INTRODUCTION TO THE CODE OF CRIMINAL PROCEDURE. THE importance of supplementing the Penal Code by wise rules for preventing offences and bringing offenders to justice appears from the following considerations1: First, expense, delay or uncertainty in applying the best laws for the prevention and punishment of offences would render those laws useless or oppressive: Secondly, the law relating to criminal procedure is more constantly used, and affects a greater number of persons, than any other law. The offender and the individual injured are, as a rule, the only persons immediately affected by the commission and punishment of a crime. But in the measures prescribed for preventing crimes and prosecuting criminals any one, however unconnected with a given offence, may find himself involved. As a judge, a magistrate, a soldier, a volunteer, a policeman, or even a private citizen, every one is liable to become an active party in preventing the commission of crimes, in stopping the progress of crimes continuous in their nature, or in arresting offenders. In India, moreover, private persons are liable to serve in trying cases as jurors or assessors. the codifi For these reasons the Government of India has laboured long and History of zealously to produce a code of Criminal Procedure which should cation of be easily understood, cheap, expeditious and just. So long ago as criminal the 20th March, 1847, the President in Council instructed the procedure. Indian Law Commissioners to prepare a scheme of pleading and procedure with forms of indictment adapted to the provisions of the Penal Code; and such a scheme, together with several forms, was prepared by Messrs. Cameron and Eliott, and submitted with a report dated 1 Feb. 18482. Their draft was examined and considered by a new set of Commissioners appointed in 1854 under 16 & 17 Vic. c. 95. sec. 28, and comprising Sir John 1 See Livingston's introductory report to the Code of Procedure prepared for the State of Louisiana, Works, i. 331. 2 There was a previous report dated 7 VOL. II. B 4 Nov. 1843 regarding the qualifica- not seen. 376 The High Romilly M.R., Sir John Jervis C.J., Sir Edward Ryan, and Messrs. Cameron, Ellis, Lowe (now Lord Sherborne), and Millett. These Commissioners produced a draft Code which was presented to Parliament in 1856, and was in the following year introduced into the Legislative Council by Mr. (now Sir Barnes) Peacock. It ultimately was passed by the Legislative Council as Act XXV of 1861. This Code came into force on 1 Jan. 1862: it applied in the first instance only to the territories subject to what were called the general regulations, but was gradually extended to the rest of British India except the Presidency-towns. It was amended by Acts XXXIII of 1861, XV of 1862, VIII of 1866, and (very largely) by Act VIII of 1869. Three years after, the principal Code and its amending Acts were repealed and replaced by Act X of 1872, drawn partly by Mr. (now Sir Fitzjames) Stephen (who tells us that he framed the sections corresponding with sections 221-240 of the present Code); partly by Mr. H. S. Cunningham; but chiefly by the late Captain Newbery, personal Assistant to the Inspector General of the Panjáb police. This Code, like its predecessors, was not applicable to the Courts established by Royal Charter in Calcutta, Madras and Bombay. For these Courts, as well as for the High Court at Allahabad and the Chief Court at Lahore, provision was made by Act X of 1875 (to regulate the procedure of the High Courts in the exercise of their original criminal jurisdiction), which reduced the number of jurors to nine and the number of peremptory challenges to eight, dispensed with the necessity of an unanimous verdict, codified the law relating to habeas corpus, provided a simple substitute for the writ of certiorari, and repealed and re-enacted in an improved form the seven Acts by which the Legislature had from time to time amended the criminal procedure of the Supreme Courts, or their successors the High Courts. This Act was drawn by the writer and carried by Mr. (now Lord) Hobhouse. 2 1 History of the Criminal Law, iii. 337 n. Captain Newbery informed me that Mr. Stephen also drew Chapters II-VII, XXIII (chiefly) and XXXVI, and that Mr. Cunningham drew sec. 90, most of Chap. XIX, and Chap. XXXIV. 2 Acts XXXI of 1838, XXII of 1839, IV of 1849, XVI of 1852, XVIII of 1862 (except secs. 26-35, 47-53), and Act XIII of 1865, a useful measure, carried by Sir H. Maine, which (inter alia) abolished grand The Code of 1872 was also inapplicable to the Magistrates' The Courts at Calcutta, Madras, and Bombay. For these, provision Presidency Magiswas made by Act IV of 1877 (to regulate the procedure and increase trates. the jurisdiction of the Courts of Magistrates in the Presidency Towns). This Act, which increased the jurisdiction of the Presidency Magistrates, assimilated their procedure to that of the provincial Magistrates, and made many other improvements, was drawn by the writer and carried by Mr. (now Sir Theodore) Hope. It thus appears that, before the present Code of Criminal Procedure was passed, no less than three such Codes were in operation in British India: Act X of 1872, amended by Act XI of 1874, which was in force throughout the Mufassal; the High Courts' Act, X of 1875, which was in force in the Presidencytowns, Allahabad and Lahore; and the Presidency Magistrates' Act, IV of 1877, which, also, was in force in the Presidency-towns. Many of the provisions of these Codes merely repeated one another; many of their rules, though dealing with the same subjects, unnecessarily varied in language; and the result was that the bulk of the Indian Statute-book was far greater than it needed to be, and that the Courts when construing one Code were often deprived of the guidance of prior decisions on another. The primary object of the present Code, which was framed by the Objects of writer at the suggestion of the Secretary of State in his despatch the present (Legislative), No. 44, dated 26th October, 18762, was to recast 1 In framing his draft he was aided chiefly by the decisions of the High Courts on Act X of 1872, but also by many of Livingston's remarks. In revising the draft he was aided by Mr. Justice Straight, who suggested (inter alia) the insertion of sec. 310, by Messrs. F. R. Cockerell and B. Colvin of the Bengal Civil Service, and by Mr. Fitzpatrick, Secretary, and Mr. R. J. Crosthwaite, Acting Secretary, to the Government of India in the Legislative Department. Mr. Fitzpatrick, in particular, redrew chapters VIII (Security for keeping the peace) and X (Public Nuisances). The Secretary of State's words were:-The Draft Code of Criminal Procedure prepared by the Indian Law Commissioners in 1856 was intended by them for use in all the Courts, and although it was not deemed advisable to carry out the whole of this design when the Code of Criminal Procedure Code. 1 the Code of 1872, combining with it the substance of the High Courts' Act and the Presidency Magistrates' Act, and incorporating in it the numerous reported decisions on its wording, and thus at last give to India a single and complete Code of Criminal Procedure, and carry out, so far, the policy of providing a simple and uniform system of law for that country. The language and arrangement of Act X of 1872 were, for obvious reasons, departed from only so far as was necessary for the main purpose of the Code. But it was obviously impossible to reproduce the inartificial wording of many of the sections, and an arrangement according to which, for example, the provisions for the prosecution of crimes came before the provisions for their prevention, and the charge (i. e. the written accusation of an offence) was dealt with after trials, appeal and execution. Though many of the outlying Acts and Regulations dealing with Criminal Procedure had been repealed and re-enacted by Act X of 1872, many more were still untouched, and the secondary object of the present Code was to consolidate these enactments, which were seven in number: namely, Acts XXIII of 1840 (Execution of process): V of 1861, section 6, part of sections 24 and 35 (Police): the unrepealed portions of XVIII of 1862 (Administration of Criminal Justice in the High Courts): II of 1869 (Justices of the Peace): XXII of 1870, sections 2 and 4 (Application to European British subjects of Acts giving summary jurisdiction): XXI of 1879, Chapter III (Inquiries in British India into crimes committed abroad by British subjects); and Bengal Regulation XX, 1825 (Jurisdiction of Courts Martial). The result of consolidating the Acts and the Regulation above specified was to substitute a single Code of 568 sections for eleven enactments containing 1020 unrepealed sections. The present Code is divided into nine Parts, the first containing the usual preliminary matter; the second dealing with the constitution and powers of the Criminal Courts and offices; the third containing some general provisions; the fourth treating of the prevention of offences; the fifth, of information to the Police and of their powers to investigate; the sixth, of proceedings in prosecu the best safeguard against conflicting 'I request, therefore, that your bine with it the substance of the tions; the seventh, of appeal, reference and revision; the eighth, of special proceedings; the ninth, of supplementary provisions. I. PRELIMINARY. extent. Part I consists of a single chapter containing the usual pre- Local liminary matter. The Code is declared (sec. 1) to extend to the extent. whole of British India; and it has been applied, by executive orders, to many places outside the empire. It contains no clause Personal relating to personal application; but Act XXI of 1879, sec. 8, declares that the law relating to criminal procedure for the time being in force in British India shall, subject to modification by the Governor General in Council, extend (a) to all European British subjects in the dominions of Princes and States in India in alliance with Her Majesty, and (b) to all Native Indian subjects of Her Majesty in any place beyond the limits of British India. offence. The wording of some of the definitions in Act X of 1872 has Definibeen amended; and definitions of 'public prosecutor,' 'pleader,' , tions. 'offence,' 'chapter,' 'schedule,' 'place,' and 'police station' have been added. The definition of complaint' has been amended so as to exclude the report of a police-officer and information given to a police-officer; and the definition of 'investigation' has been extended so as to comprise the proceedings of persons authorised by a Magistrate under section 160 or 203 to make local investigations. The definition of 'cognisable offence Cognisable a somewhat ill-chosen name for an offence for which a policeofficer may arrest without warrant-has been amended so as to connect it with the second schedule. 'Warrant-case' is defined Warrantas a case relating to an offence punishable with death, transportation, or imprisonment for a term exceeding six months, and 'summons-case' as a case relating to an offence not so punish- Summonsable. A clause has been added to the definition of 'High Court' so as to enable the Governor General in Council to appoint in outlying territories where no such Court is established by law, an officer to perform its functions under the Code. Expressions such as 'special law' and 'local law,' defined in the Penal Code, have the meanings attached to them respectively by that Code. II. CRIMINAL COURTS. Part II, as to the constitution and powers of the Criminal Courts and offices, consists of two chapters, of which the first deals (a) with 1 See Appendix A to the Code. 2 Stephen, Hist. Crim. Law, iii. 331. case. case. |