The Code of Criminal Procedure, 1973 is the procedural law providing the machinery for the punishment of offenders under the substantive criminal law. The code contains elaborate details about the procedure to be followed in every investigation, inquiry and trial, for every offence under the IPC or any other law. Earlier there was no uniform law of criminal procedure until Criminal Procedure Code of 1882; it was replaced by the Code of 1898. The act was amended in 1923 and 1955. This code was repealed by the Code of 1973 enacted by Parliament on 25th January, 1974 and made effective from 1-04-1974 so as to consolidate and amend the law relating to Criminal Procedure. Its object is to provide a machinery for determining the guilt of and imposing punishment on offenders under the substantive criminal law, for example, the Indian Penal Code (I.P.C.). The two Codes are to be read together. The Code also provides machinery for punishment of offences under other Acts.
The code is complete code with respect to matters provided under it, thus the code must be deemed to be exhaustive. The Supreme Court has said “It is the procedure that spells much of the difference between the rule of law and the rule of whim and caprice”. (Iqbal v. State of Maharashtra (1975) 3 SCC 140)
IMPORTANT DEFINITIONS under the CODE
Section 2(n) of the CrPC defines the word “offence” to mean any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under Section 20 of the Cattle-trespass Act, 1871. However, the term is more elaborately defined under Section 40 of the IPC which states that “offence” denotes a thing made punishable by the Code. Section 39 of the CrPC. imposes a duty on every person who is aware of the commission of or of intention to commit an offence, to give information of certain offences which are specified in Clause (i) to (xii) of sub-Section (1). An offence is what the legislature classes as punishable. Mens Rea a bad intention or guilt is an essential ingredient in every offence.
Bailable Offence and Non-bailable Offence
A “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. “Non-bailable” offence means any other offence. [Section 2(a)]
Cognizable Offence and Non-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” means an offence for which, and “non-cognizable” case means a case in which, a police officer has no authority to arrest without warrant. Thus, a non-cognizable offence needs special authority to arrest by the police officer. [Section 2(c) and 2(l)]
In order to be a cognizable case under Section 2(c) of the Code, it would be enough if one or more (not ordinarily all) of the offences are cognizable.
(Note: It may be observed from the First Schedule that non-cognizable offences are usually bailable while cognizable offences are generally non-bailable).
“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 it does not include a police report. [Section 2(d)]
However, a report made by the police officer in a case which discloses after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint, and the police officer making the report as a complainant. In general a complaint into an offence can be filed by any person except in cases of offences relating to marriage, defamation and offences mentioned under Sections 195 and 197. A complaint in a criminal case is what a plaint is in a civil case. The requisites of a complaint are:
- an oral or a written allegation;
- some person known or unknown has committed an offence;
- it must be made to a magistrate; and
- it must be made with the object that he should take action.
There is no particular format of a complaint. A petition addressed to the Magistrate containing an allegation that an offence has been committed, and ending with a prayer that the culprit be suitably dealt with is a complaint. (Mohd. Yousuf v. Afaq Jahan, AIR 2006 SC 705)
Police report is expressly excluded from the definition of complaint but the explanation to Section 2(d) makes it clear that such report shall be deemed to be a complaint where after investigation it discloses commission of a non-cognizable offence. Police report means a report forwarded by a police officer to a Magistrate under Subsection (2) of Section 173.
It means the release of the accused from the custody of the officers of law and entrusting him to the private custody of persons who are sureties to produce the accused to answer the charge at the stipulated time or date.
An “anticipatory bail” is granted by the High Court or a Court of Session, to a person who apprehends arrest for having committed a non-bailable offence, but has not yet been arrested (Section 438). An opportunity for hearing must be given to the opposite party before granting anticipatory bail (State of Assam v. R.K. Krishna Kumar AIR 1998 SC 144).
It means every inquiry other than a trial, conducted under this Code by a Magistrate or Court. [Section 2(g)]. It carries the following three features:
- the inquiry is different from a trial in criminal matters;
- inquiry is wider than trial;
- it stops when trial begins.
It 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. [Section 2(h)]
The three terms – ‘investigation’, ‘inquiry’ and ‘trial’ denote three different stages of a criminal case. The first stage is reached when a police officer either on his own or under orders of a Magistrate investigates into a case (Section 202). If he finds that no offence has been committed, he submits his report to the Magistrate who drops the proceedings. But if he is of different opinion, he sends that case to a Magistrate and then begins the second stage – a trial or an inquiry. The Magistrate may deal with the case himself and either convict the accused or discharge or acquit him. In serious offences the trial is before the Session’s Court, which may either discharge or convict or acquit the accused. (Chapter XVIII)
It includes any proceeding in the course of which evidence is or may be legally taken under oath. The term judicial proceeding includes inquiry and trial but not investigation. [Section 2(i)]
With reference to any proceedings in any Court, it means a person authorised by or under any law for the time being in force, to practice in such Court and includes any other person appointed with the permission of the Court to act in such proceeding. [Section 2(q)] It is an inclusive definition and a non-legal person appointed with the permission of the Court will also be included.
A “public prosecutor” means any person appointed under Section 24, and includes any person acting under the directions of a Public Prosecutor. [Section 2(u)]
Public prosecutor, though an executive officer is, in a larger sense, also an officer of the Court and he is bound to assist the Court with his fair views and fair exercise of his functions.
Summons and Warrant Cases
“Summons case” means a case relating to an offence and not being a warrant case. [Section 2(w)] A “Warrant case” means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. [Section 2(x)]
Those cases which are punishable with imprisonment for two years or less are summons cases, the rest are all warrant cases. Thus, the division is based on punishment which can be awarded. The procedure for the trial of summons cases is provided by Chapter XX and for warrant cases by Chapter XIX.
By – L. Sanmiha (Saveetha School of Law, Chennai)
- Universal Bare Act, 2017
- R.V. Kelkar’s Criminal Procedure, EBC 2016