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Law Notes 16mrks

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2. LLB


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I. Introduction

Substantive criminal law and Procedural criminal law are both part of the Criminal Law. Substantive criminal law provides definition of offences and prescribes punishment for committing such offences. Procedural criminal law provides the procedure which have to be adopted by the Courts while dealing with cases and administers substantive law.

The object of procedural criminal law is to deal with the procedure of administration and enforcement of the substantive criminal law. Without the procedural law, the substantive law ia worthless. The Criminal Procedure Code, 1973 (CrPC) came into force from 1st April, 1974 which provides the procedure to be followed by courts while administering substantive criminal law.

CrPC was formulated with the following considerations in view:

i. Fair Trial in accordance with principles of Natural Justice.

ii. Avoid delay in investigation and trial.

iii. Fair to the poor sections of the society.

II. Territorial Extent

Except the State of Jammu and Kashmir and some tribal areas, CrPC extends to the whole of India. Section 1(2) reads :

(2) It extends to the whole of India except the State of Jammu and Kashmir:
Provided that the provisions of this Code, other than those relating to Chapters VIII, X and XI thereof, shall not apply-
(a) to the State of Nagaland,
(b) to the tribal areas, but the concerned State Government may , by notification apply such provisions or any of them to the whole or part of the State of Nagaland or such tribal areas, as the case may be, with such supplemental, incidental or consequential modifications, as may be specified in the notification.
Explanation : In this section, "tribal areas" means the territories which immediately before the 21st day of January, 1972, were included in the tribal areas of Assam, as referred to in paragraph 20 of the Sixth Schedule to the Constitution, other than those within the local limits of the municipality of Shillong.

Keeping in view the social conditions prevailing in the State of Nagaland and the tribal areas it has not been considered desirable to extend to these areas the provisions of CrPC. As well as the provisions of the Code relating to Chapters VIII (Security for keeping the peace and for good behaviour), X (Maintenance of public order and tranquility), XI (Preventive action of the police) have been made applicable to the State of Nagaland and the tribal areas. The concerned State Governtment has been empowered to apply any or all of the provisions of the code to any part of the State or such tribal area. According to the Supreme Court, since the Code is not in force in these areas, the procedure to be followed is according to the spirit of the Code and not strictly according to the terms of its provisions. The Supreme Court has reiterated that the inapplicability of the provisions of the CrPC in the above areas is of little consequence because in the context of Nagaland it has been held that even though the provisions of CrPC are not applicable in certain districts of the State of Nagaland, it only means that the rules of the CrPC would not apply but the authorities will be governed by the substance of these rules. [Saptawna v. State of Assam 1972] It has also to satisfy the standard of fairness as is implicit in Article 21 of the Constitution. [Zarzoliana v. State of Mizoram 1981]

The power of Parliaments to make laws for Jammu and Kashmir is limited because of the special status given to it by Article 370 of the Constitution.

III. Scope of the applicability

Generally speaking, the CrPC is applicable in respect of the investigation, inquiry or trial of every offence under the substantive criminal law, i.e. whether such offence is punishable under the IPC or under any special or local law. [Khatri (4) v. State of Bihar 1981] . However section 4 and 5 make room for speacial procedure provided by any other law.

SECTION 4: Trial of offences under the Indian Penal Code and other laws.

(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into tried, and otherwise dealt with according to the provision hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

SECTION 5: Saving.

Nothing contained in this Code shall in the absence of a specific provision to the contrary, affect any special or local law any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.

The CrPC does not apply to contempt of court proceedings as contempt of court is not an offence within Section 4(2) [State v. Padma Kant Malviya 1954]. If the contempt proceedings are taken by the High Court under the contempt of Courts Act, the proceedings are in the exercise of "special jurisdiction" within the meaning of section 5 and hence the provisions of the CrPC are not applicable to such proceedings. [Sukhdev Singh Sodhi v. Teja Singh 1954]

The jurisdiction given to ordinary criminal courts under section 4(1)would be excluded only when a special Act applies and the jurisdiction of the regular courts to try particular cases under the IPC is specifically excluded under that act by vesting such jurisdiction exclusively in the Special Tribunals established under the Act. [Bhim Sen v. State of UP 1955]. When no special or different or procedure is provided by the special Act, the procedure provided by the Code is to be followed. [Sishir Kumar Mitter v. Corpn. Of Calcutta 1925-26]

For investigating or inquiring into an offence under the Bombay Prevention of Gambling Act, 1887 a special procedure has been provided by the Act. In case of such offence, Section 4(2) is applicable and the special procedure prescribed by the Act would prevail over the normal procedure provided by the Code. [Fernando v Fernando 1929]

The Supreme Court has ruled that Section 37, Narcotic Drugs and Psychotropic Substances Act, 1985, dealing with grant of bail, being a special enactment, general provisions of section 439 of the Code has to be read subject to Section 37 in view of Section 4 of the Code. [Narcotics Control Bureau v. Kishan Lal 1991]

If the court finds that the Code has not made specific provisions to meet the exigencies of any situation, the court has inherent power to mould the procedure to enable it to pass such orders as the ends of justice may require. [Akhil Bandhu Ray v. Emperor 1938]

However the SC has declared that the subordinate courts do not have any inherent powers. [A.S. Gauraya v. S.N. Thakur 1986]

SECTION 482: Saving of inherent power of High Court.

Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice.


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