The Objectives of Law of Criminal Procedure in India – The Historical Evolution of Criminal Procedure

Code

Srinivas Atreya, 519, VI Semester

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 smoothly1.

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 14 th 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

1 Few Limitations and Scope of Criminal Procedure Code by Abhinav Shrivastava, (http://legaljunction.blogspot.com/2011/07/few-limitations-and-scope-of-criminal.html)

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.