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Procedure of Criminal Justice System: A Critique

The researcher in this paper tries to establish about the criminal justice system followed in India. India follows the Adversial System of Justice, which means judge has to act as a neutral arbiter, thus, even the accused has the right to present his case. The accused is not guilty until he is proved guilty. After every crime, the state prosecutes the case. This paper mainly focuses on the procedural part of the state after the crime has taken place.

The flow of paper is general to specific, it starts from defining crime and differentiating crime and offence. It also focuses on explaining the functionaries and their role in the Criminal Justice System of India. It seeks to explain the essential ingredients in the procedure and also seeks to explain the procedure and how it has evolved and contextualized with help of Supreme Court judgments and guidelines. It also describes the power of the police, Magistrate and judges as per the Indian working.

Moreover, it deals with the Constitutional provisions of the rights of arrestee and Speedy Trial. Thus the paper tries to establish the chain that is followed in the Criminal Justice System after the Crime takes place. At the end it tries to differentiate regarding the provisions established in the Procedural Code to be followed and what is the actual scenario, thus it analyses the gap between the provisions and the real scenario.

I. Introduction
In the Criminal Justice System followed in India, there are three major acts that govern the Indian Penal System:
  1. Criminal Procedure Code (CrPC)
  2. Indian Penal Code (IPC)
  3. Indian Evidence Act (IEA)

These are the main texts but the Criminal Procedure Code provides the procedural aspect that what is the procedure to be followed, whereas the Penal Provisions provide regarding the Substantive effect of the law. The paper mainly deals with the Procedure that is to be followed after the Crime is committed.

1.1 Objective Of Criminal Procedure
Criminal Procedure is a tool for governing the behaviour of the people. Due to a large society, there might be enmity between the people, but there cannot exist a society, where everyone stands for oneself. Thus, the state has established a system where it would regulate and supervise that no one is bullied or no one is the victim. Thus, a uniform procedure that is established that would be followed by the state and that would be equal for every person that would commit crime.

Thus, the punishments rendered would create a deterrent effect and would forbid the criminals from doing such criminal acts and would promote peace and security in the society. The main objective of the Criminal Procedure is to create the necessary machinery for detection of crime, arrest of criminals, seizure of the weapons and collection of evidence, determination of guilt or innocence of the suspected people, punishing the guilty.[1]

As the procedure is codified in the book, thus there is a Rule of Law prevalent and thus there is no place for the misuse of power as in the system established, there is a limitation on everyone's power and thus this would help to govern smoothly. Though, there is misuse of power at many places in the system, which are the loopholes, but there is an alternative remedy present in order to smooth execution. Thus, the procedure gives the effect to the substantive laws and hence is very important in governing the societal conduct.

1.2 Concept of Crime and Offence
The definition of crime is not very clear. There have been many scholars who have tried to define crime, but no one could give an exhaustive or inclusive definition of crime. But crime is something that is in the social definition. Anything that has been prohibited by the society. Thus, crime varies with the environment, culture, custom, taboos, ideals, religious attitudes, customs of the society. Thus, there is no particular definition of crime.

Thus, something that is crime today, might not be a crime tomorrow or vice versa. Something that is not a crime today, might be a crime tomorrow. The concept of crime changes along with the changing society. For example, polygamy, dowry, untouchability, etc. which were once a common practice of people is a crime today.[2] As per the Natural theory of law, any act that would contradict or violate the basic moral code or ethics is crime, and the actions that do not violate the basic moral code or ethics is not crime.

But this is a very vague definition of crime as the ethical and moral code would differ from person to person. It would not be same for everyone. Thus, there cannot be a control that can be executed on the people. As per the Positive theory of law, there is a proper system, where the state would establish the acts that are legal, illegal, there is precision about the punishments etc. Thus, positive theory gives more precision, avoids vagueness and thus helps in governing the society efficiently.

But as per Indian Criminal Justice system, the offences are identified as criminal wrong done against the state. Thus, the offence will be committed against the state, not a single person, and hence the state would act upon it. Any act or omission made punishable by law is offence.[3][4] Thus, the Crimes are identified as offences and are codified in the texts.

1.3 Types of Offences
  1. Cognizable Offences: The offences in which the police can arrest the accused without warrant are cognizable offences. [5]
  2. Non-Cognizable Offences: The offences in which the police cannot arrest the accused without warrant are non-cognizable offences. [6]
  3. Bailable Offences: The offences in which the accused can get bail for the time being enforced are bailable offences.[7]
  4. Non-Bailable Offences: The offences in which the accused cannot get bail for the time being enforced are non bailable offences.[8]
These offences are classified accordingly in the first schedule. The cognizable offences are non-bailable offences. In other words, offences where police can arrest without warrant are non bailable, the arrestee cannot get bail for time being. Similarly, non-cognizable offences are bailable. The offences in which the police cannot arrest without warrant, the arrestee can get the bail for time being.

1.4 Functionaries of Criminal Justice System
There are majorly five functionaries of the Criminal Justice System, who govern the entire system:
  1. Police: The police is the most important functionary, where the main role of the police comes immediately after the crime takes place. The police has the work to investigate into the crime, find out the criminal.
  2. Prosecutor: The state appoints the Public Prosecutor and his duty is to present the case in the court as per the evidences collected by the police.
  3. Defence: The accused also had the right to make his points in the courts of law. Thus, the defence counsel would present the case on his behalf.
  4. Courts: There are different courts and in that hierarchy the cases proceed upwards and the courts are the neutral third parties that would render justice by hearing both the sides and convict the guilty.
  5. Prison Authorities: After conviction, the person is sent to the prison and there he is punished. The prison authorities have to look after and ensure that his conduct changes and would help the criminal a better life afterwards.

II. Inquiry, investigation and Trial

2.1 Inquiry
Every inquiry conducted by the Magistrate that is other than trial is inquiry.[9] Whenever the Magistrate sets an inquiry about the event which is not the trail but relating to trial or might not be relating to trial that would be included in the inquiry. This part has not been made very clear and so there have been various interpretations of the same. Inquiry is usually made in grievous offences.

2.2 Arrest
Arrest means apprehension by a legal authority and deprivation of liberty to that person. The arrest is done by the investigating officer in order to present the accused at the trial, just as a preventive or precautionary measure that there is no further threat or harm to the deceased or there is no threat that the accused would further commit such offenses, there is no temperament with the evidence, the investigation can be made more effective by eliminating the people that would make it biased.[10] The police can also arrest a person who is not the accused but hinders the investigation, or anyone who conspires the hinderance of the investigation.

The arrest is the discretion of police and he arrests people whenever and however he forms or thinks that would hinder the smooth running system. But the arrested person has to be presented before the Judicial Magistrate within 24 hours of the arrest for the Judicial Scrutiny. This was the arrest by police. Apart from police, whenever an offence has taken place and the accused is trying to run away and if a person, private person has refrained him from running away, then the Police can re-arrest him if he thinks fit.[11]

Also, if an offence has been committed in front of the Magistrate, then he can arrest that person, by taking suo moto cognizance, or in the case of complaint before the magistrate, the magistrate can direct the arrest of that person.[12] If a person is arrested, then the arrest memo of the arrested person has to be formed as per the provisions and must be attested by two respected members of the society.

2.3 Investigation
This starts after the commission of offence, when the police starts collection of evidence and search and seizure of the weapons and the information to be presented to the Magistrate. The investigation can also be conducted by any person other than police when the Magistrate directs him. But the Magistrate himself cannot take into the Investigation. The investigation starts immediately after the offence is brought to notice. Thus, FIR forms the basis of the investigation.

Accordingly, the police may investigate in the cases that are not formed on the basis of FIR, or which may have occurred in front of them. When the information regarding the cognizable offence is brought into the notice, the police may record it and must take a sign of the complainant and provide a free copy to the complainant. If the police refuses then the complainant can go to the Superintendent of Police.[13]

Thus, on receipt of the information of the cognizable offence, the police officer can start the investigation.[14] If the police officer believes the offence of grievous nature, in the case of cognizable offences, the police can start the investigation, without taking the consent of the Magistrate.[15] During the investigation during the interrogation of the arrestee or any other witnesses, the statements given during the investigation are not valid, even the FIR does not have evidentiary value, it can only be used for corroboration and contradiction.[16]

Further, if the investigation is complete, the police would make the report of the crime and that would be called Police Report which would be presented before the Magistrate.[17] Also, if the investigation is over and no crime or offence is found to be committed, the police would file a Closure Report before the Magistrate stating that there is no offence committed.[18] The Magistrate may or may not take the cognizance of the offence.

If the magistrate takes cognizance then the trial would start and if the cognizance is not taken, then the Magistrate may direct reinvestigation or further investigation.[19] Upon the information of non-cognizable offences, the police shall forward such information to the Magistrate. The police cannot act freely upon his will for the investigation of the offence. The police has to investigate only after the warrant that is issued by the Magistrate.[20]

The remaining procedure is the similar. But there is a provision for the accused, that if the investigation is not completed within 24 hours in a cognizable offence, the police get extension upto 15 days, 45 days and 75 days. Thus, on the 46th and 76th day the accused is entitled to default bail. But the police can plea for police custody and if the Magistrate finds it fit he can grant or deny.[21] Whereas in a non-cognizable offence, the first 15 days is only the grant and the investigation cannot exceed 6 months, if it exceeds that time period, it is stopped there and the case is discharged. Thus, when the Magistrate accepts the police report, the investigation ends here.

2.4 Trial
Trial is not defined anywhere. But trial is the process where the judge examines all the evidences and upon the hearing would punish the guilty. Before the trial, charge framing takes place. In the framing of charge, from the police report submitted by the police and chargesheet submitted, the charge is framed by the Judicial Magistrate. In the committal proceedings, through the case is not to be tried in the Magistrate, the charge framing and assembling the documents take place in the Judicial Magistrate.[22]

There are mainly three steps involved in the trial at the Court of Judicial Magistrate:
  1. Examination in Chief
  2. Cross Examination
  3. Re-examination.
The examination in chief is to be done of the respective witnesses, where the prosecution examines his witness and same of the defence. Cross Examination comes after the Examination in the chief where the witnesses are asked cross verified by the opposite party. The scope of re-examination is very narrow. The re-examination is done only if there is any ambiguity left to be solved but it is upon the discretion of the Magistrate.

When the charges are farmed by the Magistrate, and the Public Prosecutor starts with the opening, the Magistrate hears both the sides and if the Court finds that there is enough material for the case to proceed then it continues. But if the Magistrate does not feel so, he can direct it for re-investigation or further investigation.[23] When the trial begins, the dates of the Prosecution witness are notified. The court provides same information to both the sides.

The documents are marked and exhibited and then submitted in the court.[24] There are two types of cases Warrant Cases and Summons Cases. In Summons Case, when the offence is of the nature of punishment more than 2-3 years, it is called plea and not charge. The Warrant Cases may the trial start and at the time of examination or cross examination, if the Magistrate does not find the case to be fit he can discharge the case.

The same power is also to the Sessions Judge.[25] Thus, the Criminal Justice System gives the accused to put forward his points and also if the Judge finds the accused is being troubled then he can be discharged. After the trial, the conviction is passed and it can be further challenged in higher courts of law and till that the accused is to be kept in the prison.

Judicial Pronouncements
The Code of Criminal Procedure has been interpreted by the Judiciary in different ways. There have been some landmark interpretation that would help in making the provisions more clear.

The very important interpretations given by the court are summarized and given:
  1. Nandini Satpathy V. P.L. Dani
    The main issue dealt here with is regarding the compelled testimony of the accused. The court said that no person should be compelled to be a testimony against himself. He can prevent himself from deposing a statement against himself. It further talked about the admissibility of the NARCO Analysis. It is against the Art.20(3), which is the compelled testimony. The NARCO conditions can be altered and so it is not an admissible proof on which someone can be convicted.

    The court further added that voluntary NARCO is admissible but not involuntary. He further cannot be compelled to give his DNA and such other things for the investigation. Thus, the court has adopted a victim centric approach and has helped the accused to take its own defence.
  2.  HN Rishbud V. State of Delhi
    This case mainly gives the steps to be followed by the investigation officer during the investigation:
    1. Proceed to Spot
    2. Ascertain facts and Circumstances
    3. Discovery and arrest of suspect
    4. Search and Seizure
    5. Examination of various people
    6. Formation of opinion whether matter to be brought to the Magistrate
  3. Madhubala V. Suresh Kumar
    In this case, the main issue addressed is whether the Magistrate is empowered to order registration of FIR of the case along with directing the police for investigation u/s. 156 of CrPC. The Court held here that for any case to be investigated, the information is required and that is obtained from FIR and thus, the Magistrate can direct the registration of FIR along with the direction of investigation. Thus, even through the cognizance is taken by the Magistrate, he can order investigation in that matter and can also direct registration of FIR and then the concerned authority investigates.
  4. Sakiri Vasu V. State of Uttar Pradesh
    In this case, the court has provided the guidelines regarding the registration of FIR or the registration of complaint. The court said that the specific procedure is given or established to maintain the harmony between the functionaries and maintain order and so that the system functions without any friction.

    The first procedure is u/s.154(1) with the SHO, if denied there then u/s.154(3) with the Police Superintendent. Even if that step is not effective then to Police Commission u/s.156(3) or u/s.190(1) can go with the Magistrate. Thus, this procedure is to be followed, even if the Magistrate does not register the complaint then also before the High Court it can be registered. Also, the parties cannot ask for the investigation by independent agencies. That is the duty of the court and not the aggrieved parties.
  5. Satish Mehra V. Delhi Administration and Others
    In this case, the court has laid emphasis on the documents to be held in the court. The court focuses on the time of discharge. At the time of discharge if the defence provides some documents, then the court cannot accept it like that but it has to be proved. The court can accept the submissions. Thus, this is the main guidelines regarding the discharge.

Constitutional Provisions
There are majorly two provisions that deal with the arrest related functions. That is the fundamental rights envisaged in the Constitution. The first provision is regarding the conviction part, where the person cannot be convicted for the offence, which was not an offence at the time of commission of that offence.[26] Then it further talks about the principle of double jeopardy. No person can be convicted for the same offence more than once.

That is because once the person got the lesson, he does not necessarily need to be executed again and again.[27] It further mentions that no one can be a compelled testimony against himself. He has the right against self incrimination. This is because the basic presumption of innocence is there.[28]

The other provision is regarding the right of person liberty. No one can be prevented from his life and liberty, the preventive detention laws come here. Moreover, we follow the 24 hours concept of presenting before the magistrate and the bail and default bail concept. The provision also focuses on the Fair and Speedy Trial Concept, where the trial should be fair, moreover the trial should be speedy without any unnecessary delays. The concept of Justice delayed is Justice denied is followed.[29]

The paper starts with the definition of Crime and the functionaries of Criminal Justice System. There have been discussions regarding Crime and offences and the main criminal texts in the country. The concept of Crime the way it can be interpreted. Then the paper focussed on the functionaries involved in the after crime process. Then it talked about the provisions regarding arrest and regarding investigation and trial. The exclusive powers given to the police during investigation may lead to misuse of power. Over and above the provisions do maintain a check and balance of exercise of power but it is way far from the reality.

There are instances where there have been such misuses. The trial is supposed to be fair and speedy but the provisions itself have so many formalities to be followed that there have been so much time consumed in it. The loopholes of the system is like friction that would slow down the process. Further the judicial interpretations have been taken into consideration of the provisions. At the end the Constitutional Provisions and the Fundamental rights have been discussed. Thus, though the provisions have been made and the functionaries have been provided with the power, there have been loopholes in the system but the check and balances are also there that would help in the misuse of the power.

  • Criminal Procedure Code
  • The Constitution of India
  • Text Book on Indian Penal Code by KD Gaur
  • Lectures on CrPC by RV Kelkar

  1. K.N. Chandrasekharan Pillai, Lectures on Criminal Procedure 1 (6th ed. 2017)
  2. K.D. Gaur, Textbook on Indian Penal Code 1(6th ed.2016)
  3. Sec. 2(n) CrPC
  4. Sec. 40 IPC
  5. Sec.2(c) CrPC
  6. Sec.2(l) CrPC
  7. Sec.2 (a) CrPC
  8. Sec.2(a) CrPC
  9. Sec. 2(g) CrPC
  10. Sec. 41 CrPC
  11. Sec. 43 CrPC
  12. Sec. 44 CrPC
  13. Sec.154 CrPC
  14. Sec.156 CrPC
  15. Sec.157 CrPC
  16. Sec.162 CrPC
  17. Sec.173 CrPC
  18. Sec.169 CrPC
  19. Sec.173 CrPC
  20. Sec.155 CrPC
  21. Sec. 167 CrPC
  22. Sec.209 CrPC
  23. Sec.227 CrPC
  24. Sec.230 CrPC
  25. Sec.227 CrPC
  26. Art.20(1)
  27. Art.20(2)
  28. Art.20(3)
  29. Art.21
Written By:
  1. Milind Parikh &
  2. Himanshi Patwa

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