UNIT 1 TOPICS (CRIMINAL JUSTICE SYSTEM IN INDIA)

FEATURES OF CRIMINAL PROCEDURE

The Code of Criminal Procedure, 1973, is the primary law governing criminal procedure in India. It
consists of 37 chapters and 484 sections, along with two schedules that classify offenses and contain
forms. The code covers various aspects, including the constitution and powers of courts, processes for
compelling appearance and production of evidence, and police powers.

This criminal procedure law establishes standards for pre-trial processes like receiving crime
information, interrogation, arrest, remand, bail, recording vital evidence during investigation, charge-
sheet, as well as trial processes such as courts taking cognizance, framing charges, summoning
witnesses, recording evidence, hearing arguments, passing judgment, pre-sentence hearing, and
sentencing.

The objectives behind enacting the Code of Criminal Procedure were to ensure due process, expedite
case disposal, and ensure fair treatment for marginalized sections of society. Notable stages in criminal
cases include the investigation stage, trial stage, sentencing stage, and prisonization stage.

STAGE OF INVESTIGATION

In the process of criminal procedure, the first step involves the aggrieved party registering a complaint
at a police station. In certain cases, the police can also investigate a crime if they become aware of it
through their own sources (Section 157). The investigating officer then investigates both cognizable and
non-cognizable offenses, seeking the magistrate's direction for non-cognizable cases. During the
investigation, witnesses are examined, but individuals are not obliged to answer self-incriminating
questions. Statements made to the police cannot be signed or used as trial evidence, except for those
recorded under Section 164. If the investigation exceeds 24 hours, the person may be remanded to
judicial custody for up to 15 days. Once the investigation is complete, the police can file a charge-sheet.
The investigation stage is autonomous and aims for a smooth and effective process.

• THE POWER TO SEARCH, SEIZE AND ARREST

The investigating officer has the power to search premises, seize incriminating material, interrogate and
arrest suspects. If the accused is not found, the officer can initiate proceedings to declare them a
proclaimed offender and confiscate their assets. The officer's advice on prosecution viability is recorded
in the police file. However, the power to arrest in cognizable offenses has been misused, leading to
concerns about individual liberties. To safeguard rights, the arrested person must be informed of the
grounds for arrest, their relatives notified, and details recorded in the police diary. Measures are
necessary to protect individuals during the arrest process.

• ANITICIPATORY BAIL AND BAIL AFTER ARREST

After an arrest, the police officer must inform the arrested person of the grounds for arrest and present
them before a senior officer or a Magistrate within 24 hours (Sections 56 and 57, CrPC). The arrested
person also has the right to undergo a medical examination (Section 54, CrPC).
Bail is available in both cognizable and non-cognizable cases. For bailable offenses, bail is granted as a
matter of right (Section 436) and can be sought by the person or their relatives. In the case of non-
bailable offenses (Section 437), bail is at the discretion of the Magistrate.

Anticipatory bail allows a person to seek bail before arrest if they anticipate imminent (ready to take
place) arrest due to the involvement of others in the same case. Section 438, CrPC provides for
anticipatory bail as a right to protect individuals from potential political vendettas. However, some
states have suspended the application of this provision to maintain law and order.

• REALEASE ON REMAND AND LIMITATION OF PRE TRIAL DETENTION

Remand - place (a defendant) on bail or in custody, especially when a trial is adjourned.

After being arrested, the accused person is brought before a Magistrate within 24 hours. Section 167(1)
grants the power to remand the accused for further investigation. This power serves two purposes: first,
it ensures the accused's physical presence before the magistrate, and second, it sets the remand period
at 60 and 90 days for minor and major offenses, respectively. During the investigation period, the law
permits the accused person to seek bail.

STAGE OF TRIAL

During the trial stage, the Magistrate is responsible for determining the guilt or conviction of the
accused person. Trials are classified as summon cases or warrant cases, depending on the offense.
Warrant cases involve serious offenses with punishments such as death or imprisonment exceeding two
years. The court hierarchy, as outlined in the Code of Criminal Procedure (CrPC), includes the Court of
Sessions, Judicial Magistrates of the First Class or Metropolitan Magistrates, Judicial Magistrates of the
Second Class, and Executive Magistrates.

The Magistrate of the First Class initiates criminal proceedings, even though the Court of Session has the
original jurisdiction. If the Magistrate finds sufficient grounds to proceed with the trial, they issue
summonses or warrants to the accused to appear in the appropriate court. The trial can take different
forms, such as session trials, warrant cases (trial by Magistrate), summon cases (trial by Magistrate), or
summary trials. Throughout this process, the accused person has important rights, although they are not
specified in the provided information.

• RIGHT AGAINST DOUBLE JEOPARDY

Section 300 of the Code of Criminal Procedure (CrPC) and Article 20(2) of the Indian Constitution protect
individuals from being tried multiple times for the same offense. Once a person has been tried,
convicted, or acquitted for an offense, they cannot be tried again for the same offense or on the same
facts for another offense that could have been charged during the initial prosecution. These provisions
aim to safeguard the rights of the accused and prevent harassment.

• RIGHT TO LEGAL AID

Sections 303 and 304 of the Code of Criminal Procedure (CrPC) grant the right to the accused to appoint
a legal consultant for their defense and emphasize that if the accused cannot afford the fees, they have
the right to request free legal aid from the state. Article 22(1) of the Indian Constitution guarantees the
right of the accused to consult and be defended by a legal practitioner of their choice. The right to legal
aid is further reinforced by an amendment in 1976 through Article 39A, which binds the state to ensure
equal justice for all and provide free legal aid to the accused through appropriate legislation and
schemes. Under Article 21 of the constitution, the Supreme Court has made it mandatory for the state
to provide legal aid to the poor to protect personal liberty.

STAGE OF SENTENCING

The third stage of the criminal procedure is sentencing, which follows the investigation and trial. During
sentencing, the Magistrate considers various factors such as community views, the interests of the
victim, and the potential impact on the accused's socialization. The Code of Criminal Procedure (CrPC)
specifies the punishment for each offense, and the Magistrate's role is to impose a sentence that aligns
with the principles of reformative sentencing.

• RIGHT TO PRE SENTENCE HEARING

Two important issues in this stage are the provisions of sections 235(2) and 248(2) of the CrPC, which
grant the accused the right to be heard in sentencing matters, and Article 21 of the Indian Constitution,
which guarantees the right to life and personal liberty. This provision ensures that the accused can
present personal facts that may influence the individualization of the punishment.

• PARDON, COMMUTATION, AND REMISSION OF SENTENCES

In democratic countries like India, accused individuals have the right to defend themselves and enjoy
human rights. Pardoning an accused person is a matter of political discretion, granted by the heads of
state. The President and Governor have the power to pardon based on cabinet recommendations, but
this can be reviewed by the courts if it violates constitutional provisions. State governments also have
limited powers to remit, suspend, or commute sentences, with a minimum of 14 years of life
imprisonment for cases where the death penalty has been commuted. The Supreme Court of India has
deemed this right constitutionally valid.

THE POST SENTENCE OR PRISONIZATION STAGE

The last stage of criminal justice administration involves placing the convict in prison as part of their
punishment. This serves both custodial and non-custodial purposes. Non-custodial measures, like
probation release, are commonly followed under the Probation of Offences Act, 1958. Custodial
sentences are carried out in prisons governed by national prison laws and state prison acts. Prisons
serve as safe and reformative custody for convict prisoners, under trial prisoners, and detenues in
judicial custody. These stages, including investigation, charge-sheet filing, and trial, are essential
features of criminal justice administration in India. The rule of law and the criminal justice system go
hand in hand in India, as guaranteed by the constitution, which serves as the source of all laws and
protects individuals' rights.

POLICE ORGANIZATION

The federal character of the Indian state allows for the distribution of powers between the center and
the states, with the states being responsible for maintaining law and order. The police system in India is
hierarchical, with the Director General of Police at the top, followed by Superintendent of Police, and
Station House Officer. Violation of police duties can result in fines or imprisonment. Police reform
proposals have been made to increase accountability and minimize political pressure. The Supreme
Court has recommended the establishment of a State Security Commission, transparent procedures for
police chief appointments, separation of investigation work from law and order, and the formulation of
a new Police Act. The Court has also directed the creation of Police Complaints Authorities at the district
and state levels.

Civil and Political Rights in India

The fundamental rights are most sacred rights guaranteed to the people of India. The Supreme Court is
the guardian of the constitution and the protector of fundamental rights. The important rights
enshrined in the constitution of India encompasses the criminal justice and human rights included in the
following provisions:

• RIGHT TO EQUALITY (ART 14)

The right to equality in India includes equality before the law and equal protection of laws. Equality
before the law ensures that all citizens are treated equally regardless of their characteristics, status, or
position. Equal protection of laws means that everyone is entitled to the same legal protection without
discrimination or special treatment. This provision does not discriminate anybody merely based on
status, position, and rank, and whosoever commits any crime is liable of punishment irrespective of
status, positions, and rank etc. Laws should be applied consistently to similar individuals in similar
circumstances.

• RIGHT TO FREEDOM [A –19(1)]

Article 19(1) of the Indian constitution guarantees fundamental rights to freedom of speech, expression,
assembly, association, movement, residence, and profession. These rights are considered natural rights
and are inherent to individuals. However, they are not absolute and can be restricted by laws for the
public interest, state security, and public order. The reasonableness of these restrictions is determined
by the courts on a case-by-case basis, and they should not be arbitrary or excessive.

• Protection in Respect of Conviction for Offences [Article 20]

The Indian constitution provides protections against conviction for offences. Article 20(1)
ensures that a person can only be convicted for an act that was considered an offence under
the law at the time of its commission. Article 20(2) protects against being prosecuted and
punished twice for the same crime. Article 20(3) safeguards against self-incrimination,
preventing an accused person from being forced to testify against themselves.

• Protection of Life and Personal Liberty [Article 21]

Article 21 of the Indian constitution protects the rights to life and personal liberty. The Supreme
Court has interpreted this to include rights such as the rights of prisoners, legal aid, speedy trial,
and the right to claim compensation for violations of these rights. Interference with these rights
must be justified by valid laws and strict procedures must be followed.

• Protection Against Arrest and Detention in Certain Cases [Article 22]

Article 22 of the constitution protects individuals against unlawful arrest and detention by the
state. It requires that the arrested person be informed of the charges, have the right to obtain
counsel, and be produced before a magistrate within 24 hours. Detention beyond this period
requires court approval.

• Prohibition of Traffic in Human Beings and Forced Labour [Article 23]

Article 23 ensures the rights of individual citizens not only against the state but also against the
private citizens. The provision in this Article prohibits forced labor, beggar, and trafficking.

• Right to Constitutional Remedies [Article 32]

Article 32 empowers citizens to invoke writs to protect their constitutional rights. The Supreme
Court of India by virtue of it being the guardian of the constitution and the fundamental rights
of the citizens steps up to protect the rights by orders of writ of habeas corpus.

• 1.3.8 Fundamental Duties [Article 51A]

The fundamental duties enlisted in the constitution of India are not punishable for its violations
except in some extraordinary situations. Keeping fundamental rights and duties together is a
reflection of constitutional harmony for the well-being of the people and the society.