THE CODE OF CRIMINAL PROCEDURE, 1973

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The Code of Criminal Procedure, 1973 was enacted in 1973 and came into full force on 1st April, 1974. The Code provides machinery for punishment of offenders under substantive criminal law, which is, the Indian Penal Code and other statutes. It contains the complete procedure, i.e., from the filing of complaint against a person to the conviction or acquittal of that person.

Before getting Independence, the British rulers established Supreme Courts in Calcutta, Madras and Bombay as per the Regulating Act of 1773. These supreme courts applied the British procedural laws for trying cases of the Crown’s subjects. Soon after, the crown governed the administration of India and the British Parliament passed the Code of Criminal Procedure, 1861. Even after Independence this Code was followed and was amended once in 1961. Finally it was replaced in 1972.

The Code is applicable in the whole of India except in the State of Jammu and Kashmir Other than Chapters VIII, X and XI, no other provision will be applicable to the State of Nagaland and the tribal areas It consists of 484 sections, 2 schedules and 56 forms. The sections have been divided into 37 chapters. The first step of a criminal case is filing a complaint. It has to be made to the Magistrate. Under the Code, there are a few different types of offenses. According to Section 2(a), any offense shown in the First Schedule as bailable, or which is made bailable by any other law in force for the time being, shall be a ‘bailable offense’. In bailable offenses, a bail may be claimed as a matter of right, whereas, for non-bailable offenses, it is the court’s discretion to grant bail. A ‘cognizable offense’ is that offense either shown in the First Schedule or by any law at the time in force which empowers the police to arrest an accused without a warrant. In a non-cognizable offense, the police have no authority to arrest without a warrant. Every case that is punishable with term of imprisonment exceeding two years, is a Warrant case. The cases that are not a warrant case, is a summons case.

Other than a High Court and any other court established under any law at that time being, there should also be Court of Sessions, Judicial Magistrate of the first class (and in metropolitan areas, Metropolitan Magistrates), Judicial Magistrates of second class, and Executive Magistrate. The Amendment Act of 2005, empowers a state to appoint a Directorate of Prosecution. The Code mentions the extent of punishment that each court can award according to the seriousness of the offenses. If a Court of Sessions passes a death sentence, the proceedings will be submitted before the High Court and the sentence will be executed only with the permission of the High Court. An aggrieved person has the right to file an appeal. Section 375 and 376 lays down cases where an appeal shall not lie. A court may refer a case to a higher court under Section 395. Section 397 empowers a High Court or Sessions Judge to revise the judgement of a lower court in case of doubts of legality or regulation of proceedings. A court may also transfer cases or appeals to another court if it deems fit, according to Section 406.

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In most countries, the burden of proof is put on the prosecution. That is, it is not upon the defendant but upon the prosecution to prove that the defendant is guilty beyond rational doubt and any doubt is resolved in favor of the defendant.

The Code has been amended many times. Some of the most important amendments were made in 1994, 2005 and 2008. In 1994, the amendments were made with the intention of getting speedy justice. Four new Sections 41A, 41B, 41C and 41D were added in the amendment of 2008. The latest amendment was made in 2013 in the Criminal Law (Amendment) Act, 2013. It says that if a woman comes to file a case of being grievously hurt or of sexual harassment or assault or of rape, such information should be recorded by a woman officer. Also hospitals or clinics, both private and public, should provide first aid immediately to victims of rape and then immediately inform the police.

International Criminal Procedure is a body of International law that provides the procedure for fair and effective enforcement of the substantial International Criminal Law. It was hardly in existence a few decades back. However, in the post-Cold war period, due to the need for adjudication of many international crimes, this Procedural Code came into place. One of its main draw backs is that, it provides multiple legislative solutions to the same procedural issues.

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