COMMENCEMENT OF CRIMINAL PROCEEDINGS & CONCEPTION OF FAIR TRIAL IN INDIA

Criminal Procedure

INTRODUCTION

In medieval India, after  Muslim conquest, the ‘Mohammedan criminal law’ came into force, after this, The British passed the ‘Regulating Act of 1773’ which led to the establishment of Supreme courts in three presidency towns of Calcutta, Bombay and Madras. The effect of the statute was to apply British procedural law while deciding upon the cases of Crown’s subjects. After 1857 Revolt, the crown took over the Indian administration. The British parliament passed the Criminal Procedure Code, 1861, which continued till post-Independence era and It was amended in 1969. It was finally replaced in 1972.

The Code of Criminal Procedure Code,1973  (Act No. 2 of 1974)  is the main legislation on the procedure for administration on substantive criminal law in India which includes  machinery for the investigation of crime, apprehension of suspected criminals, collection of evidence, determination of guilt or innocence of the accused person and  determination of punishment of the guilty. In addition to this, it also deals with public nuisance, prevention of offences and maintenance of wife and children.This Act consists of 484 sections, which are further divided into 38 chapters, 2 schedules and 56 forms.

Territorial extent, scope and applicability of this act: It is applicable to the whole of India except the state of Jammu and Kashmir as the parliament’s power to legislate in respect of the said state is curtailed by Article 370 of constitution of India. Provided that the provisions of this code, other than those relating to chapters VIII,X and XI thereof, shall not apply:

1     To the state of Nagaland,To the tribal areas in Assam

But the concerned state Government may, by notification, apply such provisions or any of them to the whole or part of the state of Nagaland or such tribal areas, as the case may be specified in the notification.

Criminal proceeding is  proceeding in a court in the prosecution of a person charged or to be charged with the commission of a crime,contemplating the conviction and punishment of the person charged or to be charged.

Criminal procedure is the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge and results in the conviction or acquittal of the accused. Criminal procedure can be either in the form of inquisitorial or adversarial criminal procedure.

Indian Penal laws are primarily governed by 3 Acts:

 1. The Code of Criminal Procedure, 1973 (Cr.P.C.);

 2. The Indian Penal Code, 1960 (IPC);

3. The Indian Evidence Act, 1872 (IEA).

Cr.P.C. is  comprehensive and exhaustive procedural law for conducting a criminal trial in India, which includes manner for collection of evidence, examination of witnesses, interrogation of accused, arrests, safeguards and procedure to be adopted by Police and Courts, bail, process of criminal trial, method of conviction, and the rights of the accused for a fair trial. IPC is the primary penal law of India, which is applicable to all offences, except as may be provided under any other law in India. IEA is a detailed treaty on the law of “evidence”, which can be tendered in trial, manner of production of the evidence in trial, and the evidentry value, which can be attatched to such evidence. It deals with the judicial presumptions, expert and scientific evidence. It is also important to note that India follows the adversarial system, where generally the onus of proof is on the State (Prosecution) to prove the case against the accused, until and unless the allegation against the accused are proved beyond reasonable doubt, the accused is presumed to be innocent. In certain exceptional cases,  related to terrorism, etc., the onus of proof has been put on the accused person, who claims not to be guilty. India has a highly developed criminal jurisprudence and prosecution system, supported by judicial precedents, however, there are certain issues or concerns relating to the execution of the same by Police and implementation by Judiciary. The courts in India, particularly High Courts and Supreme Court have been proactively guarding the rights of the accused.

To appreciate the process of Indian criminal law, it is necessary that to understand following important terminology:

 1. Bailable Offence, means an offence, which has been categorized as bailable, and in  such offence, bail can be claimed, subject to fulfillment of certain conditions, as a matter of right under Section 436 of the Cr.P.C. In case of bailable offences, the Police can give bail to the accused at the time of arrest or detention.

2. Non-bailable Offence, means an offence in which the bail cannot be granted as a matter of right, except on the orders of a competent court. In such cases, the accused can apply for grant of bail under Section 437 and 439 of the Cr.P.C. It is important to note that the grant of bail in a non-bailable offence which is subject to judicial discretion of the Court, and it has been mandated by the Supreme Court of India that “Bail, not Jail” should be the governing and guiding principle.

3. Anticipatory Bail, under Section 438 of the Cr.P.C., means that a person who apprehends arrest on a wrong accusation of committing a non-bailable offence, can apply to a competent court for a direction to police to immediately release such a person on bail in the event of arrest. But, the grant of anticipatory bail is discretionary and dependant on the nature and gravity of accusations, the antecedents of the applicant and the possibility of the applicant fleeing from justice.

4. Cognizable Offence/case, has been defined under Section 2 (c) of Cr.P.C., as an offence/case in which a Police Office can arrest without a warrant.

 5. Non-cognizable Offence/case, has been defined under Section 2 (l) of Cr.P.C., as an offence/case in which a Police Officer has no authority to arrest without a warrant.

6. Whether an offence/case is bailable or not , and cognizable or non-cognizable, has been qualified under the 1st Table of the 1st Schedule of Cr.P.C., which relate to the offences under IPC.

7. F.I.R (first information report), is formal record of a complaint, by police in case of commission of a cognizable offence, and can be considered as a first step in the process of the investigation of a cognizable offence by Police.

8. The Table II of the 1st Schedule of Cr.P.C., gives a general guideline to determine whether an offence is bailable, non-bailable, cognizable or non-cognizable.

 Functionaries under the code: include the Magistrates and Judges of theSupreme Court and high Court, Police, Public Prosecutors, Defence Counsels Correctional services personnel.

Functions, Duties and Powers of these Functionaries:

a)Police: The code does not mention anything about the constitution of police. It assumes the existence of police and devolves various powers and responsibilities on  it. The police force acts as an instrument for the prevention and detection of crime.
The administration of police in a district is done by DSP(District Superintendent of Police) under the direction and control of District Magistrate. Every police officer appointed to the police force other than the Inspector-General of Police and the District superintendent of police receives a certificate in  prescribed form by the virtue of which he is vested with the powers, functions and privileges of a police officer which shall be cease to be effective and shall be returned forthwith when the police officer ceases to be a police officer. The CrPC confers specific powers such as power to make arrest, search and investigate on the members of the police force who are enrolled as police officers. Wider powers have been given to police officers who are in charge of a police station.As per section 36 of CrPC which states that “ the police officers superior in charge of a police station may exercise the powers of such officials.”

b)Prosecutor

If the crime is of cognizable in nature, the state participates in a criminal trial as a party against the accused. Public Prosecutor or Assistant Public Prosecutor is the state counsel for such trials.Its main duty is to conduct Prosecutions on behalf of the state. The public Prosecutor cannot appear on behalf of accused. According to the ongoing practice, in respect of cases initiated on police reports, the prosecution is conducted by the Assistant Public Prosecutor and in cases initiated on a private complaint; the prosecution is either conducted by the complainant himself or by his duly authorized counsel.

c) Defence Counsel: According to section 303, any person accused of an offence before a criminal court has a right to be defended by a pleader of his choice. Such pleaders are not in regular employment of the state and a paid remuneration by the accused person. Since, a qualified legal practitioner on behalf of the accused is essential for ensuring a fair trial, section 304 states that if the accused does not have means to hire a pleader, the court shall assign a pleader for him at state’s expense. At present there are several schemes through which an indigent accused can get free legal aid such as Legal Aid Scheme of State, Bar Association, Legal Aid and Service Board and Supreme Court Senior Advocates Free Legal Aid society. The legal Services Authorities Act, 1987 also provides free legal aid for the needy.

d) Prison authorities and Correctional Services Personnel: The court presumes the existence of Prisons and the Prison authorities. It empowers Magistrates and judges under certain circumstances to order detention of under trial prisoners in jail during the pendency of the proceedings. It also empowers the courts to impose sentences of imprisonment on convicted persons and to send them to prison authorities. However, the code does not make specific provisions for creation, working and control of such machinery. These matters are dealt with in separate acts such as The Prisons Act 1894, The Prisoners Act 1900 and The Probation of Offenders Act 1958.

The rationale of criminal procedure:

Importance of fair trial: One of the important goals of criminal law is to protect society by giving punishment to the offenders. However, justice and fair play require that no one should be punished without a fair trial. A person might be under a thick cloud of suspicion of guilt, he might have been caught red-handed, and yet he is not to be punished unless and until he is tried and adjudged to be guilty by a competent court. In the administration of justice, it is of prime importance that justice should not only be done but must also appear to have been done. Further, it is one of the most important principle of criminal law that everyone is presumed to be innocent unless his guilt is proved beyond reasonable doubt in a trial before competent court.

Therefore it becomes absolutely necessary that every person accused of crime is brought before the court for trial and that all the evidence appearing against him is made available to the court for deciding as to his guilt or innocence.

b)Constitutional perspectives:

     Articles 20 and 22 of the constitution of India provide for certain safeguards to    the persons accused of offences. Article 20 secures the protection of the accused persons, in respect of conviction for offences, fromEx post facto laws, double jeopardy and prohibition against self-incrimination.Similarly, Article 21 of the constitution of India ensures the protection of life and liberty which reads as “no person shall be deprived of his life or personal liberty except according to the procedure established by law. This right may be affected in cases of preventive detention under preventive detention laws. As such, Constitutional protection against arrest and detention is ensured under article 22(1) to (7) of the constitution of India.

c) Criminal Trial in Indian Law: From Charge to Conviction or Acquittal:-

The criminal procedure in India is governed by the CrPC 1973.It divides the procedure to be followed for administration of criminal justice into three stages namely-

Investigation- where evidences are to be collected.

Inquiry- a judicial proceeding where judge ensures for himself before going on trial, that there are reasonable grounds to believe that the person is guilty.

Trial- the judicial adjudication of a person’s guilt or innocence.

Stages of Criminal Trial in India

(i) Registration of F.I.R

Lodged under section 154 of the code which provides for the manner in which such information is to be recorded.

Statement of the informant as recorded under section 154 is said to be the First Information Report. Its main object is to set the criminal law in motion.

FIR means the information, by whomsoever given, to the officer in charge of a police station in relation to the commission of a cognizable offence and which is first in point of time and on the strength of which the investigation into that offence is commenced.

Its evidentiary value: – It is not substantive evidence i.e. not the evidence of the facts which it mentions. Its importance as conveying the earliest information regarding the occurrence cannot be doubted. It can be used to corroborate the informant under section 157 of the Indian Evidence Act, 1872, or to contradict him under section 145 of the act, if the informant is called as a witness at the time of trial.

ii) Commencement of investigation:

It includes all the efforts of a police officer for collection of evidence: Proceeding to the spot; ascertaining facts and circumstances; discovery and arrest of the suspected offender; collection of evidence relating to the commission of offence, which may consist of the examination of various persons including the accused and taking of their statements in writing and the search of places or seizure of things considered necessary for their investigation and to be produced at the trial; formation of opinion as to whether on the basis of the material collected there is a case to place the accused before a magistrate for trial and if so, taking the necessary steps for the charge-sheet.

Investigation ends in a police report to the magistrate.

It leads an investigating officer to reach a conclusion whether a charge-sheet has to be filed or a closure report has to be filed.

iii) Framing of charges: If a person is not discharged, trial begins by framing a charge (nothing but a specific accusation against the accused) and reading and explaining it to him (so that he knows what he is to force).

iv) Conviction on plea of guilty: After framing of charges the judge proceeds to take the ‘plea of guilt’ which is an opportunity to the accused to acknowledge that he pleads guilty and does not wish to contest the case. Here the judge responsibility is onerous- a. to ensure that the plea of guilt is free and voluntary, b. He has to ensure that if there had been no plead of guilt- was the prosecution version if unrebutted- would have led to conviction.If both the requirements are met-then judge can record and accept plea of guilt and convict the accused after listening to him on sentence.

v)Recording of the prosecution Evidence: Examination of prosecution witness by the police prosecutor, marking of exhibits and cross examination by defense counsel.

vi) Statement of the Accused:

Section 313 of the Criminal procedure empowers the court to ask for explanation from the accused if any. The basic idea is to give an opportunity of being heard to an accused and explain the facts and circumstances appearing in the evidence against him. Under this section, an accused shall not be administered an oath and the accused may refuse to answer the questions so asked. The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him.

vii) Evidence of Defense: In cases of accused not being acquitted by the court, the defense is given an opportunity to present any defense evidence in support of the accused. The defense can also produce its witnesses and the said witnesses are cross- examined by the prosecution. However, in India the defense does not provide defense evidence as the criminal justice systemputs burden of proof on the prosecution to prove that a person is guilty of an offence beyond the reasonable doubt.

ix) Final arguments on both the sides: once the public prosecutor and the defense counsel present their arguments, the court  reserve its jugdement.

x)Judgement: Judgement is the final reasoned decision of the court as to the guilt or innocence of the accused. After application of judicial mind, the judge delivers a final judgement holding an accused guilty of an offence or acquitting himof the particular offence. If a person is acquitted, the prosecution is given time to file an appeal and if a person is convicted of a particular offence, then date is fixed for arguments on sentence. Once a person is convicted of an offence, both the sides present their arguments on what punishment should be awarded to an accused. This is done in cases which are punished with death or life imprisonment. While punishing a person, the courts consider various theories of punishment like deterrent theory of punishment and reformative theory of punishment. Court considers the age, background and history of an accused and the judgement is pronounced accordingly.

Conclusion:

Above discussion reveals that police organizations of many countries have launched various schemes and programmes for people’s participation in policing.

 But there is still a need for the modification of the situation and thereby the agency of criminal justice system namely the police to protect the human rights of citizens and fulfill the objective of welfare state. The most important transition that merits urgent attention hinges on the attitude of the average policemen in their day-to-day work. In specific cases related to arrests and other offences also where there is a scope for the misuse of police power, the abuse of police power can be stopped by Transparency of action and Accountability.

The topic-wise treatment of the subject along with references to academic writings and the judicial decision make the study of criminal procedure meaningful and comprehensible.

The indispensable role played by judges and magistrates in the fair administration of justice has been discussed in the assignment. The role of both the prosecutors and defense lawyers has also been emphasized whenever relevant.

Concept Of a Fair Trial

Introduction

The right to a fair trial is a norm of international human rights law and also adopted by many countries in their procedural law. Countries like U.S.A., Canada, U.K., and India have adopted this norm and it is included in their Constitution.  The right to a fair trial has been defined in various international instruments. The major features of fair criminal trial are preserved in Universal Declaration of Human Rights, 1948.

Article 10[i]- Everyone is entitled in full equality to a fair and public hearing by an independent tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 11[ii]- (1) Everyone charged with a penal offence has  right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

Article 14 of the International Covenant on Civil and Political Rights reaffirmed the objects of UDHR and provides that “Everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Article 14(2) provides for the presumption of innocence, and article 14(3) sets out a list of minimum fair trial rights in criminal proceedings. Article 14(5) establishes the rights of a convicted person to have a higher court review the conviction or sentence, and article 14(7) prohibits double jeopardy

Section 11 of the Canadian Charter of Rights and Freedoms, protects a person’s basic legal rights in criminal prosecution.

Article 6 of the European Convention on Human Rights provides the minimum rights, adequate time and facilities to prepare their defence, access to legal representation, right to examine witnesses against them or have them examined, right to the free assistance of an interpreter to everyone charged with a criminal offence.

As far as Indian legal system is concerned, the international promise of fair trial is very much reflected in its constitutional scheme as well as its procedural law. Indian judiciary has also highlighted the pivotal role of fair trial in a number of cases. It is designed to protect individuals from the unlawful and arbitrary curtailment or deprivation of their basic rights and freedoms, the most prominent of which are the right to life and liberty of the person. The concept of fair trial is based on the basic principles of natural justice.

Fair Trial

Trial has not been defined in the Code of Criminal Procedure. In general terms, trial is the examination in a Court of law by judge or jury, of issues presented in the due course of procedure.

The issues are generally issues of fact, but may include issues of law as well. The trial seeks to establish the merits of a controversy or the guilt or innocence of the defendant in a criminal prosecution.

In fair trial, examination of issues of fact is made in a just and honourable manner in accordance with justice or the rules of law by hearing what the prosecutor and accused has to say in defence of their claim or conduct.

As per Section 4 of the Criminal Procedure, all offences under the Indian Penal Code, 1860 shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions contained in the Code of Criminal Procedure.

The concept of fair trial is based on the basic ideology that State and its agencies have the duty to bring the offenders before the law. In their battle against crime and delinquency, State and its officers cannot on any account forsake the decency of State behaviour and have recourse to extra-legal methods for the sake of detection of crime and even criminals. The Indian courts have recognised that the primary object of criminal procedure is to ensure a fair trial of accused persons. Talab Haji Hussain v. Madhukar Purshottam Mondkar, AIR 1958 SC 376

 Human life should be valued and a person accused of any offence should not be punished unless he has been given a fair trial and his guilt has been proved in such trial.

In Zahira Habibullah Sheikh and ors v. State of Gujarat and ors. (2006) 3 SCC 374 at 395, The Supreme Court of India observed “each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as it is to the victim and to society. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witness or the cause which is being tried, is eliminated.”

The right to a fair trial is a fundamental safeguard to ensure that individuals are protected from unlawful or arbitrary deprivation of their human rights and freedoms, most importantly of the right to liberty and security of person.

Principles Of Fair Trial

1. Adversary trial system:

The system adopted by the Criminal Procedure Code, 1973 is the adversary system based on the accusatorial method. In adversarial system responsibility for the production of evidence is placed on the prosecution with the judge acting as a neutral referee. This system of criminal trial assumes that the state, on one hand, by using its investigative agencies and government counsels will prosecute the wrongdoer who, on the other hand, will also take recourse of best counsels to challenge and counter the evidences of the prosecution.

Supreme Court has observed “if a Criminal Court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest.” Ram Chander v. State of Haryana, (1981) 3 SCC 191

In Himanshu Singh Sabharwa v. State of M.P. and Ors. MANU/SC/1193/2008., the apex court observed that if fair trial envisaged under the Code is not imparted to the parties and court has reasons to believe that prosecuting agency or prosecutor is not acting in the requisite manner the court can exercise its power under section 311 of the Code or under section 165 of the Indian Evidence Act, 1872 to call in for the material witness and procure the relevant documents so as to sub serve the cause of justice.

2. Presumption of innocence:

Every criminal trial begins with the presumption of innocence in favour of the accused. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. This presumption is seen to flow from the Latin legal principle ei incumbit probatio qui dicit, non qui negat, that is, the burden of proof rests on who asserts, not on who denies.

In State of U.P. v. Naresh and Ors. (2001) 4 SCC 324, the Supreme Court observed “every accused is presumed to be innocent unless his guilt is proved. The presumption of innocence is a human right subject to the statutory exceptions. The said principle forms the basis of criminal jurisprudence in India.”

In Kali Ram v. State of H.P. (1973) 2 SCC 808, the Supreme Court observed “it is no doubt that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse; however is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot be felt in a civilized society.”

It is the duty of the prosecutor and defence counsel as well as all public authorities involved in a case to maintain the presumption of innocence by refraining from pre-judging the outcome of the trial.

3. Independent, impartial and competent judges:

The basic principle of the right to a fair trial is that proceedings in any criminal case are to be conducted by a competent, independent and impartial court. In a criminal trial, as the state is the prosecuting party and the police is also an agency of the state, it is important that the judiciary is unchained of all suspicion of executive influence and control, direct or indirect. The whole burden of fair and impartial trial thus rests on the shoulders of the judiciary in India.

The primary principle is that no man shall be judge in his own cause. Section 479 of the Code, prohibits trial of a case by a judge or magistrate in which he is a party or otherwise personally interested. This disqualification can be removed by obtaining the permission of the appellate court.

In Shyam Singh v. State of Rajasthan1973 Cri LJ 441, 443, (Raj.), the court observed that the question is not whether a bias has actually affected the judgement. The real test is whether there exists a circumstance according to which a litigant could reasonably apprehend that a bias attributable to a judicial officer must have operated against him in the final decision of the case.

In this regard section 6 of the Code is relevant which separates courts of Executive Magistrates from the courts of Judicial Magistrates. Article 50 of the Indian Constitution also imposes similar duty on the state to take steps to separate the judiciary from the executive.

4. Autrefois Acquit and Autrefois Convict:

According to this doctrine, if a person is tried and acquitted or convicted of an offence he cannot be tried again for the same offence or on the same facts for any other offence. This doctrine has been substantially incorporated in the article 20(2) of the Constitution and is also embodied in section 300 of the Cr. P.C.

In Kolla Veera Raghav Rao vs Gorantla Venkateswara Rao(2011) 2 SCC 703,the Supreme Court observed that Section 300(1) of Cr.P.C. is wider than Article 20(2) of the Constitution. While, Article 20(2) of the Constitution only states that ‘no one can be prosecuted and punished for the same offence more than once’, Section 300(1) of Cr.P.C. states that no one can be tried and convicted for the same offence or even for a different offence but on the same facts. In the present case, although the offences are different but the facts are the same. Hence, Section 300(1) of Cr.P.C. applies. Consequently, the prosecution under Section 420, IPC was barred by Section 300(1) of Cr.P.C. The impugned judgment of the High Court was set aside.

Conclusion:

The judge is not to draw any inferences against the defendant from the fact that he has been charged with a crime and is present in court and represented by a counsel. He must decide the case solely on the evidence presented during the trial. State of U.P. v. Naresh and Ors In this case it was held that the law in this regard is well settled that while dealing with a judgment of acquittal, an appellate court must consider the entire evidence on record so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable.

 [i] Article 10 of UDHR, 1948

[ii]www.un.org