Criminology

Fundamentals of Crime, Criminal Law and Criminal Justice

Basic Principles of Code of Criminal Procedure
Quadrant I- Description of the Module

Description of Module
Subject Name Criminology
Paper Name Fundamentals of Criminal Justice and
Criminal Law
Module Name/Title Basic Principles of Code of Criminal
Procedure
Module Id
Pre-requisites A general understanding of the primary
principles of criminal law is required for
a proper understanding of this module.
Objectives To understand the purpose of criminal
procedure

To understand the basic framework of

the Cr.PC

To have an overview of the various

classification of offences under Cr.PC

To have an overview of some important

Pre-Trial procedures

To have an understanding of the various

components of Fair Trial as
incorporated under Cr.PC

Key Words
Trial, cognizable, non-cognizable,
bailable, non-bailable, warrant cases,
summons cases, arrest, search,
interrogation, fair trial, public hearings,
impartial judge

Quadrant- II- E-Text

The legal framework in any given area is generally divided into two aspects; substantive law
and procedural law. Substantive law refers primarily to the area of law which defines the
rights and duties of individuals and contains the prescriptions and prohibitions of law.
Procedural law on the other hand regulates the manner in which such rights and duties will
be enforced through the legal mechanism. For example, the Indian Contract Act defines the
rights and duties of individuals who have entered into a contract and the conditions of their
enforcement. Thus, whether A has the right to enforce a contract which he has entered into
with B will be decided in reference to the provisions of the Indian Contract Act. On the other
hand, issues such as the place of the suit, the court where the suit needs to be filed, the
procedure to be adopted by the court while hearing such a suit and other such matters are
determined by the provisions of the Code of Civil Procedure.
In the area of criminal law, Indian Penal Code constitutes the substantive law and the Code
of Criminal Procedure constitutes the procedural law. Consisting of 38 Chapters and more
than 480 Sections, the Code of Criminal Procedure contains detailed provisions as to how
the criminal law of the land is to be enforced. The following are some of the important issues
covered by the Code of Criminal Procedure;

1. Detection of Crime
2. Arrest of Suspects
3. Search and Seizure
4. Investigation and Collection of Evidence
5. Conducting Trial
6. Imposition of Punishment
7. Provisions regarding Appeal, Review etc.

While it is not practically possible to encapsulate the details of the entire code, it is important
to be mindful of the certain fundamental aspects on the basis of which the structure of the
criminal procedure is built.

Classification of Offences

It is important to understand that the nature of rules and prescriptions applicable in a

particular situation under Code of Criminal Procedure depends on the classification of the
offence in question. There are three main categories of classification of offences under the
Code of Criminal Procedure which determine the different rules which are applicable to
different types of cases in relation to certain matters.

Cognizable and Non-Cognizable Offences

Cognizable offences refers to the list of offences so identified in the First Schedule of the
Code of Criminal Procedure for which a police officer may arrest a person without warrant. 1
Non-cognizable offences mean offences for which a police officer can arrest a person only
with a warrant.2 For example the offence of sedition is a cognizable offence whereas the
offence of exerting undue influence at an election is a non-cognizable offence. Thus, when
the offence is that of sedition, a police officer can arrest the accused without any warrant
from any magistrate and also conduct investigation on the case without any authorisation
from any magistrate.3 On the other hand, in case of the offence of exerting undue influence
at an election, a police officer cannot as such arrest an accused without a warrant and would
also require the authorisation from a judicial magistrate to conduct investigation.

It is important to remember that the distinction between cognizable and non-cognizable

offences is not seemingly based on any generalised principle but on the basis of the
identification listed in the First Schedule.4 However, a perusal of the offences listed as
cognizable and non-cognizable indicates that the offences identified as non-cognizable are
usually such offences which can be considered more as private wrongs where the initiative
to pursue a criminal prosecution is left the discretion of the victim.5 In such cases, the victim
can approach the court to make the police commence investigation on the case.

Bailable and Non-Bailable Offences

Bailable offences refer to the list of offences which are identified as a bailable offence in the
First Schedule of the Code of Criminal Procedure or under any other law. 6 In case of an
offence identified as a bailable offence, when the accused person is arrested or detained
without warrant, he/she has a right to be released on bail. In case of non-bailable offences,
whether the arrested person will be granted bail or not is up to the discretion of the court.
Though there is no articulated general rule in this regard, generally more serious offences
are categorised as non-bailable and less serious offences are categorised as bailable.
Summons Cases and Warrant Cases

Warrant cases refer to all such cases involving any offence punishable with death,
imprisonment for life or imprisonment for a term exceeding two years. 7 A summons case
refers to any case which is not a warrant case.8 The purpose behind this classification is to
determine the nature of trial procedure to be adopted in relation to the case in question. 9
Under the Code of Criminal Procedure, separate trial procedures have been prescribed for
warrant cases and summons cases. The trial procedure in relation to the warrant cases is
more elaborate than in case of summons cases.10 The distinction between summons and
warrant cases is also relevant in how the presence of the accused is secured by the court. In
a summons case, once cognizance has been taken by the court, a summons is issued to the
accused to secure his attendance in the court. On the other hand, in case of a warrants
case, the attendance of the accused is secured by issuing a warrant of arrest.

Pre-Trial Procedures

The Code of Criminal Procedure contains various important procedures which can generally
be characterised as ‘Pre-Trial Procedures’. Pre-Trial procedures refer to the set of
procedures which regulate the circumstances prior to the stage of trial. These procedures
primarily cover the issues such as detection of crime, arrest of the suspected criminals,
investigation of the crime, collection of evidence in relation to the crime etc. We will be
focussing on three important aspect of pre-trial procedures;

1. Arrest
2. Search and Seizure
3. Interrogation during Investigation

Effecting the arrest of a suspected offender is one of the most important powers which is
vested with the police. It is also one of the most controversial aspects of the police action as
it results in direct loss of personal liberty.

A police officer can arrest an individual either with a warrant or without a warrant. When the
matter concerns a non-cognizable offence, a police officer cannot as such arrest a suspect
without a written warrant of arrest from a magistrate. A warrant of arrest can be issued even
in a cognizable case if the police has not arrested the accused.11 A police officer can effect
an arrest even without a warrant when the arrested person is actually concerned or
reasonably suspected to be concerned in a cognizable offence.12 Section 41 of the Code of
Criminal Procedure also provides some further grounds where a police officer can arrest a
person without a warrant.

The Code of Criminal Procedure provides a variety of safeguards to protect the rights of an
arrested person. As getting arrested is an immediate and direct denial of the right of
personal liberty of the arrested person, the Supreme Court in a catena of cases13 has also
laid down detailed guidelines in relation to the rights of the arrested persons. Some
important rights of the arrested person are as following;

1. Right to be informed of the grounds of arrest

2. Right to be informed of the right to bail
3. Right to be produced before a magistrate without delay
4. Right of not being detained for more than 24 hours without the permission of a
judicial magistrate
5. Right to consult a legal practioners
6. Right to be informed of his right to free legal aid in case of indigent person
7. Right to have one friend or relative be informed about his arrest and the place of his
detainment
8. The right to have a memo of arrest attested by at least one witness who may be
either a family member of the arrested person or a respectable person of the locality
from where the arrest is made
9. The right to undergo a medical examination within 48 hours of the arrest

For collection of evidence, the police is authorised to search and seize things and
documents. The police can conduct a search either with a warrant or without a warrant. A
search warrant operates as a licence for the police to search any place either generally or for
specific things. As conducting a search involves invasion of privacy, the courts are expected
exercise care while issuing search warrants.14 Section 93 of the Code of Criminal Procedure
deal with the various grounds on the basis of which a court may be justified to issue a search
warrant. Section 165 authorises a senior investigating police officer to conduct a search
without warrant if during the investigation, there is no time to obtain a search warrant.

It is important to take note that there are certain general rules which would be applicable in
relation to a search whether it is with or without warrant. The search is supposed to made in
the presence of at least two independent and respectable inhabitants of the locality in which
the place to be searched is situated. The occupant of the place being searched has the right
to attend the search. The person making the search is required to make a list of all the things
seized and the places where such things were found and have the same signed by the
witnesses.

For collection of evidence, the investigating officer is empowers under section 161 to orally
examine any person supposed to be acquainted with the facts and circumstances of the
case. It is important to note that an accused is also covered under the expression of ‘any
person acquainted with the facts and circumstances of the case’ and thus is liable to answer
the questions put to him by the investigating officer.15 However, a person being so examined
is not bound to answer such questions the answers to which would have a tendency to
expose him to a criminal charge, penalty or forefeiture.16 Though the investigating officer can
reduce into writing the statements made to him, the person making the statement is ought
not to sign such document.17 This provision is made to ensure that the person being
examined is not put to harassment by the investigating officer. It is important to note that any
statement made to the investigating officer under section 161 can be used only for limited
purposes. Under section 162, a statement made by a person under section 161 can be used
to contradict his testimony when he is called as a prosecution witness. It is important to note
that when such a person is called as a defence witness, his previous statement under
section 161 cannot be used to contradict him.18 The investigating officer, under section 163
is duty bound not to offer any kind of inducement, threat of promise while examining a
person under section 161.

Fair Trial

The criminal procedure is oriented to ensure that in trying to punish a person for the crimes
he might have committed, we cannot afford to sacrifice the reasonable rights of the accused
to have his case judged fairly and justly. Towards this end, the Code of Criminal Procedure
incorporates within its scheme several elements of through which a fair trial can be assured.

Adversary System

The adversary system of adjudication is based on affording an equal and fair opportunity to
both the contesting parties to present the merits of their case before the court. The court in
such a scenario operates as an unbiased umpire which decides as to which party has
proved his case as per the requirements of law.19 The adversary system is supposed to
provide and equal opportunity to both the parties to present their case but in a country like
India with widespread illiteracy and poverty, this tenet of equality is often reduced to a mere
theoretical abstraction. It is for this reason that in India the adversary system is not adopted
in its theoretical extreme and provisions have been made for facilitating legal aid to indigent
persona at State costs.20 In fact the right to free legal aid services has been recognised as
an inherent and important part of the right to life guaranteed under section 21 of the
Constitution of India.21

Public Hearings

In order to ensure that judges adjudicating a case do no function out of personal prejudices
or whimsical biases, conducting the trial openly operates an important instrumentality.22 An
open and public hearing ensures a minimum objectivity and fairness in the proceedings. It is
towards this end that section 327 of the Code of Criminal Procedure mandates that the place
where the court shall be held will be an open court generally accessible to public subject to
such reasonable restrictions which the court may consider necessary.

Impartial Judge

In order to ensure fairness in the trial, it is important to ensure that the judge adjudicating the
matter should not have a conflict of interest. This requirement is expressed in the maxim
nemo debet esse judex in propria causa which mandates that no man ought to be a judge in
his own case. This maxim has been given statutory recognition in the form of section 479 of
the Code of Criminal Procedure which prescribes that a judge or magistrate shall not try or
commit for trial any case in which he is a party of in which he is personally interested except
with the permission of the higher appellate court. It also prescribes that a judge shall not
hear an appeal from any judgement passed by himself. The High Court has been
empowered under section 407 to order for an offence be inquired into or tried by any other
court when it feels that a fair and impartial inquiry or trial cannot be held in the court currently
dealing with the matter.

Presumption of Innocence and Burden of Proof

Another essential aspect of a fair trial under the adversarial system of adjudication is the
proposition that the accused is presumed to be innocent until proven guilty. Thus, the burden
to prove that the accused is guilty of the alleged crimes is positively on the prosecution and
unless the prosecution has discharged the burden, the court cannot return a verdict of guilty
regardless of the nature of evidence produced by the defence.23 Throughout the trial, that is
a constant burden on the prosecution which must be discharged by proving the guilty of the
accused beyond reasonable doubt.

Rights of the Accused

The essence of fair trial is to enable the accused to present his case in a proper manner. In
order ensure that the accused gets a fair chance to defend the allegations against him, the
Code of Criminal Procedure recognises certain rights which are available to the accused
during the trial.

The right to know of the details of the accusations levelled against him is essential for the
accused to prepare his defence. Thus, the Code of Criminal Procedure in through several
provisions24 guarantees to the accused the right to be properly informed of the allegations
which have been levelled against him. When the offences that the accused is alleged to
have committed are serious in nature, the court has the duty to frame the charges in writing
and then also to explain the charges to the accused.

The accused also has the right to be present throughout the trial so that that he can
comprehend the case of the prosecution. Though no specific provision can be located in the
Code of Criminal Procedure which specifically states this right of the accused, the same is
implied by other specific provisions which empower the courts to dispense with the presence
of the accused in some situations. The existence of such provisions in the form of section
205, 273 and 317 mean that other than under those provisions, the court cannot stop the
accused from being present throughout the trial.25

Section 273 of the Code of Criminal Procedure mandates that unless otherwise provided, all
evidence in a trial or in any other proceeding ought to be taken in the presence of the
accused. If the personal attendance of the accused has been dispensed with, then the
evidence must be taken in the presence of his pleader. When evidence is taken in
contravention of section 273 violates the very basic tenet of a fair trial.26 When the evidence
is taken in a language not understood by the accused and he happens to be present in the
court in person, then he is entitled to the benefit of having the evidence be interpreted in a
language he understands.27 The accused also has the right to cross-examine the witnesses
produced by the prosecution and a denial of this right vitiates the idea of fair trial.28 As we
have observed earlier, the burden to produce evidence is on the prosecution and the
defence is not under any obligation to produce evidence of the innocence of the accused.
However, if the accused intends to produce evidence in order to support his claim of
innocence, he cannot be denied that right.29It is also important that the court delivers a
reasoned decision summarising the arguments and evidences of both the parties.30

One of the most important elements of the concept of fair trial is the doctrine of autrefois
acquit and autrefois convict. As per the prescriptions of this doctrine, once a person is either
convicted or acquitted of any offence, he cannot be tried for the same offence again and he
also cannot be tried for another offence based on the same facts as the earlier trial. This
doctrine is incorporated in section 300 of the Code of Criminal Procedure. The important of
this doctrine can be understood from the fact that the same has been given the status of a
fundamental right under Article 20 (2) of the Constitution of India. Putting the person on
another trial for the same offence where he has already been acquitted or convicted would
constitute undue harassment.

Undergoing a criminal trial is an arduous experience and if the experience is a unnecessarily

prolonged one, it would result in significant stress and harassment for the accused. It is for
this reason that the accused also has the right to an expeditious trial. An unreasonably long
trial cannot be considered a fair trial as it puts undue pressure on the accused. This right has
been recognised as a part of the right to life under Article 21 of the Constitution of India.31

Summary
1. In the area of criminal law, Indian Penal Code constitutes the substantive law and the
Code of Criminal Procedure constitutes the procedural law. Consisting of 38
Chapters and more than 480 Sections, the Code of Criminal Procedure contains
detailed provisions as to how the criminal law of the land is to be enforced.
2. It is important to understand that the nature of rules and prescriptions applicable in a
particular situation under Code of Criminal Procedure depends on the classification
of the offence in question. There are three main categories of classification of
offences under the Code of Criminal Procedure which determine the different rules
which are applicable to different types of cases in relation to certain matters.
3. Cognizable offences refers to the list of offences so identified in the First Schedule of
the Code of Criminal Procedure for which a police officer may arrest a person without
warrant. Non-cognizable offences mean offences for which a police officer can arrest
a person only with a warrant.
4. Bailable offences refer to the list of offences which are identified as a bailable offence
in the First Schedule of the Code of Criminal Procedure or under any other law. In
case of an offence identified as a bailable offence, when the accused person is
arrested or detained without warrant, he/she has a right to be released on bail. In
case of non-bailable offences, whether the arrested person will be granted bail or not
is up to the discretion of the court.
5. Warrant cases refer to all such cases involving any offence punishable with death,
imprisonment for life or imprisonment for a term exceeding two years. A summons
case refers to any case which is not a warrant case. The purpose behind this
classification is to determine the nature of trial procedure to be adopted in relation to
the case in question. Under the Code of Criminal Procedure, separate trial
procedures have been prescribed for warrant cases and summons cases.
6. The Code of Criminal Procedure provides a variety of safeguards to protect the rights
of an arrested person. As getting arrested is an immediate and direct denial of the
right of personal liberty of the arrested person, the Supreme Court in a catena of
cases has also laid down detailed guidelines in relation to the rights of the arrested
persons.
7. It is important to take note that there are certain general rules which would be
applicable in relation to a search whether it is with or without warrant. The search is
supposed to made in the presence of at least two independent and respectable
inhabitants of the locality in which the place to be searched is situated. The occupant
of the place being searched has the right to attend the search. The person making
 the search is required to make a list of all the things seized and the places where
such things were found and have the same signed by the witnesses.
8. For collection of evidence, the investigating officer is empowers under section 161 to
orally examine any person supposed to be acquainted with the facts and
circumstances of the case. It is important to note that an accused is also covered
under the expression of ‘any person acquainted with the facts and circumstances of
the case’ and thus is liable to answer the questions put to him by the investigating
officer. However, a person being so examined is not bound to answer such questions
the answers to which would have a tendency to expose him to a criminal charge,
penalty or forefeiture.
9. The criminal procedure is oriented to ensure that in trying to punish a person for the
crimes he might have committed, we cannot afford to sacrifice the reasonable rights
of the accused to have his case judged fairly and justly. Towards this end, the Code
of Criminal Procedure incorporates within its scheme several elements of through
which a fair trial can be assured such as adoption of adversary system, public
hearings, impartial judges, presumption of innocence, rights of the accused etc.

1
Section 2 (c) Cr.PC
2
Section 2 (l) Cr.PC
3
Section 156 (1) Cr.PC
4
Lectures on Criminal Procedure, R.V. Kelker, Eastern Book Company, 2004, 4
5
Kelker 5
6
Section 2 (a) Cr.PC
7
Section 2 (x) Cr.PC
8
Section 2 (w)
9
Kelker 5
10
Kelker 5
11
Section 204 and 87 of Cr.PC
12
Section 41 (1) (a)
13
Khatri (II) v State of Bihar (1981) 1 SCC 627, Joginder Singh v State of U.P. (1994) 4 SCC 260, D.K. Basu v
State of West Bengal (1997) 1 SCC 416
14
Stephen v Chandramohan 1988 Cri LJ 308 (Ker HC)
15
Nandini Satpathy v P.L. Dani (1978) 2 SCC 424
16
Section 161 (2)
17
Section 162 (1)
18
Kelker 66
19
Kelker 140
20
Kelker 140
21
Hussainara Khatoon (IV) v State of Bihar (1980) 1 SCC 98
22
Kehar Singh v State (Delhi) (1988) 3 SCC 609
23
Kali Ram v State of H.P. (1973) 2 SCC 808
24
Section 228, 240, 246 and 251 of the Code of Criminal Procedure
25
Kelker 146
26
State v Anant Singh 1972 Cri LJ 1327
27
Section 279, Cr.PC
28
Sukanraj v State of Rajasthan AIR 1967 Raj 267
29
T.N. Jannardhanan Pillai v State 1992 Cri LJ 436
30
Mukhtiar Singh v State of Punjab 1995 SCC (Cri) 296
31
Hussainara Khatoon (IV) v State of Bihar (1980) 1 SCC 98