QUESTION 1.

ADVERSERIAL AND INQUISITORIAL MODEL OF JUSTICE

INTRODUCTION

Criminal justice system includes all the interdependent components of the court, various
stages of a trial procedure also. A thorough study of the trial system of India and France is
done in this project. Defining the criminal justice system, the mechanism of the two
prevailing criminal justice system in the world i.e. the adversary system and inquisitorial
system is dealt with. Both the systems are thoroughly compared and articles are analyzed.
Many times the reliability of decisions given in the different system is compared and
criticized; criticism of both the systems is dealt with. An analysis of Nithari case (Surendra
Koli v. State of UP) is done; in this case, accused alleged that he is not getting justice because
he is not able to hire a lawyer of his choice. The procedure differs in both the systems but the
objective of both is same to prevent crime and punish the criminals.

CRIMINAL JUSTICE SYSTEM

The Criminal Justice System is the process by which offenders are arrested, followed by
Stages of investigation to determine proof. After which charges are framed, a defense is
raised, trials conducted and sentencing rendered if found guilty or acquitted if he is found
innocent.
Criminal offenses are usually investigated by researching the facts and or incidents,
situations, scenarios, to prove the guilt of the individual. A thorough investigation is carried
out systematically, keeping time to time details, analyzing and scrutinizing information to
arrive at a conclusion to prosecute the individual committing the criminal offense. The
charges framed against the individual are determined by the collected pieces of evidence, and
defense is made to oppose or object the prosecution of the criminal offense.
The trial is a judicial examination of the issues between the parties, whether they are of law
or facts, presented in court before a jury or judge. In order to determine guilt in the criminal
proceedings, pieces of evidence are examined by the judge. Judge takes into consideration the
law of the land, the facts presented before him, or the law put in the case for the purpose of
determining the outcome.
TYPES OF CRIMINAL JUSTICE SYSTEMS

Across the world, there are many different types of the criminal justice system to keep and
maintain order and peace within their area of jurisdiction creating a social code of conduct,
the law. Punishments differ from being a punitive one or a rehabilitative nature. There are
two main justice systems:
1. Adversary system
2. Inquisitorial system

According to Black’s Law Dictionary, “Adversary system is the court system where a judge
decides on a case argued by a prosecutor who is suing the plaintiff and the defense attorney
who defends their plaintiff. A jury has also been used to decide such cases.’’

According to Black’s Law Dictionary, the inquisitorial system is, “proof taking used in civil
law, whereby the judge conducts the trial, determines what questions to ask, and defines the
scope and extent of the inquiry’’.

A GENERAL COMPARISON OF THE INQUISITORIAL AND ADVERSARIAL

SYSTEMS

1. The binding force of case laws: In the adversarial system, the earlier decisions by the
higher courts are considered to have a binding effect, but in the inquisitorial system, the
precedents are not given that much importance. The judges or jury give judgment
independently using the relevant statutes, so much importance is given to the code of law.

2. Investigation: In the adversarial system, the parties e.g. police and defense have a
responsibility of bringing evidence, whereas in the inquisitorial system the government
officials (PP) collects the pieces of evidence, they themselves can conduct the investigation
or they may request the police to do so. PPs can instruct the police about the priorities. In
some inquisitorial systems, a judge may conduct the investigation. Oppositely in adversarial
system judges do not play any role in the investigation.

3. Examining phase: There is nothing like an independent examination in adversarial system

chief and cross-examination is the part of trial only. In inquisitorial systems interrogation of
witnesses and collection of evidence is done by examining judge.
4. The trial: There is requirement of a counsel representing the state and another acting on
behalf of the defendant before the adjudicator. And the evidence in chief is taken and
witnesses are cross-examined or re-examined. In the inquisitorial system record of evidence
is already done in the examining phase, while there is no cross and re-examination of
witnesses, but witnesses are questioned and challenged.

5. Role of the trial Judge and counsel: The judge ensures that the due process of law is
followed in the courtroom and gives the decision. The counsel introduces evidence and
question witnesses in the adversarial system, whereas in the inquisitorial system the judge (or
jury) direct the courtroom, proceedings and interrogate the witnesses and also evaluate
evidence to reach their decision.

6. Use of juries: Juries are used in many cases in the adversarial system but in inquisitorial
juries are used in most serious cases.

7. Rules of evidence: In the adversarial system there is a strong categorization of admissible

and inadmissible evidence and hearsay evidence is more readily allowed if it is reliable.
Rules relating to admissibility are more lenient in the inquisitorial system. If the judge
decides particular evidence as relevant, that is admitted. In many inquisitorial systems, there
is no hearsay rule at all.

8. Rights of the defendant: In both the systems the defendant has the right to fair trial and
self-incrimination.

9. Role of the victim: In the adversarial system, the victim is not a party in the trial the case
represents against the defendant on behalf of the state. In the inquisitorial system, the victim
has the status of a party in the trial.

10. Organization of the courts: As the adversarial system is generally followed in common
law countries, courts have general jurisdiction to adjudicate and as the inquisitorial system is
followed in civil law countries, there are special courts to deal with constitutional law,
criminal law, administrative law, commercial law, and civil or private law.

ANALYSIS OF COMPARISON
If there is nothing more than deciding a matter of guilt of a person, there are various methods
like flipping a coin, which is the simplest one, or any other method in which the result comes
by chance only. Otherwise, an authority can be appointed and left all the things on the
description. But there is a particular set of procedures, choice of methods.

In a trial there is presentation and examination of evidences then the decision is made. Trial is
done with the desire to make accurate decisions within a framework of trial procedure. With
this objective, various countries have different procedures. Most countries that use lawyers
and judges in a trial process can be divided into one of two systems: adversary or
inquisitorial. In adversary system judge listens both the councils representing the parties
whereas in inquisitorial system judges play an active role in investigation and examination of
the evidences. It is not easy to say which system gives reliable decisions. Each system have
own critics.

The Adversary system: In this system, there is a head to head combat of two skilled
advocates. They prepare with the intention to convince the judge through persuasive
arguments. If an attorney is more skilled he can move the case, there is no balance for that.
The prevailing presumption of the adversary system is that battle between the attorneys will
reveal the truth without any extra participation by the judge.

The inquisitorial system: In this system, judges investigate and raise questions. In France,
there is examining magistrate and chief magistrate. Effectiveness of the process depends on
the ability of the individual judge to be thorough and fair.

Comparison: The fate of the culprit is at risk in the adversarial system because of the
effectiveness and persuasiveness of the councils. In as evidences are presented by advocate so
they can hide unfavorable information, which is misleading in character. It may lead to the
conviction of innocent, more emphasis is given to the rights of the defendant whereas in His
rights of the defendant is given less emphasis. Inquisitorial system is structured to focus on
truth seeking without risking.

PROCESS OF CRIMINAL TRIAL IN INDIA

India has a well-established statutory, administrative and judicial framework for criminal
trials. 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).

The common features of the trials in all three of the aforementioned procedures may be
broken into the following stages :
1. Framing of charge or giving of notice: It’s the beginning stage of the trial, when a case
comes in the court, court discloses grave suspicion against the accused that has not been
properly explained, and the court frames the charge and proceeds with the trial.

2. Recording of prosecution evidence: when the framing of the charges is done, statements of
witnesses are taken then they are examined. This is called examination-in-chief and cross-
examination.

3. Statement of accused: the accused is given a reasonable opportunity to explain

incriminating facts and circumstances in the case.

4. Defense evidence: If the accused want he can produce and these will be cross examined by
the prosecution. There is no need of it because the burden of proof lies on the prosecution.

5. Final arguments: This is the final stage of the trial. The prosecutor shall sum up the
prosecution case and the accused is entitled to reply.

6. Judgment: After the conclusion of arguments by the prosecutor and defense, the judge
gives his judgment in the trial.

CRITICISM OF ADVERSARIAL SYSTEM

1. In this system, the lawyer has the duty to act zealously and faithfully for his client.
Zealous, faithful advocacy means the obligation to search out all favorable evidence, to seek,
neutralize or destroy all unfavorable evidence, and to press the most favorable interpretation
of the law for his client.

2. Sometimes protection of individual rights and a presumption of innocence and benefit of

doubt leads to the release of a criminal.
3. Evidences are presented by parties, sometimes parties intentionally take a too long time to
present them.

4. The decision maker will hear only the evidences which the parties want to present because
evidence gathering and presentation is fully controlled by parties.

5. Parties may bring fake witnesses to distort the truth.

6. Rules require advocacy and client loyalty which undermines the search for truth.

7. The police sometime may not be able to find sufficient evidence against the accused. He
cannot expect any help from the accused. This leads to dropping-out of the case.

CRITICISM OF INQUISITORIAL SYSTEM

1. Examining magistrate and judge both are having unchecked power to investigate and
adjudicate the case.

2. When court participates in the interrogation it may lead to a biased attitude.

3. Privacy of the accused is denied.

4. Prosecutor and police exceed or misuse their power because both are having separate law
to deal with their conduct.

5. Parties are not able to call own expert.

CONCLUSION

If the matter is only to decide a case in favor of either of the parties, it is not a big deal at all
but there is a proper procedure established step by step to reach the common objective which
is a punishment to the offender and relief to the victim and ensure a fair trial. Both the
systems have their own procedure, advantages and disadvantages also. Adversarial and
inquisitorial both are criticized, the reliability of the judgments is challenged but still, it is
prevailing.

In adversarial system accused and state are the parties in a criminal case whereas in the
inquisitorial victim is also a party, I think this feature of the adversarial system is good. Basic
principles of adversary system like the presumption of innocence and proof of guilt beyond
reasonable doubt is good, because when a person is accused of committing any offence, he is
mere an accused not an offender or criminal, he should have rights which are denied in an
inquisitorial system. Having own critics and features, both the systems have the same
objective.

QUESTION 2. ROLE OF FRAMING OF CHARGES

Introduction

One basic requirement of a fair trial in criminal jurisprudence is to give precise information
to the accused as to the accusation against him. This is vitally important to the accused in the
preparation of his defence. In all trials under the Criminal Procedure Code the accused is
informed of the accusation in the beginning itself. In case of serious offences the Code
requires that the accusations are to be formulated and reduced to writing with great precision
& clarity. This "charge" is then to be read and explained to the accused person.

Charge serves the purpose of notice or intimation to the accused, drawn up according to
specific language of law, giving clear and unambiguous or precise notice of the nature of
accusation that the accused is called upon to meet in the course of trial.

Relevant Legal Provisions of Criminal Procedure Code (CrPC)

 Section 211 & Section 212 specifies about Contents of Charge and mentioning of
particulars as to time and place of the alleged offence in the charge.

This rule is to an extent relaxed in a case of criminal breach of trust or of dishonest

misappropriation. When the accused is charged with criminal breach of trust or dishonest
misappropriation of money or other movable property, it shall be sufficient to specify the
gross sum or, as the case may be, describe the movable property in respect of which the
offence is alleged to have been committed, and the dates between which the offence is
alleged to have been committed, without specifying particular items or exact dates. It is
obvious that the relaxation given by the above rule is applicable only in case of criminal
breach of trust or dishonest misappropriation and not in case of any other offence like theft,
falsification of accounts under Section 477-A of the IPC, cheating etc.
This rule is intended to cover cases of persons who showed a deficiency in the accounts with
which they were entrusted but who could not be shown to have misappropriated this or that
specific sum.

 Section 213 talks about; when manner of committing offence must be stated:

When the nature of the case is such that the particulars mentioned in sections 211 and 212 do
not give the accused sufficient notice of the matter with which he is charged, the charge shall
also contain such particulars of the manner is which the alleged offence was committed as
will be sufficient for that purpose.

 Section 214 gives a rule for interpreting the words used in the charge: It provides that
in every charge words used in describing an offence shall be deemed to have been
used in the sense attached to them respectively by the law under which such offence is
punishable.

The initial requirement of a fair trial in criminal cases is a precise statement of the accusation.
The code seeks to secure this requirement, first, by laying down in Sections 211 to 214 of
CrPC as to what a charge should contain; next, stipulating in Section 218 of CrPC that for
every distinct offence there should be a separate charge; and lastly, by laying down in the
same section that each charge should be tried separately, so that what is sought to be achieved
by the first two rules is not nullified by a joinder of numerous & unconnected charges.

 Section 218 reads as Separate charges for distinct offences

The object of section 218 is to save the accused from being embarrassed in his defence if
distinct offences are lumped together in one charge or in separate charges & are tried
together. Another reason is that the mind of the court might be prejudiced against the prisoner
if he were tried in one trial upon different charges resting on different evidence. It might be
difficult for the court trying him on one of the charges not to be influenced by the evidence
against him on the other charges

 Power of Court to order separate trial in cases where joinder of charges or of

offenders is permissible

The basic rule regarding charge is that for every distinct offence there shall be a separate
charge & for every such charge there shall be separate trial. The only exceptions recognized
are contained in Sections 219,220,221 & 223 of CrPC. Therefore separate trial is the rule and
the joint trial is an exception. The sections containing the exceptions are only enabling
provisions. A court has got the discretion to order a separate trial even though the case is
covered by one of the exceptions enabling a joint trial.

 Amendment/Alteration of charge under Section 216.

According to Section 216 (1) of CrPC, any court may alter or add to any charge at any time
before judgment is pronounced. The section invests a comprehensive power to remedy the
defects in the framing or non-framing of a charge, whether discovered at the initial stage of
the trial or at any subsequent stage prior to the judgment. The code gives ample power to the
courts to alter or amend a charge whether by the trial court or by the Appellate Court
provided that the accused has not to face a charge for a new offence or is not prejudiced
either by keeping him in the dark about that charge or in not giving a full opportunity of
meeting it & putting forward any defence open to him, on the charge finally preferred against
him. The court has a very wide power to alter the charge; however, the court is to act
judiciously and to exercise the discretion wisely. It should not alter the charge to the
prejudice of the accused person.

 Withdrawal of remaining charges on conviction on one of several charges

Section 224 of CrPC states that when a charge containing more heads than one is framed
against the same person, and when a conviction has been had on one or more of them, the
complainant, or the officer conducting the prosecution, may, with the consent, of the Court,
withdraw the remaining charge or charges, or the Court of its own accord may stay the
inquiry into, or trial of, such charge or charges and such withdrawal shall have the effect of
an acquittal on such charge or charges, unless the conviction be set aside, in which case the
said Court (subject to the order of the Court setting aside the conviction) may proceed with
the inquiry into, or trial of, the charge or charges so withdrawn.

 Effects of omission to frame, or absence of, or error in charge

Under Section 215 & 464 of CrPC object is to prevent failure of justice where there has been
only technical breach of rules not going to the root of the case as such. The two sections read
together lay down that whatever the irregularity in framing of a charge, it is not fatal unless
there is prejudiced caused to the accused. The object of the section is to prevent failure of
justice where there is some breach of the rules in the formulation of the charge. However, the
section also makes it clear that insignificant irregularities in stating the particulars of the
offence will not affect the trial or its outcome. In order to decide whether the error or
omission has resulted in a failure of justice the court should have the regards to the manner in
which the accused conducted his defence & to the nature of the objection.

Conclusion

In a criminal trial the charge is the foundation of the accusation & every care must be taken to
see that it is not only properly framed but evidence is only tampered with respect to matters
put in the charge & not the other matters.

In framing a charge during a criminal trial, instituted upon a police report, the court is
required to confine its attention to documents referred to under Section 173.

The judge needs to be only convinced that there is a prime facie case, where there is no
necessity to adduce reasons for framing charges. However, the magistrate is required to write
an order showing reasons if he decides to discharge the accused.

The sections dealing with charge do not mention who is to frame the charge. The provisions
dealing with different types of trials however provide that it is always for the court to frame
the charge. The court may alter/ add to any charge at any time before the judgment is
pronounced.

But if a person has been charged, the court cannot drop it. He has either to be convicted or
acquitted. All this has an important bearing on the administration of justice.

Framing of Charges in USA

Introduction

A person who is suspected of having committed a crime or similar offense may be

immediately arrested, or charges may be authorized at a later date:

 The person may be detained by a police officer who witnessed the allegedly unlawful
activity, and be issued a notice to appear in court;
 The person may be arrested based upon probable cause that a crime was committed
and that the arrested person committed the crime; or
 The person may be charged or indicted following a criminal investigation.
 If not charged following an arrest, sometimes a person will later be informed that charges
have been filed, and will be asked to present himself at the police station by a particular date
and time. At other times, a warrant may be issued for the person's arrest and, if the police
encounter and identify the person, an arrest may follow. If the charges are serious, the police
may attempt to enforce an arrest warrant at a location where the person is known to be
present, such as the person's home or place of work.

Types of Charges

Following a stop by the police or a criminal investigation, a suspect may be charged with a
range of potential offenses.

Potential classed of charges include:

 Civil Infractions: Charges that are non-criminal in nature and are punishable only by
the payment of a fine. For example, most states classify minor traffic offenses as civil
infractions.

Misdemeanours: Criminal charges that are considered to be less serious are classified
as misdemeanours or petty offenses.

A misdemeanour is a criminal offense, and conviction normally results in a criminal record.

Misdemeanours are technically a classification of less serious criminal offenses, but the
consequences of conviction may nonetheless be quite severe. Possible punishments for
misdemeanours include imprisonment, probation, fines, and at times driver's license
sanctions.

Some misdemeanours are classified as sex offenses and require that a person convicted of the
offense register as a sex offender, and keep the police informed of his place of residence. Sex
offender registration requirements often continue for decades and in some cases for life.

If the maximum possible penalty for a criminal offense does not exceed 180 days of
incarceration, the defendant no right to a jury trial under the U.S. Constitution. Some states
will allow for trial by jury even when it is not required by the federal constitution, but others
will require a bench trial.
 Sometimes it is not clear if a charge is criminal or non-criminal in nature. It may be possible
for a defendant to plead guilty to an offense without realizing that the guilty plea will result in
a criminal record. When a defendant is not certain as to whether an offense is criminal or
non-criminal, it is important to consult a lawyer for clarification of the charge.

 Felonies: Criminal charges that are considered to be more serious are classified
as felony offenses, or indictable offenses.

Felony offenses, sometimes referred to as indictable offenses, are the most serious criminal
offenses that can be charged. At times, the distinction between felony and misdemeanor
offenses may seem arbitrary, as opposed to being directly related to the seriousness of the
offense or the facts of the alleged crime. However, all of the most serious criminal offenses,
including murder, sexual assault, embezzlement, burglary, robbery, arson, and treason, are
felonies.

The penalties for a felony conviction may be severe:

 A defendant who is convicted of a felony charge may be sentenced to prison, to a

lesser period of incarceration in a county jail, or to probation.
 The defendant may be sentenced to pay fines, court assessments and restitution.
 Felony convictions will result in the loss of certain rights, such as the right to possess
a firearm, the right to participate on a jury, and voting rights.

After Arrest Procedure

After an arrest, a person is booked by the police:

 The booking process usually involves obtaining identifying information from the
person, including the person's name, address, telephone number and Social Security
number.
 The person is checked for any outstanding warrants for other offenses or from other
jurisdictions.
 The police will normally take the suspect's photograph (mug shots) and fingerprints.
If a person is under arrest at the time he is booked, he will ordinarily be thoroughly searched.
If the arrest was legal, any evidence found in this search can be used as evidence in court.

If the person is held in jail, the police will prepare an intake report containing information
about the person, the crime charged, and an assessment of the person's physical condition.
For example, if the person appears to be intoxicated, that will be noted on the intake report,
possibly along with a measurement of the person's blood alcohol level.

QUESTION 3. PLEA BARGAINING COMPARISON

Introduction

A new chapter that is Chapter XXI1onPlea Bargaining has been introduced in the Criminal
Procedure Code. It was introduced through the Criminal Law (Amendment) Act, 2005, which
was passed by the Parliament in its winter session. It became effective from 5thJuly 2006.
Originally Plea Bargaining is an American concept its origin can be traced back in America
during the 19thCentury. Over the years Plea bargaining has emerged as a prominent feature
of the American Judicial System. In India, Plea Bargaining has certainly changed the face of
the Indian Criminal Justice System. Plea Bargaining is applicable in respect of those offences
for which punishment is up to a period of 7 years. Moreover it does not apply to cases where
the offence committed is a Socio-Economic offence or where the offence is committed
against a woman or a child below the age of 14 years. Also once the court passes an order in
the case of Plea Bargaining no appeal shall lie to any court against that order.

Plea Bargaining

Plea Bargaining is an agreement as a result of negotiation between the prosecution and

defense (at time, also the judge) which settles a criminal case, usually in exchange for a more
lenient punishment. Typically the defendant will plead guilty to a lesser crime or for a fewer
charges than originally charged, in exchange for a more lenient punishment than the
defendant would get if convicted at trial. It is seen as a win-win for all the parties as the
prosecution has a certain conviction on the record, the defendant is provided a more lenient
sentence than the risk of a higher one at trial and the judge is freed to move to other cases and
dispute to resolve.
Plea Bargaining can conclude a criminal case without a trial. When it is successful, Plea
Bargaining results in a plea agreement between the prosecutor and defendant. In this
agreement, the defendant agrees to plead guilty without a trial, and, in return the prosecutor
agrees to dismiss certain charges or make favourable sentence recommendation to the court.
Plea Bargaining is expressly authorized in statutes and in court rules.

Meaning

Plea Bargaining can be described as a process whereby the accused may bargain with the
prosecution for a lesser punishment. In simple words, Plea Bargaining is an agreement
(contract) between the accused and the prosecution regarding disposition of the criminal
charge levelled by the prosecution against the accused. In layman’s language, it is bargaining
done by the accused of a serious and severe offence, with the authority for a lighter
punishment in lieu of a full fledged trial.

In a landmark judgment Bordenkircher Vs Hayes, the United State Supreme Court held that,
“the constitutional rationale for Plea Bargaining is that no element of punishment or
retaliation so long as the accused is free to accept or reject the prosecutions offer. The Apex
Court however upheld the life imprisonment of the accused because he reject the ‘Plea
Guilty” offer of 5 years imprisonment. The Supreme Court in the same case however in a
different context observed that, it is always for the interest of the party under duress to choose
the lesser of the two evils. The courts have employed similar reasoning in tort disputes
between private parties also. In countries such as England and Wales, Victoria, Australia,
“Plea Bargaining” is allowed only to the extent that the prosecutors and defense can agree
that the defendant will plead to some charges and the prosecutor shall drop the reminder.

Plea Bargaining In USA

The Plea Bargaining experienced a sharp rise in the 1920s in America as the criminal trials in
United States provide to be most expensive and time consuming in the world. Criminal trial
in the United State of those days was an elaborate exercise and comprised of peremptory
challenges in a lengthy jury selection process, numerous evidentiary objections, complex jury
instructions, motion for exclusion, etc. Plea Bargaining emerged as an effective mechanism
to avoid the complex process of a criminal trial and soon it gained popularity. The practice of
Plea Bargaining was approved by the Supreme Court of the United States mainly on the
assumption that the persons who are convicted on the basis of Plea Bargaining would
ordinarily be convicted, if they had chosen to stand trial.

The plea won the approval of Supreme Court of United States and its endorsement as “an
essential component of the administration of Justice” in Santobellov case.Chief Justice
Burger Explained there that the Plea Bargaining is to be encouraged because; If every
criminal charge were subjected to a full-scale trial, the states and the Federal Government
would need to multiply by many times the number of judges the Court facilities.

Plea Bargaining In India

To reduce the delay in disposing criminal cases, the 154thReport of the law commission first
recommendation the introduction ofPlea Bargainingas an alternative method to deal with
huge arrears of criminal cases. This recommendation of the Law Committee finally found a
support in “Malimath Committee Report”. The NDA government had formed a committee,
headed by the formerChief Justice of the Karnataka and Kerala High Court,Justice V.S.
Malimathto come up with some suggestions to tackle the ever growing number of criminal
cases. In its Report, the Malimath Committee recommended that a system ofPlea
Bargainingbe introduced in the Indian Criminal Justice System to facilitate the earlier
disposal of criminal cases and to reduce the burden of the courts. To strengthen its case, the
Malimath Committee also pointed out the success of Plea Bargaining system in U.S.A.

The concept of Plea Bargaining attracted enormous public debate. Critics said it is not
recognized and against public policy under our criminal justice system. The Supreme Court
also time and again blasted the concept of Plea Bargaining saying that negotiable in criminal
cases is not permissible. Moreover inState of Uttar Pradesh Vs Chandrika,the Apex court
held that it is settled law that on the basis of Plea Bargaining court cannot dispose of the
criminal case. The court has to decide it on merits. If the accused confesses its guilt,
appropriate sentence is required to be implemented.

The court further held in the same case that, mere acceptance or admission of the guilt should
not be a ground for reduction of sentence, nor can be the accused bargain with the court that
as he is pleading guilty the sentence be reduced despite this huge hue and cry, the
government found it acceptable and finally Section 265A – 265L11, have added in the Code
of Criminal Procedure so as to provide for raising the Plea Bargaining in certain types of
criminal cases.
Salient Features

1. It is applicable in respect of those offences for which punishment is up to a period of 7

years.

2. It does not apply to cases where offence is committed against a woman or a child below
the age of 14 years

3. When court passes an order in the case of plea bargaining no appeal shall lie to any court
against that order.

4. It makes recommendation to the courts about punishment or sentence.

5. It drops multiple counts and press only one charge.

Objects of Plea Bargaining

By introducing the concept of Plea Bargaining in the Criminal Procedure the object of the
legislature is;

1) To reduce the pending litigation

2) To decrees the number of under trial prisoners.

3) To make provision of compensation to the victim of crimes by the accused.

4) To cut delay the disposal of criminal cases.

Drawbacks

Some of the major drawbacks of the concept ofPlea Bargainingas is recognized in India are
as under;

1) Threat to right to fair trial.

2) Involving the Police in Plea Bargaining process would invite coercion.

3) By involving the court in Plea Bargaining process the court impartially is impugned.

4) Involving the victim in Plea Bargaining process would invite corruption.

5) If the plead guilty application of the accused in reject then the accused would face great
hardship to prove himself innocent.
Conclusion

To conclude, Plea Bargaining is undoubtedly, a disputed concept few people have welcomed
it while others have abandoned it. It is true that Plea Bargaining speeds up caseload
disposition, but it does that in an unconstitutional manner. But perhaps we have no other
choice but to adopt this technique. The criminal court are too over burdened to allow each
and every case to go on trial. Only time will tell if the introduction of this concept is justified
or not.

QUESTION 4). ARREST AND DETENTION

MEANING OF ARREST

The term “Arrest” means apprehension of a person by legal authority so as to cause

deprivation of his liberty. Thus, after arrest, a person’s liberty is in control of the arrester. In
criminal law, arrest is an important tool for bringing an accused before the court and to
prevent him from absconding.

As per Legal Dictionary by Farlex, “Arrest” means “a seizure or forcible restraint; an

exercise of the power to deprive a person of his or her liberty; the taking or keeping of a
person in custody by legal authority, especially, in response to a criminal charge”.

The purpose of an arrest is to bring the arrestee before a court or otherwise to secure the
administration of the law. An arrest also serves the function of notifying the community that
an individual has been accused of a crime and also may admonish and deter the arrested
individual from committing other crimes. Arrests can be made in both criminal and civil
cases, although in civil matters, arrest is a drastic measure which is not looked upon with
favor by the courts.

In Indian law, Criminal Procedural Code 1973, chapter V (Section 41 to 60) talks about
Arrest of a person but it does not define arrest anywhere.

WHO CAN ARREST?

Arrest can be made by police officer, Magistrate or any private person, like you or me can
also arrest a person but that can made only in accordance with the legal provisions mentioned
 in CrPC. CrPC exempts the members of Armed forces from being arrested for anything done
by them in discharge of their official duties except after obtaining the consent of the
government (section 45 CrPC).

According to section 43 of CrPC, Any private individual may arrest a person without

warrant only when the person is a proclaimed offender under section 82 CrPC and the person
commits a non-bailable offence and cognizable offences in his presence; with warrant u/s 72
and 73, under order of a Police officer u/s 37 and under order of a magistrate u/s 37 and 44
Cr. P.C. and also 60 (1) CrPC.

According to section 44 of CrPC, Any Magistrate, whether Executive or Judicial, may

arrest a person when any offence is committed in his presence then he may himself arrest or
order any person to arrest the offender and thereafter, subject to the provisions herein
contained as to bail, may commit the offender to custody.

A military officer may arrest under section 130 and 131 CrPC.

Arrest by Police Officer

A police officer may arrest without a warrant under Sections 41 (1) to 151 CrPC; under a
warrant under Sections 72 to 74 CrPC; under the written order of an officer in charge
under Sections 55 and 157; under the orders of magistrate under Section 44 and in non
cognizable offence under Section 42 CrPC. A superior officer may arrest under Section 36
CrPC. An Officer-in-Charge of a Police Station may arrest under Section 42 (2) and 157
CrPC.

Under Sections 41, 42, 151 CrPC, a Police officer may arrest without warrant in the
following conditions:

1. Who has been concerned in any cognizable offence or

2. Who has in possession, without, lawful excuse, of any house breaking weapon or

3. Who has been proclaimed as an offender either under CrPC or by order of the State
Govt. or

4. Who is in possession of any stolen property or

5. Who obstructs a police officer while in the execution of his duty or who has escaped,
or attempts to escape, from lawful custody or

6. Who is reasonably suspected of being a deserter from any of the Armed forces of the
Union or

7. Who has been concerned in any law relating to extradition or

8. Who, being a released convict commits a breach of any rule made under sub-section
(5) of Section 356 CrPC or

9. For whose arrest any requisition has been received from another police officer
specifying the person to be arrested and the offence and other cause for which the arrest is to
be made.[7]

As held in the case of Swami Hariharanand Saraswati vs Jailer I/C Dist. Varanasi, 1954,
the arrested person must be produced before another magistrate within 24 hours, otherwise
his detention will be illegal.[8]

In the case of Joginder Kumar vs State of UP, 1994, it was held that no arrest can be made
merely because it is lawful to do so. There must be a justifiable reason to arrest.

Further, in State vs Bhera, 1997, it was held that the “reasonable suspicion” and “creditable
information” must relate to definite averments which must be considered by the Police
Officer himself before he arrests the person.

PROCEDURE OF ARREST

Section 46 CrPC describes the way in which an arrest is actually made. As per Section
46(1), unless the person being arrested consents to the submission to custody by words or
actions, the arrester shall actually touch or confine the body of the person to be arrested.
Since arrest is a restraint on the liberty of the person, it is necessary for the person being
arrested to either submit to custody or the arrester must touch and confine his body. Mere oral
declaration of arrest by the arrester without getting submission to custody or physical
touching to confine the body will not amount to arrest. The submission to custody may be by
express words or by action.
It was held in the case of  Bharosa Ramdayal vs Emperor, 1941, if a person makes a
statement to the police accusing himself of committing an offence, he would be considered to
have submitted to the custody of the police officer. Similarly, if the accused proceeds towards
the police station as directed by the police officer, he has submitted to the custody. In such
cases, physical contact is not required.

In case of Birendra Kumar Rai vs Union of India, 1992, it was held that arrest need not be
by handcuffing the person, and it can also be complete by spoken words if the person submits
to custody.

Section 46(2) provides that if any person forcibly resists the endeavor to arrest him, or
attempts to evade the arrest, such police officer or other person may use all means necessary
to effect the arrest. Thus, if the person tries to runaway, the police officer can take actions to
prevent his escape and in doing so, he can use physical force to immobilize the accused.
However, as per Section 46(3), there is no right to cause the death of the person who is not
accused of an offence punishable with death or with imprisonment for life, while arresting
that person. Further, as per Section 49, an arrested person must not be subjected to more
restraint than is necessary to prevent him from escaping.

Due to concerns of violation of the rights of women, a new provision was inserted in Section
46(4) that forbids the arrest of women after sunset and before sunrise, except in exceptional
circumstances, in which case the arrest can be done by a woman police officer after making a
written report and obtaining a prior permission from the concerned Judicial Magistrate of
First class.

In Kultej Singh vs Circle Inspector of Police, 1992, it was held that keeping a person in the
police station or confining the movement of the person in the precincts of the police station
amounts to arrest of the person[9].

Section 41A deals with cases not covered under Section 41 (1), wherein a police officer is
directed to issue a notice and not to make an arrest unless the noticee after receiving notice
does not comply with the terms of notice or complies once and then flouts it subsequently. If
the notice complies with terms of notice, he may only be arrested for the offence concerned
for reasons to be recorded in writing by the police officer.
 Section 41B directs the conducts of Police officers while making and arrest. It directs them to
ensure that while making an arrest they bear an accurate, clear & visible identification of his
name for the purposes of easy identification, prepare an arrest memo attested by either a
family member of arrestee or a respectable member of society and countersigned by the
arrestee himself. The arrestee is also to be informed of his right to have a relative or a friend
of his informed of his arrest, if arrest memo is not attested by his family member[10].

RIGHTS OF AN ARRESTED PERSON

CrPC gives wide powers to the police for arresting a person. Such powers without
appropriate safeguards for the arrested person will be harmful for the society. To ensure that
this power is not used arbitrarily, several restraints have been put on it, which, indirectly, can
be seen as recognition of the rights of a person being arrested.  Further, once arrested, a
person is already at a disadvantage because of his lack of freedom and so he cannot take
appropriate steps to defend himself. Thus, to meet the needs of “fair trial”, several provisions
are given in CrPC, that give specific rights to an arrested person.  These rights can be
described as follows –

 Right to be informed of the grounds of arrest under Section 50 of CrPc and Article

22 of Indian Constitution, it is a fundamental right to be informed. It is the duty of the police
officer to inform you and also tell whether the offense is bailable or non-bailable. Normally,
Bailable offenses are those where bailable can be granted and it is right of the person to be
granted bail and Non- bailable offenses are where bail can’t be granted generally and it’s the
discretion of the court. In Harikishan vs State of Maharashtra 1962, SC held that the
grounds of arrest must be communicated to the person in the language that he understands
otherwise it would not amount to sufficient compliance of the constitutional requirement.

 In non-cognizable cases, arrests are made with a warrant and the person going to be
arrested has a right to see the warrant under Section 75 of CrPC. Warrant of arrest should
fulfill certain requirements such as it should be in writing such as signed by the presiding
officer, should have the seal of the court, Name and address of the accused and offense under
which arrest is made. If any of these is missing, the warrant is illegal.

 Under Section 41, police have the power to arrest a person without a warrant for a
prompt and immediate arrest is needed, no time to approach magistrate and obtain a warrant
 for example in a case where a serious crime has been perpetrated by a dangerous person or
where chances of that person absconding unless immediately arrested. Not in all cases arrest
in necessary, Notice of appearance before police officer can be made if reasonable complaint
has been made, credible information has been received and suspicion exists of cognizable
offence and if concerned person continues to comply with such notice and appears, then
arrest is not necessary but he if he doesn’t, then arrest can be made.

 The police officer must be wearing a clear, visible and clear identification of his name
which facilitates easy identification. A memo of arrest must be prepared at the time of arrest
– (i) attested by least one witness, it can be a family member or member of the locality where
an arrest is made (ii) countersigned by arrested person.

 Right of arrested person to meet an advocate of his choice during interrogation

under Section 41D and Section 303 In Khatri (II) vs State of Bihar 1981 SCC, Supreme
Court has also held that access to a legal practitioner is implicit in Article 21, which gives
fundamental right to life and liberty. The state is under constitutional mandate to provide free
legal aid to an indigent accused person and this constitutional obligation arises not only when
the trial is commenced but also when the person is first produced before a magistrate and also
when he is remanded from time to time. In Suk Das vs Union Territory of Arunachal
Pradesh 1986, SC has held that non-compliance of this requirement or failure to inform the
accused of this right would vitiate the trial entailing setting aside of the conviction and
sentence. The right of an accused person to consult his lawyer begins from the moment of his
arrest. The consultation with the lawyer may be within the presence of a police officer but not
within the police officer’s hearing. SC also held that it is the duty on all courts and
magistrates to inform the indigent person about his right to get free legal aid.

 An arrested person has a right to inform a family member, relative or friend about his
arrest under Section 50 of CrPC.

 An arrested person have right not to be detained for more than 24hrs, without being
presented before a magistrate, it is to prevent unlawful and illegal arrests. This right is a
fundamental right under Article 22 of the Indian constitution and under Sections
57 and 72 of CrPC. In Khatri (II) vs State of Bihar 1981, SC has strongly urged upon the
State and its police to ensure that this constitutional and legal requirement of bringing an
arrested person before a judicial magistrate within 24 hours be scrupulously met. This is a
healthy provision that allows magistrates to keep a check on the police investigation. It is
 necessary that the magistrates should try to enforce this requirement and when they find it
disobeyed, they should come heavily upon the police. Further, in Sharifbai vs Abdul
Razak,  1961, SC held that if a police officer fails to produce an arrested person before a
magistrate within 24 hours, he shall be held guilty of wrongful detention.

 An arrested person has the right to be medically examined (Sections 54,55A).

 An arrested person has a right to remain silent under Article 20(3) of Indian

constitution so that police can’t extract self – incriminating statement from a person without a
will or without his consent[11].

 PROTECTION TO FEMALES

The General rule is that females are not be arrested without the presence of a lady constable
and no female be arrested after sun-set but there are exceptions in some cases, where crime is
very serious and arrest is important then the arrest can be made with special orders and it
depends on facts and circumstances of each case. Separate lock ups to be provided for
them. State of Maharashtra Vs Christian Community Welfare Council of India [(2003) 8
SCC 546]

CONSEQUENCES OF NON-COMPLIANCE WITH THE PROVISIONS RELATING

TO ARREST

In general, non-compliance does not void a trial. Just because any provision relating to arrest
was not complied with does not affect the liability of accused. However, the violation will be
material in case the accused is prosecuted on the charge of resistance to or escape from lawful
custody.

Further, everybody has a right to defend himself against unlawful arrest and a person can
exercise this right under Section 96 to 106 of IPC and he will not be liable for any injury
caused due to it. Also, a person who is making an illegal arrest is guilty of wrongful
confinement and also exposes himself  to damages in a civil suit.

If a person who has an authority to arrest, arrests a person with full knowledge that the arrest
is illegal, he will be liable to be prosecuted under Section 220 of IPC. Similarly, any private
person who does not have an authority to arrest, arrests a person with full knowledge that the
arrest is illegal, can be prosecuted under Section 342 of IPC for wrongful confinement.
A person making illegal arrest also exposes himself to civil suit for damages for false
imprisonment.

Also, informal detention or restraint of any kind by the police is not authorized by law[12].

IN ENGLISH CRIMINAL JUSTICE SYSTEM

Arrest and detention—overview

The police powers of arrest are principally governed by the Police and Criminal Evidence
Act 1984 (PACE 1984).
The term 'arrest' is not defined in PACE 1984. The courts have held that it is an ordinary
English word and whether or not a person has been arrested depends not on the legality of
the arrest but on whether he has been deprived of his liberty of movement.
Under PACE 1984 a police officer must inform a person that he is under arrest and the
reason why. A failure to do so will render the arrest unlawful.
In a recent controversial decision by the Court of Appeal (R v Iqbal [2011] EWCA Crim
273) it was held that a man who had been handcuffed by the police in connection with a
criminal offence was not under arrest because he had not been told that he was under arrest
and the officer had not considered that he was making an arrest.

Police powers of arrest without warrant

The police powers of arrest without warrant were substantially changed by amendments
to PACE 1984 by the Serious Organised Crime and Police Act 2005 (SOCPA 2005). The
historical distinction between arrestable and non-arrestable offences was abolished.
Under the new provisions police have the power to arrest without warrant for any offence,
subject to the requirement that a police officer must have reasonable grounds for believing
that an arrest is necessary for one or more of the reasons set out in PACE 1984.
A new PACE Code of Practice (Code G) provides guidance to police officers in exercising
their powers of arrest under PACE 1984. The code emphasises the right to liberty and
provides that it is essential that the power of arrest is exercised in a 'non-discriminatory and
proportionate manner'. Therefore, the less serious a suspected offence, the less likely an
arrest will be justified if there is another sensible option, such as service of a summons.
PACE 1984 expressly preserves certain powers of arrest enacted prior to PACE 1984.
These are set out in PACE 1984, Sch 2.
There also remains a common law power for a police officer (or citizen) to arrest a person
for a breach of the peace if:

1. a breach of the peace is committed in his presence

2. the person making the arrest reasonably believes that such a breach will be
committed in the immediate future, or
3. a breach of the peace has been committed or the person making the arrest
reasonably believes that a breach of the peace has occurred and that a further breach is
threatened

Police powers to arrest under warrant

There are a number of statutes that authorise the arrest of a person suspected of committing
a criminal offence by use of a warrant.

The most important statute is the Magistrates' Courts Act 1980 (MCA 1980).

MCA 1980 gives the magistrates' court power to issue a warrant after hearing evidence on
oath from a police officer that a person has, or is suspected of having, committed an
offence. Such a warrant may be endorsed with or without bail.
If endorsed with bail the person, once arrested, is issued a date by the police when he is
required to appear before the court. If the warrant is not backed for bail the person,
following his arrest, will be kept in custody and brought before the court at the next
available sitting. The police have other statutory powers to arrest without warrant.

These include:

1. the power under the Bail Act 1976 to arrest a person for failure to surrender to court
or for breaching his bail conditions
2. the power under PACE 1984 to arrest a person for failure to surrender to police bail
3. the power under PACE 1984 to arrest a person for the purpose of taking his
fingerprints or samples, and
4. the power under the Terrorism Act 2000 to arrest a person who is reasonably
suspected of being a terrorist
The detention clock

Once a person has been arrested for an offence he will usually be taken to a police station.
At the police station a custody officer will determine whether there is sufficient evidence to
charge the suspect with the offence. Under PACE 1984, if the custody officer decides that
there is insufficient evidence to charge, the person must be released unless the officer has
reasonable grounds for believing that detention without charge is necessary to secure or
preserve evidence or to obtain evidence by questioning.
The maximum period of detention without charge is generally 24 hours from the relevant
time. The definition of 'relevant time' is set out in PACE 1984. It generally means the time
an arrested person arrives at the first police station he is taken to.
The period of detention without charge may be extended for up to a period of 36 hours
from the relevant time. The extension can only be granted if the requirements of PACE
1984 are satisfied.
Detention beyond 36 hours is only permitted under PACE 1984 where a magistrates' court
issues a warrant of further detention. The procedure and statutory requirements are
governed by PACE 1984.
If the court grants the application, the warrant can be issued up to a maximum of 36 hours.
However, this is subject to an overall maximum period of detention without charge of 96
hours from the relevant time.

The detention clock and the Hookway case

The Divisional Court recently held in R (Chief Constable of Greater Manchester Police) v
Salford Magistrates' Court and Hookway [2011] EWHC 1578 (Admin), [2011] 3 All ER
521, that the PACE detention clock continues to run while a suspect is on bail. The decision
sent shock waves throughout police forces up and down the country. This was because
prior to this decision it had always been assumed that the time a person spent on police bail
did not count for the purposes of calculating the 96 hour maximum period of detention
without charge.
In July 2011 the government introduced emergency legislation to amend PACE 1984. The
effect of the amendments is that time spent on police bail will not count towards the time a
person spends in police detention. Therefore, the position has been restored to the footing
that it was commonly thought to be on prior to the Hookway decision.
Rights of the detainee

Once a person is in custody, they have rights which the custody officer must ensure is
followed through. For example, the detainee is allowed to inform someone of his
whereabouts, he is allowed to ask for a solicitor, he is also allowed free medical help if he
is injured or feeling ill. See Practice Note: Revision of PACE Codes C and H 2014.

The lawyer's role at the police station

A police station adviser can have a profound impact on the course of a criminal trial. Poor
advice can sometimes make the difference between a guilty and not guilty verdict. This is
because the role of a police station adviser is a substantial one.

PACE 1984 Code C defines the lawyer's role as to protect and advance the legal rights of
his clients. This may require:
1. giving advice that has the effect of the client avoiding giving evidence that strengthens
the prosecution case, and
2. intervening in interview to seek clarification, challenge an improper question or to
provide further legal advice.
The role of a police station adviser can be difficult and stressful. Often an adviser will be
defending clients who are vulnerable because of age or mental health issues. In these
circumstances it is not always easy to advise, for example, on appropriate strategies to
minimise inferences from silence in interview.

A client will always need to be carefully advised on the range of options available to him.

In every case the police station adviser must act ethically. This means he must:

1. keep the affairs of his client confidential, see Practice Note: Managing reputations, and

2. avoid acting for more than one client where there is a conflict of interest.

SHORT QUESTIONS

1. HIERARCHY

Introduction:- Legal system in India refers to a procedure or process for interpreting and
enforcing the law. It elaborates the rights and responsibilities in a variety of ways. Therefore,
it is the set of laws of a country and the ways in which they are interpreted and enforced.
Criminal Justice is the system of practices and institutions of governments directed at
upholding social control, deterring and mitigating crime, or sanctioning those who violate
laws with criminal penalties and rehabilitation efforts. It is the process of punishing and
reforming of offender. Those accused of crime have some protections against abuse of
investigatory and prosecution powers. Criminal justice systems are very different around the
world depending on the country.

Hierarchy of Criminal Courts:-

Supreme Court:– The Supreme court is the highest and final court of appeal under the
Constitution of India. It is the highest constitutional court. The Apex Court has the following
extensive powers :-

Under Article 32 of the Indian Constitution, Supreme Court has Writ jurisdiction.(See.A.32);
It is the court of Record. It has power to punish for contempt under Article129; The Apex
Court has original Jurisdiction under Article131; It is the highest Court of Appeal in the
entire country under purview of Articles 132,133,134 & 136; Law declared by the Supreme
Court binds on all Courts in India.( See. A.141 of the Constitution) ; It has advisory
Jurisdiction under Article143 of the Indian Constitution.

Articles 124 to 147 of the Indian Constitution lay down the composition and jurisdiction of
the Court. Mainly, it is an appellate court which takes up appeals against judgments of the
High Courts of the states and territories. However, it also takes writ petitions in cases of
serious human rights violations or any petition filed under Article 32 which is the right to
constitutional remedies or if a case involves a serious issue that needs immediate resolution.

High Court:- In our country, there are various High Courts at the State and Union territory
level, which together with the Supreme Court of India at the national level, comprise the
country’s judicial system. Each High Court has jurisdiction over a State, a Union territory or
a Group of States and Union territories. In our Constitutional Scheme, the High Court is
responsible for the entire administration of justice in the State.

High Court has the following powers:- It is the court of Record. It has power to punish for
contempt under Article 215 of the Constitution; High Court has original Jurisdiction in civil
and criminal matters; It has appellate jurisdiction in respect of criminal and civil cases
decided by Subordinate courts in the State; It has revisional jurisdiction conferred under the
Civil Procedure Code,1908 and Criminal Procedure Code, 1973; It has Writ jurisdiction
under Article 226 of the Indian Constitution besides the administrative Jurisdiction over
subordinate courts in the State. Article 227 of the Constitution of India, makes it crystal clear.
That apart, under criminal Procedure Code, the ultimate revisional jurisdiction, be it under
Section 397 read with Section 401 or exercise of inherent power under Section 482, is vested
in the High Court. Any judgment or order rendered by the High Court shall bind all the
subordinate courts, tribunals and authorities within the territory of State and if only there is a
direct judgment of the Supreme Court contra to the proposition laid down by High Court,
there will be a scope of interpretation by the subordinate Court, tribunal or authority. But, the
subordinate courts, tribunals or authorities within the State cannot ignore the decision of then
High Court even if there is a decision of another High Court on that point(Nasreen Jahan
Begum and another Vs. Syed Mohammed Alamder Ali Abedi and another – 1995 (2)
ALT(CRI.)(A.P) 319)

Court of Session:- In India, there are district courts under different State governments in India
for each and every district or for one or more districts together taking into account the
number of cases, population distribution in the district. District Judges:- (i) District Judges;
(ii) Additional District Judge (iii) Principal Judge, Additional Principal Judge and Judges of
City Civil and Sessions Court, Mumbai. (iv) Chief Judge and Additional Chief Judges of
Court of Small Causes. Assistant Session Judge:- Senior Civil Judges:- (i) Chief Metropolitan
Magistrate; (ii) Additional Chief Metropolitan Magistrates; (iii) Judges of Court of Small
Causes and Metropolitan Magistrates; (iv) Civil Judges, Senior Division. These district courts
administer justice at a district level. In the district level, the District Judge or Additional
District judge exercises jurisdiction both on original side and appellate side in civil and
criminal matters arising in the District. The territorial and pecuniary jurisdiction in civil
matters is usually set in concerned State enactments on the subject of civil courts. On the
criminal side, jurisdiction is exclusively derived from the criminal procedure code, 1973. As
per this code, the maximum sentence a Sessions Judge may award to a convict is capital
punishment. Article 236 (a) of the Indian Constitution says that the expression district judge
includes judge of a city civil court, additional district judge, joint district judge, assistant
district judge, chief judge of a small cause court, chief presidency magistrate, additional chief
presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge.

Judicial Magistrate of First Class and in metropolitan area – Metropolitan Magistrate; Chief
Judicial Magistrate:– Judicial Magistrates are appointed and controlled by the High Court and
discharge judicial functions. Under section 11 (3) of the Code of Criminal Procedure, 1973,
the High Court may confer the powers of judicial magistrate of the First Class or of the
Second Class on any member of the Judicial Service of the State, functioning as a Judge in a
Civil Court.

Judicail Magistrate of Second Class:- Judicial Magistrates are appointed and controlled by the
High Court and discharge judicial functions.

Executive Magistrate:- In India, the Executive Magistrates are appointed and controlled by
the State Government and discharge executive functions, i.e., maintenance of law and order.
Unless otherwise defined by the District Magistrate, the jurisdiction and powers of every
Executive Magistrate extends throughout the district or the metropolitan area, as the case may
be as given u/s 22 of Cr.P.C.

Sentencing power of the Courts:-

Supreme Court : – Any sentence authorized by law.

High Court: Any Sentence authorized by law u/s 28(1) CrPC

Session Judge, Additional Session Judge:- Any sentence authorized by law, Sentence of
death, however, is subject to confirmation by High Court u/s 28(2) CrPC

Assistant Session Judge:- Imprisonment upto 10 years and/or fine. u/s. 28(3) Chief Judicial
Magistrate, Chief Metropolitan Magistrate:- Imprisonment upto 7 years and/or fine. u/s 29(1)
(4) of Cr.P.C.

Judicial Magistrate First Class, Metropolitan Magistrate:- Imprisonment upto 3 years and/or
fine upto Rs. 10,000/-. u/s. 29(2) of Cr.P.C.

Judicial Magistrate Second Class:- Imprisonment upto 1 year and/or fine upto Rs. 5,000/-. u/s
29(3) of Cr.P.C.

Conclusion:-

The Supreme Court is the highest court of the country. It is established by the Constitution of
India. It is the highest court of appeal. As per Indian Constitutional Scheme, the High Court
is responsible for the entire administration of justice in the State. Article 236 (a) of the Indian
Constitution says that the expression district judge includes ‘Assistant Sessions Judge’. The
district courts administer justice at a district level. Under Article 236(b), the expression
‘judicial service’ is defined to mean a service consisting exclusively of persons intended to
fill the post of District Judge and other civil judicial posts inferior to the post of District
Judge. Judicial service thus postulates a hierarchy of courts with the District Judge as the
head and other judicial officers under him discharging only judicial functions. Going by these
tests laid down as to what constitutes judicial service under Article 236 of the Constitution,
the Labour Court judges and the judges of the Industrial Court can be held to belong to
judicial service. The hierarchy contemplated in the case of Labour Court judges is the
hierarchy of Labour Court judges and Industrial Court judges with the Industrial Court judges
holding the superior position of District Judges. The Labour courts have also been held as
subject to the High Courts power of superintendence under Article 227.

Proper administration of justice, being one of the main constitutional goals, has to be in
consonance with the expectations of the society and with definite expertise in all fields of
law. Administration of justice, per se, takes within its ambit, primarily, judicial experience
and expertise by determining disputes between the parties in accordance with law as well as
ensuring proper administration within thejierarchy of courts. See. S.D. Joshi and others Vs.
High Court of Judicature at Bombay and others – 2011 (1) SCJ 169 ( D.B. ) . In the case of
Shri Kumar Padma Prasad v. Union of India [(1992) 2 SCC 428], the Apex Court was
considering whether the Legal Remembrancer-cum-Secretary (Law and Judicial) and
Assistant to Deputy Commissioner, having powers analogous to First Class Judicial
Magistrates, was holding a judicial office for the purposes of appointment as Judge of the
High Court.

The expression judicial office has nowhere been defined in the Constitution of India unlike
District Judge or Judicial Service which expressions have been explained under Article 236
of the Constitution of India. Still this expression has come up for consideration of this Court
on different occasions and in different contexts. In the case of H.R. Deb (AIR 1968 SC 1495),
the Supreme Court considered the distinction between judicial office and judicial service and
held that expression judicial office signifies more than discharge of judicial functions. The
phrase postulates that there is an office and that office is primarily judicial.

2. NYAYA PANCHAYAT
 1. Composition and Constitution of Nyaya Panchayats:
The Nyaya Panchayats cover a jurisdiction between five and seven Panchayat circles of the
old pattern or according to the local situation. The officer in charge, generally the collector, is
responsible for demarcating the jurisdiction. He is assisted by Tehsildars and Naib Tehsildars
and Vikas Adhikaris in discharging his duties. Each Panchayat within the jurisdiction of
Nyaya Panchayat, elects a member for the latter.

The member so elected must be a registered voter in the Panchayat electing him. He must not
be less than 30 years of age. He must be literate enough as to read and write the state
language fluently and legibly. He must not suffer from any disqualification which ordinarily
debars a panch from being elected to the panchayat.

A Nyaya Panch is disallowed from holding an office of sarpanch or that of member of Samiti,
Parishad, State Legislature or Union Parliament simultaneously. The elections of the Nyaya
Panchayats are regulated by the same rules as those of the elections of Vikas Panchayats.

The members from amongst themselves elect a chairman of the Nyaya Panchayat. One-third
of the members retire by rotation every second year. The chairman constitutes bench of three
members each for dealing with the civil and criminal cases coming before the Panchayats.
The member hailing from a circle in which the case arises is not allowed to sit on the bench.

Likewise if a member of the Bench is a direct party to the suit or is personally interested in it,
he is not allowed to sit for hearing of such a case. The members of the Nyaya Panchayat
when on duty, enjoy the same protection as public servants enjoy under law.

2. Powers of Nyaya Panchayats:

The Nyaya Panchayats possess civil and criminal jurisdiction. Their criminal jurisdiction
extends to offences under the Indian Penal Code viz., possession or use of false weights or
measures, negligence or deliberate doing of acts which endanger public health, life and prop-
erty, or cause public inconvenience such as fouling of water meant for public use, rash
driving on public ways, obstructing or damaging public ways, failure to repair a dangerous
building, causing hurt with or without provocation, misappropriation where the value
involved is not more than Rs. 25, mischief, trespass, using coercion to wrongfully confine a
person; injury to public property; insult; criminal intimidation; uttering words or making
gestures intended to insult the modesty of woman.

Besides this, the Nyaya Panchayats are empowered to deal with offences under the Cattle
Trespass Act, Public Gambling Act, Primary Education Act, Prevention of Juvenile
Delinquency Act, Prevention of Cruelty to Animals Act and offences under other Acts as
may be declared by the State Government to be taken by the Panchayats.

The criminal jurisdiction extends to the trial of cases dealing with offences against public
servants. These cases include refusal to answer questions, refusal to give information, refusal
to produce documents, refusal to sign a statement and refusal to take an oath where a person
is duty bound to act in that manner under the orders of a public servant.

The Nyaya Panchayats can impose penalty prescribed by the statute upon the persons
convicted for deliberately obstructing or insulting a public servant. The Nyaya Panchayats
can impose penalty between Rs. 25 and Rs. 100. They might discharge youthful offenders by
fining or by issuing admonition to the offender.

The civil jurisdiction of the Nyaya Panchayats extends to suits for damages, breach of
contracts not affecting immovable property, suits for compensation for wrongfully taking or
injuring movable property and suits for specific movable property the value of which does
not exceed the ceiling prescribed by the statute. Such value generally ranges between Rs. 100
and 500.

The Nyaya Panchayats do not exercise jurisdiction in cases where the suits may be brought
before a Revenue officer under any of the existing laws, against the Chairman or any member
of Nyaya Panchayat against a Sarpanch or Panch of the Panchayat within the jurisdiction of
the same Nyaya Panchayat, against a minor of person or unsound mind.

The Nyaya Panchayat is empowered to pass a degree with or without interest or installment.
It may give exparte judgement if the other party does not appear after getting due notice. It
may dismiss complaint or application if there is not ‘prima facie’ case against the defendant.

It may issue summons, cause appropriate documents to be produced and require the presence
of a particular person for evidence. It may conduct local enquiry and make a report if directed
by a magistrate to do so regarding an offence committed within its own circle.
3. Evaluation of Nyaya Panchayats:
Though the judicial activity of the Nyaya Panchayats has not been subjected to searching
examination, yet on the basis of performance of these Panchayats in some of the states, it can
be concluded that their services to the village community have been fairly commendable.

The villagers’ fondness for these Panchayats has got accentuated due to quick, cheap and
easily accessible justice rendered by the Nyaya Panchayats. On an average, a Nyaya
Panchayat devoted approximately ten hours a month for case work and took about two hours
on an average to dispose of a case.

3. COMMON LAW SYSTEM

The term common law can refer to two things. The common law is the body of law formed
through court decisions, as opposed to law formed through statutes or written legislation.
A common law system is the system of jurisprudence that is based on the doctrine of judicial
precedent, the principle under which the lower courts must follow the decisions of the higher
courts, rather than on statutory laws.
The common law legal system originated in England, was later adopted in the United States
and Canada and is in place in most Commonwealth countries. While the English common
law system has its roots in the 11th century, the present system has evolved over the past 350
years, with judges basing their decisions on those made by predecessors.
Common law has no basis in statute, and is established and developed through
written opinions of judges delivered at the end of a trial. These opinions are binding on future
decisions of lower courts in the same jurisdiction. However, that is not to say that common
law systems derive all of their laws from case law. Democratic countries that
have adopted the common law system have legislative bodies at the centre of their
democracies, and these bodies regularly pass new legislation. This legislation is
then interpreted and applied by the judiciary during trials; these rulings will then be applied
in future cases under the doctrine of stare decisis, another name for judicial precedent. Large
bodies of law, for example those relating to property, contracts and torts, are traditionally part
of the common law. More modern areas of law such as employment law, intellectual property
law and health and safety tend to be based on statute rather than on common law.
As with any system, the common law system has its advantages and disadvantages. The three
main arguments in favour of such a system is that it is fair, expedient and efficient. It is seen
as being fair as the strict following of precedents in all cases means that all people are treated
equally. It is expedient because basing decisions on precedent means that
potential litigants have a good idea as to what to result to expect. Finally, the existence of
precedents means that the judicial process can be relatively fast as there is already a
framework in place in which to base a ruling.
The disadvantages include the perpetuation of bad rulings and the difficulties raised when
there is no precedent for the case before the court. Once a bad decision has been made by a
higher court, that decision will remain law until the same court, or a higher court, overrules
the bad decision. Courts are reluctant to overrule their own decisions unless absolutely
necessary, and so bad decisions can be upheld for a long time. That is true of bad precedents.
However, a total lack of precedent can lead to many problems, especially where a court is
essentially having to make new law where no previous law existed.