Assessing The Changing Contours Of Criminal Procedure In India Through The Lens Of Recent Judicial Trends

Hriday Buch

23 April 2020 6:54 AM GMT

  • Assessing The Changing Contours Of Criminal Procedure In India Through The Lens Of Recent Judicial Trends

    Introduction: Law by nature is dynamic as it evolves with the time, place and people. Criminal law is no exception to this rule. In this context, an attempt here is made to examine and analyze the recent paradigm shift in the legislative framework of Criminal laws in India through the lens of judicial trends. Continuous amendments along with precedents have significantly contributed...


    Law by nature is dynamic as it evolves with the time, place and people. Criminal law is no exception to this rule. In this context, an attempt here is made to examine and analyze the recent paradigm shift in the legislative framework of Criminal laws in India through the lens of judicial trends. Continuous amendments along with precedents have significantly contributed in making this most crucial branch of law relevant to the needs of society. Administration of justice is one of the most important functions of a State. Criminal law being an essential tool for the same strives at achieving ends of justice by punishing the wrong doer. Criminal law is an essential branch of law having substantive as well as procedural laws under its umbrella. The substantive laws like, IPC, Prevention of Corruptions Act, Food Safety Act etc. defines certain acts to be offences and hence prohibit the same. Indian legal system for administration of criminal justice is a combination of deterrence and reformation. We have left behind the retributive ways of punishing criminal because retributive theory of punishment in the context of modern framework is considered to be a backward-looking theory. Indian jurisprudence of criminal justice is also recognizing compensation as a modern way of punishment which is more victim centric.

    The procedural part of administration of criminal justice is crucial in conducting trial. The substantive law prescribes for the punishment and the same is executed by way of conducting trial following the procedural norms prescribed under the Code of Criminal Procedure. The Cr.PC also provided for provisions of appeal and revision which are vital in ensuring better administration of justice. Indian Evidence Act forms an important part of the Criminal law in India. The investigation is conducted as per the procedure under the Cr.PC and the same is tested through the yardstick of evidence which is adduced and admitted as prescribed under the Evidence Act.

    Talking about the evolution of the Criminal Laws in India, one has to first address the significance of CrPC. The first Criminal Procedural Code was of the early period of British Rule. In absence of any uniform Criminal Law governing the entire India at that time, there were separate Acts, mostly elementary by nature, for the Courts within and outside the Presidency-towns. Later on, in 1852, and 1865, the Acts in force in the Presidency-towns were consolidated into the Criminal Procedure Supreme Court Act and subsequently replaced by the High Court Criminal Procedure Act, 1865. Before that, Criminal Procedure Code, 1861 which was then replaced by the Code of 1871, absorbed the prevailing numerous Acts in mofussil. Uniform law of criminal procedure was finally given to the whole of India both in the Presidency-towns and in the mofussil, by way of introducing The Criminal Procedure Code, 1882 and it was supplemented by the Code of 1898. Major amendments were made to the Code of 1898 in 1923 and 1955. The First Law commission of Independent India was set up in 1955, which studied the Code of 1898 extensively and made various recommendations and suggestions in detail which took form of Law commission Report no. 41 submitted in September 1969[1]. The suggestions and recommendations made through this report were incorporated in form of the Criminal Procedure Code 1973, which came into force on 1st April 1974, and the same has been amended several times thereafter. Most recent amendments are in the year 2015 and 2018.

    One of the significant amendments is about the status of 'victim'. Earlier, the victims had a very limited and minuscule role in the process of investigation and trial. No right of appeal/revision was available to the victim. However, the amendment made to the S. 372 of CrPC and the definition of 'victim' added in form of S. 2(wa) of CrPC[2] made in the year 2009 is a substantial development. The Supreme Court in the case of Mallikarjun Kodagil v. State of Karnataka[3] has interpreted the provision and held that the 'victim' does not even need to seek leave of the court and has a right to directly prefer an appeal under the said provision. It over-ruled the decision of the Gujarat High Court distinguishing between the victim as a 'victim' and the victim as a 'complainant'. The recognition of 'victims' in Criminal Law is a welcome change that the Parliament and the Supreme Court have brought about.

    Not only the 'victim' of the crime, but also the witnesses of such crimes are now adequately protected. Right from the stage of investigation, the witnesses are given due protection of their safety and dignity. The amendment to S. 160 of CrPC in the year 2013 expects the investigation officer to record the statement of children, aged persons and women at the place of their residence. That apart, during the trial, due protection is to be given to all the witnesses as per the guidelines laid down by the Supreme Court in the case of Mahender Chawla v. Union of India,[4] and in compliance with the directions given in the said judgement, various Vulnerable Witnesses Centres are also established in the State of Gujarat, which is a welcome change.

    On the aspect of investigation, it has been continuously envisaged that every crime has to be promptly investigated in a fair and transparent manner. The Investigating Officer (IO) is expected to reach to the truth and collect all necessary oral and documentary evidence while submitting the report to the competent court. Various additional powers are conferred upon the IO while investigating serious offences like molestation and rape. The power to record statement by audio-video electronic means given to the IO under S. 161 (3) in the year 2009 is a welcome change. Moreover, the basic object underlying the scheme of the procedural law is to reach to the truth. There are no fetters on the powers of the IO to further investigate even after the submission of report/charge sheet and even after the Court takes congnizance. Recent judgment of the Supreme Court in the case of Vinubhai Haribhai Malavia v. State of Gujarat[5] empowers even the Magistrate to order further investigation in exercise of powers under S. 156(3) of CrPC. This is an important development in all these years.

    Further, there are important developments in this set of laws from the perspective of the accused. The celebrated principle - "bail is a rule and jail is an exception" has remained constant. Earlier Constitution Bench judgement in Gurbaksh Singh Sibbia[6] is emphatically reiterated by the Supreme Court in Siddhram Mhetre v. State of Maharashtra[7] in 2011. It's is also reiterated in Sanjay Chandra v. CBI[8] judgement. The earlier view of the Constitution Bench in the case of Gurbaksh Singh Sibbia has been reiterated with full force by the recent judgement rendered by another Constitution Bench in the case of Sushila Aggrawal & Ors v. State (NCT of Delhi) & Ors[9].

    However, a significant development in this area is worth noticing which is the judgement of the Supreme Court in Arnesh Kumar v. State of Bihar[10] The Parliament also took note of the judgement and carried necessary amendment in S. 41 of CrPC and added other sections. This gives substantial relief to the accused charged with offences punishable with less than seven years of imprisonment. Though the lawyers appearing in Magisterial Courts initially felt that such a judgement will affect their practice to seek bail from the court. However, eventually, the same is accepted as a good precedent as it saves thousands of accused persons from facing unnecessary humiliation of spending few days in jail. Stricter implementation of the provision of remand under S. 167 of CrPC has facilitated timely conclusion of investigation. Though the use of S. 437(6) of CrPC is not yet common in the courts. That provision would ensure timely progress even in the trials pending before Magisterial Courts.

    The frequency with which the amendments are made in the procedural law like CrPC is much higher compared to that of the substantive law like IPC. IPC has more or less remained the same while the other statutes prescribing criminal penalties have been substantially amended. Discussion on the major amendments to the Criminal law in India is incomplete without referring to the changes brought about post Nirbhaya case. A week after the horrific attack on Nirbhaya on 16 December 2012, the Justice JS Verma Committee was set up to review our criminal laws and recommend amendments. The committee submitted a lengthy report running into 644 pages which formed basis of the Criminal Law (Amendment) Act, 2013. Major amendments are reflected in terms of extended scope of the definition of rape, standard of consent, enhanced punishment for sexual offences. Further, amendment in form of section 354A-D, for stalking, voyeurism, unwanted sexual advances and touches making them specific offences are made which helps ensure that these extremely dangerous behaviors can no longer be ignored or trivialized.

    In another crucial move, recognizing India's massive problem with acid attacks, the 2013 Act also introduced provisions specially criminalizing them, and prescribing compensation for protecting victims of these attacks.

    Recent decisions in case of Navtej Singh Johar v. Union of India reported[11], the Apex court recognizing the transformative power of Constitution and Constitutional Morality, narrowed down the rigor of S.377 of IPC as long as the relations are consensual. Another milestone decision which has brought about a major change id in the case of Joseph Shine vs Union of India reported in (2019) 3 SCC 39 which provides for decriminalization of the offence adultery under S. 494 of IPC. Adultery can be a civil wrong but not a penal offence. The interpretation given to penal provisions of obscenity and defamation in case of S. Khushboo v. Kanniamal[12] reported in asking the society to have a more matured reaction to a statement made by a celebrity is also noteworthy.

    The law on preventive detention has been consistent post- emergency era. Though the Parliament has continued with drastic detention laws, the Courts have zealously protected the citizens against haphazard detentions without subjective satisfaction as to whether the activity of the detente is actually such which disturbs the public order or not. After the infamous ADM, Jabalpur vs Shivkant Shukla's judgement,[13] the Supreme Court has always protected the detenue and insisted stricter implementation of Art. 22 of the Constitution. Even at the pre detention stage, the Supreme Court in case of Govt of India v. Alka Subhash Gadhia[14] has held that the court can protect a detentue against an order of detention. This is reiterated in Subhash Popatlal Dave v. Union of India[15] reported in Detention without a trial is construed against the basic principle of Art. 21 of the Constitution.

    There is no society without crimes and conflicts. Crime is eternal-as society itself is. Administration of criminal justice is essential to maintain law and order in a society. The question of the efficacy of the criminal justice system and protection of rights of the people are interrelated and need constant scrutiny in this age of persistent changes. Criminal law is concerned with the right to life and personal freedom and the restrictions placed on those rights. Ultimate goal of criminal law is to make the society as much crime free as possible. Thus, the existing legal framework i.e. the penal and procedural laws and the adjudicatory system as and when found to be inadequate have been amended from time to time to curb and control the menace of crime. The above discussed amendments are undertaken to balance the rights of the accused and the victim as well as to preserve the peaceful, harmonious and an orderly society. Considering the cardinal principle of criminal jurisprudence namely Doctrine of praesmptiones juris sed non de jure. i.e., Accused is presumed to be innocent until his guilt is proved, criminal laws are interpreted and applied in India. A full-fledged trial of terrorist Ajmal Kasab is the best illustration for the same. In fact, when the case reached the Supreme Court, the convict-Kasab was given free legal aid and the hearings were spread around for about 13 weeks. The Supreme Court delivered a lengthy and elaborate judgement[16]. It records in Para 592 that the hearings commenced with wishes given by the Counsel representing the State of Maharashtra to the respondent-convict. It goes on to record, "… The solemnity and sincerity of his declaration set the tone for the proceedings before the Court. The discourses were luminous, warm and stimulating but completely free from heat, rancor or anger, leave alone any vengefulness…" This is how the administration of justice in Criminal Law will continue.

    Views Are Personal Only.

    (Author is Practicing Lawyer at Gujarat High Court)

    [2] Section 2 (wa) "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir.

    [3] (2019) 2 SCC 752.

    [4] 2018 SCC Online SC 2679.

    [5] 2019 SCC Online SC 1346

    [6] Gurubaksha Singh Sibbia v. State of Punjab, 1980(2) SCC 565

    [7] (2011) 1 SCC 694

    [8] 2012(1) SCC 40

    [9] Manu/SC/0100/2020.

    [10] (2014) 8 SCC 273.

    [11] (2018) 10 SCC 1

    [12] (2010) 5 SCC 600

    [13] (1976) 2 SCC 521

    [14] 1992 Supp (1) SCC 496

    [15] (2012) 7 SCC 533.

    [16] (2012) 9 SCC 1

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