Over a period of time the law relating to criminal procedure has constantly evolved in respect to its intent, content and import. The evolution of the modern Indian criminal procedure law can be traced back to the time of the British rulers setting itself the task of establishing an effective colonial governance in India way back in the mid-19th century. After a near debacle in the First War of Independence in 1857, the Britishers had realised the value of a rule-based criminal justice system that would enable them to keep a strict surveillance over the diverse polity. With that end in view the enactment of the Penal Code, 1860, the Criminal Procedure Code, 1861, the Police Act, 1861 and the Indian Evidence Act, 1872 was as per plan. A comprehensive and broad-based Penal Code provided the substantive criminal law framework, while the procedural matters were provided in the CrPC (as amended in 1882 and 1898), the Police Act and the child and adolescent-centric the Reformatory Schools Act, 1876 and 1897 and the Borstal Schools Acts. Thus, while the pre-determined and codified nature of the diverse criminal justice rules provided the moral superiority and political legitimacy to colonial rule, the Imperial power was safeguarded by their coercive content, particularly in procedural matters. The Police Act not only accorded complete supremacy to police in matters of crime investigation but also made it the sinews of coercion in the governance.
Even after Independence and the establishment of a constitutional governance, the path of criminal procedure laws remained conflict ridden because of the inherently contradictory or antinomial nature of the constitutional provisions themselves. The first source of contradiction lies in Article 372 that accords sanctity to “all the laws in force in the territory of India immediately before the commencement of this Constitution”. Such an adaptation provision may have had its justifications on grounds of exigency in the initial stage, but it very significantly gave a new lease of life to the whole range of colonial penal laws, thereby also keeping alive the State hegemonic and coercive legacy. The second source of contradiction lay in the less remembered and projected Article 13 that in clauses (1) and (2) rendered any past or future laws inconsistent with Part III of the Constitution as void, to the extent of inconsistency. Article 13 locates a Constitutional command: That the adaptation of every existing law and the creation of new laws is subject to being consistent with the fundamental rights guaranteed under the Constitution. The contradictions tend to pull the law enforcement officials — Police, Prosecutors, Courts and Prisons — in opposite directions. One inspired by obedience and respect for the existing laws and the other enticed by the Constitution-ordained new order. These contradictions lie at the heart of the present-day criminal procedure law system as a whole. That explains why despite bulky recommendations of the several Police Reform Commissions and categorical Supreme Court rulings concerning police reforms, the policing in the majority of States and Union Territories continues to follow the colonial coercive model. Similarly, the attempts to reform the criminal procedure law on democratic and libertarian lines by the enactment of the Code of Criminal Procedure, 1973 with a view to further the three important considerations, namely, “Speedy Disposal”, “Due Process” and “Fair Deal to Poorer Sections”, have failed to fulfil the new procedural aspirations. The implementation level challenge of criminal procedure law ought not to be seen in isolation, it is equally connected with the way the criminal procedure law is understood and perceived in our classrooms, judicial training and police training institutes. As a consequence, even after 70 years of promulgation of the Constitution, the teachers, students, lawyers and the Judges fail to appreciate the connection between police powers to receive information, investigate, arrest, search and seize or the Magistrates’ powers to receive complaint, take cognizance, issue processes, frame charges and decide the case, etc. and the constitutional rights of the accused and the victims. As a matter of fact the criminal procedure law is treated merely as a lawyers law that tends to remain grossly marginalised in the law schools and training institutes.
In the following pages effort would be made to suggest ways and means for enhancing the understanding and devising new pedagogies of teaching criminal procedure law in the light of growing trends of transformations in the nature and curricular content of criminal procedure courses, highlighting the core criminal procedure issues in the light of lead readings on the subject and underscore a few notable High Court and the Supreme Court rulings that have the potential of maturing into a model procedure law for the future.
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*The article has been published with kind permission of Eastern Book Company. Cite as (2021) 2 SCC J-1
† Distinguished Professor, National Law University, Delhi; Formerly Professor of Law, Delhi University; Professor, Head & Dean, Faculty of Law, Lucknow University; Consultant (Research), NHRC.
1 From the Foreword to Handbook of Human Rights and Criminal Justice in India (SAHRDC, OUP 2007) xii.
2 Herbert L. Packer, The Limits of Criminal Sanction (Stanford University Press, 1968)
4 Max-Planck-Inst. für Ausländisches und Internationales, Strafrecht, Freiburg 1995.
21 Id., 224, para 26.
22 Professor Emeritus of Public Law, School of Law, University of Dar es Salaam, Tanzania.
23 Issa G. Shivji, “Jail Not Bail: Reflecting on Recent Constitutional Decisions in Tanzania”, Zanzibar Yearbook of Law, Vol. 9, 2019 at pp. 3-26.
24State of Rajasthan v. Balchand, (1977) 4 SCC 308.
25Firoz Khan v. State (NCT of Delhi), 2020 SCC OnLine Del 1694.
26 Id., para 20.
27 Id., para 23.
29S. Kasi v. State, 2020 SCC OnLine Mad 1244.
31Shahvaz Hussain v. State of Rajasthan, SBCRLMB No. 136 of 2020, order dated 27-1-2020 (Raj)