Criminal Law

There was no criminal law in Ancient time. The society was uncivilised. Neither the life nor the property was safe in that society. At that time people believed only on one thing a life for a life. Time changed and the people made law based upon their religion. They segregated law according to their Holy book and their culture.

In the antiquated Hindu law, it was the obligation of the ruler to rebuff the guilty party. The Hindu law-providers didn't explicitly recognize common wrong wrongdoing, still, the distinction in punishments and strategy which they have recommended shows that they plainly acknowledged how the criminal part of a contrasted from its common regard. After the triumph of the nation by Muslims Mohammedan criminal law was presented in our nation, and the Indian Courts applied Mohammedan criminal law in the organization of equity.

At the point when the East India Company assumed control over the domain of Indian Territory, Mohammedan criminal law was in power. Later on, it was understood that a correctional code was important. The primary law commission was selected in 1834 with Lord Macauley, the then Law Minister as its executive, Sarvshri Macleod, Anderson and Millet were different individuals from the Commission. It arranged a draft Penal Code for India which was given for thought to Governor General of India in Council on fourteenth October 1837. It was changed by Sir Barnes Peacock, Sir JW Colville and a few others. The drafting was finished in 1850 and it was introduced to the administrative gathering in 1856. The bill was passed on October sixth, 1860. It got the consent of the Governor General on a similar date and consequently turned into the Indian Penal Code, 1860. The Code came into procedure on first January 1862.

Types of law

1) Substantive law which is the part of law that creates and define rights

A) Indian penal code - The Indian Penal Code's purpose is to set down what is right and wrong, and to enforce the penalty for making such an error. Under criminal law the "will" to commit the crime plays an important role under determining the offence's liability.

There are usually five stages of committing the crime

• Motive
• Intention
• Preparation
• Attempt
• Commission

The Indian Penal Code which was introduced in 1860 is enforceable in part of Indian Territory. It followed various England Common Law theories and concepts that were changed from time to time. One of the distinctive characteristics of the Indian Penal Code is that it follows the country's general code of criminal law. This includes the full spectrum of crimes. It is about security. The people from accidents were linked to the human body, Property and Reputation. Some common crimes such as murder, abduction, rape, robbery, stealing, etc. have been punishable under the various sections provided for in the Indian Penal Code, whereas the Indian Penal Code has also covered various actions committed in good faith, with or without consent of negligence, cruelty, etc.

The laws that govern criminal law in India are the Indian Penal Code, 1860 (IPC) and the Criminal Procedure Code, 1974 (Cr.PC). The IPC provides for the substantive law to be followed in case a crime has been committed.

The criminal law is defined as a body of law which deals with judgements regarding the wrongful act and other offences and is also responsible for charging and giving a trial to the convicted offenders. The basic function of criminal law is to give justice to the offender and punish the guilty by legal actions.

In today’s Modern world, Crime is being held in many areas around the world. For example, theft, murder, physical abuse, sexual abuse, emotional abuse, threatening etc. In order to eradicate these wrongful acts by the wrongdoer, criminal law is framed. In India, IPC (Indian Penal Code) is formed. The Indian penal code is the at present criminal code of India. It is a comprehensive method initiated to cover all aspects of criminal law. The Indian penal code was enacted on 9th October 1860. There are various sections placed with separate punishments framed.

Since criminal acts are considered offences in rem, i.e., against society in general, the State acts as the prosecuting party in court.

The Constitution of India provides for a federal system wherein powers are divided between the central, state, and local governments. The demarcation of powers is provided in Schedule VII read with Article 246 of the Constitution. Powers are divided into three lists:

• The Union List: the Union Parliament has exclusive power to make laws with respect to the matters enumerated within this list.
• The State List: State Legislatures have the exclusive power to make laws with respect to the matters enumerated within this list.
• Concurrent List: both the Parliament and State Legislatures have the power to make laws with respect to the matters enumerated within this list.

In the event of contradiction between Central and State laws, the Central law will prevail.

Criminal law and criminal procedure fall under the Concurrent List while matters relating to Police and Prisons fall under the State List. The laws that govern criminal law in India are the Indian Penal Code, 1860 (IPC) and the Criminal Procedure Code, 1974 (CrPC). The IPC provides for the substantive law to be followed in case a crime has been committed. The CrPC provides for the procedures to be followed during investigation and trial by the police and courts.

There exist specific courts for criminal trials to held called Sessions Courts at the District level. India has adopted the adversarial system of legal procedure wherein the judge acts as a neutral party and the case is argued by the prosecutor suing the plaintiff and defense attorney who defends their plaintiff. One major distinction between India and other common law countries is that it does not follow the jury system.

In addition to these, some of the other state-related offences pursuant to Section 121, Government pursuant to Section 121A, public tranquillity and public disturbance pursuant to Sections 149 and 268 respectively, social structures such as marriage pursuant to Section 494, public morality pursuant to Section 295 and against morals pursuant to Section 292 were made punishable under the Indian Penal Code.

It applies in the entire Indian Territory except in Jammu Kashmir. The jurisdiction of the territories is founded on the principle that all crimes are local. Therefore, the provisions of the Indian Penal Code extend to all persons including foreigners on the Indian soil. Nevertheless, only presidents, governors and foreign sovereigns and ambassadors were exempt from criminal liability for all acts under the colour of their office.

The Indian Penal Code also has extra territorial authority in the sense that it applies only outside of Indian Territory to all Indian nationals. Indian Penal Code jurisdiction has also applied to any person on a ship or aircraft registered in India because the recognition of such jurisdiction is based on the principle that each nation has the right to control and rule its own jurisdiction.

In short, the Indian Penal Code is incredibly bright in terms of regulating any person's crime and crimes, whether in the Indian territories or elsewhere in the world.

2) Procedural aw which gives the mode of form of conducting judicial proceedings

A) Criminal Procedure Code

The Code of Criminal Procedure cannot be distinguished from any of the country's penal legislation. If Significant Penal Law is a major means of protecting society, a key method for achieving and implementing Significant Law is Procedural Criminal Law. When the Code of Criminal Procedure came into effect in 1973, the 1898 Code of Criminal Procedure was in effect. Several changes were introduced in this new code, the main object of which was to isolate the judiciary from the Executive. There are 37 chapters, 484 section, and two Schedules in the Criminal Procedure Code, 1973. There is the description of the crimes in this First Schedule, and other elements have been included in the Second Schedules.Code of Criminal Procedure, 1973 applies to India as a whole.(Section 1 of the Code of Criminal Procedure, Short title, scope and beginning) This shall come into force on the first day of April 1974.

Hierarchy of Criminal Courts

The hierarchy of the Criminal Courts in India is as follows:

• The Supreme Court of India - The Indian Supreme Court, which is India's highest court, was created in accordance with Article 124 of Part V and Chapter IV of the Indian Constitution.
• The High Courts of India - the high courts are at the rank of second level. It is governed by Article 141 of India's Constitution, and is bound by the Apex Court's judgment.
• Lower Courts of India have been classified as follows:

A) Metropolitan Courts

B) Sessions Court

C) Chief Metropolitan Magistrate

D) First Class Metropolitan Magistrate

E) District Courts

F) Sessions Court

G) First Class Judicial Magistrate

H) Second Class Judicial Magistrate

I) Executive Magistrate

Evidence law

Evidence law is the branch of law concerned with the rules and methods by which evidence is admitted and used in a legal trial. These rules set out what type of evidence can be admitted for consideration by a judge or jury in a trial. Evidence law also concerns the type of objections that can be raised to certain evidence being admitted, such as hearsay, illegally-obtained evidence, or a privilege that prevents the evidence in question from being admissible at trial.

Evidence law deals with the laws and procedures by which proof is accepted and used in a legal case. Such rules stipulate what form of evidence a judge or jury in a court can accept for consideration. Evidence law also includes the form of challenges that may be posed to the inclusion of such facts, such as hearsay, evidence collected unlawfully or a right that prohibits the proof in question from being admissible at court.

There are two types of offences under the IPC:

Cognizable offence: if such an offence has been committed, the police may arrest a person without warrant. Police are authorized to start an investigation into a cognizable offence on their own and do not required any court orders to do so. Examples of cognizable offences include murder and rape.

Non-cognizable offence: if such an offence has been committed, the police do not have the authority to arrest without a warrant. Police are not authorized to start an investigation into a non-cognizable offence without a court’s permission. Examples of non-cognizable offences include cheating and forgery.

The words cognizable offence and Non cognizable offence are defined under the Criminal Procedure Code.

The Criminal laws were made more stringent, when in the year 2013 the Indian Penal Code, 1860 stood amended and Section 376A was inserted which enunciates death penalty for the offence of rape resulting into persisted vegetative state of victim or death. The amendment was caused pursuant to the suggestions recommended by the Judicial Committee formed by the Central Government to provide suggestions to "severely" deal with sexual assaults against women which is visibly an aftermath of vicious gang rape and murder of a 25 year old in Delhi in 2012. The Judicial Committee headed by J.S. Verma, a former Judge of Supreme Court and included former Judge of Delhi High Court Leila Seth and leading Advocate Gopal Subramanium submitted their report within 28 days along with suggestions inter-alia not suggesting death penalty as punishment for rape basing the argument on the International laws and for the larger interest of society, having regard to the current thinking in favour of abolition of death penalty. However, taking a departure from the well-reasoned and morally entrenched suggestion of the Committee, the bill which ultimately culminated into Criminal laws (Amendment) Act, 2013 provided death penalty as punishment for rape by way of (newly inserted) Section 376A in IPC. The present article makes an attempt to comprehend the step of introducing Death Penalty for rape from the context of international laws and notions and how the step can be termed to be regressive on the face of world trend to abolish death penalty; more so when there is no evidence evincing the death penalty's ability to deter crime. The step also runs contrary to reason provided by Lord Macaulay while drafting different punishments for murder and rape under IPC; which according to him was to serve the restraining motive for the ravishers to spare the lives of the people already injured by them. The only reason for providing death penalty for murder by Lord Macaulay was deterrence; which even after several decades remains at best, unproven. The present Article debates on how by taking a step to introduce death penalty for rape amongst other offences, India is taking a step backward in its societal progress from barbarity to civilized refinement; and also the uncertainty and indeterminacies in judicial decision as well as non-systematic invocation of death penalty which emits the stench of arbitrariness.