Snippet: The Codification Journey of Criminal Procedure in India

The older editions of some popular legal commentaries are not easy to find, but make for interesting reading. I have been lucky enough to frequently refer to Ratanlal Ranchhoddas & Dhirajlal Keshavlal Thakore, The Criminal Procedure Code (6th edn., 1949, Bombay Law Reporter Office, Bombay), for purposes of research. But recently, I was randomly leafing through the book and came across these snippets that detail the history of how the Criminal Procedure Code came to be. Below, I've copied some extracts from pages 490-91, for the benefit of everyone:

In 1833 the Governor General in Council was empowered by 3 & 4 Will. IV, c. 85, to legislate for the whole of British India, i.e., for all persons whether British or native or foreigners; for all Courts established by Charter or otherwise; for all places within the territories of British India. The Regulations made under the previous states were replaced by Acts. This statute provided for the appointments of the “Indian Law Commission” mainly with a view to codify Indian laws and procedure. ... 

In 1847 the Indian Law Commissioners were instructed to prepare a scheme of pleading and procedure with forms of indictment adapted to the provisions of the Penal Code. It was prepared in 1848.  

Owing to the great delay in examining the measures recommended by the Indian Law Commissioners, a Royal Commission was appointed in England in 1853 toe examine and consider the recommendations and draft enactments of the Indian Law Commissioners, and a second Commission was appointed in 1854. 

The draft of the Criminal Procedure Code was examined and revised by the Commissioners appointed in 1854. They prepared a draft Code which was presented to parliament in 1856, and introduced into the Legislative Council of the Governor-General by Sir Barnes Peacock in 1857. It appeared on the Statute Book as Act XXV of 1861, and came into force on January 1, 1862. Originally, it applied to the territories subject to general Regulations, (p. 491) and was gradually extended to other territories of British India, barring the presidency-towns. 

It was considerably amended by Act VIII of 1869. Both these Acts were repealed by the Criminal Procedure Code of 1872 (Act X of 1872). This Code, like its predecessor, did not apply to the High Courts and the Chief Courts of the Punjab, and the Presidency Magistrates’ Courts in Calcutta, Madras and Bombay. The several Acts governing the procedure of High Courts were repealed and replaced by the High Courts Criminal Procedure Act (X of 1875) which regulated the procedure of the High Courts in the exercise of their original criminal jurisdiction. 

The Presidency Magistrates Act (IV of 1877) was enacted to regulate the procedure of the Courts of Magistrates in the presidency-towns. Several provisions of these three Acts — X of 1872, X of 1875 and IV of 18777 — were similar though not couched in the same language. It was, therefore, thought desirable to consolidate the three Acts into one single Code of Criminal Procedure for the whole of British India, and Act X of 1882 was therefore passed repealing these three enactments.” 

To complete the history subsequent to what the book narrated, Act X of 1882 was then replaced by Act V of 1898. This was materially the same as the previous iteration of the Code. It underwent some comprehensive amendments in 1923, whereby many changes were made to the pretrial process such as adding Section 164(3) that required persons be cautioned before making statements or confessions to Magistrates.

The 1898 Code was carried forward after Indian independence. And in 1955, it underwent another set of substantial amendments. The years between 1958 and 1969 saw criminal procedure become the subject of in-depth consideration by the Law Commission of India and other bodies — Report Nos. 32, 33, 36, 37, 39, and 40, all related to different aspects of criminal procedure. 

In Report No. 41, the Law Commission suggested replacing the 1898 Code with a new Criminal Procedure Code to streamline the many changes that had taken place over time. The proposed Code took away jury trials (already a dead letter), reduced the scope of committal proceedings, and also sought to create simpler procedures to make the criminal justice system quicker and more accessible.

This new Code was ultimately passed as the Criminal Procedure Code 1973, and notified as Act No. 2 of 1974. It has not undergone substantial revisions of the kinds that the 1898 Code saw in 1923 and 1955. But the amendments of 2006 and 2009 — which introduced different norms for arrest, brought in plea bargaining, and recognised rights of victims, respectively — have made important changes to the system. 

In a few years, the 1973 Code will mark its fiftieth anniversary. Has it delivered on the promises of making the criminal justice system move faster, and render it more accessible to the indigent?