LawpreneurzCode of Criminal Procedure
- Law of criminal procedure consists of
- CrPC (general law)
- Juvenile Justice Act 2015
- Prevention of children from Sexual Offence Act 2012
- Unlawful Activities Prevention Act 1967
- CrPC is the abject law gives the procedure & not the element of crimes. It is the general law whereas JJAct and the others are lex-speacilis for their particular purposes. (s.4(2)CrPC).
- Basic purposes of the CrPC
- To give an accused person a fair trial in consonance with principles of natural justice.
- Speedy information & trial.
- Fair deal to poorer sections of society.
- Later considerations – restitution to victims etc
- General description of the CrPC
- Const of criminal courts
- Powers & functions
- Powers of police to investigate
- Framing of charge
- Appeals review & revision
- Bails & bonds
- Inherent powers
- Territorial Application [section 1of CrPC]
- Applies to whole of India except J&K
- Does not apply to tribal areas of Nagaland & other tribal areas
- Though the rules of CrPC would not apply case law holds, that the substance of these rules would apply ( Mowu v Superintendent of Special Jail (1971) 3 SCC 936)
- The territorial application of CrPC is co-extensive with the IPC ( s.4(1) of the Code.)
- Extra-territorial application of CrPC
- S.4 of IPC extends IPC to (a) any ship or airplane flying Indian flag, (b) citizen of India , (c) offense targeting computer resource located in India ( to be read with s.2 of the Information Technology Act 2000).
- This r/w s.188 of the CrPC extends the application of CrPC to outside India under these circumstances. However the proviso of s.188 requires prior sanction of the Central Government in inquiry of conduct of the trial. The Supreme Court understands this requirement to mean , that the sanction is not a condition precedent for inquiry or investigation but is necessary only when the trial begins . ( Ajay Agarwal v Union of India 1993 SCR (3) 543)
- Exhaustiveness of the CrPC
- No law can be completely exhaustive therefore inherent powers of the courts are provided u/s482. But in CrPC this is given only to High Court
- Subordinate courts under CrPC lacks such inherent powers ( CAS Gaurya v. SN Thakur (1986) 2 SCC 709
- Inherent powers can also be used to prevent abuse of the process of the court. ( Madhu Limaye v State of Maharashtra AIR 1978 SC 47)
A. The Basic Value of CrPC
The CrPC incorporates certain fundamental values that permeate through the entire Code. The values are :-
- Prohibition of double jeopardy
- Prohibition of forced self-incrimination
- Rules pertaining to fairness of trial.
A.1 Prohibition of Double Jeopardy
- According to this doctrine, if a person is tried, and acquitted or convicted of an offense he cannot be tried again for the same offense ( Latin term: “autrefois acquit” and “autrefois convict”. This rule is enshrined in s.300 of the Code.
- The right is triggered only when there has been a valid acquittal or conviction by a court of competent jurisdiction. ( Yusofalli Mulla Noorbhoy v. R AIR 1949 PC 264)
- Explanation to s.300 clarifies that mere dismissal of the complaint or discharge doesnot qualify as acquittal.
- The trial within the meaning of the section s.300(1) does not mean tried on merits, but include composition of an offense u/s 320 or withdrawal of prosecution u/s.321
- The rule against double jeopardy is contained in Art 20(2) of the Constitution "No person shall be prosecuted and punished for the same offence more than once"
- in SA Venkataraman v Union of India (AIR 1954 SC the Supreme Court considered the scope and extent of s.300.It held that
- The term prosecution or punishment has no fixed meaning and can be applied for narrower and wider meanings
- The prohibition is with reference to offense .Therefore it can be envisaged that the same set of acts set out different offenses and prosecution can be commenced for those offenses.
- S. 300(2) expressly provides that a person can be prosecuted with the consent of the State Government for any distinct offense for which a separate charge could have been made against him in the former trial, notwithstanding his conviction or acquittal.
- Section 300(3) sets out “A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted.
“Illustration: (b) A is tried for causing grievous hurt and convicted. The person injured afterwards dies. A may be tried again for culpable homicide.
- Section 300(4) mandates: A person acquitted convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.
Illustration: A is charged by a Magistrate of the second class with, and convicted by him of, theft of property from the person of B. A may subsequently be charged with, and tried for, robbery on the same facts
- Section 300(5) mandates that the court releasing an accused in a summons case without trial u/s.258 can subsequently give consent to try the accused for the same offense.
- S.300(6) protects the operation of s.26 of the General Clauses Act 1897 .Section 26 of GCA reads “Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.”
That is to say, if possession of an assault rifle is an offense under the Unlawful Activities Prevention Act 1967 and the Arms Act , the person who has been tried and discharged under the Arms Act cannot be tried for the same offense on same set of circumstances under the UAPA.
A.2 Right against self-incrimination
- Art 20(3) of the Constitution of India lays down that no person shall be compelled to bear witness against himself. This is known as the right against self-incrimination.
- Self-incrimination involves an element of personal knowledge, mere mechanical acts like collecting specimen signature, thumb impressions etc does not offend Art 20(3). (State of Bombay v. Kathi Kalu Oghad 1961 AIR SC 1808 )
- To be witness is however wider than just giving oral evidence. ( MP Sharma v Satish Chandra 1954 SCR 1077)
- The person has to be an accused at the time of the making of the statement because Art 20(3) require the twin elements of criminality and compulsion (Mohammad Dastagir v. State of Madras I (1960) 2 SCR 116). However at the same time the expression “accused” has a wider meaning. Any statement with a potentially incriminating impact u/s 161 will be caught by Nandini Satpathy v PL Dani 1978 SCR (3) 608
- The “right “has impact on a wide variety of investigatory procedures under the Code for example. S.160-162 (Statements to the police), s. 53, 54 (medical examination of the accused), (confession) s.164, etc.
A.3 Fair Trial
“There is procedure established by law governing the conduct of trial of a person accused of an offence. A trial by press, electronic media or public agitation is very antithesis of rule of law. It can well lead to miscarriage of justice. A judge has to guard himself against any such pressure and is to be guided strictly by rules of law. If he finds the person guilty of an offence he is then to address himself to the question of sentence to be awarded to him in accordance with the provisions of law”
- ZahiraHabibullah Sheikh &Anr vs State Of Gujarat &Ors Appeal (Crl.) 446-449 of 2004 , 8th March, 2006 , the Supreme Court held that the idea of fair trial is an all pervasive concept in the CrPC.
- The components of fair trial are the following:-
- Proper venue of trial
- Right of the accused to know the charges
- Trial must be held in open court.
- The judge or Magistrate must be impartial
- The trial must be expeditiously concluded.
- The venue of trial is essential in setting an agenda for fair trial. The territorial jurisdiction of the courts are contained in s. 177-189 of the Code. But it is open to the Sessions Court( s.408), High Court (s.407) and Supreme Court (s.406 r/w Art 139A) to shift the venue of the trial from the court competent to exercise jurisdiction to serve ends of justice. It can be shifted to a different Sessions court, High Court and to a different State.
- The Supreme Court in CBI v HopesonNingshen Transfer Petition 219-220 of 2009 set out the criterion for such transfer:-
- That there was an alleged absence of congenial atmosphere for fair trial, and threat to life of the accused, vice to a particular place etc.
- Risk of intimidation of witnesses
- Friction between various groups in the State
- There are certain component of the accused’ right to know charges. They are :-
- Trial cannot be held in abstentia except u/s 317 (when the accused disturbs the proceedings and is already represented by a pleader or his presence is not necessary in the interests of justice)
- Evidence is to be taken in the presence of the accused (s.273). However in certain type of proceedings like that of sexual assault and rape in camera evidence can be taken.
- The accused has to be interpreted the evidence if it is taken in a language that he does not understand ( s.279) and special rules are laid down for that purpose (s.318).
- U/s.313 the court or Magistrate can put questions to the accused and must compulsorily allow the accused a chance to personally explain the case against him. In s.313, the accused is administered no oath.
- The basic principle of a criminal trial is that it shall be held in a open court, i.e. a court accessible to the public. The principle of open court is enshrined in s.327 of the CrPC . But the section permits the Magistrate to bar the entry of the public generally and any person specifically. Certain kind of trials in camera proceedings are norm (s.327(2) )
- The principle of open court often creates difficulties with the media who therefore have access to the trial process and tend to amplify frenzy around particular cases where the general public often emotionally invest. The Supreme Court held in State of Maharashtra vs. RajendraJawanmal Gandhi1997 (8) SCC 386
- The Supreme Court in the case of Rajendra Sail Vs. Madhya Pradesh High Court Bar Association and Others(2005) 6 SCC 109observed that for rule of law and orderly society, a free responsible press and an independent judiciary are both indispensable and both have to be, therefore, protected. The function of the judiciary in a case that draws excessive public attention is to balance the right of the accused to fair trial and the public’s right to know.
- The Law Commission in its 200th report, Trial by Media: Free Speech versus Fair Trial Under Criminal Procedure (Amendments to the Contempt of Courts Act, 1971), has recommended a law to debar the media from reporting anything prejudicial to the rights of the accused in criminal cases, from the time of arrest to investigation and trial.
- Impartial Judges
- Section 479 prohibits any judge and Magistrate from trying or committing any case where he is a party or is personally interested. However the said judge or Magistrate can take permission from the court where the appeal would lie and try such matter.
- Personal interest is not confined to private interest but may mean public interest as well, provided that the interest is active and not passive. Thus granting sanctions for criminal prosecution is an active interest. ( RameshwarBhartia v. State of Assam AIR 1952 SC 405)
- There is a difference between pecuniary interest and prejudice. The smallest pecuniary interest is a bar u/s.479 but in case of prejudice , the test is whether prejudice is substantial enough to effect his ability to administer justice and also public’s impression of prejudice ( Shyam Singh v State of Rajasthan 1973 Cri LJ 441.
- No pleader who practices in the court of a Magistrate shall sit in Magistrate at that court. (s.480)
- No judge or Magistrate shall try any offense that is committed before themselves. (s.352)
- Speedy Trial
- Speedy trial is considered a part of the Constitutional right to life and liberty u/Art 21. ( HussenaraKhatoon v State of Bihar 1979 SCR (3) 532).
- The exact content of the right to speedy trial is contested, In a number of cases a time limit was insisted but finally the Constitution Bench judgment in P Ramachandra Rao v State of Karnataka Appeal (crl.) 535 of 2000 Judgment dated 16/04/2002 clarified that Art 21 does not permit any time limit to be imposed.
- The effective right has been incorporated in various sections like s.167 (automatic bail) , s.436A under trial to be given bail if they have already in jail for more than half the period of maximum punishment. High Court and Supreme Court often issues order for expediting a trial.
B. An Overview of the Criminal Justice System
The traditional division of labour is police supervised by Executive Magistrate investigates, the persecution is conducted by public prosecutors, and the defense counsel defends the accused. The CrPC does not set out the expectation from defense counsel except that the accused should have access to one & he should be allowed to conduct a fair defense to best of his ability. Traditionally, in criminal, especially cognizable cases PP conducts the proceedings but the trend is towards increasing role for the complaint & victim’s lawyers.
- The participants in the criminal justice system are the following
- Magistrates (Executive & Judicial)
- Higher Courts ( Session& High Court)
- Public Prosecutor.
- Defense Counsels.
- Lawyers for complainant & victims.
Under the Code there are 2 kind of Magistrates namely
- Executive Magistrate (u/s 6 of CrPC). This class of Magistrates are under the control of State Government and possess administrative & police powers. Executive Magistrate could be (a) the Police Commissioner , (b) District Magistrate (Collector), (c) State government may appoint Special Executive Magistrate (s.21), (d) Their territorial jurisdiction decided by st govt.(s.22)
- Judicial Magistrate are under the High Courts and have judicial powers (and occasionally administrative powers under the Code). Judicial Magistrates can be of (a) Chief Judciial Magistrate (CJM), (b) First class, (b) Second Class.
Judicial Magistrate First class are authorized to sentence over 3 years and Rs. 5000 fine.
- The Judicial Magistrate in Metropolitan Areas are called Metropolitan Magistrates.
- Sessions Court
- All cases where the maximum penalty is more than seven years, the offense is triable by ourt of Sessions
- It can pass any sentence u/law (s.28 (2) but in case of capital punishment it needs to be confirmed by the High Court.
- There is one Sessions Court for each district.
- Consists of session Judge, Additional&Assistant Sessions Judges. Additional Sessions judges same power but administratively subordinate to sessions Judge.
- Sessions Court can be both a court and original jurisdiction as well as a court of appeal (s.381).
- Sessions Court can transfer cases (s.408)
- High Court
- Mostly an appellate court though in some states it might have original jurisdiction.
- Have powers of superintendence v/Art 227 well as reference revision (u/Ch-XXX) and transfer
- Can pass any sentence authorized u/law [s.28 (1)].
- Powers & functions of police given underCrPC but organization u/Police Act 1861 (& various State& Central statutes).
- Police station “any post or place declared generally or specially as a police station by the State Government.
- The powers of police are mostly vested in “Officer in charge of police station”. The expression is an inclusive definition and includes, any officer above the rank of constable. (Section 2(0)).The OC is usually an ASI but can also be a DSP or ACP. A police officer superior in rank has the same powers (s.36)
- Public Prosecutors
- Public prosecutor is the centerpiece of prosecution.
- Public Prosecutor, Additional Public Prosecutor, Special public prosecutor conduct proceedings in. High Court & Session Courts, Assistant public prosecutor conducts them in Magistrate Courts.
- An advocate with 7 years standing can be appointed as a PP or an Additional PP (s.24(7)]. The appointment shall be made after consultation with High Court.
- Central Government or State Government may appoint any advocate with standing of ten or more years as Special PP.
- No qualification prescribed for Assistant PPbutState& Central Government can appoint before Magistrate’s Courts. MostState take exams for appointing Assistant PPs. S.25 proscribes police officer being appointed as as PP. Though no qualification prescribed ideally that should be similar to PP.
- Role of PP, Additional PP, Assistant PP
- They are vested with wide powers u/ the Code including powers to case oppose bail right of audience in sentencing proceedings, withdrawal of case.
- The PP, Additional PP, Assistant PP are not mere lawyers for the prosecution, he is supposed to be indifferent to the outcome of the case and present all the available evidence & not try to secure a conviction, under any circumstances impartial officer of the court”. Maintain decorum & not create a unnecessary hostile atmosphere for the accused.
- The expectations from the PP are that he (1) acts independently from the police, (2) The executive and apply his mind u/s.321.(Balwant Singh v State of Bihar AIR 1977 SC 2265); (3) Does not involve himself in the investigation of the case; (4) Do not influence the investigation.
- The institution of PP not functioning as envisaged. The 197th law commission, suggested (a), PPs be appointed at 50:50 ratio between bar & prosecution cadre, (b) Consultation of Session Judge u/s.24 is to be mandatory, (c) Members of bar to be appointed as PPs & not police officers.
- Pursuant to Malimath Committee recommendations Directorate of Public Prosecution (DPP) was set up(s.25A).
- All PPs to be subordinate to DPP.
- State Government to make rules for DPP
- This is supposed to be an administrative body primarily directed towards supervisions of the Prosecutors.
- The DPP is a body modelled on the Crown Prosecution Service.
- Lawyer for complainant
- S. 302 of the CrPC allows any person other than a police officer below the rank of the inspector to conduct prosecution.
- This might be done in petitioner in person or through a pleader.
- However u/s225 before the Sessions Court PP is the only person who can conduct the trial.
- However a larger bench of the Supreme Court held that even in Sessions Court the complainant can appoint a counsel to represent him and he shall work under the direction of PP. He can also file a written argument that have to be considered. ( JK International v. NCT of Delhi AIR 2001 SC 1142)
- The 2009 amendment inserted s.2(wa) , that defines a victim as “ a person who has suffered any loss or injury caused by act or omission of the accused. It includes a legal heir.”
- Victim may be the same as a complainant or different.
- Proviso to s.24 allow the court to permit the victim to engage an advocate of his or her own to assist prosecution.
- Special provision for victims under s.157(1) proviso, s.161(3) & 164(1) , s275, s.327.
- Victims are entitled to compensation u/s.357A.
- The victim has a right to appeal u/s.372 proviso.
- Defense counsel
- Section 303 every person has the right to be defended by the lawyer of his choice.
- Even defense counsels are officers of the court.
- In case of accused persons lacking sufficient means , the Session Court can appoint a lawyer (s.304 r/w Legal Services Act 1987 , Art 39A)
- Unlike in a civil trial in criminal trial the defense counsel does not have to disclose exculpatory evidence
- The CrPC pre supposes the existence of prison system
- Prisons are guided by the Prison Act 1894 & other State laws.
LawpreneurzDetails of lecture
|Lecture 1||Introductory + System & Its Participants|
|Lecture 2||Offenses & Commencement|
|Lecture 3||Process to Compel Appearence|
|Lecture 4||Production Of Materials|
|Lecture 5||Investigation by Police|
|Lecture 6||Preventive and Protective Policing|
|Lecture 7||Trial 1|
|Lecture 8||Trial 2|
|Lecture 9||Bail & Bonds|
|Lecture 11||Recourse Against Judgment|
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