Introduction

The concept of private defence was introduced by McAulay 150 years ago so as to give the citizens the right to protect oneself when they cannot seek help or there is immediate threat or danger. It states that everyone has the right to defend their lives and property. It gives people the ability to use defensive force to protect ourselves, even if it means causing death in some cases. This section is defined in chapter IV of IPC. Jeremy Bentham also believed that ‘the necessity of private defence is unavoidable. The magistrate’s vigilance will never ever be able to compensate for the personal alertness of each individual. the fear of the law may not be as effective as the fear of collective resistance in restraining a wicked individual if you take this right away, you become co-conspirator of all the terrible men’ [1]

This right is available-

a)     against the aggressor

b)     If there is an apprehension of sudden harm

Private defence and its nature

Right of private defence is given to every citizen of India so as to imbibe in them the duty of self-help. Indian law also curtails some limitation while exercising this right. For e.g.- if one has sufficient and reasonable time to approach the police authorities, the right of private defence is not available in this case. However, if the actresults into real, reasonable and sudden apprehension the act done in furtherance of the unlawful act no matter how intense it is will not be considered as a criminal activity. Also, any unlawful act done in the furtherance of self-defence will not be considered as crime, and any activity in return to that will be outside the ambit of private defence.

 

Framework legislation

Section 96-106

The scope and the limitations of right to private defence has been mentioned in Indian penal code from section 96 to 106

Section 96 states that “anything done in the exercise of right of private defence does not constitutes an offence”. whereas section 97 defines that Every person has a right to defend

a. His or her own body, as well as the body of the other, against any crime involving the human body.

b. ‘The property of himself or any other person whether movable or immovable against any act which is a robbery, theft, criminal trespass or mischief or an attempt to robbery, theft, criminal trespass, or mischief [2]and section 99 establishes a number of conditions where in the right of private defence’ cannot be exercised

1.though any conduct is done by public official in good conscience and during the course of his duty, even if it is illegal

2. If one has enough time to get in touch with the public authorities.

3. The harm caused should not be more than what is necessary.

 Section 101, 103 and 104 defines the extent to which harm can be done in the right to private defence other than death. Section 102 and 105 denotes the beginning and continuation of right to private defence.[3]Apart from that section 98 states that private defence is accessible against those who are not mature enough to understand the repercussions of their act owing to their insanity or incompetence. Section 106 states if there is any apprehension of sudden harm and one cannot protect themselves without harming an innocent person then he is pardoned by law under this section to do that.

 

CASE ANALYSIS

Darshan Singh vs the State of Punjab[4]

The case is between very intimate and closed family members who were having a tussle over a piece of land. Thusthe supreme court of India gave their reasoning on the scope to exercise to practice right of private defence under certain guidelines which were

1)     Self- defence or right to self-preservation is a fundamental human right given by the state to its citizens to protect oneself

2)     When there is a sudden fear of impending injury, private defence is accessible. A justifiable suspicision of death or threat is also enough to act in the direction of private defence.

3)     when there is reasonable suspicion, private defence enters into the picture and stays for the duration

4)     The force used by the defender against the assailant should be proportionate to the harm or the apprehension caused by him

5)     Private defence is accessible under Indian penal code when unlawful act is a crime under Indian penal code.

6)     In order to preserve himself from any imminent danger, a person can commit any harm including death while excercising his right to self- defence

Apart from this cases like in Nand Kishore Lal vs emperor[5]and Mithu Pandey vs state of punjab[6] laid the fact that private defence can extend to causing death

In cases like Mohinder pal jolly vs the state of Punjab[7], it was stated that it is now lawful to use one’s right to private defence until there is a justifiable fear of death.

Analysis of Present legal scenario

In the present legal scenario, private defence is often misused by the people for taking revenge with malafide intent. Misuse of this right also leads to the use of the concept of “Ubi jus ibiremedium” which promises remedy for damages. The misuse of this right also overrules the “ reasonable force” that is to be used when there is imminent harm and danger. The same was observed in the case of magunicharan Pradhan Vs State of Orrisa [8]where the defendant was accused of the murder of bikhari Pradhan with an axe who trespassed his land,  the wrong doer was convicted but the high court reversed the  previous verdict by saying that when there is sufficient time to take assistance of the public authority,private defence is not attainable and accessible and held that there was no imminent threat or apprehension and there was no need for the defendant to act outside the reasonability. Also there was no sudden provocation thus the defendantwas held liable. One such case where this right was misused was in case of Vishwanath vs State of UP [9]where a husband tried to abduct his wife, wife’s brother in order to protect her stabbed him causing his immediate death, the judgement was delivered in the favour of the murderer and he was acquitted under sec 99 of Indian penal code. This case gives an insight that how right of private defence is misused. IPC does not define private defence clearly, it is based on past judgements and recent precedents which governs this section in Indian penal code. Although it has some limitations but it is used as a license to kill someone who act against us. Thus it is important for us to abide by the guidelines laid down by the laws and do not surpass it. It is equally important for the judicial authorities to specify the definition private defence and to mitigate its ambiguous nature

 

CONCLUSION

The right of private defence is given to every citizen of INDIA and it is the basic and intrinsic aim of self-preservation. It is also the duty of the citizens to protect themselves. This right is available if there is an apprehension of immediate harm and threat. This right is embraced as it also extends the right to even cause death even if there is sudden apprehension of rape, abduction, and murder. This section in IPC defined in a logical and substantiative manner as with providing certain rights, it is subjected to some restrictions. E.g. the force used should be in proportionate to the inflicted harm.If the right of self-defense is exercised under a mistaken belief, it is pardoned by law but it should be reasonable. It also marks a demarcation between offence and self-defence. It is also a part of protective rights

As a developed and civilized state, it is always expected from a state to protect its citizen but we tend to forget that with a huge population and with limited edible human resources, the state can't extend help everywhere that is the reason, we are given this right so that we protect ourselves when there is an imminent threat and danger. If used in right manner, this right can prove to beneficial in enforcing the true meaning of self-preservation.

AUTHORED BY: SHUBHRA GOYAL

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[1]John stuart mill, utilitarianism, pg47,(1863)

[2]P.S.A Pillai, Criminal law,  Pg 121 (12^th ed, 2014)

[3]P.S.A Pillai, Criminal law, 132  (12^th ed, 2014)

[4]Darshan Singh vs State of Punjab AIR 1993 SC 970

[5]Nand Kishore Lal vs emperor AIR 1927 All 710

[6]Mithupandey vs state of Punjab AIR 1983 SCC277

[7]Mohinder pal jolly v the  Stateof Punjab AIR 1979 S.C. 577

[8]Maguni Chandra Pradhan vs State of orrisaAIR 1991 INSC 90

[9] Vishwanath vs state of UP AIR 1960 SC 67 

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 Abstract

“Sedition is bred in the lap of luxury and its chosen emissaries are the beggared spendthrift and the impoverished libertine.”[1]

The freedom of speech and expression is a fundamental right guaranteed under our constitution with the essence of providing a sense of security to individuals who aim to attain self-fulfilment or are in some social pursuit. The freedom of speech and expression strengthens the pillar of democracy by providing a secure outlet for individuals that seek to discover the truth about something, to those who aim to strengthen the capacity to take decisions and facilitate a balance between social change & stability.[2] The freedom of speech and expression comes with a sense of responsibility that the individual exercising it must follow as well as the state having enough scrutiny in its responsible exercise among the citizens. In Indian constitution, article 19(1)(a) of the guarantees freedom of speech and expression to all citizens of the Indian republic. However, this freedom of speech is subjected to certain constraints like the security of the State, interests that govern the sovereignty and integrity of India, public order, decency or in relation to contempt of court, defamation or provocation to a felony. Merriam-Webster describes sedition as incitement of resistance to or insurrection against lawful authority. In a modern democratic state, the notion of a boundary between freedom of speech and sedition is often blurry and governed by state laws which in our case are established under Section 124A of the Indian constitution. Time to time, the question about constitutional validity of sedition in a democratic nation has been risen as a subject of continuous debates and discussions. The apprehension of this law being another colonial endowment or being used by the government to suppress the critique and violate the right to free speech forms the basis of the agony among the antagonists of this law.

History

Before making its way into the Indian constitution, the first draft on sedition drafted by Thomas Babington Macaulay was incorporated into the colonial Penal code in 1870 on suggestion of Sir James Fitzjames Stephen who thought it would be an expedient tool to curb legal issues in Government of India. [3] The draft finally made its way as an act when it was amended through the IPC Amendment Act of 1898 and formed the basis of the modern day Section 124A of Indian constitution.  The first trial that was held under section 124A was Queen Empress v Jogendra Chunder Bose, in Calcutta high court in 1891. Basu was charged under sedition on account of the claim of authorities that his article criticizing the Age of Consent Act of 1891was inflammatory and had incited rebellion. In this case, the Chief Justice William Comer Petheram explained the meaning of "disaffection" as "a feeling contrary to affection, in other words, dislike or hatred" and linked it with disobedience towards the government.[4]

Besides this, the most interesting sedition trial under the colonial rule was probably the trial of Lokmanya Tilak in 1897 who was charged under this law, found guilty by the jury and sent to eighteen months of rigorous punishment. During Tilak’s trial, Justice Arthur Strachey widened the understanding of Section 124A by explaining that the attempt to excite "feelings of enmity" against government was also a form of sedition. Besides this trial against sedition for his article “Shivaji's Utterances” in his daily, Tilak also faced charges for his other articles that he published in his daily titled "The Country's Misfortune" (12 May 1908) and "These Remedies Are Not Lasting" (9 June 1908) for which he was again found guilty and sentenced to six years of imprisonment in Burma.[5]

Besides Tilak, Mahatma Gandhi was another victim of this law who was charged and imprisoned under sedition for his three articles for Young India journal. While appearing in court, Gandhi referred to Section 124A as the "prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen".[6]

It is important to note that after the colonial rule ended, sedition was termed void & unconstitutional by various courts like the Punjab High Court in 1951 and a similar ruling was given by the Allahabad high court in 1959. Answering an appeal by the Government of India in 1962, the Supreme Court ruled that speeches against the government or political parties was not illegal, while upholding it as applicable to separatism by persuasion or force; this pronouncement had the effect of diluting the law.[7]

 

Dynamic debate about Section 124A’s constitutional validity

The continuous debate against Section 124A’s constitutional validity is fuelled by the fact that it is a colonial law which was aimed to suppress the voices of freedom fighters and yet still remains a part of our constitution in a modern day democratic republic. Section 124A describes an individual who practices sedition as anyone who, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India and sets the punishment with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.[8]

Critics of this law are of the opinion that this colonial law curbs the freedom of speech and expression and must be scrapped or amended. Successive centre and state governments have been using this law as a tool to curtail the free speech of activists, media, political leaders, students, artists, comedians in the post-independence era. Between 2014-2019, 326 sedition cases were filed in India, charge sheets were filed in 141 cases which resulted in only 6 convictions.[9]

Commenting on the low conviction rate under sedition law on 15^th July, 2021, Chief Justice of India N.V. Ramana drew attention to the need of shedding light on the fact that low conviction rate shows the misuse of the law by executive powers.

The instances of failure of conviction under charges of sedition in the courts are drastically high. Besides this, the abuse of the law for political gain is of the utmost concern.

The constitutional validity of section 124A IPC came to be challenged in

the case of Kedar Nath Singh v. State of Bihar.[10] Recently, the Supreme court of India quashed a sedition case Vinod Dua v. Union of India & Ors. (WP(Crl) No. 154 of 2020) with the remarks “The enormous power of misuse of this section [124-A] it’s like giving a carpenter a saw...he cuts down the forest. That’s the power of misuse of this law.”[11]

 

Conclusion

 

A consultation paper published by the Law Commission in 2018 sheds light on the fact that sedition as a law has already been abolished or the right to free speech is already protected by amendments in constitution of different democratic states. Section 124A which was a law enacted in colonial era, was deleted by section 73 of the Coroners and Justice Act, 2009 by the lawmakers of the United Kingdom in 2009 itself. [12]

Some efforts were made to scrape or amend Section 124A in the parliament itself like in the year 2011, a private member Bill titled the Indian Penal Code (Amendment) Bill, was introduced in the Rajya Sabha by Mr. D. Raja which proposed the omission of Section 124A. Similarly, another Private member Bill titled The Indian Penal Code (Amendment) Bill, 2015[13], was introduced in Lok Sabha by Mr. Shashi Tharoor to amend Section 124A. But both bills failed to move forward in the houses of the Parliament. With the historic ruling in a number of its cases, the supreme court has reignited the continuous debate regarding the constitutional validity of Section 124A numerous times. The scope of political benefit and misuse for personal gain by the ruling party from Section 124A makes it difficult for the law to be scraped/amended in the Parliament itself. A number of legal thinkers, activists and lawyers have called Supreme court to take the matter in its jurisdiction and scrape this colonial law once for all.

 AUTHORED BY: SAKSHI THUKRAL

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[1] George Bancroft, "The Office of the People in Art, Government and Religion", p. 424

[2] Stephen Schmidt, Mack C. Shelly et. al, American Government and Politics Today 11 (Cengage

Learning, USA, 2014)

[3] Gaur, Krishna Deo (2009), Textbook on the Indian Penal Code, Universal Law Publishing. pp. 220,

[4] Bhatia, Gautam (2016), Offend, Shock, or Disturb: Free Speech under the Indian Constitution, Oxford University Press.

[5] Saxena, Namit (8 July 2018). "A Look Back At Tilak's Sedition Trials". Live Law. Retrieved 28 May 2019.

[6] "Republic of dissent: Gandhi's sedition trial". Live Mint. 25 January 2019. Retrieved 29 May 2019.

[7] "Anti-sedition law needs the bin". Economic Times. 15 January 2019. Retrieved 27 May 2019.

[8]  Section 124A, Indian Penal Code

[9]  326 sedition cases filed in india between 2014 19 only 6 convictions, freepressjournal.in, 19 July 2021.

[10] AIR 1962 SC 955.

[11] Vinod Dua v. Union of India & Ors. (WP(Crl) No. 154 of 2020)

[12] Section 73: Abolition of common law libel offences etc

The following offences under the common law of England and Wales and the common law of

Northern Ireland are abolished—

(a)the offences of sedition and seditious libel;

(b)the offence of defamatory libel;

(c)the offence of obscene libel.

[13] The Indian Penal Code (Amendment) Bill, 2015, available at: http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/2535LS.pdf (last visited on Jan 20, 2017).

Image Source: Bar & Bench

INTRODUCTION

The words robbery, theft, and extortion are generally misunderstood by one another. They’re used interchangeably in daily usage. However, going into the legality reveals that these words are distinct and reward different punishment. A closer look reveals the difference among the terms. Each of those terms is separated from the opposite on the idea of pivotal or minor differences. The demarcation is often seen in accordance with the Indian Penal Code, 1860. Firstly there's a requirement to know theft and extortion as defined within the code.

ROBBERY- JUDICIAL INTERPRETATION

Robbery is defined in Section 390 of the Indian Penal Code, 1860. Robbery is either extortion or theft and is considered as the aggravated form of both. The essence of robbery is the presence of imminent fear or violence. This section deals with both the cases i.e. when theft is robbery and when extortion is robbery.

When theft is robbery?

Conditions when theft is robbery-

i. When someone voluntarily causes or attempts to cause to a person,

a. Death or hurt or wrongful restraint, or

b. Fear of instant death or instant hurt or instant wrongful restraint.

ii. The above acts must be finished any of the subsequent ends:-

a. to the committing of theft, or

b. In committing theft, or

c. In carrying away, or attempting to hold away property obtained by theft

In Venu alias Venugopal v. State of Karnataka[1], appellants allegedly intercepted the victim and robbed gold and cash by threatening with a knife. It was held that evidence of the victim, her husband, and recovery of vehicle used established commission of offense of robbery by appellants. Offense was omitted at night on the public road, not a highway, therefore, the conviction of appellants is proper.

It was also observed that violence must be in the course of theft and not subsequently. It is not necessary that violence should be committed actually but even an attempt to commit is enough. The words "for that end" utilized in Section 390 mean that hurt caused must be with the thing of facilitating committing or must be caused while the offender is committing theft or is attempting to hold away property obtained by theft.

 

The mere use of violence doesn't convert the offense of theft into robbery unless the violence is committed for one among the ends laid out in para 2 of this section. Thus where the accused abandoned the property obtained by theft and threw stones at his pursuers to discourage them from continuing pursuits, he was guilty of theft and not of robbery.

In a case, D was relieved of his wristwatch by A during a compartment when the train was close to stopping at a station. As D raised an alarm B gave him a slap and both A and B jumped out of the compartment and ran away. Soon after both of them were found taking tea at a stall situated near the railroad station. Both A and B are going to be guilty under section 392 r/w section 34 IPC because B in furtherance of common intention to commit robbery and to save lots of A from being caught caused hurt to D and has thus helped in carrying away the transferred property.

 

Voluntarily causes.-The use of the words 'voluntarily causes' during this section is critical because merely causing incidental injury doesn't convert the offense into robbery. The injury must be voluntarily caused. As an example, where the accused in snatching a nose-ring of a lady wounded her within the nostril and caused her blood to flow, He was held guilty of robbery.[2]

 

Person.-The word "person" is defined in section 11 of the Code means both natural and juridical person. Normally body of an individual's being might not be a person except for the needs of this section the word person doesn't exclude the body of a person's being who was killed within the course of the same transaction during which theft was committed.[3]

 

When extortion is robbery?

Extortion is robbery if the next conditions are fulfilled:-

i. when an individual commits extortion by putting another person in fear of instant death, or instant hurt, or of instant wrongful restraint thereto person or to another person; and

ii. such an individual by so putting another in fear induces the person so put in fear then and there to deliver up the thing extorted; and

iii. The offender, at the time of committing extortion, is within the presence of the person put in fear.

In the State of Maharashtra v. Vinayak Utekar[4], the accused snatched the gold buttons from the shirt of an individual and ran away. While deed, he was caught by the informant to whom the accused gave a knife blow. The Court held the accused guilty under Section 390 for the offense of robbery because it couldn't be contended that the accused gave a knife blow only to urge himself free of the clutches of the informant and to not make sure the removing of the gold buttons which was a transferred property.

In Sikandar v. Delhi Administration[5], the accused persons struck several knife blows on the lady and compelled her to spare her earrings and therefore the bunch of keys which she had tied within the string of her salwar. They were held guilty of offense of robbery under Section 390/34 of IPC.

 

Conclusion

The opening words of Section 390, IPC, indicate that there is be no robbery if there is no theft or extortion. Theft or extortion or attempting to commit any of those two is an inevitable part of the robbery. Theft is robbery, if, to facilitate theft or plan to seize transferred property, the perpetrator voluntarily causes or attempts to cause death, injury or misconduct or fear of immediate death, immediate injury or misconduct.

Similarly, the removal of the property which is movable being carried is another requirement for constructing a case of theft. If this is often not the case, then there's no theft and as a result, there'll be no robbery. Therefore, to work out whether a specific act is going to be a robbery or not, one must first confirm that the case has the required ingredients for theft or extortion because robbery is nothing but an aggravated sort of theft and robbery.

Section 390, IPC, defines robbery. To rob during a common language means to rob an individual of his possessions. The most distinguishing feature of robbery, theft, and extortion is that the imminent fear of violence. In every robbery, there's theft or robbery.

 

This blog is authored by Aditi Vishnoi, a student of The ICFAI University, Dehradun.

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[1] 2008 II Cr LJ 1634 (SC)

[2] Tikai Bheer, (1866) 5 WR (Cr.) 95.

[3] Jamnadas, AIR 1963 MP 106.

[4] 1997 Cr LJ 3988 (Bom.).

[5] 1984 Cr LJ (NOC) 103 (Del.).

Image Source

Recently, an exigency to define limits of Sedition law has been felt by the Supreme Court after taking cognizance of indiscriminate usage of Sedition against critics inM/s Shreya Broadcasting Private Ltd and another v State of Andhra Pradesh, Aamoda Broadcasting Company Private Ltd and another v State of Andhra Pradesh, where FIRs were registered against two Telugu channels for alleged Sedition by the Y.S. Jaganmohan Reddy-led Andhra Pradesh government for their reportage of the outrageous mishandling of COVID-19 pandemic by the State govt. The court observed the FIRs as a prima facie attempt to “muzzle media freedom.” The court was of the view that the gamut of the provisions of sedition defined under section 124A of the Indian Penal Code would require interpretation and elucidation, explicitly in the context of the right of the electronic and print media and also to those who may be censorious of the prevalent government.

Sedition, a colonial-era law intended to suppress the voice of freedom is still in effect in India, while Britain repealed sedition as a criminal offence in 2009, seeing it as a remnant of a time when freedom of expression was not recognized as the right, but now it’s a fundamental right. India's sedition law, section 124A of the Penal Code, proscribes any words either spoken or written, or any signs or visible representation that can have the ability to bring about "hatred or contempt or excites or attempts to excite disaffection," toward the government established by law where disaffection includes disloyalty and all the enmity.

Section 124A seeks its legitimacy from the constitutional decision of Kedar Nath Singh vs State of Bihar (1962), a landmark ruling which still holds its reference in the present time. This could be inferred from the recent case of Vinod dua v. Union of India where the Supreme Court of India quashed a sedition lawsuit against journalist Vinod Dua and set him free, stating that “Every journalist entitled to protection under Kedar Nath judgment." In this case, an FIR was enrolled against Journalist Vinod Dua for censuring the Central government where it was held by the Supreme Court, that the remarks made by Vinod Dua can be best named as an articulation of judgment of the activities of Government and its functionaries so the circumstance could be recognized. There was no goal of inciting violence or generating public disorder behind his remarks.

 

Kedar Nath Singh vs State of Bihar (1962), is a well-renowned judgment not merely because the Supreme Court of India has upheld the constitutional validity of Section 124A in this case but also defined the ambit of the offence of sedition under Section 124A of IPC. The court said, that the explanations affixed with section 124A explicitly manifest that censure of public policy or remark on government action, notwithstanding highly critical, would be within reasonable limits and would be in consonance with the freedom of speech and expression. It is only when remarks, written or spoken which have the detrimental tendency or intention of causing public disorder or disruption in law and order that the law interferes to prevent such activities in the light of a legitimate concern for public order. A citizen has the liberty to speak and express one’s convictions and opinions freely, considering he does not incite people to violence against the government established by law or intend to create public disorder.

The Court has, therefore, the duty endowed upon it to set forth a line of demarcation between the ambit of a citizen’s fundamental right guaranteed under Article 19(1) (a) of the Constitution and the power of the legislature to impose reasonable restrictions with respect to the security of the State and public order. Henceforth, the Kedarnath judgment made it clear that unless the accused incited violence by their speech or action, it would no longer constitute sedition, as it would otherwise violate the right to freedom of speech guaranteed by the Constitution. Subsequently, the crucial distinction between “advocacy” and “incitement”, stating that only the latter could be penalized, was drawn by the Supreme Court in Shreya Singhal v. Union of India, the prominent 66A judgment.

Unsurprisingly, the use of Sedition has now become a method to suppress voices of protest in support of the marginalized as furnished by Article 14 database, which shows that there were 25 sedition cases during farm protests, 25 during anti-CAA protests, 22 after the Hathras gangrape, and 27 after Pulwama. The aforementioned database, reveals a 28% increase in sedition cases over the last decade, particularly against critics and protesters. Article 19(1)(a) provides individuals the fundamental right to speak and express freely which is reasonably restricted by Article 19(2) in the interest of public order when pertaining to sedition. However, in India, a recent trend showcases the application of sedition under the IPC being charged on individuals on grounds excepting the instances limited to the interest of public order.

Similarly, According to the data provided by National Crime Records Bureau (NCRB), the crime incidence on Sedition has ramped up exponentially from 51 in 2017 to 93 in 2019. As per this data, 93 sedition cases were registered in 2019 and only two were convicted. It indicates that there exists a need to define the limits of the sedition law and make it more specific as to what activity would constitute sedition and what would not. The provision under Section 124A needs an amendment due to its subjectivity and very expansive breadth. The word “disaffection” is still uncertain and difficult to fathom. Despite the elaboration of this term in the explanation to the section to be inclusive of disloyalty and feelings of enmity, the boundaries of this provision are indefinite.

Indiscriminate application of sedition Law, due to its abstruseness, is proving to be anathema on the legitimate exercise of constitutionally guaranteed freedom of speech and expression, which is guaranteed not only by the constitution of India or statutes of various states but also by numerous international conventions like Universal Declaration of Human Rights, Human Rights Act, European Convention on Human Rights.

Image Source: The Economic Times

AUTHORED BY: Jyoti Gautam & Sadhna Diwakar, Second-year law students at Dr. Ram Manohar Lohiya National Law University

 

 

 Introduction

The laws of our country, India is an extremely wide concept. There are more than 1200 laws in our nation. According to the National Crime Bureau’s (NCB’s) 2018 report, there were more than 50,00,000 lakh criminal cases filed in the year preceding the reporting year. 

In such a scenario it is of utmost importance to know about the penal laws and the procedure of implementing them. Both IPC and CrPC are an indispensable and integral part of India’s criminal justice system.

Classification of Laws

All Indian laws can be classified into two major types namely, substantive laws and procedural laws. Substantive laws define the offence and prescribe the punishment awarded for such offences, whereas, procedural laws implement the substantive laws and which machineries to be followed for the purpose. In the absence of procedural laws, substantive law is of no meaning because it does not deter and without the deterrent effect, empty threats and punishments have no justification.

Indian Penal Code (IPC)

In the year 1834, India’s 1st Law Commission was appointed which was chaired by Lord Thomas Babington Macaulay and four other members. The commission was assigned three major tasks, namely,
→ Codification of India’s penal laws.
→ Defining laws for individuals who were neither Hindus nor Muslims.
→ Codification of civil and criminal procedural laws.

The Law Commission prepared a draft penal code in 1837 which was implemented in 1860 after proper review and analysis. The Indian Penal Code, 1860 mainly drafted by LordThomas Babington Macaulay and due to this reason it is also known as “Macaulay’s Code”.

Criminal Procedure Code (CrPC)

Criminal Procedure Code (CrPC) is considered as the main legislation which prescribes the procedure for criminal law implementation in India. It prescribes the procedure relating to detection of crime, apprehension of a suspected criminal, collection of evidence, determination of guilt or innocence of the suspect, imposing suitable punishment on the guilty.

In the ancient days, East India Company did not have their own courts, every ruler had its own justice system and every province had their own court. But after the revolt of 1857, the British Crown took the administration into its own hand. Thereafter, the British Parliament passed and enacted the Criminal Procedure Code, 1861 with the purpose of establishing a uniform criminal procedure for the entire country.

In 1955, the 1st Law Commission was set up of independent India which was chaired by M. C. Setalvad. This commission studied the CrPC thoroughly and submitted a report in 1969 which contained various recommendations and suggestions that were incorporated in the Criminal Procedure Code, 1973 and came into force on 1st April 1974. While the draft was prepared which contained the recommendations and suggestions, three major points were taken into consideration, namely,
→ Every accused shall get a fair trial in accordance with the principles of natural justice.
→ Every effort shall be made to avoid unnecessary delay in investigation and trial.
→ The entire procedure shall not be complicated, and every section of the community shall be able to understand such procedure formulated.

IPC vs. CrPC

Indian Penal Code (IPC) is a substantive law as it contains the definition of all the offences, essential ingredients of an offence to be called an offence, and the punishment to be awarded for all such offences. Thus, whenever there is a commission of an offence, the police authorities use the IPC to prepare the charge sheet.

All the process after preparation of a charge sheet is procedural in nature and part of Criminal Procedure Code (CrPC). The after-work like when can the offender be granted bail, when can the offender apply for bail, collection of evidence, investigation procedure, trial procedure, production before a magistrate, etc.

INDIAN PENAL CODE	CRIMINAL PROCEDURE CODE
IPC is a substantive law.	CrPc is procedural law.
IPC was enacted in 1860.	CrPC was enacted in 1973
IPC contains 511 sections and 23 chapters.	CrPC contains 484 sections, 2 schedules, 56 forms, and 37 chapters.
IPC defines offences and prescribes punishments for such offences.	CrPC deals with the procedure of investigation, interrogation, evidence collection, arrest, trial, bail, etc.

Conclusion

Hence, both the Indian Penal Code and Criminal Procedure Code are an integral part of our criminal justice system. Either of them has no meaning and justification in the absence of others. Moreover, both laws help in removing evils from society and protect society from lawbreakers and criminal offenders. Lastly, the Indian criminal justice system runs majorly on these two legislations.

References

https://legodesk.com/legopedia/difference-between-ipc-and crpc/#:~:text=The%20IPC%20provides%20a%20substantive,for%20each%20one%20of%20them.&text=The%20primary%20goal%20of%20CrPC,Criminal%20Procedure%20is%20procedural%20law
https://keydifferences.com/difference-between-indian-penal-code-ipc-and-criminal-procedure-code-crpc.html
https://enhelion.com/blogs/2020/08/01/what-is-the-difference-between-ipc-and-crpc/
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Author: Sneha Mahawar, Ramaiah Institute of Legal Studies.