Introduction to Criminal

Procedure
By: Hifajatali Sayyed
 Introduction
The object of criminal law is to protect the society from crime and to
punish the offenders.
Criminal law is divided into two parts namely substantive criminal
law and procedural criminal law.
The law which defines rights and liabilities is known as
substantive law. The function of substantive law is to define, create
or confer substantive legal rights or to impose and define the nature
and extent of legal duties or liabilities.

Substantive criminal law deals with the substance or the

elements of a crimes and the punishment for those crimes.
 Introduction
Procedural law deals with the means and instruments by which the
ends of administration of justice are attained, i.e. effective
administration or application of substantive law.
Procedural criminal law deals with the practices and
procedures that are adopted to implement the substantive
criminal law.
Procedural law is the vehicle providing the means and instruments
by which those ends are attained.
The Code of Criminal Procedure, 1973 is the main procedural
criminal law enacted in India which deals with the procedural
aspects relating to a criminal case.
 Introduction
The Criminal Procedure Code, 1973 sets out a body of rules which
must be followed in the investigation, inquiry or trail of
offence under the Indian Penal Code as well as offences under other
Acts.
Though Code of Criminal Procedure is a procedural law but there are
some provisions in the code which are of semi-substantive
character, example: prevention of offences, maintenance
proceedings, etc.
Therefore it can be stated that Code of Criminal Procedure is not
purely procedural in nature.
History of Criminal Procedural Laws
In medieval India, the Mohammedan criminal law was
prevalent. Subsequently, the British passed the Regulating Act of
1773 which led to the establishment of courts in three presidency
towns of Calcutta, Bombay and Madras.
The effect of the statute was to apply British procedural law while
deciding upon the cases of Crown’s subjects. After the revolt of 1857,
the crown took over the Indian administration. The British
parliament passed the Criminal Procedure Code, 1861.
Thereafter major amendments were introduced in the criminal
procedure in the year 1882 and 1898.
 History of Criminal Procedural Laws
The Fifth Law Commission was established under the chairmanship of
Mr. K. V. K. Sundaram which submitted the 41st Report of Law
Commission on revision of Code of Criminal Procedure in the year
1969.
Thereafter a draft bill was introduced in the Parliament while taking
into account the following considerations:

i. The accused person must get a fair trial in accordance with the
accepted principles of natural justice.

ii. Every effort should be made to avoid delay in investigation and

trial which is harmful not only to the individuals involved but also to
the society.
 History of Criminal Procedural Laws

iii. The procedure should, to the utmost extent possible, ensure fair
deal to the poorer sections to the community.
Subsequently the bill was passed by the Parliament and it came
into force from 1st April 1974.
The Code of Criminal Procedure has divided the procedure for
administration of criminal justice into three stages mainly
investigation, inquiry and trial.
Scope of Criminal Procedure Code
Sec 4 of the Code of Criminal Procedure, 1973 provides that all
offences under the Indian Penal Code or under any other
law shall be investigated, inquired into, tried, and otherwise dealt
with according to the provisions hereinafter contained.
However sec 5 states that the CrPC does not affect any special
jurisdiction or power conferred, or any special form of
procedure prescribed, by any other law for the time being in
force.
So, CrPC is applicable to all offences but it allows the procedure
prescribed by special law to prevail over the normal procedure
prescribed by CrPC.
 Scope of Criminal Procedure Code
CBI vs. State of Rajasthan (1996) 9SCC 735
• In this case, the Supreme Court stated that Foreign Exchange
Regulation Act (FERA), 1973 is a special Act and it
provides for the necessary investigation into the alleged
suspected commission of an offence under the Act, by the Director
of Enforcement. So, the provisions of the Code of Criminal
Procedure will not apply to such investigation.
Object of Code of Criminal Procedure
The law of criminal procedure is intended to provide a mechanism
for the enforcement of criminal substantive law.
Without proper procedural law, the substantive criminal law which
defines offences and provides punishments for the same would be
almost of no use; because, in the absence of enforcement
machinery, the threat of punishment held out to the law-breakers
by the substantive criminal law would remain empty in practice.
Empty threats do not deter, and without deterrent effect, the law of
crimes will have hardly any meaning or justification. The law of criminal
procedure is meant to be complementary to criminal substantive
law and has been designed to look after the process of its
administration.
 Importance of Fair trial
To provide fair trial is also one of the basic object of Criminal
Procedure Code. Fair trial is based on the concept that State is under
the duty to punish the offenders. In this action against the crime the
State cannot adopt illegal means for detection of crime and
punishing the offender.
For how can State insist on good behaviour from other when
State’s own behaviour is blameworthy, unjust and illegal?

So, the procedure adopted by the State must be just, fair and reasonable.

The ideology of fair trial is incorporated in Indian constitution and also

under international human rights law.
 Importance of Fair trial
Article 10 of UDHR states that everyone is entitled in full equality
to a fair and public hearing by an independent and impartial
tribunal, in the determination of his rights and obligations and of any
criminal charge against him.
Article 11 (1) of UDHR states that everyone charged with a penal
offence has the right to be presumed innocent until proved guilty.
Article 11 (2) of UDHR states that no one shall be held guilty of any
penal offence on account of any act or omission which did not
constitute a penal offence, under national or international law, at
the time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time the penal offence
was committed.
 Importance of Fair trial
India follows the adversarial system of criminal trial in which
the accused is presumed innocent. The burden is on the prosecution
to prove the case beyond reasonable doubt and the benefit of doubt
always goes to the accused person. Also the accused must be given
fair opportunity to defend himself.
As Principle of Natural Justice is an integral part of Article
14 and Article 21 of Indian Constitution and the same has been
reaffirmed by the Apex Court in different cases.
 Importance of Fair trial
There are two Latin maxims which forms part of Principle of Natural
Justice :
i. ‘Audi Alteram Partem’ which means that no one shall be
condemned unheard. This ensures a fair hearing and fair
justice to both the parties. Under this doctrine, both the parties
have the right to speak. No decision can be declared without
hearing both the parties. The aim of this principle is to give an
opportunity to both the parties to defend themselves. A
man cannot incur the loss of liberty or property for an offence by a
judicial proceeding until he has had a fair opportunity of answering
the case against him.
 Importance of Fair trial
Maneka Gandhi vs. Union of India (1978 AIR 597)

• In this case the Supreme Court stated that it is well established that
even where there is no specific provision in a statute or rules made
there under for showing cause against action proposed to be taken
against an individual, which affects the rights of that individual, the
duty to give reasonable opportunity to be heard will be
implied from the nature of the function to be performed by the
authority which has the power to take punitive or damaging action.
 Importance of Fair trial
ii. ‘Nemo Debet Esse Judex In Propria Causa’ which means that no one
ought to be a judge in his own case. It applies to two types of cases.
Firstly, a judge is precluded from presiding over a case in which he
directly appears as a party. Secondly a judge is precluded from
decided a case in which he has an interest. Impartiality, absence of
bias, fearlessness and assertion are the qualities highlighted by an
unbiased approach to the judicial system.
❑ Murlidhar vs. Kadam Singh (AIR 1954 MP 111)
• In this case, the chairman of the election tribunal was declared as unfit
for the position because his wife was a member of the party through
which a party in the dispute emerged.
 Importance of Fair trial
Talab Haji Hussain vs. Madhukar Purshottam (AIR 1958
SC 376)
• In this case the Supreme Court stated that the primary object of
criminal procedure is to ensure a fair trial of accused
persons. Every criminal trial begins with the presumption of
innocence in favor of the accused ; and provisions of the Code are
so framed that a criminal trial should begin with and be
throughout governed by this essential presumption ; but a fair trial
has naturally two objects in view; it must be fair to the accused and
must also be fair to the prosecution. The test of fairness in a
criminal trial must be judged from this dual point of view.
 Importance of Fair trial
Zahira Habibullah Sheikh and ors vs. State of Gujarat
and ors [(2006) 3 SCC 374]
• In this case the Supreme Court observed each one has an inbuilt
right to be dealt with fairly in a criminal trial. Denial of a fair
trial is as much injustice to the accused as it is to the
victim and to society. Fair trial obviously would mean a trial
before an impartial judge, a fair prosecutor and an atmosphere of
judicial calm. Fair trial means a trial in which bias or prejudice for
or against the accused, the witness or the cause which is being
tried, is eliminated.