History and Evolution of Criminal Procedure in India: From the Dharmashastra and Mughal Nizamat to the CrPC, 1973 and the BNSS, 2023

Indian criminal procedure has passed through four phases. In the first it was a branch of religious and customary law administered by the king. In the second it was the criminal law of the Mughal state, largely Islamic in content, which the East India Company inherited and progressively altered. In the third it was codified by the colonial legislature between 1861 and 1898 and consolidated after independence in the Code of Criminal Procedure, 1973. In the fourth, which began on 1 July 2024, it is the Bharatiya Nagarik Suraksha Sanhita, 2023.

Each phase preserved much of what preceded it. The classification of offences as cognizable and non-cognizable, the division between summons cases and warrant cases, the institution of the first information report and the structure of appeal and revision all date from the nineteenth century and survive unchanged in substance in the Sanhita. The present law is intelligible only as the latest layer on a very old structure.

Figure 1: The four phases in the evolution of Indian criminal procedure and what each contributed

1. The Classical Period

In the classical Indian tradition the administration of justice was a function of the king, exercised as part of his duty to protect. The governing texts were the Dharmashastras, principally the Manusmriti, the Yajnavalkya Smriti and the Narada Smriti, supplemented by commentaries and by local custom. Punishment, or danda, was the instrument by which the king preserved order, and its infliction was regulated rather than arbitrary. The texts required the king to consider the nature of the offence, the time and place, and the strength, age and learning of the offender, and to punish only after deliberation.

1.1 The Arthashastra and the beginnings of procedure

Kautilya’s Arthashastra describes a recognisably procedural system. It distinguishes the Dharmasthiya courts, which decided disputes between individuals, from the Kantakasodhana courts, which dealt with what would now be called offences against the state and the public and which exercised wide powers of investigation and suppression. It prescribes rules for the examination of witnesses, the recording of depositions, the inspection of the scene of an occurrence, the use of circumstantial indications and the interrogation of suspects.

1.2 The graded hierarchy of forums

The system had no separation between the investigative and the adjudicatory function, no professional prosecution and no settled law of evidence in the modern sense. Its importance for the present subject lies in three ideas that survive: a graded hierarchy of forums, an appeal from a lower forum to a higher one, and punishment proportioned to the circumstances of the offender and the offence.

2. The Sultanate and Mughal Period

From the thirteenth century the criminal law administered in most of northern India was Islamic law as interpreted by the Hanafi school. The classification of offences determined both the punishment and the procedure by which it was arrived at.

2.1 The classification of offences

2.2 The administrative machinery

2.3 The defects that attracted reform

1. Homicide was treated substantially as a private wrong which the heirs could compound, so the State had no assured control over the prosecution of the gravest offence.
2. The rules of evidence disqualified entire classes of witnesses and required a number of witnesses that made proof of certain offences practically impossible.
3. Punishments included mutilation.
4. The distinction between wilful and accidental killing turned in part on the instrument used rather than on the intention of the offender.

These four defects, as they appeared to the Company administration, are the specific matters that the Bengal Regulations of 1790 to 1793 addressed, and they explain why the earliest colonial intervention in criminal law was not a code but a series of targeted alterations to an existing system.

3. The East India Company and the Beginning of Reform

The Company acquired the Diwani of Bengal, Bihar and Orissa in 1765 but left the nizamat, the criminal administration, in the hands of the Nawab’s officers. Reform proceeded in stages over the following thirty years.

By the middle of the nineteenth century the result was a patchwork: English law in the Presidency towns, Regulations of three different Presidencies in the interior, and Company courts of uncertain relation to the Crown’s courts. Codification was driven as much by this administrative incoherence as by any theory of law reform.

4. Codification: The Colonial Codes of Criminal Procedure

The Charter Act of 1833 created a single legislative authority for British India and provided for a Law Commission. The First Law Commission was appointed in 1834 with Macaulay as its President and produced the Draft Penal Code in 1837. Procedure, however, became urgent first, because the dual system of courts could not be unified without a common procedure.

4.1 What the Code of 1898 established and what survives

The 1898 Code gave Indian criminal procedure the shape it retains. Its classification of offences as cognizable and non-cognizable and as bailable and non-bailable, its distinction between summons cases and warrant cases, its machinery of first information and police investigation, its committal proceeding, its separate trial procedures before the Court of Session and before Magistrates, and its structure of appeal, reference and revision all pass through the 1973 Code into the Sanhita with changes of detail rather than of design.

4.2 What did not survive

• The racial distinction. The 1898 Code contained a separate chapter regulating the trial of European British subjects, conferring procedural privileges unavailable to Indian subjects. It was progressively diluted and removed after independence.
• Trial by jury and with assessors. Jury trial operated unevenly across the country, was criticised in successive Law Commission reports for producing verdicts against the weight of evidence, and was not carried forward into the Code of 1973. A trial in India today is a trial by a judge alone.
• The elaborate committal inquiry. The preliminary inquiry by a Magistrate, at which the prosecution led evidence before commitment, was replaced in 1973 by a simple order of commitment on a police report disclosing an offence exclusively triable by the Court of Session, now section 232 of the Sanhita.

5. The Constitution and the Code of Criminal Procedure, 1973

The Constitution changed the setting in which the 1898 Code operated. Its requirements are the constitutional foundation of every provision now found in the Sanhita.

5.1 The Law Commission groundwork

• The Fourteenth Report, 1958, on the Reform of Judicial Administration, surveyed the system as a whole and identified delay, the state of the subordinate judiciary and the absence of separation as the central problems.
• The Thirty-seventh Report, 1967, examined the first part of the 1898 Code, sections 1 to 176.
• The Forty-first Report, 1969, contained the comprehensive examination of the Code on which the new legislation was based. The Bill was introduced in 1970 and enacted as the Code of Criminal Procedure, 1973, Act 2 of 1974, which came into force on 1 April 1974.

5.2 What the 1973 Code introduced

6. Evolution Through Constitutional Adjudication

Between 1974 and 2023 the text of the Code changed less than the law of criminal procedure did. Much of the development came from the Supreme Court reading constitutional requirements into procedural provisions. Two decisions of 1978 mark the turn.

The same method produced the guidelines on arrest and custodial safeguards, the rules on the registration of first information, the development of compensation in public law for custodial harm and the jurisprudence on speedy trial. A striking proportion of what the Sanhita now states expressly entered the law first as judicial direction and was afterwards absorbed into the statute.

7. Amendments to the Code of 1973

8. The Reform Committees and the Decision to Replace the Code

Figure 2: The road from the Code of Criminal Procedure, 1973 to the Bharatiya Nagarik Suraksha Sanhita, 2023

8.1 The committees

8.2 The case for replacement rather than amendment

The stated case was threefold. The Code of 1973, although enacted after independence, rested on a colonial structure and vocabulary. Fifty years of insertions had left it internally uneven, with lettered sections and provisos accumulating around an unchanged frame. And the incorporation of technology, forensic science and statutory timelines was said to require a fresh enactment rather than further insertions. The declared aim, repeated in the parliamentary debates, was a system oriented towards the delivery of justice rather than the infliction of punishment, and towards the citizen, which the title of the Sanhita reflects.

9. Key Takeaways

10. Frequently Asked Questions

Which was the first Code of Criminal Procedure in India?

Act XXV of 1861, enacted in the same year as the Indian High Courts Act, 1861. It was replaced in 1872, again in 1882, and again by the Code of Criminal Procedure, 1898.

Which Code first applied a uniform procedure across British India?

The Code of Criminal Procedure, 1882. Before it, the Presidency towns and the mofussil were governed by different procedures, a duality that began with the Charter of 1726 and ended institutionally with the Indian High Courts Act, 1861.

On which Law Commission report is the CrPC, 1973 based?

Principally the Forty-first Report of 1969, preceded by the Fourteenth Report of 1958 on the Reform of Judicial Administration and the Thirty-seventh Report of 1967.

When was trial by jury abolished in India?

Jury trial was progressively discontinued across the States and was not carried forward into the Code of Criminal Procedure, 1973. The Law Commission had criticised it for producing verdicts against the weight of evidence. A criminal trial in India is today conducted by a judge alone.

Which committee recommended the replacement of the CrPC?

The Committee for Reforms in Criminal Laws constituted by the Ministry of Home Affairs in 2020 under the chairmanship of Professor Ranbir Singh undertook the comprehensive review that formed the immediate background to the three Bills of 2023. Earlier groundwork was laid by the Malimath Committee in 2003 and the Madhava Menon Committee in 2007.

What is the contribution of the Mughal period to modern Indian criminal procedure?

The institutional vocabulary of local law enforcement. The faujdar as the district officer responsible for the maintenance of order and the apprehension of offenders, and the kotwal as the city officer exercising patrol and registration functions, are the direct ancestors of the district and station-level police structure that the Sanhita presupposes.

Related Topics

• Introduction to the Bharatiya Nagarik Suraksha Sanhita, 2023
• Object, Scope and Scheme of the Bharatiya Nagarik Suraksha Sanhita, 2023
• Constitution of Criminal Courts and Offices: Sections 6 to 20, BNSS
• Separation of the Judiciary from the Executive: Judicial and Executive Magistrates
• Repeal and Savings: Section 531 and the Transition from the CrPC, 1973