major chunk of criminal
laws that exist today still relies on the British-era laws.

Different Types of Codification of Criminal Law

Criminal law in the Vedic age

In ancient India, Hindu religious laws contained many provisions for governing criminal as well
as civil matters. The Vedas, Shrutis, Smritis and even other documents like Manusmriti contain
provisions regulating criminal law. The practice of codifying criminal offences existed in this
period as well.

These laws also contained detailed procedural rules and regulations for trials. There are some
records which also show the existence of principles of evidence to govern these trials.

Criminal law in the Islamic age

With the advent of Islamic rule in India, criminal laws in several parts of the country saw major
changes. Even prior to the Mughal rule, the Delhi sultanates had already introduced offences
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based on Islamic laws of Shariat. The main influence of these laws was Islamic religious texts
like the Quran, Sunna, Hadis, Ijma, Qiya, etc.

During the Mughal rule, the codification of criminal law became more sophisticated. Muslim
criminal law came under three broad categories: crimes against God, crimes against
sovereignty and crimes against individuals.

The law even divided modes of punishments into categories. These included death,
dismembering of limbs, stoning, levy of fines, confiscation of property, the punishment of exile,
etc.

After the British arrived in India, they initially decided not to interfere much with existing
Muslim criminal laws. They implemented changes in a phased manner so as to not upset the
locals.

Criminal law in the British period

When Warren Hastings introduced his Judicial Plan of 1772, he did not many any severe
changes to substantive criminal law.  In 1773, he slowly started changing rules of procedure and
evidence in existing criminal laws. For example, he abolished the practice of allowing male
relates of victims to pardon their killers.

During this time, serious offences like homicide became crimes against the state instead of being
private offences. This laid the foundation of the modern practice of the state prosecuting people
who commit public offences.

From 1790 onwards, Lord Cornwallis extended the process of codifying criminal law. Major
changes took place in the subject of sentencing. As a result, the process of levying punishments
physically harming and dismembering convicts slowly started fading.

Lord Wellesley made even more changes to the offences of murder and homicide in the early
1800s. For example, the law now made distinctions between intentional and unintentional
killing.
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Furthermore, rules of evidence became stricter and the threshold of proof to indicate guilt
increased greatly. In presidency towns like Madras, Bombay and Calcutta, the British made
many changes keeping local conditions in mind.

Codification of Substantive Criminal Laws

According to the Charter Act, 1833, India’s first law commission in 1834 recommended drafting
of the Indian Penal Code. Lord Macaulay, who was the chairman of that law commission,
spearheaded its drafting. The Code was basically a comprehensive enactment describing all
major crimes in existence at that time.

Despite several revisions over almost thirty years, the law did not come into force until 1860. It
was only after the Rebellion of 1857 that the British decided to implement it.

IPC has seen several amendments since it first came into existence. Although it largely relied on
British laws and practices, many of its provisions are still the same.

Even the Indian Evidence Act came into existence in 1872 under the guidance of Lord
Macaulay. Its foundation was largely the British law of evidence, but it has seen many changes
since then.

Codification of Procedural Criminal Laws

Although the British had enacted a Criminal Procedure Code for India in 1862, modern
procedural laws came much later. The Code of 1862 was amended and replaced many times
later to make procedural laws modern.

After Independence, the Law Commission made many recommendations to update CrPC. Some
of these changes were the abolition of jury trials. The most important reason for these changes
was to make the criminal procedure quick and effective. CrPC was finally enacted again by
the Parliament in 1973, and it has been amended many times since then.

THE PURPOSE OF THE CRIMINAL PROCEDURE CODE

The basic purpose of the Criminal Procedure Code, among other things, is to ensure a fair
trial where none of the rights of the accused are compromised nor are they unjustifiably
favoured. Furthermore, to ensure that the judge concerned hears all parties who are relevant
to the trial, their presence at the trial is obviously important. That is why an entire chapter of
the Code concerns itself with the process of ensuring the attendance of any person concerned
with the case, including an accused or a witness, through various measures, viz. summons,
warrant, proclamation and attachment of property. The latter two are used when the former
do not yield satisfactory results. Many would argue that the simplest way to ensure the
presence of a person, especially an accused, would be to arrest him in all circumstances and
detain him so that his presence is beyond doubt. However, such an action would go against
the fundamental right that this Constitution provides with, the right to personal liberty under
Article 21. Criminal law hinges on that right and no person can be deprived of this right
unless very cogent reasons are present which argue against his release. This is why the Code
envisages both warrant and summons to procure the attendance of persons concerned. In this
project, I will look into the four variants used to procure the attendance of persons for trial.
Of course, since the provisions are mostly procedural in nature, few substantive issues arise
but interpretation of these provisions nevertheless gives rise to various issues. Moreover, the
way they are used by the various functionaries involved viz. the judiciary and the police, also
has given rise to substantive literature on this. Furthermore, I will give special attention to
procurement of attendance of witnesses and how the provisions have been used by the
functionaries in ensuring that witnesses attend the trial.

Summons

The form in which summons should be served is given in Section 61 of the Code while a
summons case is defined as a case relating to an offence which does not provide for
imprisonment exceeding two years. Even though a summons case relates to a less serious
offence and it is estimated that person served would attend the trial, the Indian Penal Code
through Section 174 enforces coercive measure on such persons to attend the trial by
enforcing a six month punishment if such persons do not attend the trial. It has to be
remembered that though Section 61 gives the procedure of serving summons, the section does
not give the authority to issue summons.

This position was enunciated in the case of Norode Baron Mukherjee v. State of West
Bengal 1975. The power to issue summons or warrants, for that matter, comes from Section
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204 of the Code but that is only restricted to complaint cases. Moreover, although Section 61
is derived from Sections 152 and 153 of the Code of 1872 which limited the serving of
summons to the accused only, Section 61 incorporates the spirit of Section 68 of the Code of
1898 which applied to other persons as well. By virtue of Section 61, a summons must be in
writing, signed and sealed¸ specifying the offence, must state the date and time when the
person must appear and must direct person summoned not to depart without leave. If these
requirements are not fulfilled, then no person can be convicted for non-compliance with
summons under Section 174. But this would not mean that trial would be vitiated as the only
way that might happen, would be because of a defect in the trial proceedings itself.

Section 62 takes off from Section 61 and describes the actual serving of summons and who is
competent to serve it. In most cases, as the Section lays down, it is desirable that a police
officer should deliver the summons to the person concerned but in some cases an officer of
the Court or any other public servant may do the same. Section 64 and 65 offer solutions
when the person on whom the summons is to be served, is not found. While the former talks
about leaving the document in duplicate with any adult member of the family, the latter states
that in cases where no member of the household is present, the summons should be affixed in
some conspicuous part of the house in which the person ordinarily resides and subsequently
declare that the summon had been served or issue orders for fresh service. Before such
provisions are resorted to, it has to be shown by the officer concerned that due diligence was
exercised in searching for the person summoned. Only after that can the officer resort to the
abovementioned provisions. Furthermore, as Section 64 clearly limits the service to adult
members of the family, neither female members nor servants can be included under the ambit
of persons to whom the summons can be served. It has to be kept in mind again that Section
65 can only be resorted to, if Section 64 does not solve the problem. Sections 66, 67 and 68
provide for service to government servants, service outside local limits and proof of service
of summons respectively. Section 69 applies only to witnesses and lays down that summons
can be sent to the witness by registered post.

In the case of Madan Mohan Shrivastava v. State AIR 1954 SC 637, the accused was served
summons by registered post which the Court invalidated. The Court categorically laid down
that Section 69 was limited to witnesses only.