The government amended the existing law dealing with children in conflict with the law citing implementational issues and procedural delays with adoption, etc.
The government also cited figures from the National Crime Records Bureau to show that there had been a hike in the number of juveniles committing crimes, particularly in the age bracket of 16 to 18 years.
In the 2000 Act, there was no distinction between children in conflict with the law and children in need of care and protection. The amended act changed that.
The 2000 Act also did not have provisions for the reporting of abandoned or lost children to the appropriate authorities, in order to ensure their protection and care.
The amendment in the 2000 law came about because of public outrage at the infamous Delhi gang-rape case (Nirbhaya Case) in 2012. One of the offenders in the case was a 17-year-old.
The legislation strives to achieve a balance between child rights and justice by not sentencing juveniles to the death sentence and life imprisonment.
Juvenile Justice Act Features
The JJA, 2015 introduced many changes to the existing law based on the requirements of the day in terms of reforming the laws and making the juvenile justice system more responsive to the changing circumstances of society. The Act seeks to hold the child accused of crime accountable, not through punishments, but through counselling.
Who is a Juvenile?
As per law, a juvenile is any individual below the age of 18.
According to laws in India, any child below the age of 7 cannot be convicted under any law for any crime.
Under earlier laws, the distinction between children in conflict with the law and children in need of care and protection was vague, as both were termed juveniles.
In the amended law (2015 Act), the terms are ‘children in conflict with the law’ and ‘children in need of care and protection’; so that the distinction is clear.
Juvenile Justice Board:
This is a judiciary body before which children detained or accused of a crime are brought.
This acts as a separate court for juveniles since they are not to be taken to a regular criminal court.
The Board comprises of a judicial magistrate of the first class and two social workers, one of whom at least should be a woman.
The Board is meant to be a child-friendly place and not intimidating for the child.
Child Welfare Committee:
The State Governments set up these committees in districts in accordance with the provisions of the Act.
The Committees have the power to dispose of cases for the care, protection, treatment, development and rehabilitation of the children in need of care and protection, as well as to provide for their basic needs and protection.
The Act provides for an efficient and organized system for the adoption of orphaned, surrendered and abandoned children.
It also makes it compulsory for all child care institutions to be registered.
An important provision of the amended Act is that it provides for minors in the age group 16 – 18 years to be treated as adults in the case of heinous crimes.
The Act also gives the Central Adoption Resource Authority (CARA) statutory status.
The Act distinguishes between children in conflict with the law and children in need of care and protection.
Under the previous Act, any minor, regardless of the crime committed, could be convicted only to a maximum of 3 years. Under no circumstances could the minor be tried in an adult court or sent to an adult jail, or given a penalty longer than 3 years. However, this changed with the 2015 amendment. All children below the age of 18 would be treated equally except for one departure from the norm. That is, in the case of heinous crimes. Any minor of the age group 16 – 18 and who has been accused of committing a heinous crime can be tried like an adult. For this, the Juvenile Justice Board would assess the child’s physical and mental capacities, his/her ability to comprehend the consequences of the crime, etc. and determine whether the child can be treated as an adult.
A constitutional institution that protects citizens’ rights is the judiciary. When it comes to legal and constitutional matters, this is the supreme authority. It is essential to the passing of legislation as well as the settlement of disputes between people, governments, and other parties. The courts uphold the nation’s law and order in order to defend citizens’ rights. The Supreme Court, the High Court, and other lower courts are presided over by judges.
Magistrate
A magistrate is a public official who supervises the execution of justice in a given area, such as a city or district. The name “magistrate” derives from the old French word “‘magistrat ” which implies “a magistrate, public machinery” and “civil officers responsible for enforcing laws.” Before rendering a decision, he is the one who hears both civil and criminal matters. The District Magistrate or District Collector is without a doubt the Chief Executive, Administrative, and Revenue Officer. He ensures that the district’s numerous governmental entities are coordinated as needed.
Chief Judicial Magistrate
According to section 12(1) of the Criminal Procedure Code, the High Court shall appoint a judicial magistrate of the first class to the position of Chief Judicial Magistrate in each district. CJM is one of the officers chosen from the cadre of first-class judicial magistrates and is appointed by the CJM of the High Court. There must be one CJM in each session division.
The session judge and additional session judge are superior to the CJM. The distribution of work among different court of judicial magistrates is one of the responsibilities of the CJM.
Chief judicial magistrate is also referred to as anilaka magistrate. in section 14(1) of the CrpC. The local boundaries of the places where the magistrate appointed under section 11 or section 13 is considered to have been defined by CJM. The CJM specified the first and second class judicial magistrates’ service areas.
According to Section 15(2) of the CrPC, the chief judicial magistrate should assign business to the judicial magistrates under him. In light of this, the CJM is required under this clause to divide up the workload among the Judicial Magistrate First Class (JMFC), Judicial Magistrate Second Class, Special Judicial Magistrate of First and Second Classes, and Sub-Divisional Magistrate.
Judicial magistrate First Class
Establishment of appointments and JMFC’s authority. JMFC is at the hierarchy’s very first level. Applications for offenses that are not very serious go to JMFC. Check bounce cases under NI and other offenses of a lower degree are handled by the same.
According to Section 11(1), the State Government, in collaboration with the High Court, shall establish as many Courts of Judicial Magistrate of the First Class and of the Second Class in each district as it deems necessary. The High Court makes the decision about the entire procedure, which includes the examination and interview.
According to Section 11(2), the High Court shall appoint the presiding officer of the JMFC and Supreme Court. According to section 11(3), the HC has the authority to grant any member of the state’s judicial service the authority of JMFC OR SC to serve as a judge in the civil court. Timings are frequently specified during court appearances. A district court judge will typically handle civil matters before lunch, and after lunch, the JMFC judge will take over and handle criminal offense cases. Sub clause 3 governs this action. We have a common exam called the civil judge junior division examination for this reason.
Role of a Magistrate
A magistrate is a person who renders judgments on unimportant or trivial issues. The Magistrate actually renders the initial judgments in criminal cases. He is said to possess administrative skills. The judge, on the other hand, renders decisions in complex and challenging cases where having legal knowledge and the ability to draw judgments are crucial. A magistrate can only do so little in relation to a judge. The Judicial Magistrate and Chief Judicial Magistrate are chosen by the High Court, whereas the District Magistrate is chosen by the Governor. A magistrate is a person who renders judgments on unimportant or trivial issues. The Magistrate actually renders the initial judgments in criminal cases. He is said to possess administrative skills. The judge, on the other hand, renders decisions in complex and challenging cases where having legal knowledge and the ability to draw judgments are crucial. A magistrate can only do so little in relation to a judge. The Judicial Magistrate and Chief Judicial Magistrate are chosen by the High Court, whereas the District Magistrate is chosen by the Governor.
Sentence of Imprisonment in Default of Fine
A court of magistrates has the authority to impose the maximum sentence of imprisonment permitted by law under Section 30 of the code. However, it is stipulated that the sentence cannot exceed the authority granted by Section 29. Additionally, if incarceration is part of the substantive sentence, it should not last longer than one-fourth of the maximum sentence that the magistrate may impose for the offense, excluding incarceration for failure to pay a fine.
Arrest by Magistrate
In accordance with Section 44 of the code, a magistrate, whether executive or judicial, has the authority to arrest someone, order their arrest, or both when the crime is committed within his local jurisdiction and in his presence. Any individual for whom he is qualified to issue a warrant at the moment and under the circumstances may also be arrested or ordered to be arrested.
Power of Magistrate to Order an Investigation
Under Section 156(3) of the Criminal Procedure Code, 1973 a Judicial Magistrate is empowered to order an investigation when no proper investigation is conducted despite the registration of FIR. Such an order of investigation can only be made for an offence in which the Magistrate is empowered to take cognizance of under Section 190 of the Code.
Chapter III of Cr.P.C. deals with power of Courts. One of such power is to try offences. Offences are divided into two categories: (a) those under the Indian Penal Code; and (b) those under any other law. Any offense under the Indian Penal Code, 1860 may be tried by the High Court, the Court of Session, or any other court by which such offense is shown in the First Schedule to be triable, but any offense under any other law must be tried by the court specified in that law, or the High Court if that court is not specified, or any other court by which such offense is shown in the First Schedule to be triable, as stated in Section 26.
(a) Sentences which High Courts and Sessions Judges may pass Section 28 states that a High Court may impose any sentence permitted by law. Any legal punishment may be imposed by a Sessions Judge or Additional Sessions Judge, but the High Court must affirm any death sentence imposed by one of these judges. Any sentence permitted by law may be imposed by an assistant sessions judge, with the exception of the death penalty, life in prison, and sentences exceeding ten years in length. As a result, Section 26 of the Code lists the different kinds of Courts that can hear cases involving various offenses, and Section 28 of the Code specifies the maximum punishments that these Courts are permitted to impose.
(b) Sentences which Magistrates may pass Section 29 lays down the quantum of sentence which different categories of Magistrates are empowered to impose. The powers of individual categories of Magistrates to pass the sentence are as under: (i) The Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years. (ii) A Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years or of a fine not exceeding five thousand rupees, or of both. (iii) A Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding one thousand rupees, or of both. (iv) A Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial Magistrate and that of a Metropolitan Magistrate, and the powers of the Court of a Magistrate of the First class.
(c) Sentence of imprisonment in default of fine Where a fine is imposed on an accused and it is not paid, the law provides that he can be imprisoned for a term in addition to a substantive imprisonment awarded to him, if any. Section 30 defines the limits of Magistrate’s powers to award imprisonment in default of payment of fine. It provides that the Court of a Magistrate may award such term of imprisonment in default of payment of fine as is authorised by law provided that the term: (i) is not in excess of the powers of the Magistrate under Section 29; and (ii) where imprisonment has been awarded as part of the substantive sentence, it should not exceed 1/4th of the term of imprisonment which the Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine.
(d) Sentences in cases of conviction of several offences at one trial: Section 31 relates to the quantum of punishment which the Court is authorised to impose where the accused is convicted of two or more offences at one trial.
Conclusion:
Criminal procedure law is supposed to be an addition to criminal law. Its purpose is to offer a way to enforce the legislation on the books. The Code of Criminal Procedure sets up the required systems for catching offenders, looking into their cases, having them tried in criminal court, and punishing the guilty party appropriately.
The word “appeal” has not been defined in The Code of Criminal Procedure, 1973, (hereinafter CrPC), however, it can be described as the judicial examination of a decision, given by a lower court, by a higher court. The Merriam-Webster dictionary defines appeal as “a legal proceeding by which a case is brought before a higher court for review of the decision of a lower court”.
The supreme court has supervisory jurisdiction due to the victims’ right to redress.The Criminal Procedure Code, 1973, Chapter 30, Sections 395 to 405, deals with reference and revision. Without negligence or irregularities, justice is administered in a fair and proper manner. Under the Criminal Procedure Code, review procedures include both appeal and modification. They have the authority to carry out or commute a punishment. The right to a hearing does not grant the litigant any rights; rather, it solely preserves the High Court’s authority to administer justice in line with the law. They may even have the authority to request an inquiry, subject to some restrictions.
The correctness of the lower court
the regularity of proceedings in the court
power of revision cannot be uses in interlocutory orders
The argument of the person applying for revision should be considered during the hearing even though they are too brief
There are some situations where an appeal is not permitted. The legislators took this into consideration and included the revision idea to the law in order to entirely prevent any miscarriage of justice, even in situations where the CrPC has restricted the right of appeal. The powers of revision granted to the higher courts are included in Sections 397 to 405 as well as the process for using these powers. It should be recognized that these powers are by definition broad and discretionary.
REVISION
Revision Although the term “revision” is not defined in the Cr.P.C, Section 397 of the Cr.P.C grants the High Court or any Sessions Judge the authority to request and review any proceeding’s records. Ascertain oneself:
1.as to the correctness,legality,or propriety of any finding,sentence or order, whether recorded or passed,and
2.as to the regularity of any proceedings of an inferior court.
Difference between an Appeal, Reference and Revision
APPEAL
REFERENCE
REVISION
It is defined under Chapter XXIX of the Criminal Procedure Code.
It is defined under Chapter XXX of the Criminal Procedure Code.
It is defined under Chapter XXX of the Criminal Procedure Code.
It is defined from Section 372- 394 of the Criminal Procedure Code .
It is defined from Section 395-396 of the Criminal Procedure Code .
It is defined from Section 397-402 of the Criminal Procedure Code .
An appeal is made to the higher court on the points of the fact and laws.
Reference is made to the higher court on the points of the law.
Revision is made to both higher and lower court on the already adjudicated matters.
The Appeal begins on the determination of the case.
The Reference occurs while the case is still pending in the court.
The revision begins under the final judgment or final order or final decision of the court.
An appeal or petition is to be filed against the decision passed by the lower court.
Reference is to consult the High Court on insolvency or invalid law, act, regulation or ordinance related to the case at hand.
Revision is to review, change or amend any grammatical, clerical or arithmetic error by a trial court or high court.
In some cases, an appeal can be filed with leave of the court by an aggrieved person or accused.
Reference is made by the trial court to the High Court.
The revision can be initiated by the trial court suo moto or the High Court.
The very fundamental idea of trial must be learned before moving on to the numerous concepts connected with trials in India’s criminal justice system. The Court’s ruling or a judicial judgment by the Court determining the person’s guilt or innocence is what is often meant by the term “trial.” In a criminal case, a trial is extremely important. The prerequisites outlined in Section 190 CrPC must be satisfied before the Magistrate can begin proceedings, which essentially refers to the Magistrate’s authority to learn about a case.In essence, Section 204 of the Criminal Procedure Code gives the Magistrate the sole authority to accept or reject a case on specific grounds. This part also establishes whether a matter can go to the trial stage or not.
Types of Trial
Mainly, there are four types of trial:
Warrant Case- A warrant case associates itself to the case where the crimes punishable with death, imprisonment for life or imprisonment for a term exceeding two years are considered. Trial of warrant cases are further classified into two more types namely:
Cases instituted by a police report- A police report is basically a report which Magistrate receives from a police officer under Sec. 173. The police should send their report as soon as they complete the investigation and the accused appears in front of a Magistrate before starting the trial.
Cases established other than a police report- Here, no kind police report or investigation is required. The Magistrate directly receives a complaint which is filed before him.
The sections from 225-237 of the Criminal Procedure Code basically deals with the warrant cases by a Court of Session.
In the case of Narotamdas L. Shah v. Pathak Nathalal Sukhram and Anr., the defendant was found guilty of defamation, and the witnesses were cross-examined. The magistrate decided that the case should be transferred, but the defendant insisted on another hearing of the witnesses, and the magistrate responded by saying that the defendant can only exercise this right during a trial, and this case was only in the inquiry stage.The Sessions Court judge believed that the demand made by the accused should not have been set aside. In this case, the Gujarat High Court ruled that the trial in warrant cases begins once the accused has been brought before the magistrate, nullifying the magistrate’s order in the process.
Sessions case- In such circumstances, the trial must be handled in a Sessions court after the matter has already been forwarded by a Magistrate to the Court or after the conduct of the crime. These are the cases where the offenses subject to penalty by law include death or life imprisonment for a duration longer than seven years.
Sections as mentioned in the Cr. P. C starting from 238-250 handles the warrant cases by Magistrates.
As ruled in the case of the Inspector of Police vs. R. Jeeva Jothi and Others, the Magistrate engaged in certain irregularities when conducting an investigation into a matter after receiving a final report from the Inspector of Police. As stated in the CrPC, when a magistrate receives a police report pursuant to section 190(b), the magistrate shall also take cognizance of the specific offense. Following consideration of the procedure and formalities outlined in sections 207 and 208, a Magistrate is required by section 209 to refer a case to the proper authorities who have proper jurisdiction over it after noting that it can only be handled in the Court of Sessions. In the current case, the Magistrate took into account all of the evidence and paperwork associated with the case and released the accused for the offenses listed under sections 307 and 450 of the IPC, which the Magistrate is not authorized to do and lacks the authority to do.
In this case, the Madras High Court questioned the magistrate’s competence and ruled that the magistrate’s decisions and procedures were illegal and improper in nature. The court held that the case should be sent to the Court of Sessions without further delay.
Summons cases- These are the situations where offenses that carry a sentence of less than two years fall under the category of summons cases, and there is also no necessity to frame the charges in these situations. After determining certain instances, the Court issues a “notice” to the accused as evidence of the charge. If there is even the slightest chance that the charges in summons cases could be changed to warrant cases in the view of the magistrate for carrying out justice,.
In the case of Gulabjeet Singh & Ors vs Ravel Singh, the issue was that whether Section 258 can apply to the proceedings started under Section 138 of the Negotiable Instruments Act? Section 258 simply states the proceedings can only be stopped when the cases are filed other than a complaint, but when the prosecution has already established by the State, then this section would not be applicable and further elaborated that in such cases where a private party has filed a complaint then Sec. 258 wouldn’t be applicable. The petition was dismissed by the High Court of Himachal Pradesh.
Summary cases– In simple terms, summary trials are those types of trials where prompt justice must be served, which is those cases that must be resolved quickly and whose processes are extremely streamlined. One thing to keep in mind is that only minor offenses are considered for summary cases; matters that are complex in nature and quite large are saved for summons or warrant trials. One might easily bring up the idea that “justice delayed is justice denied” in cases of this nature. The fact that only the proceedings are recorded in summary trials and as a result, only a small portion of the proceedings are documented is a crucial procedural aspect of these types of trials. In contrast to ordinary trials, when the evidence and all other relevant materials are carefully evaluated, summary trials simply record the evidence and disposition in a quick manner..
The process by which offenders in warrant cases are brought before the magistrate
In warrant cases triable by the Magistrates, if the Magistrate does not find any ground to hold the accused as liable, then the Magistrate can discharge the accused but he has to provide reasons for the same. However, if the Magistrate has reason to believe that there are certain aspects of the case with which he can move forward, he or she will proceed with the case in accordance with Section 240 of the Criminal Procedure Code by framing the charges against the accused and, in accordance with Section 240(2), reading those charges to the accused before asking him or her whether they constitute a claim for prosecution or a plea of guilty.
Procedure of Court of Session
A Court of Session cannot directly take cognizance of the offence which is triable under their jurisdiction. The procedure for a trial before Court of Sessions is divided into many parts:
Section 225: The very first step of the process is to conduct a trial by a Public Prosecutor.
After the first step, under section 226 the prosecutor opens his/her case by presenting their opening statements and also explains the charges of the offence against the accused.
After listening to the statements made by the accused as well as the prosecution and after taking a note of the documents and records related to the case, if the judge thinks that the whole components were not enough to proceed against the accused, the judge under section 227 discharges the accused.
The court defines a charge under section 228 if the judge believes the documents, records, and statements of both parties were sufficient to establish the grounds for further proceedings against the accused. Now, two ideas enter the picture: first, the Court’s jurisdiction; if the case cannot be tried by the Court of Session, the judge may refer it to a higher authority, such as the Chief Judicial Magistrate or another Magistrate of the first class; second, if the Court has jurisdiction over the case, the judge will proceed by laying out the charges against the defendant.
If the accused has pleaded guilty for the offence committed by him, then the judge shall record and on his own judgement may convict the accused.
The judge fixes a date if the accused has refused to plea for the examination of the witnesses associated with the case.
After the date has been fixed, on that date the prosecution can be asked by the judge for the evidences which require their in-support. At this step, the cross-examination of the witnesses can also take place depending upon the judge’s discretion. This whole step is mentioned in the Section 231.
Section 232 of the code talks about the acquittal of the accused, if the examination of the accused, statements made by the prosecution as well as the defence fails to prove the charges against the accused.
If the accused is not acquitted, then under section 233 he may be called and might also be required to bring evidences in his favour.
Section 234 and 235 explains the part of arguments and deciding that whether the accused should be held liable or be released respectively.
Fair trial: What is it, and how does it affect the criminal justice system so significantly?
When discussing the nation’s system for delivering justice, one concern, or perhaps I should say a mocking, is raised regarding the lengthy and onerous process that frequently results in unfairness to the victims. The Nirbhaya case is the most well-known instance of delayed justice that comes to mind. The crime occurred in 2012, and the defendants were hanged to death in 2020.
So, the question arises that what is a fair trial? Has it anything related to the long time which a case takes to settle or whether the accused when in custody is provided with his rights and the list of question doesn’t end.
The Indian Constitution has given its citizens a fundamental right which is Right to free legal aid as prescribed in the Article 22(1). Not only the constitution, but also the CrPC has talked about it in the Section 304. Section 304 is ‘Legal aid to accused at State expenses in certain cases.’Simply put, Section 304 offers assistance to the accused. Sub-section (1) of this section states that whenever the accused is unable to represent himself via a pleader, the Court shall appoint a pleader to do so, with the State bearing all associated costs. The procedure for assigning the pleader to the accused, the method of appointing, the facilities, etc., are mainly covered in sub-section (2) of the section.
In a case that was decided, Kishore Singh Ravinder Dev v. State of Rajasthan, it was determined that the laws and rules outlined in India’s legal system had elaborate safeguards in place to protect the rights of the accused in order to preserve his (the accused’s) dignity as a human being and give him the benefit of a free, fair, and impartial trial.
The concept of a fair trial is connected to many ideas, perspectives, and theories. A fair trial not only means that justice should be served as soon as possible; it also means, as in the case of Zahira Habibullah Sheikh & Anr vs. State of Gujarat, that the principle of fair trial represents that the justice has been done without any biases, a trial has been taken in front of an impartial judge, and the parties involved in the case were given fair opportunities to present their case in court.In situations where society has questioned the judicial system, it is not required for the accused to always be held accountable for the allegations; rather, genuine and just justice would involve clearing the accused of all charges and giving him or her what is due.
Although there will always be a conflict of interest between the accused and society, the judge should always consider his own reasoning when making a decision in such cases. Every person has a right to a fair trial, which evolves daily, and the courts have also increased the dimensions related to the concept of fair trial. The concept of fair trial is a very broad and subjective one that cannot be limited to the various laws and rulings mentioned in the legal system.
Conclusion:
The concept of “trial” that are crucial for anyone working in the legal field to understand. The numerous offenses and penalties under the Indian criminal code have undergone a significant transformation, and as time goes on, more and more concepts will undoubtedly be investigated and added to the code.
‘Bail’ is derived from the old French verb ‘baillier’ meaning to ‘give or deliver. According to the legal language, bail refers to the assurance of the accused’s attendance that is required before releasing him pending trial or investigation. “Procure the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit himself/herself to the jurisdiction and judgment of the court” is what bail aims to accomplish.
The Criminal Procedure Code, 1973, does not define bail, although the terms bailable offence and non-bailable offence have been defined in section 2(a) Cr.P.C. as follows: ” Bailable offence means an offence which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being enforce, and non-bailable offence means any other offence” Additionally, sections 436 to 450 outline the guidelines for the issuance of bonds and bail in criminal cases. The Cr.P.C. makes no mention of the amount of security that the accused must post to ensure his release. Therefore, the decision to cap the bond’s value is up to the judge.
Kinds of Bail:
1. Anticipatory bail (Section 438 Cr.P.c):
According to Article 21 of the Indian Constitution, everyone has the right to life and personal liberty, and it is regarded as one of the most valuable rights. Section 438 of the Criminal Procedure Code of 1973 contains a provision for anticipatory bail in Indian criminal law. The Law Commission of India emphasized the need to include a clause allowing the High Court and the Court of Sessions to give “anticipatory bail” in its 41st Report, which was published on September 24, 1969. This clause permits someone to apply for bail before being arrested on suspicion of committing an offense for which there is no possibility of bail. The fundamental rationale behind including this clause was to ensure that no one was imprisoned in any capacity before or unless they were found guilty.
Any person who has reason to believe that he may be arrested on suspicion of committing a crime for which there is no possibility of a bond may apply to the High Court or the Court of Session for an order under this section directing that, in the event of such arrest, the defendant be released on bail, and the court shall grant him anticipatory bail after taking into account the following factors:
1. The nature and gravity of the accusation.
The antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence
The possibility of the applicant to flee from justice.
Where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail.
Who is eligible to obtain anticipatory bail?
Any person has the right to petition the court of session or the high court under Section 438 of the code of criminal procedure for the grant of bail in the event of his arrest when they have reason to believe that they may be arrested on false or trumped up charges, or because they are at odds with someone, or they are concerned that a false case is likely to be made against them. The court may, if it sees fit, direct that in the event of such an arrest, he shall be released.
Hon’ble Court in State of M.P vs. Pradeep sharma (criminal Appeal No.2049 of 2013 dt.06-12-2013) held that “when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail”.
Conditions for obtaining the anticipatory bail: The High Court or the court of the session may include such conditions in the light of the facts of the particular case, including: 1. A condition that the person shall make himself available for interrogation by the police officer as and when required; 2. A condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer; 3. A condition that the person shall not leave India without the previous permission of the court.
Hon’ble Supreme Court while dealing the case of Siddharam Satlingappa Mhetre (2011) 1 SCC 694 held certain conditions imposed by High Court to be not required & contrary to provisions of anticipatory bail. An accused is free on bail as long as the same is not cancelled. The High Court or Court of Session may direct that any person who has been released on bail to be arrested and commit him to custody on an application moved by the complainant or the prosecution
2. Bail After conviction: (Section 389 of the Cr.P.C)
A Two Judge Bench of the Supreme Court, in Atul Tripathi Vs. State of UP17 discussed the scope and ambit of Section 389 of Cr.P.C and issued the following Guidelines regarding the suspension of Sentence during the pendency of Criminal Appeal. a. The appellate court, if inclined to consider the release of a convict sentenced to punishment for death or imprisonment for life or for a period of ten years or more, shall first give an opportunity to the public prosecutor to show cause in writing against such release. b. On such opportunity being given, the State is required to file its objections, if any, in writing. c. In case the public prosecutor does not file the objections in writing, the appellate court shall, in its order, specify that no objection had been filed despite the opportunity granted by the court. d. The court shall judiciously consider all the relevant factors whether specified in the objections or not, like gravity of offence, nature of the crime, age, criminal antecedents of the convict, impact on public confidence in court, etc. before passing an order for release.
Section 389(3) is applicable only in the following conditions –
The Court must be the convicting Court
The accused must be convicted by the Court
The convict must be sentenced to imprisonment for a term not exceeding three years
The convict must express his intent to present appeal before the appellate Court
The convict must be on bail on the day of the judgment.
3. BAIL ON DEFAULT
Section 167(2) of the Criminal Procedure Code, 1973 empowers judicial magistrates to authorize custody of an accused person in cases wherein investigation cannot be completed in twenty-four hours. It provides for the maximum period ofcustody that can be authorized. It further contains a mandate that if the investigation is not completed within the stipulated maximum period, the accused is to be released on bail whatever may be the nature of accusation against him.
State of U.P. v. Laxmi Brahman, AIR 1983 SC 439 Section 167(2) deals with powers of the magistrate to detain the accused in custody and release him on bail on expiry of the statutory period. It is quite clear that power is conferred onthe magistrate to release the accused on bail under the proviso.
4. TEMPORARY/ INTERIM BAIL
There isn’t a specific legal clause allowing for interim or ad-interim bail. The High Court and the Sessions Court have the authority to release the accused on bail while they are in detention under Section 439 CrPC. Evidently, the court has the authority to release an accused person from detention on bail under Sections 436, 437, and 439. That is after an arrest. As was said before, the newly replaced Section 438 specifically calls for interim bail while the application for anticipatory bail is being decided. It’s a crucial clause since the accused could be arrested before the decision on his bail application is made. Additionally, it is consistent with the idea of the fundamental right to life and liberty as stated in Article 21 of the Indian Constitution. Interim bail may be granted when the court is satisfied that the object of the. However, this kind of bail may be granted at any stage of a case by way of court’s inherent power.
In Siddharam v State (2011) 1 SCC 694. court held that there is no express provision for interim bail in Sections 437 or 439 CrPC. Of course Section 437(2) hints at such a power, but not in explicit terms. Even to exercise the power there under, the Magistrate may order notice to the prosecution in which case the accused under arrest can’t avoid detention in jail. Thus, the interim bail regime becomes relevant even in post-arrest matters, leaving alone the interim bail provision in Section 438 CrPC. Life bereft of liberty is without honour and dignity.
5. Bail for Bailable offences:
According to Sec. 436 of the Criminal Procedure Code, if the alleged offense is bailable, the accused is automatically entitled to bail. This bail hearing might take place in the police station or, if the case has been transferred to a magistrate court, at the magistrate court. Bail is a legal privilege, not a favor, for crimes that are subject to bail. There is no question of any discretion in granting bail in such offenses. Bail can be requested as of right, and the police officer and the court are required by law to release someone on bail if they are willing to post money. In appropriate circumstances, such a person may also be released on his own bond. Only in cases where the accused is unable to post bail should he be detained in custody.
The Hon’ble Supreme Court in a case Rasiklal V/s Kishore Khanchand Wadhwani (AIR 2009 1341)held that: “As soon as it appears that the accused person is prepared to give bail, the police officer or the court before whom he offers to give bail, is bound to release him on such terms as to bail as may appear to the officer or the court to be reasonable. It would even be open to the officer or the court to discharge such person on his executing a bond as provided in the Section instead of taking bail from him”.
6. BAIL IN CASE OF NON-BAILABLE OFFENCE
Section 437 of the code contains provisions on bail in cases of crimes that are not bailable. In a case when bail is not possible, this clause grants the Court (other than the High Court or Court of Session) the discretionary authority to release the offender on bail. It outlines situations in which bail will not be granted or in which bail must be granted with a specified condition, among other things. Only one class of police officers, namely an officer-in-charge of the Police Station, is given the authority to release on bail a person accused of a non-bailable offense under section 437 sub Section (I). Given the danger and stakes involved, the option to grant bail must be used very carefully because it is permissive rather than mandatory. A station officer should be confident that using his authority won’t jeopardize the prosecution’s ability to prove the accused is guilty before acting. The officer in charge must keep the bail bonds until they are released, either by the accused appearing in court or by an order from a competent court, and must note the reasons or exceptional grounds for releasing the accused in the case diary.
In the case of State of Rajasthan v. Balchand,(1977) 4 SCC 308. this Court opined: The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the Petitioner who seeks enlargement on bail from the Court. We do not intend to be exhaustive but only illustrative.
In the case of Prahlad Singh Bhati v. NCT, (2001) 4 SCC 280 court held that It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.
Powers of the High Court or Court of Session in granting bail :
A High Court or Court of Session may order the following under Section 439(1) of the Code of Criminal Procedure:
(a) That any person accused of an offense and in custody be released on bail, and if the offense is of the nature specified in Subsection (3) of Section 437, may impose any condition that it considers necessary for the purposes mentioned in that Subsection;
(b) That any condition imposed by a Magistrate when releasing any person on bail be set aside or modified.
Cancellation of Bail:
The Code of Criminal Procedure clearly outlines the procedures for canceling bail and re-arresting an accused person. According to Section 437(5), a court that has released a person on bail in accordance with Sections 437(1) or (2) may, if it deems it appropriate, order that the person be arrested and committed to custody. Similar to this, Section 439 grants the High Court and the Court of Session the authority to revoke bail. The Code of Criminal Procedure’s Section 439(2) establishes clear provisions for canceling bail and re-arresting an accused person.
The power of cancellation of bail can be resorted to broadly in the following two situations: (i) On merits of a case mainly on the ground of the order granting bail being perverse, or passed without due application of mind or in violation of any substantive or procedural law; and (ii) On the ground of misuse of liberty after the grant of bail or other supervening circumstances.
The grounds for cancellation of bail under ss. 437(5) and 439(2) are identical, namely, bail granted under S.437(1) or (2) or s.439(1) can be cancelled where the accused
(1) misuses his liberty by indulging in similar criminal activity,
(2) interferes with the course of investigation,
(3) attempts to tamper with evidence of witnesses,
(4) threatens witnesses or indulges in similar activities which would hamper smooth investigation,
(5) attempts to flee to another country,
(6) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency,
(7) attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive
Conclusion:
Under Section 2 of the Criminal Procedure Code, offenses have been divided into bailable and non-bailable categories for the purposes of providing bail. The fundamental contrast between both offenses is that although bail is automatically available for those charged with bailable offenses, bail is not automatically available for those charged with non-bailable offenses.The courts must consider a number of considerations before providing bail for non-bailable offenses. The human rights landscape is changing now. Additionally, crime rates are rising concurrently. In light of this, the Supreme Court has ruled that it is necessary to strike a balance between individual freedom and police investigative authority. There is no benefit in stating that a person’s freedom must be sacrificed for the security of the state. However, they are not necessarily always right, and they are subject to reasonable limitations.
Custodial violence primarily refers to violence in police custody and judicial custody. Custodial violence, which includes torture, death and other excesses in police custody or prison.
In 2020, the Supreme Court asked the Government’s response pertaining to the implementation of Section 176(1A) of the CrPc, which calls for mandatory judicial inquiry related to incidents of deaths, disappearance, rape, etc. in judicial custody.
Custodial Violence – Key Points
Custodial violence is the violence that takes place in judicial and police custody where an individual who has done a crime is tortured mentally or physically
Most of the custodial deaths were attributed to reasons other than custodial torture, which included suicide and death in hospitals during treatment
One of the biggest issues with custodial violence is that it has put human rights at stake. This crime is an outburst against humanity and is one of the many root obstacles in a Democratic country
Although, overcrowding, malnutrition, unhygienic conditions and lack of medical care are some of the factors of death in police and judicial custody, but custodial violence remains the common cause of deaths in prisons and lock-ups
Many human rights activists and social workers have found that the worst violations of human rights take place during the course of an investigation when the police, with a view to securing evidence or confessions, often resort to third-degree methods including torture and techniques of arrests by either not recording them or describing the deprivation of liberty merely as “prolonged interrogations”
Types of Custodial Violence
There are different types of custodial violence. Discussed below are the same:
Physical Violence
Through physical force or bashing which may lead to the exhaustion and fear of death
Psychological Violence
Not providing correct information and mentally torturing them. This may also be done through humiliation and threats
Sexual Violence
This may include verbal sexual abuse and humiliation of one’s dignity. This may leave a long-lasting psychological impact on the victim.
Legal Provisions for Custodial Violence in India
The following provisions were enacted to curb the tendency of policemen to resort to torture to extract confessions, etc.:
Sections 330, 331 & 348 of Indian Penal Code (IPC)
Sections 25 & 26 of the Indian Evidence Act
Section 76 of Code of Criminal Procedure (CrPC) and Section 29 of the Police Act, 1861
Other important constitutional provisions are as follows:
Protection from torture is a fundamental right enshrined under Article 21 (Right to Life) of the Indian constitution
Section 41 of the Criminal Procedure Code (CrPC) was amended in 2009 to include safeguards under 41A, 41B, 41C and 41D, so that arrests and detentions for interrogation have reasonable grounds and documented procedures, arrests are made transparent to family, friends and public, and there is protection through legal representation
Article 21 of the Indian Constitution provides that no person shall be deprived of life or personal liberty except according to the procedure established by the law
Indian Police Act, 1861:
Sections 7 & 29 of the Police Act, 1861 provide for dismissal, penalty or suspension of police officers who are negligent in the discharge of their duties or unfit to perform the same
Role of State Government:
Police and public order are State subjects as per the 7th Schedule of the Constitution of India.
It is primarily the responsibility of the state government concerned to ensure the protection of human rights.
Role of Central Government:
The Central Government issues advisories from time to time and also has enacted the Protection of Human Rights Act (PHR), 1993.
It stipulates establishment of the NHRC and State Human Rights Commissions to look into alleged human rights violations by public servants.
Case Laws:
1. D.K. Basu v. State of West Bengal 1997 : Laid down 14 guidelines regarding custodial torture and police brutality ( Also read : https://lawwire.in/custodial-death/ )
“….Transparency of action and accountability perhaps are two possible safeguards which this Court must insist upon. Attention is also required to be paid to properly develop work culture, training and orientation of the police force consistent with basic human values. Training methodology of the police needs restructuring. “
2. Om Prakash and Ors. v. State of Jharkhand 2012 : Police and State Authorities vis-a-vis Extra-Judicial Killings
“….It is not the duty of the police officers to kill the accused merely because he is a dreaded criminal. Undoubtedly, the police have to arrest the accused and put them up for trial. This Court [The Hon’ble Supreme Court] has repeatedly admonished trigger-happy police personnel, who liquidate criminals and project the incident as an encounter. Such killings must be deprecated. They are not recognised as legal by our criminal justice administration system. They amount to State-sponsored terrorism”
3. People’s Union of Civil Liberties (PUCL) v. State of Maharashtra 2014 : 16 point guidelines were laid down as the “standard procedure to be followed” for thorough, effective, and independent investigation in the cases of death during police encounters
i) Any intelligence or tip-off regarding criminal activities pertaining to the commission of a grave criminal offence must be recorded either in writing or electronic form ii) If encounter takes place and firearm is used by the police party and as a result of that, death occurs, an FIR to that effect shall be registered and forwarded to the Court under Section 157 of the CrPC, whilst following the procedure u/s. 158 iii) The investigation, as far as such death is concerned shall be conducted by an independent CID/ a police team of ANOTHER police station iv) Mandatory magisterial inquiry (under Section 176 of the CrPC) into all cases of encounter deaths MUST be held and a report thereof must be sent to the Judicial Magistrate v) The information of the incident without any delay must be sent to NHRC or the State Human Rights Commission, as the case may be vi) Medical Aid to be provided to the criminal/victim vii) No delay shall be caused in sending FIR, diary entries, panchnamas, sketch, etc., to the concerned Court. viii) To ensure the trial to be carried out expeditiously, a report shall be sent to the competent court under Section 173 of the CrPC post investigation ix) In the event of death, the next of kin of the alleged criminal/victim must be informed at the earliest x) Bi-annual statements of all encounter killings MUST be sent to the NHRC by the DGPs ( set date + format ) xi) Disciplinary Action, where death is caused by a firearm amounting to an offence under the Indian Penal Code, 1860 SHALL be promptly initiated and the said officer be placed under suspension xii) Victim Compensation Scheme (Section 357-A of the CrPC) to be invoked/extended for the benefits dependants of the dead xiii) Subject to Article 20 of the Constitution, the concerned police officer(s) MUST surrender their weapons for forensic and ballistic analysis xiv) An intimation about the incident must also be sent to the police officer’s family and legal aid services to be offered xv) No out-of-turn promotion or instant gallantry rewards shall be bestowed on the concerned officers SOON after the occurred xvi) Lastly, the family of the victim may make a complaint to the Sessions Judge having territorial jurisdiction over the place of incident if aggrieved by the (lack) of abovementioned procedure followed by the Police
Another crucial stage in the investigation of crimes is the arrest and custody of suspects. In critical circumstances, the accused’s prompt arrest is essential for a thorough investigation. Additionally, it discourages criminals from committing crimes and fosters a sense of tranquility and security among the populace and the government. Without an arrest, a charge sheet is not possible. The word “arrest” describes the act of taking someone into custody so they can face criminal charges. It comes from the French verb “arreter,” which meaning “to stop or stay” and denotes the confinement of a person. In other terms, it refers to the deprivation of a person’s liberty following their arrest by a legal authority.
The terms “arrest” and “custody” are not interchangeable. Custody exists in every arrest and cannot be avoided. Arrest involves taking possession of or touching a person’s body in an effort to restrain him, whereas custody involves submitting a person to the custody through words or deeds..
According to Cr.P.C, the police have the authority to detain a person in both cognizable and non-cognizable cases. Police can detain a person in a cognizable case without a warrant from a qualified magistrate. However, under Section 155 Cr.P.C, the police must first obtain a signed warrant of arrest from a qualified magistrate before they can make an arrest in a non-cognizable matter.
OBJECTIVES
Once you go though this unit, you should be able to:
• explain the circumstances under which the police can arrest a person;
• describe briefly as to the procedures to be followed by the police while making arrest;
• lay down the procedures to be complied with by the police after effecting arrest;
• enumerate the rights of a person arrested;
• set out the consequences that follow on the police of non-compliance with the provisions relating to arrest;
• briefly explain the ambit and scope of detention u/ss 57 and 167 CrPC;
• describe briefly the procedures to be followed by the police in search and seizure u/ss 165,166 and 166A of CrPC;
• lay down the procedures to be followed by the police during search and seizure u/s 100 of CrPC; and
• explain the procedures to be followed by the police in disposal of the seized property.
CIRCUMSTANCES UNDER WHICH A PERSON CAN BE ARRESTED
A person may be detained in a number of situations. The police are a state apparatus with the authority to detain people who have broken the law or committed crimes. According to Section 41 of the Criminal Procedure Code, a person may be detained without a warrant from a magistrate in a number of situations, including: when a person has committed or has been accused of committing a non-cognizable offense in the presence of a law enforcement officer and refuses to give his or her true name or address; any person concerned or reasonably suspected to be concerned in any act committed at any place outside India, any person belong to one or more of the categories of persons specified in Section 109 or 110 of C.P.C and so on.
HOW ARREST IS MADE
The manner in which an arrest is to be made is outlined in Section 46(1). Regardless of whether the arrest will be made with or without a warrant, it is required that the police officer or other person making the arrest actually touches or confines the subject’s body unless there is verbal or physical submission to custody. Oral declarations of arrest, on the other hand, that do not involve physical contact or submitting to custody do not constitute arrest. The police are authorized to make an arrest under the following circumstances under the Code of Criminal Procedure:
(1) Use of force by the Police while making Arrest: – In accordance with Section 46(2) of the Cr.P.C, the police may use reasonable force to make an arrest if the target of the arrest resists or tries to flee. However, the ability to use the necessary force to make an arrest does not include the ability to kill someone who has not been charged with a crime carrying a death penalty or a life sentence under Section 46(3) of the Criminal Procedure Code. According to Section 49 of the Cr.P.C, the apprehended person may not be restrained any more than is required to stop his escape.
(2) The police should not handcuff Accuse in normal circumstances: – The investigating police are restrained from handcuffing the arrested persons without the prior permission from the concerned magistrate.
3) The Police power to search a place: – A home’s occupant has a legal obligation to provide the police and anyone acting on an arrest warrant with all the facilities they need to search the home and make arrests under Section 47 of the Criminal Procedure Code.
(4) The police power to pursue Offenders any place in India: – In accordance with Section 48 of the CrPC, a police officer may pursue a person into any location in India in order to arrest them without a warrant. This clause makes it easier for the police to start and finish their investigation of a case quickly and successfully..
5) The police power to obtain assistance: -Any person that a police officer has the legal right to arrest in accordance with Section 37 of the Cr.P.C may be asked to help him take an additional person into custody or stop that person from escaping. The individual who has been asked to help has a legal duty to do so, and any willful omission on his side to do so is punished under Section 187 I.P.C.
(6) Power to require Subordinate Officer to arrest: – An officer- in- charge of a police station, or any police officer holding investigation under Chapter XII of Cr.P.C, can require any subordinate officer to arrest without a warrant (other than in his presence) any person who may lawfully be arrested without a warrant, and shall deliver to the officer so required an order in writing, specifying the person to be arrested and the offence or other cause for which the arrest is to be made under Section 55 of Cr.P.C.
(7) Power to re-arrest escapee: -A person in lawful custody who escapes or is rescued is subject to immediate pursuit and arrest by the person from whose custody he escaped or was rescued in any location in India, according to Section 60 of the Criminal Procedure Code. In terms of employing force to make an arrest, searching a location, etc., the person making the re-arrest shall have the same rights and obligations as described above.
AFTER-ARREST PROCEDURES
(1) Search of arrested person: -The police officer making the arrest (or the person to whom the arrested person is turned over after being arrested by a private person) may search the person in question and place all items, other than necessary wearing apparel, found on him in safe custody whenever the arrested person cannot legally be admitted to bail or is unable to provide bail. Such a person shall be provided with a receipt listing the items that were so seized. The police’s refusal to issue a recovery memo is an irregularity, yet it was determined that the trial was not invalidated. If the person being detained is a woman, Section 51 of the Criminal Procedure Code requires that another woman conduct the search while strictly adhering to her decency.
(2) Seizure of offensive weapons: -Any offensive weapons that the detained person has on him or her may be taken by the police officer or other person conducting the arrest, and all weapons thus taken must be delivered to the court or officer that the arrested person must appear before in accordance with Section 52 of the Cr.P.C.
(3) Medical examination of accused:- A registered medical practitioner could conduct the examination at the request of a police officer not below the rank of a sub-inspector if the crime for which the arrested person is charged is of such a nature and is alleged to have been committed in such circumstances that the evidence as to the commission of the crime would be provided by the medical examination of such an arrested person. Any force that is deemed to be reasonably required for the purposes of the medical examination may also be employed.
If the subject of the examination is a woman, a registered lady medical practitioner must do the examination or supervise it, in accordance with Section 53 of the Cr.P.C. As long as the arrested person is not forced “to be a witness” against themselves, the medical examination has been deemed to not violate Article 20(3) of the Constitution. The inspection is not solely limited to what can be seen on the body. Depending on the circumstances, it can involve testing urine, sputum, blood, or semen.
The discomfort, pain, or injury that the examinee experiences during the examination is justified under Section 53 of the Criminal Procedure Code if the examination procedure is reasonable. The Code of Criminal Procedure (Amendment) Act of 2005, which established the procedures for conducting medical examinations, added sections 53-A and 54(2) and provided a detailed description of what “examination” and “registered medical practitioner” mean..
(4) Reports of arrest to be sent to District Magistrate: – According to Section 58 of the Criminal Procedure Code, every police officer in charge of a police station is required to report to the District Magistrate all cases of people who have been arrested without a warrant within the station’s boundaries.
(5) Person arrested not to be discharged except on Bond or Bail: – A person who has been detained by a police officer is not eligible for release unless he posts his own bond, obtains bail, or receives a special order from a magistrate under Section 59 of the Criminal Procedure Code.
RIGHTS OF ARRESTED PERSON
Several basic practices regarding the rights of the arrested individual have been established by the Code of Criminal Procedure, the Indian Constitution, different Supreme Court rulings, and other International Human Rights Covenants and Conventions. These rights are enforceable at various stages of an arrest, and a police officer who violates them faces harsh disciplinary and criminal consequences.
(1) Right to be informed of the grounds for arrest: – Whether an arrest is made with or without a warrant, the person making the arrest must immediately inform the person being detained of the reason(s) for the arrest in accordance with Section 50 Cr.P.C. The Constitution’s Article 22(1) recognizes this as a valuable right of the individual who has been arrested. A person who has been arrested benefits in many ways from timely knowledge about the reason for the arrest. He has a chance to clear up any misunderstandings, errors, or misperceptions the arresting authority may have had. It also gives him the opportunity to quickly set up other aspects of his defense, such as applying for bail or a petition of habeas corpus.
(2) Right to be informed of right to Bail: – According to Section 50(2) of the Criminal Procedure Code, every police officer who unlawfully detains a person for any reason other than an offense for which bail is not permitted is required to advise the detained person of his right to be freed on bail and that he may arrange for sureties on his behalf. Only when he is unable to secure sureties may he be released without posting bail.
(3) Right to be produced before a Magistrate without delay: – According to Sections 56 and 76 of the Cr.P.C, the person making the arrest is required, without undue delay and subject to the provisions regarding bail, to present the arrested person before the magistrate or officer-in-charge of a police station with jurisdiction over the case. This is true regardless of whether the arrest was made with or without a warrant.
(4) Right to consult a Legal Practitioner: -According to Article 22(1) and Section 303 of the Cr.P.C, any individual who has been arrested has the legal right to consult with a lawyer of his choosing. This right is recognized by both the Constitution and the relevant provisions of the Cr.P.C. The moment of arrest is the start of the right. Although the police officer may be there, he cannot hear the lawyer’s consultation.
(5) Right of an arrested Indigent Person to free legal aid and to be informed about it: –
The Supreme Court held in Khatri v. State of Bihar, (1981) 1 SCC 627, that the State has a constitutional obligation (implicit in Article 21) to provide free legal representation to an indigent accused person. The Supreme Court further held that this constitutional obligation to provide legal representation does not only arise when the trial begins but also when the accused is first brought before the magistrate and when he is occasionally remanded. However, unless he is immediately and properly informed about it by the court when he is brought before it, the constitutional right of an accused person who is impoverished to receive free legal representation may turn out to be illusory. The Supreme Court has therefore cast a duty on all Magistrates and courts to inform the indigent accused about his right to get free legal aid.
(6) Right to be examined by a Medical practitioner: –
Any arrested person who claims that the examination of his body will provide evidence that will disprove the commission of any crime by him or that will establish the commission of any crime against his body by another person must request that the Magistrate order the examination of his body by a registered medical professional at the time when he is brought before a magistrate or at any other time during the period of his detention in custody. However, the Magistrate need not give such a direction if he considers that the request for medical examination has been made by the arrested person for the purpose of vexation or delay or for defeating the ends of justice under Section 54 Cr.P.C.
In Indian courts, a trial is initiated by a Prosecutor who first examines witnesses in his Examination-in-chief and then he proceeds with his arguments. If evidence produced before him is found to be irrelevant or inadmissible, an impartial Judge objects to it and discards it as unacceptable. International Covenant on civil and political rights insists upon fair trials by presuming innocence and by insisting upon proof ‘beyond reasonable doubt.5 Indian courts follow the principle of fair trial, during which Prosecutors enjoy a lot of discretion which enables them to protect the innocent and to convict the guilty.6 The notion of fair trial and justice is protected. Normally, the prosecution begins after the police end their investigation. In the year 1958, the Law Commission of India had recommended the appointment of the Director of Public Prosecution to control all he Prosecutors. This is a separate department of prosecution. Trial stage is the work intensive stage for the Indian Prosecutors. However, that recommendation was not executed for many decades and the mandate of this Board of Directorate of Prosecutor was incorporated in year 2005.
CONSTITUTIONAL PROVISIONS
List III of the 7th Schedule to the Indian Constitution allows the Center and also the States to legislate on prosecution. Of course,there exists no direct provision relating to prosecution in Indian Constitution. Prosecutor’s post is a statutory post. It is not a constitutional post as Attorney General of India or Solicitor General of India. However, it is the duty of States to protect the interest of the society. Prosecutors represent the State in criminal courts and incidentally they protect the victim’s interest. Therefore, indirectly it is incumbent on Prosecutors to protect the interest of State. Indian Constitution is a written document. It follows the Anglo-Saxon common law justice system. Article 14 of the constitution mandates equality before law or equal protection of laws within the territory of India. Article 21 mandates protection of life and personal liberty Article 20 provides protection against self- incarnation and double jeopardy. Article 20 (3) allows an accused to maintain silence. The accused will not be compelled to be a witness against himself. Under Article 20 innocents are constitutionally protected and no person would be subject to pay penalty greater than that which might have been inflicted upon him under the law in force at the time of commission of the offence.
These fundamental rights can be claimed against the State which is bound to protect them. Under Article 39 (A) of State must secure equal justice to all its citizens. This is one of the Directive Principles of State Policy. Free and Fair trial is indispensable part of Adversarial criminal justice system. In K. Anbhazhaganv Superintendence of police A.I.R. 2004, S.C.524 case, the court held that Free and Fair trial is a sine qua non of Article 21 of the Indian Constitution. It is trite law that justice should not only be done but it should be seen to have been done. If the criminal trials not free and fair and not free from bias, judicial fairness and judicial system would be at stake, shaking the very confidence of the Public in the system and woe would be the rule of law. There is a close nexus of truth with free and fair trial. In this regard, as per Philip Rechel, The Adversarial Process assumes that truth will emerge only from free and open competition. Here, the struggle is between the State on one hand and the defendant on the other.
Indian Prosecutors are regulated and governed under the Code of Criminal Procedure, 1973. Along with these, there are special statutes where specific provision for the Public Prosecutor is given. The Prosecutors follow the rules of evidence under the Indian Evidence Act, 1872 throughout the criminal proceedings. In addition to these provisions, there are special legislation’s governing Prosecutor’s appointments, their powers, etc. under the special laws enacted by the Parliament Indian and enacted by State legislatures.
Reasons for the Appointment of Public Prosecutor
Whenever any crime is committed against a group or individual, it is assumed that it has been committed against society. It is the duty of the state to provide justice to any group of society or person who is affected by the crime. In India, it is necessary that the criminal justice system should function within the limits of the Indian Constitution, which means that it is necessary for the Public Prosecutor to act in accordance with the principles of:
Equality before law
Protection against double jeopardy
Protection against self-incrimination
Protection against ex-post law
Right to life and personal liberty except procedure established by law
Presumption of innocence until proven guilty
Arrest and detention must be in accordance with the provisions of Cr.P.C.
Equal protection of laws
Speedy trial
Prohibition of discrimination
Right of accused to remain silent
CLASSIFICATION OF PROSECUTORS IN INDIA
a) Public Prosecutor/ Additional Public Prosecutors-
High Courts and Sessions Courts After consultation with the High Courts, Central Government or State Government is empowered to appoint Prosecutors for purpose of prosecution, appeal or for any other purpose. The Act made it mandatory that every State Government appoint Public Prosecutors for every district in the State. For that purpose the District Magistrate prepares list of the interested candidates to be a District level Public Prosecutor or an Additional Public Prosecutor. The Sessions Judge, i.e. the principal district Judge is consulted. Suitable candidate list is sent to the State and the State Government approves the list finally from the list it receives. Minimum seven years of experience is mandatory for the candidates who apply for the post of Prosecutors. That experience should be of the Session’s courts litigation. As long as the Prosecutor is on the roll of Prosecutors, he is not entitled to appear against the Government in any civil or criminal cases. In order to avoid clashes in interest, this provision is made and is strictly followed in India .
b) Special Public Prosecutors-
The Special Public Prosecutors are appointed under Sec 24 (8) of the Code of Criminal Procedure 1973. They deal with the special cases registered under the Special Laws. At least 10 years practice is mandatory for the candidates willing to be Special Public Prosecutors. Also,the Special Public Prosecutors are appointed for CBI Courts under Sec 24(8) of the Code of Criminal Procedure, 1973. As per notification Directorate of Prosecution 2002, the Central Government issues notifications to appoint special Public Prosecutors in CBI courts. As a result of Vinit Narayan V UnionofIndia decided in the year 1963, Santhanam Committee has recommended the appointment of Prosecution Wing to deal with CBI cases in the CBI or the Sessions courts. Advocate on the roll list with minimum ten years of practice in the Session’s courts is eligible for the post of Special Public Prosecutors in India. The Special Public Prosecutors who deal with special offences punishable under the Indian Penal 86 Code, 1860 or the Special Criminal Laws made either by the Central Government or the State Government respectively. Those special laws can be the Narcotic Drugs and Psychotropic Drugs Act, 1985 (i.e. NDPS), The Prevention of Money Laundering Act, 2002, The Scheduled Caste and Schedules Tribes (Prevention of Atrocities) Act, 1987. These Special Public Prosecutors are appointed for a fix period and are paid comparatively higher than the Public Prosecutors working in the Session’s court or the High courts. Upon special request from the police or Public or sometimes the State Government or the Central Government on its own appoint Special Public Prosecutors.
c) Assistant Public Prosecutors at the Magistrates Courts-
The Assistant Public Prosecutors are the Prosecutors dealing with the cases in Magisterial Courts. The State Govt. conducts competitive examinations through its respective State Public service commissions. Their jurisdiction is limited to Judicial Magistrate First Class, Judicial Magistrate Second Class, Metropolitan Magistrates Court and the Chief Judicial Magistrate Courts. These assistant Public Prosecutors are appointed by States. Police officers are not entitled to work as Prosecutors. The District Magistrate may appoint any person as Public Prosecutor if he or she is not an investigating officer in a specific case and he / she is of or above the rank of Inspector. These Prosecutors are regular full time Prosecutors appointed by the Home Ministry of the respective State Government. They are entitled to receive benefits from Govt.
d) The Director of Prosecution-
The Head of the prosecuting authority in a State is known to be Director of Prosecution.A person shall be eligible to be appointed as Director of Prosecution or a Deputy Director of prosecution, only if he has been in practice as an advocate for not less than ten years and such appointment shall be made with concurrence of the Chief Justice of the High Court. He shall function under the administrative control of the Head of the Home Department in the State Secretariat. The powers, functions and area of authority of the Director of Prosecution and the Deputy Director of prosecution shall be such as the State Government may specify. In year 2005, a major amendment was made to Section 25 of the Code of Criminal Procedure. The Directorates of Prosecutors are created in States for multiple reasons. Their primary task is to bring about coordination among different prosecuting agencies. In addition to this, the directorate of prosecution advises the State Govt. for filling of appeals and revision petitions. It also takes care of efficiency,integrity and discipline of all Prosecutors. The Directorate of Prosecutor consists of a Director of Prosecution, the Dy. Directors of Public Prosecutors, Additional Public Prosecutors and the Special Public Prosecutors.
e) Prosecution by Central Bureau of Investigation (C.B.I.)-
The Central Bureau of Investigation has its Legal Division which plays an advisory and Prosecutor role. The Legal Division is headed by a Legal Advisor, who is sent on deputation to CBI by the parent Union Ministry of Law. This arrangement ensures objectivity of his office. The Legal Advisor is assisted by a number of Law officers namely, Additional Legal Advisor, Deputy Legal Advisors, Senior Public Prosecutors, Public Prosecutors, Assistant Public Prosecutors. These are indicated in descending order of seniority and rank. These officers who are permanent employees of the CBI, render legal advice to the investigating officers during the course of their investigations as to the viability of proposed prosecutions.
Functions
The functions of the Public Prosecutor differ according to their designation.
Public Prosecutor- supervise the function exercised by the Additional Public Prosecutor in Session Court and High Court.
Chief Prosecutor- supervise the functions exercised by Assistant Public Prosecutor in Metropolitan Magistrate Court.
Additional Prosecutor- conduct criminal proceedings in the Session Court.
Assistant Public Prosecutor- they examine the charge sheet prepared by agencies and submit the acquittal or discharge. They also are responsible for the evaluation of evidence and filing revisions petitions. They also conduct the criminal proceedings in the Court of Metropolitan Magistrate.
Director of Prosecution- it is the head office. They exercise the overall control and supervision of officers of Directorate. They also look after the Account Branches.
General Duties of Prosecutors
Following are the duties of Prosecutors based on the statutes and case laws.
a) Examination of Independent Witnesses – When there were independent witnesses who had seen the occurrence, it was incumbent on prosecution to examine them. If the examination of such witness is necessary to protect the interest of the State, the Prosecutor is under duty to examine that witness.
b) Duty to Examine Important Witnesses– Sometimes, the witness may be of such importance for securing conviction, and then to protect the interest of justice the Prosecutor is under a duty to examine that witness. It is the duty of the Public Prosecutor to examine important witnesses. Dropping of important witnesses is not proper since it deprives the right of defence to cross examine such witnesses.For the sake of protection of victim’s right, it is necessary to examine such a witness.
c) Duty in Cases of Hostile Witnesses– The witness who does not support the party who has invited him to be his witness is called a hostile witness. Section 154 of the Evidence Act 1872 permits the prosecution to cross examine such witnesses who have turned hostile.
d) Duty to be Fair – Prabhu Dayal Gupta v State 1986, Cr. L. J. p. n. 389 it was held that while presenting case, the Prosecutor needs to be just and reasonable.Relevant evidence should be placed before the courts without bias and prejudice, all the evidences supporting and against the prosecution case should be categorically brought before the court to determine the guilt or innocence of an accused. An exhaustive scene should be placed before the court without hiding or concealing any material fact.
e) The Public Prosecutor has a Public Responsibility at the time of With drawing Prosecution– In Koli Nana Bhana and others v. State of Gujarat 1986 Cr. L. J . 571 p.no.574,decision of withdrawal of prosecution lies with the Prosecutor engaged in the case. This is the Prosecutor’s exclusive prerogative which can take initiative for withdrawal if the case is fit for withdrawal of prosecution as per existing provisions. In State v. Bhim Singh 1978 Cr. L. J. 1041 p. no. 1043 (HP) it was held that when the cognizance of the complaint is taken by the magistrate, the Prosecutor should take initiative in the case and not wait for the Magistrates initiative in the case.
f ) Duty in Context of Standard Number of Witnesses to be Examined – The number of witnesses which should be examined by the Prosecutors in the court does not matter. As evidence is weighted and not counted under the statutory provisions of Indian Legal System. In Tangaru Pradhan V State of Orrissa 1984,(2) 576 ,the court held that Law it is well settled that there can be conviction on the basis of sole testimony of witness. It is not necessary for the Prosecutor to bring as many prosecution witnesses as he can to secure conviction.
g) Examination of Investigating Officer is to Avoid Acquittal– Investigating officer plays a very important role in the criminal cases in India. Investigation officers are considered as Prosecution Witnesses. Therefore, much care is taken by the Prosecutors to examine the investigation officer. Most of the cases lead to acquittal due to material contradictions and omissions in the case. In order to avoid miscarriage of justice , the Prosecutor should examine the police officer/ officers who have dealt with the case.
h) Duty of Prosecution to Explain the Delay in Examining Prosecution Witnesses by Investigating Officer during Investigation– If there is a delay on the part of the police doing investigation, then the Prosecutor is a duty bound to explain to the court the reason for such delay.
i) Duty to Explain Delay in F.I.R- It is expected that the First Information Report should be lodged as soon as possible in the police station. Prompt First Information Report is always better in strengthening prosecution case. In case of delayed First Information Report, there can be suspicion and lead to create doubt about prosecution case. Therefore, the Prosecutors should be able to justify the reasons for delayed First Information Reports in the Law Courts. Upon successful justification, there cannot be any room of suspicion affecting prosecution case.
j) Duty to Examine Magistrate who conducted Test Identification– In this case, it was held that the executive magistrate who dealt with the identification parade should be examined by the Prosecutors. Unless and until the examination of executive magistrate is conducted by the Prosecutors and the genuineness of the identification memo is admitted by the Defence Counsel, that identification memo cannot be an evidence and that cannot be used in the courts of law.
k) Examination of New Witnesses – During trial of criminal cases, new witnesses not named in F.I.R. nor named in charge sheet or not examined by the investigating officer can be examined by the Public Prosecutor. The Prosecutors are empowered to conduct the examination of witnesses whose names are not categorically mentioned in the First Information Report or in the charges of the police officers and who have not interrogated those witnesses earlier.
l) Prosecution cannot take Advantage of Weaknesses of Defence– In Jose v State of Kerala 1984, Cr. L.J.748 ,it was held that Prosecution shall stand on its own feet.It cannot take advantage of the weaknesses of defence side. The prosecution can succeed by substantially proving the very story it alleges. Nor can the court, on its own, make out a new and novel case of the prosecution and convict the accused on that basis.
Role of Public Prosecutors
It is divided into two parts:
In investigating process
During the trial
Role of the Public Prosecutor in the investigating process
To make an appearance in the Court and obtain an arrest warrant
To obtain search warrants for conducting a search in specified premises
To obtain police custody remand for interrogation (including custodial interrogation) of the accused
To initiate a proceeding for the declaration of the non-traceable offender as the proclaimed offender
To record the evidence of accused in the police report regarding the advisability of the prosecutions
Role of Public Prosecutors at the time of trial
Sentencing- when the accused is proven guilty, then the defence counsel and the Public Prosecutor further argue to decide the quantum of punishment. At this stage, the Public Prosecutor may argue for the adequate punishment keeping in mind the facts, circumstances of case and gravity of the offence. It helps the judge to arrive at a judicious decision.
To conduct a speedy trial- Right to a speedy trial is a fundamental right and it is impliedly given in Article 21 of Constitution of India which states “Right to life and Personal Liberty”. The prosecutors have a responsibility to call all the witnesses whose evidence is essential to decide the case. To cross-examine the witness and to see that no witness if left un examined. To produce all the necessary documents.
Other Important Roles
The Public Prosecutor cannot aggravate the facts of the case or deny to examine the witness whose evidence may weaken the case. The main aim must be to discover the truth.
He should not defend the accused. It is against the fair play of administration of justice or against the legal profession.
He represents the State, not police. He is an Officer of State and is appointed by State Government. He is not a part of any investigating agencies but an independent authority. He is charged with statutory duties.
Superintendent of; police or District Magistrate cannot compel to the Public Prosecutor to withdraw the case.
If there is an issue which is raised by defence counsel and failed, it should be brought out in the notice of the court by Public Prosecutor.
Under Section 173 of the Cr.P.C, an charge sheet is a report made by a law enforcement officer after investigating a case. It is submitted to the court for the commencement of criminal proceedings. An charge sheet is a final report prepared by an investigative or law enforcement agency to prove an allegation of a crime in a criminal court. A report is usually filed by a police officer and establishes that the defendant is involved in or has committed a crime punishable under the Penal Code in force in India. This report includes and embodies all the rigorous record keeping from initiating the investigation process to submit the FIR to completing the investigation and producing the final report.
When an charge sheet is filed with a criminal court, the court determines which defendants have sufficient prima facie evidence to stand trial. Based on the charge sheet and other recorded findings, the judge formulates charges against the defendant, whether or not the defendant pleads guilty. Indictments are an important mechanism by which judges research and pre-investigate in order to understand a criminal’s guilt in a crime. On the basis of the charge sheet, the judge can call the charges brought, but if, in the course of the investigation, the defendant challenges the charges brought by the police, the “examination” stage will be held without further delay. You get points right away. .
However, it refers to a formal police record showing the names of each person brought in to the custody, the nature of the accusations, and the identity of the accusers. It is also known as four part charging instrument containing:
Information about the accused and the witnesses.
The charges and specifications
The preferring of charges and their referral to a summary.
For the trial record.
Purpose of a Charge-sheet The purpose of a charge-sheet is to notify a person of criminal charges being issued against them. After the charge-sheet is filed, the person against whom the charge-sheet has been filed comes to be known as an accused. The filing of charge-sheet with the magistrate indicates commencement of criminal proceedings.
Benefits of Charge Sheet
It is an essential report which initiates criminal proceeding against the accused.
Statement of the accused, as well as others, are stated.
Charges which are framed against the accused are cited.
It helps the accused in obtaining bail to some extent.
Without a charge sheet, no criminal trial can begin.
Contents of Charge Sheet
According to section 173(2) of CrPC following shall be the contents of the charge sheet:
Name of parties.
Nature of information.
Names of persons acquainted with the case.
Whether any offence has been committed or not? If so, by whom.
Whether the accused is arrested or not?
Has the accused been released on bond, and if yes, surety and bond details to be mentioned.
Whether the accused has been forwarded to custody under Sec.170 of Cr.P.C?
Whether the medical examination report has been attached with the charge sheet if the offence is related to rape under Sec.376, 376 A to E of I.P.C ?
The officer shall also communicate in the manner prescribed by State Government if he has taken any action in response to the person giving FIR.
Note: After receiving the charge sheet, if the magistrate is not satisfied with the investigation, he may order further investigation under section 173(8) of CrPC.
Time Limit for Filing Charge Sheet
Section 167 of the Code of Criminal Procedure Code provides for the grant of default bail to an accused if the probe agency fails to conclude the investigation and file a charge sheet within a stipulated period of either 60 or 90 days in a court of competent jurisdiction
According to CrPC, the prescribed time limit for filing charge sheet is as follows:
Offence triable by Magistrate: 60 days
Offences triable by Sessions Court: 90 days
If the charge sheet is not filed within the prescribed time mentioned above, the accused has a right to default bail.
Quashing of Charge Sheet
Several false cases are on the rise nowadays, filed to harass the accused, and some are filed out of grudge. There are provisions for the accused to come out acquitted in such situations. For this, the accused has to approach the High Court of the concerned State and file a petition under Sec 483 of Cr.P.C, by which the High Court can quash the FIR/charge-sheet by exercising inherent jurisdiction on the following grounds.
When the court is satisfied that FIR is filed only to harass the accused.
When the allegations mentioned in FIR cannot be proved.
When the FIR is filed for a non-cognizable offence and the concerned police officer has filed the same without obtaining permission of the magistrate under Sec 155 of Cr.P.C.
When the charges against the accused are falsely reflected on the charge sheet.
Need of Quashing Charge Sheet
Devendra vs State of UP 2009 SCC 495 – A civil wrong and a criminal wrong must be well distinguished. When only a civil wrong has been made out, the courts shall not allow a person to be harassed as no case of taking cognizance arises.
Wrapping up: Law is for society and against the guilty. Nowadays, police harass the accused to extort money by filing fabricated charge sheets and fake pieces of evidence in court. Courts should come out against such errant officers by punishing them. Advanced society demands smart laws, which is the need of the hour.
Is charge sheet filed after investigation?
“There is no bar for filing charge sheet by the Sub-inspector of Police who is also in-charge of the police station. The preliminary investigation is done by the police inspector. Therefore, the Police Sub-inspector filed a charge sheet who received the complaint and filed the charge sheet,” Hegde submitted.
A charge sheet is distinct from the First Information Report (FIR)
which is the core document that describes a crime that has been committed. It usually refers to one or more FIR(s). Once the charge sheet has been submitted to a court of law, prosecution proceedings begin in the judicial system. In India section 173 of criminal procedure code, 1973 contains the provision relating to charge sheet which form an pertinent part of the procedural law which embodies all the details relating to the name of the Informant/complainant, the accused and victim, any witness, items or articles seized, date ,time and place of occurrence of the crime, the name of the investigating officer, the medical reports if ant made, the FIR number, the true findings of the case diary etc.
What is the difference between charge and charge sheet under CrPC
If prima facie the commission of a cognisable offence is revealed then the police officer must prepare a police report or commonly known as a “charge-sheet” on the basis of the investigation conducted by him or his competent subordinates. The magistrate is then entitled to take cognisance of the case.
Is charge sheet compulsory?
P.C does not impose an obligation on the officer-in-charge to arrest every accused at the time of filing of the charge sheet. If the Investigating Officer does not believe that the accused will abscond or disobey summons he/she is not required to be produced in custody.
By Whom and Before Whom can a Charge-sheet be filed? The Officer-in-Charge of the police station which conducts the investigation files the charge-sheet before the magistrate who has jurisdiction to take cognizance of the matter.
The Magistrate cannot take cognizance of a crime before filing of a charge-sheet. In R.R. Chari v. State of U.P, it was observed that taking cognizance refers to the application of judicial mind before the court. This means that before the charge-sheet is filed, the Magistrate cannot form an opinion as to the guilt or otherwise of the accused.
In J. Jayalalitha v. State, the Court held as follows: Section 173(8) of Code of Criminal Procedure empowers the prosecution to further investigate into the matter in respect of any offence, even after filing a report under Section 173(2) of Code of Criminal Procedure and to file a further report or reports regarding such evidence; and in which event the procedure provided under Section 173(2) to (6) shall apply again. However, in Ram Lal Narang v, State, Delhi Administration it was held that the only requirement under Section 173 (8) is that the police officer inform the court and seek its permission before embarking on further investigation.
Moreover, in Bhagwant Singh v. Commissioner of Police & Anr., the court also observed that even after filing of the charge-sheet, if the court is not satisfied, the Magistrate may order for further investigation.
Conclusion
Criminal investigations are very thorough. It involves many steps that must be followed with great care. One mistake can lead to acquittal of the perpetrator. The police are doing everything in their power to investigate the case.The investigation begins with knowledge of the criminal offense up to the submission of a §173 report to the magistrate. After the trial is over and the court finds evidence that he committed the crime, the culprit is convicted.
