UNIT -MODULE 1 : INTRODUCTION

❖ Object and Importance of Cr.P.C

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. Substantive laws are of no use without existence of a
procedure so as to apply it, and would act only as a cadaver. This makes it necessary
for us to have a procedure in order to make substantive laws pragmatic. Criminal
Procedure or Code of Criminal Procedure, 1973 (hereinafter Code) being one such
procedural law provides a track on which laws relating to crimes can scamper
smoothly.

The Code of Criminal Procedure as it stands today is a hybrid law, with an improved
form as a result of numerous legislative changes. The evolution of Code of Criminal
Procedure can be traced back to the 1861 when the first code was enacted after the
enactment of the Indian Penal Code, 1860. Subsequently, the Code was succeeded
by Act 10 of 1882 and the latter was followed by Act 10 of 1882. As many as
sixteen acts related to Criminal Procedure were passed since 1882. The code was
again replaced by the Code of Criminal Procedure in 1898. Subsequently, the 1898
code was amended by the Code of Criminal Procedure Amendment Act, 1923. In
1958, the First Law Commission in its 14th Report made extensive recommendations
on the reform of the criminal justice system. The recommendations of the
committee were
considered and the Code was amended. In 1973, on the recommendations of the
Fifth law commission’s Forty-First report, the Parliament enacted the Code of
Criminal Procedure, 1973.

Prior to the enactment of the Code of Criminal Procedure of 1973, the system of
prosecution in India contained several elements that were criticized as weaknesses
by the Law Commission that “there is no uniformity in the prosecuting organization
in India”, but that “generally speaking, prosecution in the magisterial courts is in the
hands of either police officials or persons recruited from the Bar and styled ‘Police
Prosecutors’ or ‘Assistant Public Prosecutors’”, who “work under the directions
of the Police department.”

This had led to a setup where “the identity of the prosecuting agency was
practically merged with that of the police and the prosecution branch was not
recognized as a separate and distinct entity, independent of police control.” The
Law Commission believed that such a setup was flawed, because the Police
Department had neither the legal know-how to conduct a prosecution, nor the
“degree of detachment necessary in a prosecutor.” On a more general note, the
Commission also criticized the overall subordination of the prosecutor, to the
District Superintendent of Police (in cases before the magisterial courts) and to the
District Magistrate (in prosecutions at the Sessions Courts), who “controlled to a
large extent” the exercise of the prosecutor’s powers. As a result, it recommended
not only that the prosecution agency be made separate from the police, but also that
its subordination to the executive be reduced, and that it be given more
independent powers in the actual conduct of the prosecution- for example, in
deciding whether or not to withdraw prosecutions. To this end, the Commission
suggested that a separate prosecution department be established in each district,
headed by a ‘Director of Public Prosecutions’, who would, however, be “responsible
to the State Government.” Clearly, therefore, although the Law Commission’s
report did continue to conceptualize the status of the prosecutor as an agent of the
Government, responsible to it, it also noted the importance of his or her
independence from both the police and the State executive. The Commission’s
recommendations were espoused, but only to some measure, and not in so many
words, in the Code of Criminal Procedure of 1973.

Emphasis must also be laid on the intent and underlying objective of the Code of
Criminal Procedure where it can be inferred from the 14th Law Commission report
where it is stated that the importance of the Code of Criminal Procedure is based
on two considerations. First, expense, delay or uncertainty in applying the best laws
for the prevention and punishment of offences would render those laws useless or
oppressive and second the law relating to criminal procedure is more constantly
used and affects a greater number of persons than any other law.

From a legal standpoint, the object of the Criminal procedure code is to set up a
mechanism for the ascertainment of the guilt or innocence of the accused and the
code would provide machinery for punishment of offences against a substantive
law in the form of a law dealing with the process of applying the instrument of
criminal law to the facts of a particular case.
 ❖ Functionaries under the Cr.P.C

Functionaries under the code: include the Magistrates and Judges of the
Supreme Court and high Court, Police, Public Prosecutors, Defence Counsels
Correctional services personnel.

Functions, Duties and Powers of these Machineries:

• Police: The code does not mention anything about the constitution of police.
It assumes the existence of police and devolves various powers and
responsibilities on to it. The police force is an instrument for the prevention
and detection of crime.The administration of police in a district is done by
DSP(District Superintendent of Police under the direction and control of
District Magistrate. Every police officer appointed to the police force other
than the Inspector-General of Police and the District superintendent of police
receives a certificate in the prescribed form by the virtue of which he is vested
with the powers, functions and privileges of a police officer which shall be
cease to be effective and shall be returned forthwith when the police officer
ceases to be a police officer. The CrPC confers specific powers such as power
to make arrest, search and investigate on the members of the police force
who are enrolled as police officers. Wider powers have been given to police
officers who are in charge of a police station.As per section 36 of CrPC which
reads as “ the police officers superior in charge of a police station may
exercise the powers of such officials.”
• Prosecutor If the crime is of cognizable in nature, the state participates in a
criminal trial as a party against the accused. Public Prosecutor or Assistant
Public Prosecutor is the state counsel for such trials.Its main duty is to
conduct Prosecutions on behalf of the state. The public Prosecutor cannot
appear on behalf of accused.[ix] According to the prevailing practice, in
respect of cases initiated on police reports, the prosecution is conducted by
the Assistant Public Prosecutor and in cases initiated on a private
complaint; the prosecution is either conducted by the complainant himself or
by his duly authorized counsel.

• Defense Counsel: According to section 303, any person accused of an offence

before a criminal court has a right to be defended by a pleader of his choice.
Such pleaders are not in regular employment of the state and a paid
remuneration by the accused person. Since, a qualified legal practitioner on
behalf of the accused is essential for ensuring a fair trial, section 304 provides
that if the accused does not have means to hire a pleader, the court
 shall assign a pleader for him at state’s expense. At present there are several
schemes through which an indigent accused can get free legal aid such as
Legal Aid Scheme of State, Bar Association, Legal Aid and Service Board
and Supreme Court Senior Advocates Free Legal Aid society. The legal
Services Authorities Act, 1987 also provides free legal aid for the needy.

• Prison authorities and Correctional Services Personnel: The court presumes

the existence of Prisons and the Prison authorities. It empowers Magistrates
and judges under certain circumstances to order detention of under trial
prisoners in jail during the pendency of the proceedings. It also empowers
the courts to impose sentences of imprisonment on convicted persons and to
send them to prison authorities. However, the code does not make specific
provisions for creation, working and control of such machinery. These
matters are dealt with in separate acts such as The Prisons Act 1894, The
Prisoners Act 1900 and The Probation of Offenders Act 1958.

❖ Basic Concepts:

• Bailable Offence

"Bailable offence" means an offence which is shown as bailable in the First

Schedule, or which is made bailable by any other law for the time being in
force; and "non-bailable offence" means any other offence;

• Non-Bailable Offence
 A non-bailable offence is a serious offence and for it, the accused cannot
demand to be released on bail as a right. Under these offences, the accused
can be released on bail only by the order of the competent court.

• Cognizable Offence

"Cognizable offence" means an offence for which, and "cognizable case"

means a case in which, a police officer may, in accordance with the First
Schedule or under any other law for the time being in force, arrest without
warrant

• Non-cognizable Offence

"Non-cognizable offence" means an offence for which, and "non-cognizable

case" means a case in which, a police officer has no authority to arrest without
warrant

• Complaint
 "Complaint" means any allegation made orally or in writing to a
Magistrate, with a view to his taking action under this Code, that some
person, whether known or unknown, has committed an offence, but
does not include a police report.

• Charge

"Charge" includes any head of charge when the charge contains more
heads than one

• Police Report

"Police report" means a report forwarded by a police officer or

specially by the State Government, to be a police station, and includes
any local area specified by the State Government in this behalf

• Investigation

"Investigation" includes all the proceedings under this Code for the
collection of evidence conducted by a police officer or by any
person (other than a Magistrate) who is authorized by a Magistrate
in this behalf;

• Inquiry and Trial

"Inquiry" means every inquiry, other than a trial, conducted under this
Code by a Magistrate or Court; however, the term “trial” has not been
defined under the code but is commonly understood to mean a
judicial proceeding where evidences are allowed to be proved or
disproved and guilt of a person is judged leading to acquittal or
conviction.

• Summons Case
 "Summons-case" means a case relating to an offence, and not being a
warrant-case

• Warrant Case

"Warrant-case" means a case relating to an offence punishable with

death, imprisonment for life or imprisonment for a term exceeding
two years.