Criminal Law in India Chapter Notes | Legal Studies for Class 12 - Humanities/Arts PDF Download

Objectives of Criminal law

Flowchart

• Retribution: This theory focuses mostly on "righting of balance." A criminal must get a punishment that fairly balances out the wrongs they have committed against people or property.
• Deterrence: In particular from the perspective of crime, deterrence is a key instrument in keeping overall law and order in society. Crimes are punished to stop other people from doing them again or even initiating them in the first place.
• Incapacitation: This theory's goal is to keep criminals apart from the rest of society. As punishment for the crimes they committed, they are forced to remain in jails and, in some circumstances, face the death penalty.
• Rehabilitation: It aims to make a criminal into a useful member of society. Its main objective is to persuade the offender that their actions were wrong in order to stop them from committing new offences.
• Restoration: This theory of punishment places a focus on the victim. The intention is to repair any harm the criminal has caused the victim by using state authority. Restoration, which refers to putting the victim back in the position they were in prior to the injury, is closely correlated with concepts of civil law.

Purpose of Criminal Law

The purpose of Criminal Law in India is

• First, to define a variety of crimes e.g. theft, cheating, murder, etc. 
• Second, to prescribe appropriate punishment for each crime e.g. imprisonment or fine.
• Third, to lay down suitable investigation and trial procedures.

Sources of Criminal Law 

1. Indian Penal Code, 1860

• The Indian Penal Code was passed in 1860 and came into force in 1862. 
• It is the main criminal code in India. It was drafted after consulting various existent criminal codes in the world such as the French Penal Code as well as the Code of Louisiana in the US. 
• It is uniformly applicable in all the states of the country except Jammu and Kashmir where, due to the special constitutional status of that state, a separate Penal Code called is in operation. 
• The Indian Penal Code is divided into twenty three chapters, comprising over 500 sections. 
• Different crimes carry different punishments according to the severity of the offence. 
• For instance the punishment for murder is either death or life imprisonment. 
• This is the way that most of the IPC is organized: first, a definition of an offence is provided, and next the punishment for that offence is stipulated. 
• The IPC deals only with substantive criminal law and not with procedural criminal law. These procedures are set forth in detail in the Criminal Procedure Code. 

2. Criminal Procedure Code, 1973 (CrPC) 

• The object of the Criminal Procedure Code is to provide a mechanism for the investigation and trial of offenders. 
• It lays down the rules for conduct of investigation into offences by the police proceedings in court against any person who has committed an offence under any Criminal law, whether it is IPC or a Crime classified under any other law.

Types of Offences Covered: 

• All such offences are covered by CrPC which are mentioned in Indian Penal Code. 
• The procedure of initiating proceeding/prosecution for a criminal offence is provided in Criminal Procedure Code (CrPC). 
• CrPC provides the manner and place, where investigation inquiry and trial of an offence shall take place.

Classification of Offences:

• Bailable and non-bailable offences:  The accused has the right to request bail while the trial is pending in certain minor offences. These offences are bailable. However, in circumstances involving more serious offences, the accused is not entitled to bail and the decision to grant it is left to the court's discretion. These offences are non bailable.
• Cognizable and non-cognizable offences: Certain crimes are so serious that any police officer can conduct an investigation and detain a suspect without first requesting a court warrant. These are cognizable offences. For example, murder. In other cases, such as criminal defamation, the police must wait for the order of a magistrate before investigating and arresting the accused. These are non-cognizable offences. 
• Compoundable and non-compoundable offences:  For some offences, the State that brings the charges and the accused may come to an agreement where the accused would pay a fine rather than go to jail. These are compoundable offences.

Stages in the prosecution of an offence:

• Investigation of offence: Investigation is a preliminary stage conducted by the police and usually starts after the recording of a First Information Report (FIR) in the police station. Anyone - not only the victim - can notify the police about the commission of an offence by recording an FIR. Investigation primarily consists of ascertaining facts and circumstances of the case.
  It includes all the efforts of a police officer for collection of evidence:
  1. Proceeding to the spot;
  2. Ascertaining facts and circumstances;
  3. Discovery and arrest of the suspected offender;
  4. Collection of evidence relating to the commission of offence, which may consist of the examination of various persons including the accused and taking of their statements in writing and the search of places or seizure of things considered necessary for the investigation and to be produced at the trial;
  5. Formation of opinion as to whether on the basis of the material collected there is a case to place the accused before a magistrate for trial and if so, taking the necessary steps for filing the charge-sheet.
  6. Investigation ends in a police report to the magistrate.
• Trial of an offence: Trial is the judicial adjudication of a person's guilt or innocence. Under the CrPC, criminal trials have been categorized into three divisions each having distinct procedures, called warrant, summons and summary trials.
  1. A warrant case relates to offences punishable with death or imprisonment for a term greater than two years. The CrPC provides for two types of procedure for the trial of warrant cases by a magistrate. In respect of cases instituted on police report, the magistrate may "discharge" the accused upon consideration of the police report and documents sent with it. The Magistrate need not hear the prosecution or record further evidence. In respect of the cases instituted otherwise than on police report, however, the magistrate is bound to hear the prosecution and record evidence. If there is no case made out, the accused is discharged. In both cases, if the accused is not discharged, the magistrate holds a regular trial after "framing the charge".
  2. A summons case means a case relating to an offence that is not a warrant case, i.e. cases relating to offences punishable with imprisonment of less than two years. In respect of summons cases, there is no need to frame a charge. The court gives the substance of the accusation, which is called "notice", to the accused when the person appears before the court. The court has the power to convert a summons case into a warrant case, if the magistrate thinks that it is in the interest of justice.
  3. The CrPC also provides that certain petty offences may be tried in a summary way. In a summary trial, no sentence of imprisonment for a term exceeding three months can be passed in any conviction. Usually in such cases, a special summons is sent to the offender requiring him to either attend court and defend himself or admit guilt and pay a fine by post. If a fine of Rs. 200 or less is imposed in such trials, then the accused has no right of appeal.

Features of Trials: 

• Framing of charge or giving of notice:  This is the beginning of a trial. At this stage, the judge is required to weigh the evidence gathered by the police during investigation to ascertain whether or not a prima facie (on the face of the record) case against the accused has been made out. In case the material placed before the court is sufficient, the court frames the charge and proceeds with the trial. If, on the contrary, the judge considers the materials insufficient for proceeding against the accused, the judge discharges the accused and records reasons for doing so.
• Recording of prosecution evidence: After the charge is framed, the prosecution is asked to examine its witnesses before the court. This is called examination-in-chief. The accused has a right to cross-examine all the witnesses presented by the prosecution. The CrPC provides that when the examination of witnesses has once begun, it shall be continued day-to-day until all the witnesses in attendance have been examined. 
• Statement of accused: The court has powers to examine the accused at any stage of inquiry or trial for the purpose of eliciting any explanation against incriminating circumstances appearing before it. However, it is mandatory for the court to question the accused after examining the evidence of the prosecution if it incriminates the accused. This examination is without oath and before the accused enters a defence. The purpose of this examination is to give the accused a reasonable opportunity to explain incriminating facts and circumstances in the case.
• Defence evidence: If after taking the evidence for the prosecution, examining the accused and hearing the prosecution and defence, the judge considers that there is no evidence that the accused has committed the offence, the judge is required to record the order of acquittal. However, when the accused is not acquitted for absence of evidence, a defence must be entered and evidence adduced in its support. For this purpose, the defence may examine witnesses including the accused. The witnesses produced by the defence are cross-examined by the prosecution.
• Final arguments: This is the final stage of the trial. The provisions of the CrPC provide that when examination of the witnesses for the defence (if any) is complete, the prosecutor shall sum up the prosecution case and the accused is entitled to reply. These are the final arguments.
• Judgment: After the final arguments by the prosecutor and defence, the judge pronounces his judgment in the trial.

3. Indian Evidence Act 1872

• The Evidence Act helps the judges to separate the 'wheat from the chaff' and plays a crucial role in the establishment of facts during the court proceedings. 
• What evidence can be admitted, how it can admitted, how the burden of proof has to be discharged, etc, are matters governed by the Evidence Act. 

The main principles which form the foundation of Law of Evidence are:

•  Evidence must be confined to the matter at hand 
• Hearsay evidence must not be admitted 
• Best evidence must be given in all cases

 The Act is divided into three parts: 

• Part I - Relevancy of facts or what facts may or may not be proved. These are dealt with in detail in (Sections 5 to 55).
• Part II - How the relevant facts are to be proved? The part deals with matters, which need not be prove under law and also how facts-in-issue or relevant facts are proved through oral and documentary evidence (Sections 56 to 100). 
• Part III - By whom and in what manner must the evidence be produced. It deals with the procedure for production of evidence and the effects of evidence (Sections 101 to 167).

Difference between Confession and Admission

Table

4. Crimes under the Special and Local Laws

Certain acts are to be considered criminal acts even when they are not to be found in IPC. This is because they have been identified as crimes in Special and Local Laws. An illustrative list of such statues is:

I. Arms Act, 1959; 

II. Narcotic Drugs & Psychotropic Substances Act, 1985; 

III. Gambling Act, 1867; 

IV. Excise Act, 1944; 

V. Prohibition Act; 

VI. Explosives & Explosive substances Act, 1884 &1908. 

VII. Immoral Traffic (Prevention) Act, 1956; 

VIII. Railways Act, 1989; 

IX. Registration of Foreigners Act, 1930; 

X. Protection of Civil Rights Act, 1955;

XI. Indian Passport Act, 1967;

 XII. Essential Commodities Act, 1955; 

XIII. Terrorist & Disruptive Activities Act; 

XIV. Antiquities & Art Treasures Act, 1972;

XV. Dowry Prohibition Act, 1961; 

XVI. Child Marriage Restraint Act, 1929; 

XVII. Indecent Representation of women (Prohibition Act, 1986; 

XVIII. Copyright Act, 1957; 

XIX. Sati Prevention Act,1987; 

XX. SC/ST (Prevention of Atrocities) Act,1989; 

XXI. Forest Act, 1927;

XXII. Other crimes (not specified above) under Special and Local Laws including Cyber Laws under Information Technology Act (IT), 2000.