Criminal Law

Criminal Law laws relating to the prevention and detection of crimes, trial of offenders and the level of punishment awarded to criminals when the charges brought against them are proved beyond all reasonable doubt in a duly constituted court of law. This branch of the legal system evolved over time through a fusion of English and indigenous traditions.

The indigenous tradition had two different streams. One was applicable to the Muslims who came within the purview of Muslim Law. On the other hand, there were Hindu customs. It took nearly three decades to give final shape to the codification of criminal law in British India. This codification is the result of the strenuous effort of two law commissions. The first of these commissions was established in 1837 in India and was led by thomas babington macaulay. The second commission was established in England in 1853.

One of the controversial issues during the period was the separate dispensation provided to European subjects in India and the Indians. They came under the jurisdiction of separate sets of courts and laws. Equality of protection under the same law and a common judicature based on the principle of rule of law became issues of paramount importance. This is where Macaulay intervened. He defined the principle on which the codification of law should be based. He defined the principle as uniformity where it was possible to achieve, and diversity where necessary. This was the guiding principle which initiated the process leading to the abolition of the dual system of judicial administration and the establishment of a secular legal system.

The process culminated in the enactment of the Indian Penal Code (Act XLV of 1860) and the criminal procedure code (Act XXV of 1861). These two Codes laid the foundation of criminal law in British India. After 1947, the title of the Indian Penal Code was changed to that of the Pakistan Penal Code. Similarly, after 1971, the Pakistan Penal Code came to be known as the Bangladesh Penal Code. Except for the changes in title the Penal Code more or less remained an immutable document with only minor modifications.

The same can be said of the Code of Criminal Procedure. It was framed to supplement the Penal Code which provides the substantive criminal law. The legal experts make a distinction between the Codes. The Code of Criminal Procedure is defined as an adjective or procedural law while the Penal Code is defined as a substantive law. This distinction is valid for academic and operational purposes.

The Code of Criminal Procedure provides rules or procedures for (i) preventing offences, and (ii) bringing the offenders to justice for committing offences defined in the Penal Code or any special or local laws if no procedure is provided in such laws. It also specifies the classes of courts and their jurisdiction in which offenders may be prosecuted. It prescribes the procedures which are to be followed by various courts in an inquiry, trial or any other proceedings.

It would, however, be correct to say that the Code of Criminal Procedure contains certain provisions which are in the nature of substantive law, such as aid and information to the magistrates, the police and persons making arrests, processes to compel production of documents and other movable property and the discovery of persons wrongfully confined, preventive action of the police, the maintenance of wives and children, directions in the nature of Habeas Corpus and disposal of property.

The Penal Code, on the other hand, is concerned with defining the nature of an offence and if proved in a duly constituted court of law, the punishment that it entails. This is the broad distinction between the adjective law and the substantive law.

Outside the scope of the Penal Code, there are special and local laws that come within the purview of criminal law. The special laws deal with special type of offences which though envisaged in the Penal Code, do not guarantee adequate punishment or speedy trial. Instances include anti-corruption laws, laws to protect women from torture or attack etc. Local laws relate primarily to municipal laws that seek to ensure prevention of civic offences. [AMM Shawkat Ali]