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Introduction To Criminal Procedure: By: Hifajatali Sayyed
Introduction To Criminal Procedure: By: Hifajatali Sayyed
Introduction To Criminal Procedure: By: Hifajatali Sayyed
Procedure
By: Hifajatali Sayyed
Introduction
The object of criminal law is to protect the society from crime and to
punish the offenders.
Criminal law is divided into two parts namely substantive criminal
law and procedural criminal law.
The law which defines rights and liabilities is known as
substantive law. The function of substantive law is to define,
create or confer substantive legal rights or to impose and define the
nature and extent of legal duties or liabilities.
Substantive criminal law deals with the substance or the
elements of a crimes and the punishment for those crimes.
Introduction
Procedural law deals with the means and instruments by which the
ends of administration of justice are attained, i.e. effective
administration or application of substantive law.
Procedural criminal law deals with the practices and
procedures that are adopted to implement the substantive
criminal law.
The Code of Criminal Procedure, 1973 is the main procedural
criminal law enacted in India which deals with the procedural
aspects relating to a criminal case.
Introduction
The Criminal Procedure Code, 1973 sets out a body of rules
which must be followed in the investigation, inquiry or
trail of offence under the Indian Penal Code as well as offences
under other Acts.
Though Code of Criminal Procedure is a procedural law but there
are some provisions code which are of semi-substantive
character, example: prevention of offences, maintenance
proceedings, etc.
Therefore it can be stated that Code of Criminal Procedure is not
purely procedural in nature.
History of Criminal Procedural Laws
In medieval India, the Mohammedan criminal law came into
prevalence. Subsequently, the British passed the Regulating Act of
1773 which led to the establishment of courts in three presidency
towns of Calcutta, Bombay and Madras.
The effect of the statute was to apply British procedural law while
deciding upon the cases of Crown’s subjects. After 1857 Revolt, the
crown took over the Indian administration. The British parliament
passed the Criminal Procedure Code, 1861.
Thereafter major amendments were introduced in the criminal
procedure in the year 1882 and 1898.
History of Criminal Procedural Laws
The Fifth Law Commission was established under the chairmanship of
Mr. K. V. K. Sundaram which submitted the 41st Report of Law
Commission on revision of Code of Criminal Procedure in the year
1969.
Thereafter a draft bill was introduced in the Parliament while taking
into account the following considerations:
i. The accused person must get a fair trial in accordance with the
accepted principles of natural justice.
iii. The procedure should, to the utmost extent possible, ensure fair
deal to the poorer sections to the community.
Subsequently the bill was passed by the Parliament and it came
into force from 1st April 1974.
The Code of Criminal Procedure has divided the procedure for
administration of criminal justice into three stages mainly
investigation, inquiry and trial.
Scope of Criminal Procedural Code
Sec 4 of the Code of Criminal Procedure, 1973 provides that all
offences under the Indian Penal Code or under any other
law shall be investigated, inquired into, tried, and otherwise dealt
with according to the provisions hereinafter contained.
However sec 5 states that the CrPC does not affect any special
jurisdiction or power conferred, or any special form of
procedure prescribed, by any other law for the time being in
force.
So, CrPC is applicable to all offences but it allows the procedure
prescribed by special law to prevail over the normal procedure
prescribed by CrPC.
Scope of Criminal Procedural Code
• In this case the Supreme Court stated that it is well established that
even where there is no specific provision in a statute or rules made
there under for showing cause against action proposed to be taken
against an individual, which affects the rights of that individual, the
duty to give reasonable opportunity to be heard will be
implied from the nature of the function to be performed by the
authority which has the power to take punitive or damaging action.
Importance of Fair trial
ii. ‘Nemo Debet Esse Judex In Propria Causa’ which means that no
one ought to be a judge in his own case. It applies to two types
of cases. Firstly, a judge is precluded from presiding over a case in
which he directly appears as a party. Secondly a judge is
precluded from decided a case in which he has an interest.
Impartiality, absence of bias, fearlessness and assertion are the
qualities highlighted by an unbiased approach to the judicial system.
Murlidhar vs. Kadam Singh (AIR 1954 MP 111)
• In this case, the chairman of the election tribunal was declared as
unfit for the position because his wife was a member of the party
through which a party in the dispute emerged.
Importance of Fair trial
Talab Haji Hussain vs Madhukar Purshottam (AIR 1958
SC 376)
• In this case the Supreme Court stated that the primary object of
criminal procedure is to ensure a fair trial of accused
persons. Every criminal trial begins with the presumption of
innocence in favor of the accused ; and provisions of the Code are
so framed that a criminal trial should begin with and be
throughout governed by this essential presumption ; but a fair trial
has naturally two objects in view; it must be fair to the accused and
must also be fair to the prosecution. The test of fairness in a
criminal trial must be judged from this dual point of view.
Importance of Fair trial
Zahira Habibullah Sheikh and ors v. State of Gujarat
and ors [(2006) 3 SCC 374]
• In this case the Supreme Court observed each one has an inbuilt
right to be dealt with fairly in a criminal trial. Denial of a fair
trial is as much injustice to the accused as it is to the
victim and to society. Fair trial obviously would mean a trial
before an impartial judge, a fair prosecutor and an atmosphere of
judicial calm. Fair trial means a trial in which bias or prejudice for
or against the accused, the witness or the cause which is being
tried, is eliminated.