The basis of crime and criminal jurisprudence in India Satya, Dahrma, Shanti, Prem and Ahimsha are the five important principles/ingredients which were ever tought by the Bhagawan Sri Satya Sai Baba during all His lifetime for the rectification of deeds and purification of soul in human beings. All the Hindu religious philosophy is based upon these five principles and these are and have been contained in the Vedas, holy Gita and others upanishadas. In the similar manner the Lord Buddha also right from the attainment of Enlightenment/wisdom and peace delivered His sermon basing upon the principles of Ahimsha and non-violence and delivered speeches basing upon the universal truth that the desire is the one of the main source of sorrows in the world and hence advised menkind to renounce all type of unwanted desires which would welcome the bad results. The main contentions in the holy Bible is also that as when as the Adam and Eve violated the command of God they became sinner and consequently all the humen being fall on the vicious circle of sin and for that to liberate the mankind from the sin the God sent his loveliest and holiest son the Jeasus in this world and the Lord Jeasus during all His lifetime advocated for the restoration of peace and love for that cause He was eventually crucified. The Prophet Mohammed also delivered His teachings during all His lifetime for the benefit of all the living beings and for the day to day its application in our lives for the goodness which are duly contained in the Quaran and the Ahadis and which are also the source of personal law of the Mohamedan. In the same manner the great philosopher of China Confucious advocated the principles of peace, love and universal brotherhood before more then two thousand years to his desciples. Besides then these our land and the nation also gave birth to great mahatmas who always showed the path of peace, love, non-violence and humen feelings and national responsibilities. Along with the same in the every school, mandir, masjid, church,gumpa, gurudwara there are daily teaching of goodness and kindness despite of that a human being sometime does an unwarranted act or misdeed which will grossly hamper the interest of the society. The reasons behind this is that in every human being there are two basic instincts i.e positive instinct and negative instinct. The positive instinct is that which always follows the path of righteousness, virtueness, kindness and goodness on the other hand the negative instinct is that which is the dark aspects of the human nature and behaviours which are in the forms of sin, badness cruelity and destructiveness. Likewise, there are two sides of every coin in the similar manner every fact, substance or phenomena also has its two sides or faces. These two sides or faces are also contained in the human instinct or behaviour and in fact these are the positive and the negative instincts in the human beings. Positive instinct is always guided by the morality, etihics, good values and the commend of the God on the other hand the negative instinct is governed by the devils power. Even the supreme power i.e the power of the Almighty or the God does not have controll over the negative instinct of a human being. According to the Holy Bible the human beings are sinner by birth and the negative instinct is guided by the satan. In Hindu theology, Arishadvarga are the six passions of mind or desire these are: kama (lust), krodha (anger), lobh (greed), moha (delusion), mada or ahankar (pride) and matsarya (jealousy) these are the negative characteristics of which prevent man from attaining moksha or salvation. And in fact these are the six basic negative instincts in the human being because of which a person violates the good conduct or the moral norms and consequently commits a wrong for the same he will be punished by the Code of the God or Heaven ( as per the theistic view). These all are so far as the spiritual, ethitical or moral aspect of a wrong or the misdeed is concerned. But my dear facebook friends todays my discussion is with respect to the wrong or misdeed in respect of jural point of view. The jural definition or in the language of the law a wrong or misdeed is called as a “crime”. A crime is always prohibited and discarded by every human, civilized society. When a person commits a crime then it will effect not only the person and property of another person or of the group of persons against whom the crime is committed but also it effects or creates the nuisence/disorder in the society and hampers the interest of society. Hence the commitment of a crime is the against the interest of society for which the society, in the civilized nation in the name of state will take appopriate actions and prosecutes that miscreant according to the law of the land available at the time of commitment of the crime. For the commitment of a crime there are two basic ingredients which must be available during the time of commitment of a crime. These are the actus reus and mens rea. Actus reus means a misdeed or wrong doing or an act prohibited by law and the term mens rea means a criminal intention to commit a crime or the guilty intention. Hence these are the two importent ingredients for the commission of a crime or the conditions precedent which must be available during the time of the commission of a crime. Again the true definition of crime in the criminal jurisprudence is an “ offence” which has been provided in section 40 of the Indian Penal Code. There are various laws or enactments in India relating with the crimes/offences which were enacted either in pre-independence era by the parliament of Great Britain and still operating untill and unless repealed/annuled by the Act of competent legislatures or in post- independence era by the Parliament of independent India. These are both substantial and procedural in nature. These are mainly the Indian Penal Code 1860 (Act. No 45 of 1860), The Code of Criminal Procedure 1973 (Act No. 2 of 1974) and the Indian Evidence Act 1872 (Act No. 1 of 1872). Besides then these there are several criminal minor Acts in the similar manner enacted by the Parliament of Great Britain in the pre-independance era for its colony and still existing and operating and the laws in the post- independance era either enacted by the Parliament of India or by the legisletures of the states in accordance with the power conferred by the seventh schedule of the constitution read with Art. 246. I hereby would like to discuss with my facebook friends little about some Major Criminal Codes/Acts in India. First of all I humbly discuss about the Indian Penal Code 1860 (Act. No. 45 of 1860). This is a major penal code relating with several types of offences in India which defines the offence and prescribes the punishment for the same. The Indian Penal Code 1860 was drafted by the members of the First and Second Law Commissions headed by Lord Macauley as its President and Macleod, Anderson and Millet as members commissioners as per the appointments and directions given by the then British India the Governor – General of India in Council by virtue of the authority vested in him under section 53 of the Government of India Act, 1833 which submitted its report on 14 October 1837 and in 1846 and in 1847 in two parts which after a thorough discussion was finally passed and received the assent of the Governor- General in Council on 6th October 1860 which was came into force on 1st January 1862. The Indian Penal Code is a comprehensive piece of legislation which originally contained 23 Chapters and 511 sections. There were several insertions and omissions of Chapters and sections in the meantime and now it contains in total 538 sections. It extends to the whole of India except the state of Jammu and Kashmir. It prescribes the punishment in both ways i.e by giving the imprisonment ( simple and regorious) by curtailing the personal liberty of the convict and the impositions of the fine of different amounts or the pecuniary sanction. The provisions of the Indian Penal Code is drafted in efficient manner and applying the full mind by the draft committee to meet with the ends of different types of offences with the purpose of reducing the same and the same have been adopted and implemented in most of the countries of the Commonwealth in South Asia, Middle East and Africa including Pakistan, Bangladesh, Sri Lanka, Malaysia, Singapore, Myanmar, Nigeria, Sudan, Kenya and many others. Another major code dealing with the crime is Code of Criminal Procedure, 1973. The Code of Criminal Procedure Bill having been passed by both the Houses of Parliament received the assent of the President on 25th January, 1974. It came into force on the 1st day of April, 1974 as THE CODE OF CRIMINAL PROCEDURE, 1973 (2 of 1974). It is one of the most important Code/Act prevailing in India except to the state of Jammu and Kashir and some tribal areas of North Eastern states which provides the sound criminal administration. The provisions contained in the Code is mainly procedural in nature but some of them are also in substantial likewise sec. 125 of the Code which provides for the order for maintenance of wives, children and parents etc. Originally there were 37 Chapters and 484 sections but now it has 38 Chapters and the good numbers of sections have been inserted. The main functionaries/ machineries exercising powers and functions/duties under the Code are as follows:- i) Police, ii) Prosecutors, iii) Defence Counsel, iv) Magistrates( both the executives and judicial) and the Judges of higher courts and v) Prison authorities and the correctional home services personal. The procedural laws in respect of criminal justice administration system have very wide and tremendous scope and values. Without an efficient procedural laws the subsantial laws can not be enforced and implemented and so the purpose behind the enactment of substantial laws will be frustrated. Hence to provide an efficient criminal administration system in the region both the substantial and procedural laws must be well enacted. The Code of Criminal Procedure 1973 is a comprehensive and beautiful legislation which provides the provisions for the investigations by the investigating/police authorities, free and fair inquiry/trial before a criminal court, enourmous powers to the executive magistrate for the maintenance of public order and tranquillity. Now I hereby discuss with my facebook friends about the major Code/Act out of three major codes i.e the Indian Evidence Act 1872 ( Act No. 1 of 1872). The Indian Evidence Act 1872 after preaperation of the Bill received the Governor- Generals assent on March 15, 1872 and it came into force on the first day of September, 1872. Likewise above two codes the Indian Evidence Act also extends to the whole of India except the State of Jammu and Kashmir and applies to all judicial proceedings in or before any Court, including Courts-martial other then Courts-martial convened under the Army Act, the Naval Discipline Act, the Indian Navy (Discipline) Act, 1934 or the Air Force Act but not to affidavits presented to any Court or Officer, nor to proceedings before an arbitrator. In fact the Indian Evidence Act is a major procedural law and applicable before a court of law in the both civil and criminal proceedings. There are in total 167 sections and besides then these some important sections have been incorporated and inserted in the meantime. The whole Act have been divided in three Parts and eleven Chapters. The Part I (sec. 1 to 55) deals with the relevancy of facts and prescribes the detail provisions that how a fact/incident/thing shall be relevant with the fact in issue (matter of disscussion/consideration) before the court of law. The Part II (sec. 56 to 100) deals with the proof and prescribes the detail provisions that how an evidence (both the oral and documentary) shall be admissible before the court of law during inquiry/trial. The Part III (sec. 101 to 167) deals with the production and effect of evidence wherein it is specifically specified that the burden of proving a fact/right lies on which party to the suit/case and how it shifts, who will be the competent witness before the court of law to dipose, order of production and examination of witnesses and the manner of examination of witness by both the parties. The Indian Evidence Act is a such a sound and beautiful legislation which was enacted by the Parliament of Britian about hundred and fourty years before but its applicability and relevancy is still tremandious in regards to the administration of justice system in India specially in the court procedures. In my humble opinion it is the greatest gift to the people of India by the Parliament of England in the legal history. The Act abolished all the existing traditional customary rules of evidence in the then court procedures and gave the new systematic and scientific approaches to the rule of evidence or the manner of proving a fact/case to arrive at a just decision/adjudication of the matter in dispute. The Act provides the rule of evidence in both the civil and criminal trial/adjudication. Now I will discuss with my facebook friends that how an offence initiates , proceedings starts and due trial complets. Though in appearance a criminal proceeding and the civil one seems to be similar but in fact there is a vast differences in between them with respect to cause of action, judicial proceedings and laws applicable to them. A criminal proceeding starts with the commission of a n offence or by the encroachment to the person and property of another on the other hand a civil suit initiates with the violation of the legal right of another.Unlike in a crime there is no necessary of having any mens rea or intention for the initiation of a civil suit. As soon as there is a violation of the legal right of another there arises the cause of action and for the same he may file a civil suit before a civil court which will be compensiated by a damage/remedy either liquidated or unliquidated. The offences have been catagorised in different catagory as have been provided in the Code of Criminal Procedure with respect to its nature, gravity, seriousness and its effect to the society. Under section 2(a) of the Code defines the offence as a “bailable offence” and “non-bailable offence”. Again section 2(c) defines the offence as “cognizable offence” and section 2(l) defines “non-cognizable offence”. In general and practical term and practices bailable and non-cognizable offence is less serious and simple on the other hand the non-bailable and cognizable one is serious and dangerious in nature and gravity. As soon as an offence is committed the cause of action also arises. But it is here to be mentiond that for the arising of acuse of action that particular act or omission on the part of that culprit/miscreant should be punishable in law at the time of the commission of the same. Otherwise there shall not arise the cause of action for the same. And it is the cardinal principle of criminal jurisprudence that the criminal law shall apply in its prospective effect and not the retrospective one. It means that the criminal liability of a particular miscreant arises only if that particular act or omission is punishable at the time of commission of the same. As soon as an offence is committed it shall be duty or obligation on the part of the victim or the person on his behalf to approach before the local police station having territorital jurisdiction over the same and lodge an FIR/GDE or he can directly approach before any Magistrate to file the complaint. Section 190 of the Code provides the provision for cognizance of offences by Magistrate. It is in three ways viz. a) upon receiving a complaint, b) upon a police report, and c) upon information received from any person other than a police officer, or sue moto by the Magistrate. Again the offence has been divided in two catagory in respect to its trial i.e the Magistrial trial and Session trial and in trial also it is divided in two category i.e summons trial and warrant trial. From the lodging of an FIR/GDE to the disposal of the case there are several stages which a criminal case has to go but it is not possible to discuss all these in this short wrining in facebook within a few hours. So I hereby kindly ask apology for that omission. The burden of proving of the fact of commission of an offence is totally lies upon the prosecution/state beyond reasonable doubt in failure of the same acquittal of the accused is the general rule. The role of the judge during trial is neutral and never takes initiative to discover the truth. The Indian judicial system is Adversarial system of common law inherited from British colonial rulers unlike some other western countries which have adopted the Inquisitorial system in their judicial system wherein in India judge will decide the case in merit in accordance with the matter supplied to him by the both the parties. Lastly to sum up my todays writing I hereby humbly conclude with the view that a crime is henious, inhuman and should be discarded by every human civilized society. It is against the law and morality. The supreme power/ Almighty/God has created the human being and other creatures with full efficiency, accuracy and plannings. If it is created by Him then the sole and absolute right to distruct the same only vests in Him. No one has right and power either legally or morally to do so. We should always think once before harming anybody whether have we got right to harm others? I hereby also humbly opine that if we cant help others then its okey but at least we should not harm them. Peace, love and universal brotherhood is the demand of present day world and also sine qua non for crimeless society. It is also the command of the Constitution and the Fundamental Duties enshrined in Art. 51-A of the Constitution. We should always keep these things in our mind then only our society will get sound environment and there will be the protection of the rights of a person and the property of the individuals vis-a-vis prosperity of the nation. Jai Hind..............! Soliciting yours kind suggestions .............................! Sourav Subba B.A (Law) LL.M, WBJS Date: 21.11.2014 Place: Diamond Harbour, Calcutta
Posted on: Fri, 21 Nov 2014 03:52:44 +0000