Dipti Khatri, UPES Dehradoon
Editor’s Note: This project essentially seeks to analyze the criminal procedure in India with a brief analysis of case laws.
In medieval India, after the Muslim conquest, the ‘Mohammedan criminal law’ came into prevalence. Subsequent to this, The British passed the ‘Regulating Act of 1773’ which led to the establishment of Supreme courts in three presidency towns of Calcutta, Bombay and Madras. The effect of the statute was to apply British procedural law while deciding upon the cases of Crown’s subjects. After 1857 Revolt, the crown took over the Indian administration. The British parliament passed the Criminal Procedure Code, 1861 which continued till post-Independence era and was amended in 1969. It was finally replaced in 1972.
The Code of Criminal Procedure Code,
1973 [i] (Act No. 2 of 1974[ii]) is the main legislation on the procedure for administration on substantive criminal law in India[iii] which provides the machinery for the investigation of crime, apprehension of suspected criminals, collection of evidence, determination of guilt or innocence of the accused person and the determination of punishment of the guilty. Additionally, it also deals with public nuisance, prevention of offences and maintenance of wife and children.The Act consists of 484 sections, which are further divided into 38 chapters, 2 schedules and 56 forms.
- Territorial extent, scope and applicability of this act: It is applicable to the whole of India except the state of Jammu and Kashmir as the parliament’s power to legislate in respect of the said state is curtailed by Article 370 of constitution of India. Provided that the provisions of this code, other than those relating to chapters VIII,X and XI thereof, shall not apply:
- To the state of Nagaland
- To the tribal areas in Assam
But the concerned state Government may, by notification, apply such provisions or any of them to the whole or part of the state of Nagaland or such tribal areas, as the case may be specified in the notification.[iv]
1.2 Functionaries under the code: include the Magistrates and Judges of theSupreme Court and high Court, Police, Public Prosecutors, Defence Counsels Correctional services personnel.
Functions, Duties and Powers ofthese Machineries:
a)Police:The code does not mention anything about the constitution of police. It assumes the existence of police and devolves various powers and responsibilities on to it. The police force is an instrument for the prevention and detection of crime.[v]
The administration of police in a district is done by DSP(District Superintendent of Police) under the direction and control of District Magistrate.[vi]Every police officer appointed to the police force other than the Inspector-General of Police and the District superintendent of police receives a certificate in the prescribed form by the virtue of which he is vested with the powers, functions and privileges of a police officer which shall be cease to be effective and shall be returned forthwith when the police officer ceases to be a police officer.[vii]The CrPC confers specific powers such as power to make arrest, search and investigate on the members of the police force who are enrolled as police officers. Wider powers have been given to police officers who are in charge of a police station.As per section 36 of CrPC which reads as “ the police officers superior in charge of a police station may exercise the powers of such officials.”[viii]
If the crime is of cognizable in nature, the state participates in a criminal trial as a party against the accused. Public Prosecutor or Assistant Public Prosecutor is the state counsel for such trials.Its main duty is to conduct Prosecutions on behalf of the state. The public Prosecutor cannot appear on behalf of accused.[ix] According to the prevailing practice, in respect of cases initiated on police reports, the prosecution is conducted by the Assistant Public Prosecutor and in cases initiated on a private complaint; the prosecution is either conducted by the complainant himself or by his duly authorized counsel.
- c) Defence Counsel: According to section 303, any person accused of an offence before a criminal court has a right to be defended by a pleader of his choice. Such pleaders are not in regular employment of the state and a paid remuneration by the accused person. Since, a qualified legal practitioner on behalf of the accused is essential for ensuring a fair trial, section 304 provides that if the accused does not have means to hire a pleader, the court shall assign a pleader for him at state’s expense. At present there are several schemes through which an indigent accused can get free legal aid such as Legal Aid Scheme of State, Bar Association, Legal Aid and Service Board and Supreme Court Senior Advocates Free Legal Aid society. The legal Services Authorities Act, 1987 also provides free legal aid for the needy.
- d) Prison authorities and Correctional Services Personnel: The court presumes the existence of Prisons and the Prison authorities. It empowers Magistrates and judges under certain circumstances to order detention of under trial prisoners in jail during the pendency of the proceedings. It also empowers the courts to impose sentences of imprisonment on convicted persons and to send them to prison authorities. However, the code does not make specific provisions for creation, working and control of such machinery. These matters are dealt with in separate acts such as The Prisons Act 1894, The Prisoners Act 1900 and The Probation of Offenders Act 1958.
- The rationale of criminal procedure:
- a) Importance of fair trial:One of the primary goals of criminal law is to protect society by punishing the offenders. However, justice and fair play require that no one be punished without a fair trial. A person might be under a thick cloud of suspicion of guilt, he might have been caught red-handed, and yet he is not to be punished unless and until he is tried and adjudged to be guilty by a competent court. In the administration of justice it is of prime importance that justice should not only be done but must also appear to have been done. Further, it is one of the most important principle of criminal law that everyone is presumed to be innocent unless his guilt is proved beyond reasonable doubt in a trial before an impartial and competent court.Therefore it becomes absolutely necessary that every person accused of crime is brought before the court for trial and that all the evidence appearing against him is made available to the court for deciding as to his guilt or innocence.[x]
Articles 20 and 22 of the constitution of India provide for certain safeguards to the persons accused of offences. Article 20 secures the protection of the accused persons, in respect of conviction for offences, fromEx post facto laws, double jeopardy and prohibition against self-incrimination.Similarly, Article 21 of the constitution of India ensures the protection of life and liberty which reads as “no person shall be deprived of his life or personal liberty except according to the procedure established by law. This right may be affected in cases of preventive detention under preventive detention laws. As such, Constitutional protection against arrest and detention is ensured under article 22(1) to (7) of the constitution of India.
3.Criminal Trial in Indian Law: From Charge to Conviction or Acquittal:-
3.1 The criminal procedure in India is governed by the CrPC 1973.It divides the procedure to be followed for administration of criminal justice into three stages namely-
- Investigation- where evidences are to be collected.
- Inquiry- a judicial proceeding where judge ensures for himself before going on trial, that there are reasonable grounds to believe that the person is guilty.
- Trial- the judicial adjudication of a person’s guilt or innocence.[xi]
3.2 According to the provisions of CrPC, there are three types of criminal trial:
(A) Trial of Warrant cases
- Relates to offences punishable with death, imprisonment for life or imprisonment for a term exceeding two years.[xii]
- Employed in most offences such as theft, Rape, Murder, Kidnapping, cheating etc. except in cases of defamation.
- The trial procedure in respect of these offences is contained in sections 238-250.
- The CrPC provides for two types of procedure for the trial of warrant cases by a Magistrate, viz. those instituted upon a police report where lot of record made during investigations by the police is made available to the court and to the accused person and those instituted upon complaint i.e. otherwise than on police report where such record cannot be available.
(B) Trial of Summons cases:
- A summon case means a case relating to an offence, and not being a warrant case. These cases are tried with much less formality than warrant cases,the manner of their trial is less elaborated and the method of preparing the record (of evidence) is less formal.
- An abridged form of warrants trial, where some proceedings are omitted to ensure swift process but at the same time basic postulates of fair trial are retained.
- Cases relating to an offence punishable with imprisonment not exceeding 2 years.
- If a magistrate, after examining the case, does not find it fit to be called as a summons case, he may convert it into a warrant case.
- The trial procedure prescribed for these cases are contained in sections 251-259.
- In respect to these cases, there is no need to frame a charge. The session court gives substance of the accusation (notice) to the accused when the person appears in pursuance to the summons.
- The court has the power to convert a summons case into a warrant case, if the magistrate thinks that it is in the interest of justice.
(C) Summary Trial:
- The trial procedure for these cases is contained in sections 260-265.
- An abridged form of regular trial and is resorted to in order to save time in trying petty cases.
Section 260(2) of the code lists certain offences which may be tried summarily by any Chief Judicial Magistrate, any Metropolitan Magistrate or any Judicial Magistrate First Class. A First class Magistrate must first be authorized by the respective High court to that effect before he may try cases summarily under this section.
Offences triable in a summary way:
- Offences not punishable with death, life imprisonment, or imprisonment for a term exceeding 2 years.
- Theft under section 379, 380, and 381 of the IPC provided that the value of the stolen property is below Rs 2000.
- Receiving or retaining stolen property under section 411 of the IPC where the value of the stolen property is below Rs 2000.
- Assisting in the concealment or disposal of stolen property, under section 414 of the IPC, the value of the stolen property being below Rs 2000.
- Lurking house-trespass (section 454 of the IPC) and house-breaking(section 456 of the IPC) by night.
- Abetment of any of the above mentioned offences.
- Attempt to commit any of the above mentioned offences.
- Offences with respect to which complaints may be made under section 20 of the Cattle Trespass Act, 1871.
Apart from the above, a Second Class Magistrate may, if so empowered by the High court, summarily try an offence punishable with fine or with imprisonment not exceeding 6 months or the abetment or attempt to commit such an offence.A summary trial tried by a magistrate without being empowered to do so is void. The maximum sentence that may be awarded by way of a summary trial is three months with or without fine.[xiii]
- Stages of Criminal Trial in India
(i) Registration of F.I.R
- Lodged under section 154 of the code which provides for the manner in which such information is to be recorded.
- Statement of the informant as recorded under section 154 is said to be the First Information Report. Its main object is to set the criminal law in motion.
- FIR means the information, by whomsoever given, to the officer in charge of a police station in relation to the commission of a cognizable offence and which is first in point of time and on the strength of which the investigation into that offence is commenced.
- Its evidentiary value: – It is not substantive evidence i.e. not the evidence of the facts which it mentions. Its importance as conveying the earliest information regarding the occurrence cannot be doubted.[xiv] It can be used to corroborate the informant under section 157 of the Indian Evidence Act, 1872, or to contradict him under section 145 of the act, if the informant is called as a witness at the time of trial.[xv]
- ii) Commencement of investigation:
- It includes all the efforts of a police officer for collection of evidence: Proceeding to the spot; ascertaining facts and circumstances; discovery and arrest of the suspected offender; collection of evidence relating to the commission of offence, which may consist of the examination of various persons including the accused and taking of their statements in writing and the search of places or seizure of things considered necessary for their investigation and to be produced at the trial; formation of opinion as to whether on the basis of the material collected there is a case to place the accused before a magistrate for trial and if so, taking the necessary steps for the charge-sheet.
- Investigation ends in a police report to the magistrate.
- It leads an investigating officer to reach a conclusion whether a charge-sheet has to be filed or a closure report has to be filed.
iii) Framing of charges: If a person is not discharged, trial begins by framing a charge (nothing but a specific accusation against the accused) and reading and explaining it to him (so that he knows what he is to force).[xvi]
- iv) Conviction on plea of guilty: After framing of charges the judge proceeds to take the ‘plea of guilt’ which is an opportunity to the accused to acknowledge that he pleads guilty and does not wish to contest the case. Here the judge responsibility is onerous- a. to ensure that the plea of guilt is free and voluntary, b. He has to ensure that if there had been no plead of guilt- was the prosecution version if unrebutted- would have led to conviction.If both the requirements are met-then judge can record and accept plea of guilt and convict the accused after listening to him on sentence.
v)Recording of the prosecution Evidence: Examination of prosecution witness by the police prosecutor, marking of exhibits and cross examination by defense counsel.
- vi) Statement of the Accused:
Section 313 of the Criminal procedure empowers the court to ask for explanation from the accused if any. The basic idea is to give an opportunity of being heard to an accused and explain the facts and circumstances appearing in the evidence against him. Under this section, an accused shall not be administered an oath and the accused may refuse to answer the questions so asked. The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him.[xvii]
vii) Evidence of Defense: In cases of accused not being acquitted by the court, the defense is given an opportunity to present any defense evidence in support of the accused. The defense can also produce its witnesses and the said witnesses are cross- examined by the prosecution. However, in India the defense does not provide defense evidence as the criminal justice systemputs burden of proof on the prosecution to prove that a person is guilty of an offence beyond the reasonable doubt.
- ix) Final arguments on both the sides: once the public prosecutor and the defense counsel present their arguments, the court generally reserve its jugdement.
x)Judgement: Judgement is the final reasoned decision of the court as to the guilt or innocence of the accused. After application of judicial mind, the judge delivers a final judgement holding an accused guilty of an offence or acquitting himof the particular offence. If a person is acquitted, the prosecution is given time to file an appeal and if a person is convicted of a particular offence, then date is fixed for arguments on sentence. Once a person is convicted of an offence, both the sides present their arguments on what punishment should be awarded to an accused. This is done in cases which are punished with death or life imprisonment. After the arguments on sentence, the court finally decides what should be the punishment for the accused. While punishing a person, the courts consider various theories of punishment for the accused. While punishing a person, the courts consider various theories of punishment like deterrent theory of punishment and reformative theory of punishment. Court considers the age, background and history of an accused and the judgement is pronounced accordingly.
The foregoing discussion reveals that police organizations of many countries have launched various schemes and programmes for people’s participation in policing.[xviii]
But there is still a need for the modification of the situation and thereby the agency of criminal justice system namely the police to protect the human rights of citizens and fulfill the objective of welfare state. The most important transition that merits urgent attention hinges on the attitude of the average policemen in their day-to-day work. To make this task possible, a great amount of social awareness coupled with the self-awareness on the part of the police personnel is a primary pre-requisite.In specific cases related to arrests and other offences also where there is a scope for the misuse of police power, the abuse of police power can be stopped by Transparency of action and Accountability.[xix]
This work provides a lucid study of the fundamental principles of the criminal procedure in a logic sequence.
The topic-wise treatment of the subject along with references to academic writings and the judicial decision make the study of criminal procedure meaningful and comprehensible.
The indispensable role played by judges and magistrates in the fair administration of justice has been discussed in the assignment. The role of both the prosecutors and defense lawyers has also been emphasized whenever relevant.
The Procedure for Criminal Trial in Indian Law had been given due attention in this assignment. The assignment has tried to provide some of the basic rules that regulate a fair trial at the pre-trial, investigative and trial stages.
Edited by Saksham Dwivedi
- Received the assent of the President of India on January 25, 1974 and came into force on
- April 1, 1974.
- An act to consolidate and amend the law relating to Criminal Procedure.
- Dalbir Bharti, The Constitution and criminal justice system328(A.P.H. Publishing Corporation, New Delhi, 2005).
- Mowu v. The Superintendent (1971) 3 SCC 936
- The Police Act, 1861 (Act 5 of 1861)
- Superintendent Of police v. Dwarka Das (1979) 3 SCC 789.
- State of Bihar v. J.A.C Saldanha (1980) 1 SCC 554.
- Sunil Kumar Pal v. Phota Sheikh (1984) 4 SCC 533.
- Dr K N Chandrasekharan Pillai, Criminal Procedure 31 (Eastern Book Company, Lucknow, 5th,2008)
- The Process of Criminal Trial in India, available at:http://www.article2.org/mainfile.php(Visited on November 3, 2013).
- (x) of S.2.
- Code of Criminal Procedure 1973, India, available at: http://en.wikipedia.org/wiki
(Last Modified July 2, 2013).
- Hasib v. State of Bihar (1972) 4 SCC 773.
- Ravi Kumar v. State of Punjab (2005) 9 SCC 315.
- The Laws of India- A Common Man’s guide,available at:http://bharatchugh.wordpress.com(Last Modified March 13, 2012).
- Criminal Trial in Indian Law, India, available at: http://spreadlaw.blogspot.in(Visited on November 5, 2013).
- Dalbir Bharti, Police and People 106( APH publishing , New Delhi,1st, 2006)
- Fair Trial Manual, India, available at: http://www.humanrightsinitiative.org (Visited on November 7, 2013)