INTRODUCTION

The long title of the Code of Criminal Procedure 1973 describes it as An Act to
consolidate and amend the law relating to Criminal Procedure, thus making its
purpose and the intent of the legislature behind its enactment clear. The Code,
which also contains provisions regarding FIRs, arrest, trial and establishment of
guilt/innocence in the best interests of justice, has been preceded by several
attempts to ascertain and determine the criminal procedure to be followed with
regard to offences committed in India/by Indians. Before the advent of
colonialism, when India was under Islamic dynasties, it was Mohammedan
substantive and procedural law that was widely applicable, including to criminal
law, after which, with the East India Company, came the British Regulating Act of
1773. Among the outcomes of this Act was the setting up of a Supreme Court of
Judicature at Calcutta (now Kolkata) in accordance with its provisions, which was
to apply British procedural law while dealing with crimes committed/alleged to
have been committed by the Crowns subjects in India only (since India was not
yet under the sovereignty of the Crown this meant the British in India alone),
followed by the establishment of British courts in Madras and Bombay, the other
two Presidency towns.

After India became a dominion of the British Crown in 1858, the phrase subjects
of the crown came to include all residents of India including the natives, and
British procedural law became universally applicable, first codified in the Code of
Criminal Procedure 1861. Although India attained independence as early as
1947, like most British laws, the CrPC 1861 was retained as it was and amended
2 decades later in 1969, after which it was replaced by the present Code in 1973.

In this paper the author will conduct a detailed analysis of procedural law in India
in all the periods herein mentioned, as well as attempt to trace the evolution of
criminal procedure in India from Mohammedan law to the present code, and the
defects corrected by legislators in the latter.
 1. MOHAMMADAN CRIMINAL LAW, WITH SPECIAL EMPHASIS ON CRIMINAL
PROCEDURE HEREINUNDER

Prior to the arrival of the East India Company in 1600 and its assumption
of power almost 2 decades later, since India was under Mughal
rule(although merely symbolic by this time) at the centre and Muslim rule
(of Nawabs, such as in Awadh, Bengal etc.) in most provinces,
Mohammadan criminal law was almost exclusively applicable throughout
the subcontinent. This was ensured by the above-mentioned widespread
Muslim rule at the time, as well as by a long history of Sultanate and
Mughal rule prior thereto.
Muslim criminal law is derived primarily from three sources the Quran,
Hadith(commentaries on the life and times of the Prophet Muhammad)
and the application of mind by the Qazi/judge.
Crimes are divided into three categories: Hudud (crimes against God) ,
qisas(an eye for an eye) and tanzir(punishment dependent on the
discretion of Qazi/state).

I HUDDUD
These are among the most severe crimes conceivable in Islamic
jurisprudence, as well as in popular Muslim opinion. Literally meaning
limits, these are looked down upon as crimes against God and violative
of His, Allahs, boundaries.
Examples of offences falling under this category are adultery, theft,
robbery, different forms of illicit sexual intercourse such as rape, incest,
etc. and false accusing others of having committed such illicit sexual acts.
Hudud offences are punishable under the Quran and Sunnah by severe
penalties such as flogging, amputation and beheading, evidently intended
to have a deterrent impact on those who fall under the Sharias criminal
jurisdiction, and to cause the most severe retribution possible to the
respective offenders.

II QISAS
Although these, too, are serious offences, unlike Hudud offences, they
are not crimes against God. Qisas literally means an eye for an eye, that
is, punishments are meted out according to the retributive principle and
strict equality, commonly understood as tit for tat. For example
somebody who has been blinded may demand that her/his attacker be
blinded as well.
However, an option available to the offender in cases like these is to
purchase the forgiveness of the victim/family by payment of diyyah(blood
money). Acceptance hereof is completely at the discretion of the latter.

Although The Quran specifies the principle of Qisas (i.e. retaliation), but prescribes
that one should seek compensation (Diyya) and not demand retribution.
We have prescribed for thee therein (the Torah) a life for a life, and an eye for an
eye, and a nose for a nose, and an ear for an ear, and a tooth for a tooth, and for
wounds retaliation; but whoso remits it, it is an expiation for him, but he whoso will
not judge by what God has revealed, these be the unjust.