IPC
Introduction
Under colonial rule, India was governed by the laws made by the Britishers. This was for the convenience of the colonial empire and so that they could attain the objective of their ruling. The laws were stringent and harsh on Indians and criminalised many activities according to the English beliefs and legal system. Indian penal code (IPC) was formalised under British Rule around 150 years ago. It specifies crimes and their punishments. Although the IPC is allegedly one of the strongest criminal laws and is extensive in its scope, the changing times have felt the requirement of revamping this old law and making it more relevant for modern democratic India. There have been many amendments over the years in the IPC, but there are many areas and provisions in this law that still need restructuring. Introducing certain amendments to the Indian Penal Code will ensure that the crimes that have evolved in recent times are also addressed. This should be done by keeping in mind democratic values and human rights.
Understanding the laws under the Indian Penal Code
Indian Penal Code, 1860 is the criminal code of India. It defines various activities that are a crime, their scope, nature, and penalties and punishments levied for the same. IPC is a comprehensive criminal code that covers the essential elements of criminal law. Unlike the Criminal Procedure Code (CrPC) it does not lay down the criminal procedure but only the various crimes and their punishments. IPC extends to the whole of India. It consists of 511 sections divided into 23 chapters. The objective of IPC was to implement the same criminal law across the country so that there are no inconsistencies. It has been amended various times to cope with the changing times.
Historical background
The IPC was introduced in India during the colonial rule as an attempt to bring a common criminal code in India and remove the defects of Mohammad law that prevailed in India at that time. This code had its roots primarily in English law, but it was also based on some elements of the Napoleonic Code and Louisiana Civil Code of 1825. One of the first attempts to bring a penal code was in the year 1827 when the Elphinstone Code was introduced under the guidance of Governor Elphinstone. In 1833, the Charter Act was introduced which provided for the enactment of laws in India. Under this Act, the first law commission of India was established in 1834. The law commission under the chairmanship of Lord Thomas Babington Macaulay drafted the IPC and the complete draft was presented in the parliament in 1856. Several changes and alterations were suggested by Barnes Peacock before the code was presented in the Legislative Assembly. IPC was finally passed on 6th October 1860. This delay in passing the law was due to the famous revolt of 1857. IPC came into force on 1st January 1862 in India. However, it did not apply to the princely states as they had their legal system. After independence, India adopted this comprehensive code with open arms.
Need to revamp IPC
With the changes in society, the perspectives of people, and the nature of crimes, the laws need to evolve as well. Although the IPC enacted in 1860 was ahead of its time and has been in India for one and a half-century, it has not kept pace with the progressive times. The Act brought in by the British to meet their needs and objectives has somewhere failed to serve the people in modern times. It is based on the colonial attitude of the Britishers to rule India. Revamping of IPC is thus required to shift the power from the rulers to the people. The restructuring of IPC is needed as many of its provisions have become obsolete with changing economic developments and technological advances. Crimes like mob lynching, financial crimes, white-collar crimes, economic crimes, etc, have not found proper recognition in the IPC. There is also uneven punishment for crimes of grievous hurt, for example, a chain-snatching incident can be life-threatening as well, but under IPC this is not taken into consideration and an equivalent punishment is not provided for the same. It is booked under robbery or theft depending upon the police. Therefore, to standardize the punishment, IPC needs renewal.
There have been many amendments to ensure that IPC evolves with time, but it has not been amended totally since the date of enactment. Although certain amendments to the provisions of IPC have been made, as supported by the decisions of the courts. For example, in the cases of adultery and the decriminalisation of homosexuality. IPC is based on the deterrent theory prevalent at that time, but the criminal law needs to shift from the deterrent or distributive theory to the reformative theory of punishment. Some of the changes that need to be brought are:
1. A gender-neutral definition of rape is required. Section 375 of IPC does not include men, hijras, and boys as the victims of rape and only considers women as victims of rape.
2. Sedition under Section 124 A of the IPC was inserted by the Britishers in 1898 to control the uprisings against them and to suppress the freedom movements. However, in recent times this section is often misused against people who criticize the government.
3. Section 57: Life Imprisonment as a punishment is at the discretion of the court as to the number of years. It depends more on the nature of the crime that has been committed. But, when it comes to the calculation of fractions of punishment, it is fixed for 20 years. This takes away the discretionary power of a judge and differences arise upon choosing the approach of giving punishments.
4. Under Section 294, the act of annoying someone by performing any obscene act in public places is punishable. However, the word ‘obscene’ is not defined under the Act and this is often misused by the police.
5. The punishments provided under Chapter 3 are very conservative. It only provides for imprisonment or fine. There is no mention of community service or reforming the criminal in any way.
Earlier amendments
Over the years, the nature and extent of crime have changed. The British made criminal code though was ahead of its time, needed amendments. The IPC has been amended about 77 times. However, many recommendations from the 42nd report of the law commission 1971 have still not been adopted. The provisions for anti-dowry laws and stringent punishment for rape laws are some of them. Two of the major amendments were the criminal law amendment of 2013 and the Criminal Law Amendment Bill of 2018.
Criminal (Amendment) Act, 2013
The bill introduced before the enactment of this Act was also called the anti-rape bill. The Act was introduced to make the rape laws in India more stringent. This amendment widened the definition of rape by including oral sex and the infiltration of other objects into women’s bodies as a crime. Considering the rising number of rapes in India and the severity of the heinous crime, this was a huge step. Stalking had also been criminalized under this act. It also considered the capturing and watching of women in a private demonstration against her will, to be a crime.
Criminal Amendment Act, 2018
This Act was furthered to strengthen the rape laws. The quantum of punishment was increased from at least 7 to 10 years. Provisions for punishment for rape of a girl under 12 years and 16 years were also added under it.
The insertion of Sections 153 A and 509 was made to counter racially motivated crimes. However, this did not receive support from all the states to that extent.
Evaluating the political agenda behind Restructuring IPC
The Union Home Ministry proposed the idea to revamp the IPC, which was introduced during the British rule in India, based on the “master-servant” spirit. Under the Bureau of Police Research and Development, a committee has also been set up to investigate the changes to be brought. The agenda for the government to rebuild this law which has been in force for so many years is to fulfil the democratic aspirations of the people and to ensure speedy justice and simplify legal procedures. Although the ministry claims the real reason to do this is to ensure speedy justice and the simplification of the legal system, one cannot help but think if there is any hidden political agenda behind this. IPC forms one of the basic criminal laws in the country that applies to all people. The changes in the IPC are surely required, however, the changes can be easily made to suit any one party or any politician. Changes should, therefore, be subjected to public opinion before being implemented.
Reforming the criminal system
IPC is a well-written code that has been amended many times over the years to bring a change in the criminal system. However, many scholars believe that the criminal system cannot be reformed just by revamping the IPC. The implementation of the code should also be efficient to ensure success. IPC cannot be enforced by the same police structures. Police reforms are needed for the changes in IPC to facilitate its successful operation. We need a change in the attitude of the police towards complainants, quick registration of first information reports (FIRs), and swift response against crimes. To change the attitude of the police towards the delivery of justice, many internal, external, and structural changes are also required. The police need to improve upon the available human resources, quality of investigations, and be more efficient. Additionally, it should be ensured that there is no external pressure on the police.
6. The state’s suggestions should be taken into consideration. And surveys should be conducted by legal researchers to identify the offences that need to be added and the existing offences that need to be modified.
7. The laws which are outdated and not relevant in the present times should be identified and empirical research should be done for the same. The problems with the enforceability of the provisions should also be checked.
8. The rate of sexual offences is very high in India. Despite the various amendments, there are many loopholes in the law. Considering this, a separate chapter can be created dealing with the various sexual offences and their punishment.
9. The chapters in IPC can also be classified based on the nature of liability such as mild, moderate, and major liability.
10. To avoid duplicity and confusion, separate chapters on cyber laws, economic offences, etc. should be added to IPC.
11. Illustrations provided with various sections are now totally outdated from the standpoint of today’s standards. They were relevant when the case law was not developed so the need to replace them is quite significant.
12. IPC should not have any political biases and should not be in favor of any political party. It should equal and protect the interests of the citizens. It should uphold the principles of democracy and a fair justice system.
Conclusion
Reforming the criminal justice system is not just a one-step process. Revamping IPC is a major step to modernize the criminal law of India and make it in accordance with the Indian democracy. The Britishers used IPC to their advantage and to put away freedom fighters, it was based on the deterrent theory. But now a shift has to be made from a deterrent to a reformative system. Revamping IPC will ensure that the criminal system will become more reliable and have the potential to understand and answer the reasons behind today’s crimes. It will also ensure that certain provisions of this age-old code that are not relevant today, are repealed. For example, Section 377 of IPC which criminalised homosexuality and was based on the Victorian regime, was decriminalised in accordance with the changes in the modern era. Earlier, amendments made to code were fragmented and failed to bring about a significant change to the IPC. Fulfilling political agendas should not be the reason behind adding specific provisions. Although revamping IPC will lead to reforming the criminal justice system, additional changes in the police structure are also needed. Even if IPC is reformed, its implementation will be a challenge that the government will have to overcome.
CRPC
Introduction
The Indian Penal Code, 1860 makes a distinction between bailable and non-bailable offences. Suppose someone known to you has been apprehended by the police and taken into custody for a non-bailable offence. In such a case, you can look to Section 437 of the Code of Criminal Procedure (1973). which enlists the provisions of bail in cases of non-bailable offences. Let us first try to understand what non-bailable offences are.
In bailable offences [Section 2(a) of CrPC] bail is a matter of right for the accused, whereas, in non-bailable offences, it is a matter of discretion. The judge must think carefully about all the factors and decide if the bail should be granted to the accused while keeping a balance between the accused’s freedom and the safety of society. Let’s start with a few examples of non-bailable offences for a better understanding. Murder, rape, culpable homicide, etc., can all be classified as non-bailable offences. These offences disrupt the smooth operation of an average person’s life. Not to mention the negative impacts such offences have on social harmony. Due to these factors, these offences have been classified as non-bailable.
Non-bailable offences are classified due to the gravity of the offence, the impact they have on the lives of ordinary people, and the overall impact they have on society. In this article, we will analyse Section 437 of the CrPC, which provides for bail for non-bailable offences.
Legislative intent behind Section 437 CrPC
If the crime falls under the category of a non-bailable offence, the question of whether bail can be granted arises for consideration. In this regard, it is necessary to study Section 437 of the CrPC. The court may release an accused individual on bail under Section 437 of the Criminal Procedure Code. It’s interesting to consider how the Constitution of India ‘s definition of the right to liberty balances with legal norms when it comes to the commission of non-bailable offences.
When someone is suspected of committing a crime, the goal of the arrest is to make sure that the individual does not flee from the legal system before he is found guilty or tamper with the prosecution’s evidence. A person is entitled to their liberty even if they are accused of a non-bailable offence, and the right of an accused person should not be treated by a court in a superficial manner, as has been maintained while discussing the question of the grant of bail in non-bailable offences.
In fact, the CrPC says that the accused should be given bail if the court has good reason to think that more investigation is needed to prove the accused’s guilt. The courts have also said that a request for bail should not be processed mechanically because the right to freedom is a fundamental human right.
Bail in non-bailable offences: clause by clause analysis of Section 437 CrPC
Section 437 subsection (1)
Any person accused of or suspected of committing a non-bailable offence who is detained without a warrant by a police officer in charge of a police station or who appears in court apart from the High Court or Court of Session may be released on bail.
However, he may not be released on bail:
13. If there are reasonable grounds to believe that he has committed an offence bearing the death penalty or life imprisonment; or
14. If the offence is cognizable but the person has previously been convicted of an offence bearing the death penalty or life imprisonment or imprisonment for seven years or they have been convicted for a non-bailable/cognizable offence on two or more occasions.
It is pertinent to note the caveat that the court may order a person mentioned in subsubsection (1) or subsubsection (2) to be released on bail if they are under the age of sixteen, a woman, or are ill or infirm.
Furthermore, the court may order the release of a person mentioned in sub-subsection 2 on bail if it determines that doing so is just and proper under any other set of special circumstances.
It is also provided that if an accused person is otherwise eligible for release on bail and provides an undertaking that he will follow any instructions the court may issue, the mere possibility that witnesses may need to identify him or her during the investigation shall not be grounds for refusing the grant of bail.
Section 437 subsection (2)
Subject to the provisions of Section 446A and pending such inquiry, the accused shall be released on bail, or at the discretion of such an officer or court, on the execution by him of the terms of his release if it appears to such an officer or court at any stage of the investigation, inquiry, or trial, as the case may be, that there are not sufficient grounds for believing that the accused has committed a non-bailable offence but that there are sufficient grounds for further inquiry into his guilt.
Section 437 subsection (3)
When a person accused or suspected of committing a crime punishable by imprisonment for seven years or more, a crime under Chapter VI, Chapter XVI, or Chapter XVII of the Indian Penal Code, or of abetting in the commission of a crime, conspiring to commit a crime, or attempting to commit a crime, is released on bail under subsection (1), the court may impose any condition that the court considers necessary.
· It is necessary to ensure that the person will appear in accordance with the terms of the bond made under this Chapter, or
· that the person will not commit an offence that is comparable to the one of which he is accused or of which he is suspected, or
· any other condition necessary for maintaining the interests of justice.
Section 437 subsection (4)
If an officer or a court releases a person on bail in accordance with subsection (1) or subsection (2), they must document their reasoning—including any special circumstances—in writing.
Section 437 subsection (5)
If a court has granted someone bail under subsections (1) or (2) of Section 1, it can order that person to be arrested and taken into custody if it deems it appropriate.
Section 437 subsection (6)
If, in any case, triable by a magistrate, the trial of a person accused of any non-bailable offence is not completed within sixty days of the first date set for taking evidence in the case, such person shall, if he is in custody for the entirety of the said period, be released on bail to the satisfaction of the magistrate unless the magistrate otherwise directs, and the reasons for that direction must be recorded in writing.
Section 437 subsection (7)
If at any time following the conclusion of a person’s trial for a non-bailable offence and before judgement is rendered, the court is of the opinion that there are reasonable grounds for believing that the accused is not guilty, it shall release the accused, if the person is in custody, upon the execution of a bond without sureties by that person for the appearance to hear judgement delivered.
Factors considered while granting bail in non-bailable offences
In the event of a non-bailable offence, the court has the option to grant bail; hence, an accused individual is not necessarily entitled to be released on bail upon the filing of sureties and a bond. The decision to release them is up to the judge and police officer. When figuring out how far this discretion goes, the following things must be considered:
· The seriousness of the crime, for instance, if the offence is severe and is punishable by death or life in prison, the likelihood of obtaining bail is lower;
· The nature of the accusation or if it is serious, credible, or light;
· The severity of the penalty, the length of the sentence, and the possibility of the death penalty.
· The credibility of evidence, whether it is trustworthy or not;
· Risk of accused escaping or running away if released;
· Prolonged trials, that go beyond what is necessary;
· Giving the petitioner the chance to prepare his defence;
· Health, age, and sex of the accused; for example, a person who is under the age of 16, a woman, ill, or infirm may be released;
· The nature and seriousness of the circumstances surrounding the offence;
· Position and social status of the accused in relation to the witnesses, especially if the accused will have the power to control witnesses after release;
· The interest of society and potential for further criminal activity after release.
Authorities empowered to grant bail under Section 437 CrPC
The provisions of Section 437 empower the court and the officer-in-charge of the police station who arrested or detained a person without a warrant who was charged with or suspected of committing a non-bailable offence the authority to decide whether to grant bail.
Although this Section addresses a court and a police officer in charge of a police station’s authority or discretion to grant bail in non-bailable offences, it also establishes certain limitations on a police officer’s authority to grant bail, as well as certain rights of an accused person to obtain bail when he is being tried by a magistrate.
Section 437 of the Criminal Procedure Code says that the trial court and the magistrate have the power to grant or deny bail to anyone who has been charged with or is suspected of committing a crime for which there is no way to get out on bond.
Under Section 437 subsection (1), only one class of police officials, namely the officer-in-charge of the police station, is given the authority to release on bail a person accused of a non-bailable offence. Given the danger and stakes involved, the option to grant bail must be used very carefully because it is permissive rather than mandatory. A station officer should be confident that using his authority will not jeopardise the prosecution’s ability to prove the accused is guilty before acting. The officer-in-charge must keep the bail bonds until they are released, either by the accused appearing in court or by an order from a competent court and must note the reasons or exceptional grounds for releasing the accused in the case diary.
The legislature has divided non-bailable offences into two categories for the purpose of determining bail: (1) those that are punishable by death or life imprisonment; and (2) those that are not. If a station officer has reasonable reasons to suspect that a person has committed an offence for which the penalty is death or life imprisonment, the offender cannot be released on bond. A police officer is not permitted to consider the accused’s age, sex, illness, or disability while deciding whether to issue bail. Only a court may take these issues into consideration. Only where there are no good reasons to suspect that the accused has committed a non-bailable offence or when the non-bailable offence is not punishable by death or life imprisonment may the officer-in-charge of the police station grant bail.
Power of High Court or Sessions Court under Section 439 CrPC
A High Court or Court of Sessions may order the following in accordance with Section 439(1) of the Code of Criminal Procedure:
(a) That any person accused of an offence and in custody be released on bail;
(b) That any condition imposed by a magistrate when releasing any person on bail be set aside or modified if the offence is of the nature specified in subsection (3) of Section 437.
However, the High Court or Court of Sessions must notify the public prosecutor of the application for bail before granting it to a person who is accused of a crime that can only be tried by the Court of Sessions or, even if not, carries a life sentence. This is correct unless the High Court or the Court of Sessions determines that it is impractical to do so for reasons that must be recorded in writing.
Under Section 439(2) of the Code of Criminal Procedure, a High Court or Court of Sessions can order that a person who was released on bail under Chapter XXXIII (which is about bail) be arrested and sent to jail. Even though the High Court has broad authority to grant bail, there are several factors that must be considered in cases of non-bailable offences.
Cancellation of bail: Section 437(5) CrPC
The cancellation of bail and placement of the accused back in custody is clearly outlined in the Code of Criminal Procedure. According to Section 437(5), a court that has released a person on bail in accordance with subsubsections (1) or (2) of Section 437(1) may, if it deems it appropriate, order that the person be arrested and committed to custody. In a similar manner, Section 439 grants the High Court and the Court of Sessions the authority to revoke bail. Section 439(2) of the Code of Criminal Procedure makes it clear that the accused can be taken back into custody if their bail is revoked.
The power of cancellation of bail may be resorted to in the following situations:
15. On the merits of a case, primarily on the grounds that the order granting bail was perverse, or given without adequate consideration or in violation of any substantive or procedural law; and
16. On the grounds of misuse of liberty after the grant of bail or other supervening circumstances.
A court other than the High Court or a Sessions Court may cancel bail in accordance with Section 437(5). Meaning that it gives the magistrate court the authority to cancel. It specifies that a court other than the High Court or Sessions Court may order the arrest and commitment of a person released on bail to custody if it deems it necessary to do so. This Section has been construed by the courts to mean that any court that has granted a defendant bail has the authority to order their arrest and commit them to custody if the situation warrants it after their release on bail. However, once granted, bail should not be revoked mechanically without taking into account whether any new developments have made it impossible for the accused to be fairly tried while still being accessible due to the grant of bail.
Relevant case laws regarding Section 437 CrPC
The following are some of the relevant case laws regarding Section 437 CrPC:
Bail and personal liberty
Kalyan Chandra Sarkar v. Rajesh Ranjan (2005)
In this case, the Apex Court held that denial of bail in cases of non-bailable offences is not a violation of the fundamental rights of the accused under Article 21 of the Constitution of India
The Court stated, under the criminal laws of India, a person accused of offences that are not subject to bail is likely to be held in custody while the case is pending unless he is released on bail as per the requirement of the law. Since such detention is permitted by law, it cannot be argued that it violates Article 21 of the Constitution. However, even for those charged with crimes for which bail is not permitted it may be granted if the court determines that the prosecution has not proven its case beyond a reasonable doubt and/or if the court determines that, despite the existence of a prima facie case, the accused must be released on bail in certain circumstances.
Siddha ram Satlingappa Mhatre v. State of Maharashtra (2010)
In this case, the Supreme Court put a lot of emphasis on Article 21 and said that personal freedom is a very important fundamental right that should only be limited when it is necessary based on the facts and circumstances of the case.
Interpretation of Section 437
Gurcharan Singh and Ors. v. State (Delhi Administration) (1977)
The Supreme Court, in this case, adopted the stance that if it believes it necessary to act in accordance with the provision under Section 437 of the CrPC, it will utilise its judicial discretion in other non-bailable cases in favour of providing bail, subject to subsection (3) of that section. The Court will not refuse to grant bail to an accused who is not charged with an offence carrying the death penalty or life imprisonment unless special circumstances are brought to the Court’s attention that may thwart a thorough investigation and a fair trial. It is also to be noted that when an accused person is brought before a magistrate’s court and is accused of a crime that carries a death sentence or a life sentence, he or she typically has no choice but to reject bail, subject, however, to the first proviso of Section 437(1) of the Code of Criminal Procedure and in a case where the magistrate entertains a reasonable belief based on the evidence that the accused has not actually committed the crime. However, this will be a special circumstance because there will be some evidence at the time of the initial arrest for the accusation or for a strong suspicion that the person had committed the offence.
Prahlad Singh Bhati v. N.C.T., Delhi and Another (2001)
The Supreme Court determined in this case that the fact that the legislature substituted “reasonable grounds for believing” for “the evidence” when deciding whether to grant bail must also be kept in mind. As a result, the court deciding on the grant of bail can only determine whether there is a solid case against the accused and whether the prosecution will be able to present prima facie evidence to support the charge. At this point, it is not anticipated that the evidence will prove the accused’s guilt beyond a reasonable doubt.
Shakuntala Devi v. the State of Uttar Pradesh (2002)
The Allahabad High Court in this case explained that the legislative intent behind the word “may” used in Section 437 CrPC confers a discretionary power on the court and should not be construed as mandatory.
Factors to be taken into consideration while granting bail
State of Kerala v. Raneed (2011)
In this case, the Hon’ble Supreme Court has held that the delay in the trial’s conclusion should undoubtedly be considered by the court when assessing bail applications.
Sanjay Chandra v. CBI (2011)
The Apex Court, in this case, held that when deciding whether to grant bail, community sentiments should not be considered. The court held that judges should not act arbitrarily or according to the whims of society.
Some pointers to keep in mind while filing for bail under Section 437 CrPC
The application for a grant of bail under Section 437. Following are some pointers to keep in mind while filing for bail under Section 437 CrPC:
· The court of the concerned magistrate, also known as the “Ilika Magistrate”, receives the bail application under Section 437 of the CrPC first.
· The bail application is made according to Section 437 of the CrPC after the police have taken the accused into custody.
· If the bail application is being made while the accused is not in front of the court, the bail application required by Section 437 of the CrPC may be filed on behalf of the accused by any close relative or “Parkar”.
· The attorney who is filing the bail application must also sign it, either directly or through a power of attorney or through his memo of attendance.
· When the accused is in custody, there is no court fee due on the bail application.
· In the bail application, the contents of the FIR, the accused’s name, and his father’s name should be given so that jail officials can identify the right person when the court gives a release order.
Conclusion
For the grant of bail in the case of a non-bailable offence, an application laying out the grounds for bail must be filed. After the hearing, the court issues an order if it determines bail should be granted. A bail bond must be submitted in order to be granted bail for a bailable or non-bailable offence. The surety submits the bail bond. The surety is the person who agrees to be in charge of turning the accused in as needed to appear in court or before the investigative agency. Also, that bail is the rule and jail is the exception (unless otherwise provided) must be duly followed while applying judicial discretion.
CPC
Indian Civil Procedure Code
The law can be broadly classified as –
Substantive Law, and
Procedural Law.
The Substantive Law, whether it is based on statute law or common law, defines what facts are constituting a fact or liability.[1] To say, in other words, the Substantive law defines various principles regarding the rights and liabilities. (Example: The Indian Penal Code, 1860 which describes various offenses punishable under Criminal acts).
On the contrary, the Procedural law or adjective law, on the other hand, prescribes the procedure and machinery for the enforcement of those rights and liabilities. To say, in other words, the procedural law is concerned with enforcement of those rights and liabilities determined in accordance with the rules of the substantive law.[2] (Example: The Code of Civil Procedure 1908, The Code of Criminal Procedure, 1973 etc).
The Law regulating the procedure to be followed in civil court is governed by the Civil Procedure Code and this Civil Procedure Code is one of the most important branches of the procedural law.
As we all know, “Ignorance of law is not a defence” and every Indian should know the laws of this nation.
The following are 10 important things every Indian should know about Civil Procedure Code 1908.
Civil Procedure Code: Historical Background
Till 1859, in India, there was no uniform codified law for the procedures to be followed in Civil Courts. In those old days, under the British rule, there were Crown Courts in Presidency towns and Provincial Courts in Mofussil.
· These Courts in Mofussil areas and Presidency towns were governed by different systems of Civil procedure through various rules, regulations and special acts and those were changed on time-to-time basis based on circumstances and needs.[3]
· For the first time in 1859, a uniform civil procedure Code was introduced by passing the Civil Procedure Code (Act VII of 1859). But this code could not serve the purpose as this code was not made applicable to the Supreme Courts (Crown Courts under the Royal Charter) and the Sadar Diwani Adalat's (Principal Courts under the Judicial Plan by the Governor General).
· In 1861, the Indian High Courts Act was passed and the Supreme Courts and Sadar Diwani Adalat's were abolished.[4] Then the High Courts were established by replacing the Supreme Courts at Madras, Bombay and Calcutta. Then the Civil Procedure Code 1859 made applicable to these newly established High Courts.
· The Code of 1859 was amended regularly from time to time and was replaced by passing the Civil Procedure Code, 1877. This code of 1877 was amended in 1878 and 1879 and the third civil procedure Code was enacted in 1882, which replaced the previous code. The Code of Civil Procedure 1882 was also amended several times and ultimately the present code of Civil Procedure, 1908 was passed overshadowing the defects of the Code of 1882.
a) Civil Procedure Court: Meaning and Object
The Law relating to the practices and procedure to be followed in the Civil Courts is regulated by the Code of Civil Procedure, 1908. The word CODE means ‘a systematic collection of statutes, body of laws so arranged as to avoid inconsistency and overlapping ‘.
The main object of this civil procedure code is to consolidate and amend the laws relating to the procedure and practices followed in the Civil Courts in India. As such, it was enshrined in the preamble of the code that it was enacted to consolidate and amend the laws relating to the procedure to be followed in the civil courts having civil jurisdiction in India. The Civil Procedure Code regulates every action in civil courts and the parties before it tills the execution of the degree and order.
The Aim of the Procedural law is to implement the principles of Substantive law.[5] This Code ensures fair justice by enforcing the rights and liabilities.
b) Extent and Application
The Civil Procedure Code was passed in 1908 and came into force from 1st January 1909. The Code is applicable to the whole country except –
17. The State of Jammu and Kashmir
18. The state of Nagaland and the tribal areas
There is also a provision that the concerned state governments may make the provisions of this code applicable to the whole or part of the State of Nagaland or such tribal areas by notification in the official gazette.
This code is applicable in the scheduled areas of the erstwhile State of Madras (Lakshadweep), the East Godavari, West Godavari and Visakhapatnam agencies (Now in Andhra Pradesh State).
Civil Procedure Code: Scope
The Code is exhaustive on the matters directly dealt by it, but it is comprehensive in other issues. The framers of the code could not foresee the possible circumstances which may arise in the future litigations and could not provide the procedure for such situations. Hence the framers of the code (legislature) provided inherent powers to the court to meet such circumstances (where the code could not provide a procedure) according to the principles of natural justice, equity and good conscience.
As this Code is a general procedural law, it does not contradict with the local or special law in force. In the event of any conflict between the civil procedure code and the special law, the special law will prevail over the civil procedure code. In case the local or general law is silent on any matter, then the provisions of the civil procedure code will prevail.[7]
Civil Procedure Code: Scheme
The Code has two parts, and they are –
19. The Body of the Code
20. The Schedule
The Body of the Code has 12 parts containing 158 sections.[8] The Schedule is the second part containing orders and rules.
The Body of the Code lays down general principles relating to Power of the court, and in the case of the second part, that is, the Schedule provides for the procedures, methods and manners in which the jurisdiction of the court may be exercised.
In fact, there were five schedules when this code was enacted. Later the Schedules II, III, IV and V were repealed by the subsequent amendments of the code. The
· The first schedule which is the only schedule to the code now has 51 orders. Each order contains rules that vary in numbers from order to order. There are eight appendices giving model formats (Forms), such as –
· Pleadings (Plaint and Written Statement formats)
· Process formats
· Discovery, Inspection and Admission
· Decrees
· Execution
· Supplemental Proceedings
· Appeal, Reference and Reviews
· Miscellaneous
· The various High Courts are empowered to alter or add any rules in the schedules under Section 122 to 127, 129, 130 and 131 and such new rules should not be inconsistent with the provisions of the body of the code.[9]
· The Provisions of the Body of the code can be amended only by the legislature and the Courts can not alter or amend the body of the code.
Civil Procedure Code: Salient Features
It is a territorial law. It extends to whole of India except –
21. The State of Jammu and Kashmir
22. The State of Nagaland and the tribal areas
It also gives a provision that the concerned state government may extend the provisions of the Civil Procedure Code by notifying in the Official Gazette.[10] The code can be extended to the whole state or any part of the state using this provision.
· The Civil Procedure Code made the procedure to be followed in the Civil Courts very simple and effective. Enforcement of rights, liabilities and obligations of the citizens are dealt by this code. To say, in other words, the Civil Procedure Code provides the mechanism for enforcement of rights and liabilities.
· The Civil Procedure Code is a general law and will not affect local or special laws which are already in force. In case of any conflict with local or special laws, the local or special law will prevail over the Civil Procedure Code. In case, if the local or special law is silent about any issue, then the Civil Procedure Code will apply.
· The Civil Procedure Code has been amended several times to meet the needs and requirements which are dynamic and changing from time to time. Between 1909 to 1976, the Code has been amended for more than 30 times.
The Amendments of 1999 and 2002 brought in many changes to the procedure to be followed.
Changes brought by Amendments of 1999 and 2002
The main object of the amendments is to ensure fair and natural justice and providing a speedy remedy by eliminating untoward delay in disposal of the cases.
According to the amendment,
· Summons should be delivered to the defendant within 30 days from the date of filing of the suit.
· The written statement should be filed within 30 days. The court may extend this period up to 90 days. [11]
· The penalty for non-appearance and default has been increased to Rs.5000/-
· In case of decree for payment, if the judgment debtor does not pay, he can be detained in civil prison. If the default is for payment up to Rs.2000, he will not be detained in civil prison.
· In case of attachment while executing a decree, the monthly salary up to Rs.1000/- and two third of the remaining salary exceeding Rs.1000/- will not be attached.
· The amendments paved the way to the new and efficient methods for settlement of disputes, like Arbitration, Conciliation and Mediation. Lok Adalat is a very good example for this.
· There is a provision for the defendant to get compensation for the expenses incurred loss or injury including the loss of reputation caused to him because of his arrest or attachment of his property.
· After the amendments, if the value of subject matter of the suit is below Rs.1000, such disputes cannot be appealed.
· If the case is adjudicated by a single judge of a high court whether in the original or appellate jurisdiction, no appeal will be entertained against the order of the single judge of the high court.
· There is no second appeal if the subject matter of the suit is for the recovery of money not exceeding Rs.25,000/-
· The Court may adjourn the framing of issues for a period not exceeding seven days while examining the witnesses or examining the documents presented before the court.
· Any party to the suit will not be given more than 3 adjournments during the hearing of any suit.
· The Court will pronounce the judgment once the trial is over. The Court shall endeavour to pronounce judgment within 30 days from the conclusion of hearing. But, in the case of exceptional or extraordinary circumstances, the court may fix a day beyond 30 days but before 60 days from the conclusion of the hearing.
Difference between Decree, Judgment and Order
When a Court adjudicates a dispute, after the hearing, it has to either pronounce its decision by way of a decree or dismiss the case. Such decision is called Decree. While arriving to such decision, the court will explain the grounds because of which the court came to such conclusion. Such grounds for the decision are called Judgment.
An Order is also a decision of the court, but which will not come under the head ‘Decree’. [12]
23. An order will not determine the rights or liabilities of the parties.
24. Any number of orders can be passed in one suit.
25. The Order can be passed on a suit as well as on application.
26. There are –
· Appealable orders.
· Non-appealable orders.
There are no second appeal for the Appealable orders.
To constitute a decree, there should be an adjudication by a court in which the rights or liabilities of the parties have been determined conclusively. It should have been formally expressed by the Court.
Interlocutory Applications
The Civil Procedure Code provides for many interlocutory applications under various sections and rules. Interlocutory applications are used in almost every civil proceeding. It is usually considered as an integral part of the suit.
Usually, from the time of institution, till the disposal of suits, any number of interlocutory applications can be filed. These applications are essential to the efficient and judicious disposal of suits. An Interlocutory application can be filed by any party to the suit and is indicated by abbreviation ‘I.A.’ and consequently numbered.
If a party files an interlocutory application, the opposite party will be given an opportunity to file the counter for the same. [15]
Special Suits
When a suit is filed before a competent civil court, the party must pay the prescribed court fee. If the suit is filed without the prescribed court fee, the suit is liable to be rejected.
In some cases, the plaintiff may not be able to pay the prescribed court fee due to poverty, etc. In such circumstances, to help such persons to protect their rights, the Civil Procedure Code, 1908 has provisions under Order XXXIII to provide an exemption from the court fee. An Indigent person is the one who is poor and cannot afford to pay the court fee. This kind of suits are also called as “Pauper Suits”.
In fact, “Inter-pleader Suits” is not defined in the Code of Civil Procedure, 1908. ‘Inter-plead’ generally means to litigate with each other to find a solution concerning a third party.
In “Inter-pleader” suits, the dispute is not between the plaintiff and defendants. In fact, the plaintiff in such suits has no interest in the subject matter of the dispute. The dispute is between the defendants and they inter-plead against each other.
For Example: ‘X’ is having lawful possession of a Gold Chain in which he has no interest. ‘Y’ and ‘Z’ are independently claiming the Gold Chain. ‘Y’ is claiming that he is the rightful owner of the Gold Chain and ‘Z’ claims the same. In such circumstances ‘X’ sues ‘Y’ and ‘Z’ to find out the decision of the court as to the ownership of the Gold Chain. In such suits, defendant's ‘Y’ and ‘Z’ will adversely claim and litigate. Plaintiff ‘X’ will be silent and be the spectator in such disputes. Hence the real dispute lies between the defendants in the “Inter-pleader” suits.
In “Inter-pleader” suits, the plaintiff must be in lawful possession of a property belonging to some other person. The property may be movable or immovable, and the plaintiff must not have any interest in the property. There shall be two or more claimants for the property and the plaintiff must be ready to hand over the property to the right claimant based on the decision of the court.
peals & Other Important Provisions
When a suit is heard by the trial court, the trial court enquires the issue, arrives at a conclusion and pronounces a decree either in favour of the plaintiff or the defendant.
In such suits, the aggrieved party may prefer to appeal against the decision of the trial court. The term ‘appeals not defined in Civil Procedure Code, 1908. An Appeal cannot be claimed as the inherent right and can be preferred only where it is expressly provided by the statute. But any person can bring in a suit of civil nature as it is an inherent right.
Reference: Section 113 and Order XLVI of the Code of Civil Procedure, 1908 deals with reference. Reference means referring a case to the higher court to seek the opinion of the higher court when there is a doubt in the question of law.
Review: Section 114 and Order XLVII of the Code of Civil Procedure, 1908 deals with the Review. According to this, a Court may reconsider a decision given by the same court. But a court cannot review its decision Suo moto.
Revision: Section 115 of the Code of Civil Procedure, 1908 deals about Revision. The Higher Courts have revision jurisdiction and can call for the record of any case which is already decided. This power is given for the efficient exercise of supervisory jurisdiction of Higher Courts.
Conclusion
To enable the courts to deliver impartial and unbiased justice, the Code of Civil Procedure, 1908 provides simple and clear procedures to be followed by the Civil Courts. In case of no provisions relating to some issue or matter, the court will not be able to decide efficiently.
Hence the Code of Civil Procedure, 1908 incorporated the provisions for inherent powers. When there is no legislation, the court, in the interest of justice may exercise the discretionary power by acting beyond the powers conferred on them under the Code of Civil Procedure. It is called the Inherent powers of the Court.
By Harshit Mishra | April 10, 2023, | Writer at Gurugrah_Blogs.
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