The Difference Between The Indian Penal Code And The Code Of Criminal Procedure

Introduction

Law, as a general concept, is divided between substance and procedure. The substantive provisions of legislation inform the related procedural provisions and vice versa. Criminal law is no different.

Legislation, in a criminal context, is essentially drafted in order to set out the circumstances (i.e. substantive law) and procedures (i.e. procedural law) in terms of which persons, juristic or otherwise, may be punished by the State under which those laws have been enacted. Therefore, it is the substantive aspects of criminal law that focus on principles of law according to which criminal liability is determined and the procedural aspects of criminal law that focus on the procedures used to decide criminal liability and related punishments.

The Republic of India incorporates substantive aspects of criminal law in a piece of legislation entitled The Indian Penal Code No 45 of 1860, or the IPC. The corresponding procedural legislation is the Code of Criminal Procedure No 2 of 1974, or the CrPC. The differences between these two pieces of legislation will be discussed in more detail below.

The Adversarial System

As a starting point in the analyses of any legal system, it is important to note whether the legal system in question is adversarial or inquisitorial in nature.

The legal system is India is adversarial in that “it is a system of criminal justice in which conclusions as to liability are reached by the process of prosecution and defence.”[i] In such a system, the onus of proof is on the State (prosecution) and the court plays no part in the investigation of the case at hand. The accused is considered to be innocent until proven otherwise and to a degree that is beyond a reasonable doubt.

The inquisitorial system is a system of criminal justice “in which the truth is revealed by an inquiry into the facts conducted by the judge.”[ii]

The Indian Penal Code No 45 of 1860 (IPC)

Simply put, the IPC was enacted for purposes of providing a general penal code for India[iii] (excluding the States of Jammu and Kashmir which are governed in this respect by the Ranbir Penal Code) which defines all crimes possible of being committed within India and the penalties associated with those crimes.

The IPC applies to every person within India or to those liable under Indian law. The IPC defines a ‘person’ in section 11 as including “…any company or association or body of persons, whether incorporated or not.”

The IPC is broken up into a 23 chapters, the majority of which set out the details of specific crimes and the consequences associated with those crimes. Punishments under the IPC are put into five broad categories[iv], namely –

1. death (this relates to crimes such as “waging, or attempting to wage war, or abetting waging of war” against the government of India[v]);
2. imprisonment for life;
3. general imprisonment, namely ‑
   1. rigorous, that is, with hard labour; or
   2. simple;
4. forfeiture of property; and
5. a fine.

The Code of Criminal Procedure No 2 of 1974 (CrPC)

The CrPC was enacted for purposes of consolidating the law relating to criminal procedure in India (again, to the exclusion of the States of Jammu and Kashmir and only in certain circumstances to the state of Nagaland and the ‘tribal areas’ as defined in the CrPC).[vi]

The CrPC provides for mandatory procedures relating to the –

1. investigation of crimes;
2. apprehension of suspected criminals;
3. collection of evidence;
4. determination of guilt or innocence of the accused;
5. determination of punishment of the convicted;[vii]
6. examination of witnesses;
7. procedures of interrogation;
8. procedures of a trial and bail; and
9. procedures of arrests.

In applying the abovementioned points, the CrPC divides the procedure to be followed in respect of the administration of a criminal trial into three broad categories, namely –

1. Phase 1: The Investigation: where evidences is collected;
2. Phase 2: An Inquiry: judicial proceedings where the judge ensures for himself before going on trial, that there are reasonable grounds to believe that the person is guilty; and
3. Phase 3: The Trial: the judicial proceedings of the accused’s guilt or innocence.[viii]

The Difference between the IPC and the CrPC

In light of what has been discussed in the preceding paragraphs, the differences between these two pieces of legislation can be considered as vast, as each has its emphasis on a separate aspect of law- one being substance and the other procedure. Each one exists as a separate item yet is wholly dependent on the other. This is evidenced by the fact that without the IPC, the provisions and procedures of the CrPC could not be enforced as there would be no definition of any crime and no possible sanction relating to that crime. Conversely, without the CrPC the sanctions and punishments as set out in the IPC could not be applied to a convicted person.

Under the adversarial system in terms of which the criminal justice system in India is based, it is of great importance that these two pieces of legislation co-exist in order to ensure both the substantive and procedural fairness of a trial.

The difference in each piece of legislation is simply based on the purpose for which that piece of legislation has been enacted, namely –

1. in the case of the IPC, to provide a general penal code for India; and
2. in the case of the CrPC, to consolidate the law relating criminal procedure in India.

Conclusion

On a brief considering the aspects of an adversarial system of law which governs the legal system in India, and the codes which govern this system, it can be noted that –

1. the IPC, which pertains to substantive law, outlines the various crimes which may be committed, and the five broad categories of punishment which these crimes would invoke;
2. the CrPC, pertaining to procedural law, relates to the mandatory procedures which must be enacted during the administration of a criminal trial;
3. while these codes are different in nature, they are wholly dependent on each other; and
4. without the application of these codes in criminal law in India, substantive and procedural fairness in criminal trials could not be ensured.
   

Author: Cullen Gordge

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