 Arrest

Black’s Law Dictionary coveys the meaning of arrest as the restraint of a person’s
liberty through some lawful authority.1 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. 2 The term arrest is not defined in the Code. The code only
provides the procedure for effecting the arrest and the circumstances in which
arrest can be made. Arrest can be defined as taking a person into lawful custody
for making him answerable to a criminal charge. Section 46 of the Code only
provides how the arrest be made.3 This Section provides that the arrest is made
by actual touching or confining the body of the person to be arrested. But if the
person to be arrested submits him/herself to the custody then actual touch or
confinement of the body is not required. The submission may be expressed by
words or may be inferred from the conduct of the person.4

Legal Framework of Arrest Law: There are two kinds of arrest:

1. Arrest without Warrant

General Powers of arrest (Section 60A, Sections 41-45)

Special/Preventive Powers of arrest (Section151)

2. Arrest under Warrant

Chapter V of the Code of Criminal Procedure, 1973 deals with the arrest of
persons without warrant. Section 41 provides for the situations when police
may arrest without warrant. Section 42 deals with situation where a police
officer can arrest without warrant in case of non-cognizable offences. Section
43 provides for the situation where an arrest can be made by a private person
and the procedure to be followed thereafter. Section 44 deals with arrest by a
magistrate. Section 46 provides the manner in which the arrest should be
effected. 9 Sections 50, 50A and 57 provides for the various rights of the
arrestee. Chapter VI of the Code deals with the arrest under the warrant.
Sections 70 to 81 provide the procedure for effecting the arrest under the
warrant, the various kinds of warrant and the rights of the arrestee.

3.1 Arrest without Warrant: General Powers of Arrest (Section 60A and
Sections 41-45) Section 60A of the Code provides that no arrest shall be made
except in accordance with the provisions of this Code or any other law for the
time being in force providing for arrest. 10 The various provisions which
authorize arrest without warrant are discussed hereafter.

3.2 Police Officer’s Power to arrest without warrant: Section 41 deals with the
powers of police officer to make arrest without warrant. It means that in all
the cases arrest cannot be made by the police office without warrant, except
only in circumstances enumerated in these sections.

3.2.1 When Police Officer may arrest without warrant: Section 41(1) Section
41(1)(a) enumerates the circumstances in which a police officer is empowered
to make the arrest without warrant. This Section only gives the discretionary
power to police to make arrest. It is not mandatory to make the arrest on the
part of police officers in the circumstances mentioned in this section. As the
opening line of section 41(1) says “Any police officer may without an order
from a Magistrate and without a warrant, arrest any person”.

The various circumstances in which a police officer may arrest without warrant
are as follows:

A. Arrest in Case of Cognizable Offences:

Prior to Criminal Procedure Code (Amendment) Act of 2008, a police officer
had wide discretionary powers to make arrest. The provision was clothed
with expressions like reasonable complaint, credible information and
reasonable suspicion which required the police officer to first confirm
himself about the reasonability or the credibility of the information before
effecting arrest. But in reality it did not prove of much help to guide such
exercise of discretion.14 It was also evident from the decisions of some
High Courts.15
 Finally, the Supreme Court in two landmark cases decided to limit the
potential misuse of power of arrest by the police. Through these cases the
Supreme Court has laid down various guidelines for prevention of the
arbitrary exercise of such power of arrest.

In the case of Joginder Kumar v. State of U.P. 16 the Supreme Court has
held that no arrest can be made because it is lawful for the police officer to
do so. The existence of the power is one thing. The justification for the
exercise of it is quite another. No arrest should be made without a
reasonable satisfaction reached after some investigation about the
genuineness and bona fides of a complaint and a reasonable belief both as
to the person’s complicity and even so as to the need to effect arrest.
Denying a person his liberty is a serious matter.

B. Arrest of the Proclaimed Offender:

Section 41(c) provides that any person, who has been proclaimed as an
offender either under this Code or by the order of the State Government,
can be arrested by the police officer without warrant.21

C. Arrest of a person in possession of stolen property:

Clause (d) provides that a person, who is suspected to be in possession of
stolen property or a person who is suspected to have committed an
offence in relation to that property, can be arrested without warrant.22 In
order to exercise the power under this clause, the suspicion of the police
must be ‘reasonable’, i.e. founded on unsatisfactory replies of the person
on interrogation as to his belongings or on inquiries as might be proper in
the circumstances, so that he may be said to have acted in good faith.23
The term ‘Stolen Property’ is defined under Section 410 of the IPC.

D. Arrest of obstructer or absconder: Section 41(e) provides that a person,

who obstructs a police officer in the discharge of his duties, can be arrested
without warrant.24 It is important to note here that obstructing a public
servant in the discharge of his official duties is a non-cognizable offence
 under Section 186 of the IPC. But this clause provides that in case of
obstruction to the police officer, arrest can be made without warrant. This
clause also provides that a person who has escaped or attempts to escape,
from lawful custody, can be arrested without warrant. It is important to
note that it is not necessary that the escaped person must have committed
a cognizable offence.25 The person, who escapes from lawful custody, can
be convicted for such an action under Section- 224 of the IPC.

D. Arrest of a deserter: Section 41(f) provides that a person who is reasonably

suspected of being a deserter from any of the Armed Forces of the Union,
can be arrested without warrant.

Arrest by Magistrate: According to Section 44 a Magistrate can arrest the

following to categories of persons:

(i) any person who commits an offence in the presence of the Magistrate.
[Sub Section (1)] (ii) any person for whose arrest, such Magistrate is
competent to issue a warrant. [Sub Section (2)] Certain things are
important to note under this Section that this power can be exercised by
any Magistrate whether executive or judicial and with respect to any
offence, whether cognizable or non-cognizable, if committed in
presence of the Magistrate, the arrest can be made.

Rights with respect to arrest and detention under the Criminal

Procedure Code, 1973 (CrPC)

The Constitution of India and the Code of Criminal Procedure, 1973

provides certain rights to the arrested person. In law there is known as
“presumption of innocence till he has proven guilty” which means that it is
required that an arrested person treated with humanity, dignity and
respectfully until he is proven guilty by the court of law.
 Right to be Informed

Section 50(1) of CRPC it has been mentioned that the police officer who is
arresting without warrant shall inform to the person arrested, the grounds of
his offence for which he has been arrested. And if the offence which he has
committed is bailable in nature then it is also the duty of the police officer to
inform to the arrested person that he is entitle to be released on bail and he
may arrange for sureties on his behalf. Article 22(2) of the Indian
constitution also states that the arrested person must be informed the
grounds of his arrest. It also gives right to the arrested person to inform to
his family members, any relative, or his friend about his arrest. In Joginder
Kumar vs State of U.P. 1994 SCC (4) 260 the Supreme Court held that a
person arrested has the right to inform any of his friend or relative or family
member of his choice, about his detainment. The police officer shall also
inform the arrested person about his rights when he is being brought to the
police station.

 Right to be released on Bail

Section 50(2) of the CRPC states that if the accused has committed a
bailable offence then the police officer is entitled to inform the arrested
person about his right to be released on bail. Article 21 of the Constitution
ensures the right to liberty of every person until and unless he proven
guilty. Moreover, it is his right to know that even in a non-bailable offences
he may be granted bail, if a bail is granted by the court after taking into
consideration the nature or heinousness of the offence. Section 167 also
provide right to the accused to be released on bail if investigation relating to
his offence has not been completed within sixty days or ninety days from
the date of his detention. This is also known default bail. In Uday Mohanlal
Acharya Vs State of Maharashtra 2001(5) SCC 453 the court granted
default bail to the accused as the police officers fail to aquire evidence
against him within the time limit of investigation as mentioned in the Code
of Criminal Procedure, Section 167.

 Right to be taken before Magistrate without Delay

According to Section 56 of CRPC, the police officer who is making such an

arrest whether with or without warrant is bound to produce the accused
within 24 hours of his detention before magistrate excluding the time taken
for travelling from the place of arrest to the Magistrates court.
 Right to consult a legal practitioner

Section 41D of CRPC gives the right to accused to consult an advocate of

his own choice and he is also entitled to meet advocate of his own choice
during interrogation, though not throughout the interrogation. Article 22(2)
also guarantees the right of the arrested person to consult a lawyer of his
own choice. Section 303 of CrPC states that when a person is alleged to
have committed an offence before the criminal court or against whom
proceedings have been initiated, has a right to be defended by a legal
practitioner of his choice.

 Right to Free Legal Aid: Article 39A of the Indian Constitution

Free legal aid means providing legal service to the economically backward
people so that they can conduct case or any legal proceedings in a court of
law or before any judicial tribunal and judicial authority. According to Article
39A, of the Indian constitution provides that it is the duty of the state to
provide justice on easily accessible terms so that every citizen can easily
approach the courts to enforce their rights. In the case of Hussainara
Khatoon vs State of Bihar 1979 AIR 1369, a PIL was filed in the name of
Hussainara Khatoon, a prisoner in a jail in the Supreme Court. The Court
held that if an accused is not able to afford the legal services he has the
right to free legal aid at the cost of the state.

 Right to be examined by a Medical Practitioner

According to Section 54(1) of CRPC accused have the right to have a full
body medical examination. This examination can help the accused to
disprove the offence which he is said to have been committed or can
gather evidence that the offence has been committed by some other
person. But it can happen only when magistrate give the permission to do
so.

Procedure to be followed by police during Arrest

(1). The Police officer making the arrest shall actually touch or confine the
body of the person to be arrested, unless there be a submission to the
Police custody (S. 46(1) Cr.P.C.)
 (2). If any person resists the arrest or attempts to evade the arrest, the
Police officer arresting him may use all means necessary to effect the
arrest. The Police officer is not given right to cause the death of a person
who is not accused of an offence punishable with death or with
imprisonment for life (S. 46 (2)(3) Cr.P.C.)

1. Any Police officer to make an arrest may break open any outer or inner
door or window of any house or place in order to liberate himself or any
other person who, having lawfully entered for the purpose of making an
arrest, is detained therein. (S. 47 (3) Cr.P.C.)
2. A Police officer may, for the purpose of arresting without warrant any
person whom he is authorized to arrest, pursue such person into any place
in India (S. 48 Cr.P.C.)
3. The Police officer making an arrest shall follow the following:

(a). He may search the arrested person.

1. He may place in safe custody all articles other than necessary wearing
apparel found upon the arrested person.
2. If any article is seized from the arrested person, a receipt showing the
articles taken in possession by the Police officer shall be given to the
arrested person (S. 51 Cr.P.C.)

1. Whenever it is necessary to cause a female to be searched, the search

shall be made by the Woman Police or Women Home Guards with strict
regard to decency. (S. 51 (2) Cr.P.C.)
2. The Police officer making an investigation can depute any officer
subordinate to him to arrest without a warrant with an order in writing,
specifying the person to be arrested and the offence or other cause for
which the arrest is to be made and the subordinate officer so required shall,
before making the arrest, notify the person to be arrested the substance of
the order. If required, he shall show the order to the arrestee. (P. 55
Cr.P.C.). The investigating officer shall record all steps in deputing the
subordinate officer to make the arrest in the following files / registers:-

(a). General Diary

(b). Case diary

1. Pocket note book of the subordinate

2. A copy of the written order to arrest to be kept in the case diary.

Judicial Precedents

The landmark case of D.K. Basu Versus State of West Bengal (1997 (1)
SCC 416), the court laid down certain basic “requirements” to be followed
in all cases of arrest or detention till legal provisions are made in that behalf
as a measure to prevent custodial violence. The guidelines are as follows:

1. Identification of arresting officer must be clearly visible and all details must
be recorded in register,
2. a memorandum must be prepared containing all the details which must be
witnessed by near or dear of the detainee
3. police must ensure that accused should avail right to be informed
4. police need to inform him about legal aid organization within 8-12 hours of
arrest
5. the person arrested must be informed his right as an accused
6. an entry must be made in the prescribed diary
7. if the arrestee is injured he must be legally examined
8. the medical examination should be done within 48 hours
9. all details must be sent to magistrate in writing
10. the arrestee must be allowed to meet attorney
11. a room shall be provided to officers for communication

 Interrogation

(also called questioning) is interviewing as commonly employed by law

enforcement officers, military personnel, intelligence agencies, organized
crime syndicates, and terrorist organizations with the goal of eliciting useful
information, particularly information related to suspected crime.
Interrogation may involve a diverse array of techniques, ranging from
developing a rapport with the subject to torture.[1]
Techniques[edit]
Deception[edit]
Deception can form an important part of effective interrogation. In
the United States, there is no law or regulation that forbids the interrogator
from lying about the strength of their case, from making misleading
statements or from implying that the interviewee has already been
implicated in the crime by someone else. See case law on trickery and
deception (Frazier v. Cupp).[2]

As noted above, traditionally the issue of deception is considered from the

perspective of the interrogator engaging in deception towards the individual
being interrogated. By the 2000s, information began appearing in research
studies on effective interview methods used to gather information from
individuals who score in the medium to high range on measures of
psychopathology, and who exhibit deception with interrogators.[3][4]

Verbal and non-verbal cues[edit]

The major aim of this technique is to investigate to what extent verbal and
non-verbal features of liars' and truth-tellers' behaviour change during the
course of repeated interrogations. It has shown that liars display
significantly fewer smiles, self-manipulations, pauses, and less gaze
aversion than truth-tellers. According to Granhag & Strömwall, there are
three approaches to non-verbal deceptive behavior. The first is the
emotional approach, which suggests that liars will alter their behaviors
based on their own emotional feelings. For example, if a subject is lying
and they begin to experience guilt, they will shift their gaze. The second
approach is the cognitive approach, whichsuggests that lying requires more
thought than telling the truth, which in turn, may result in a liar making more
errors in speech. Lastly, the attempted control approach suggests a subject
who is lying will attempt to be seemingly normal or honest, and will try to
adjust their behaviors to make themselves believable.[5]

Good cop/bad cop[edit]

Omar Khadr pulling his hair in frustration during a February 2003 interrogation by
Canadian officials

Good cop/bad cop is a psychological tactic used in negotiation and

interrogation, in which a team of two interrogators take apparently opposing
approaches to the subject.[6] One adopts a hostile or accusatory demeanor,
emphasizing threats of punishment, while the other adopts a more
sympathetic demeanor, emphasizing reward, in order to convince the
subject to cooperate.[7]

Mind-altering drugs[edit]
The use of drugs in interrogation is both ineffective and illegal. The Body of
Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment (adopted by the UN General Assembly as resolution 43/173
of 9 December 1988)[8] forbids "methods of interrogation which impair the
capacity of decision of judgment." Furthermore, the World Medical
Association and American Medical Association, for example, both forbid
participation by physicians in interrogations.[9]

Torture[edit]
Main article: Torture

Half-hanging of suspected United Irishmen by government troops in 1798

The history of the state use of torture in interrogations extends over more
than 2,000 years in Europe. It was recognized early on that information
extracted under duress was deceptive and untrustworthy. [10] The Roman
imperial jurist Ulpian in the third century AD remarked that there is "no
means of obtaining the truth" from those who have the strength to resist,
while those unable to withstand the pain "will tell any lie rather than suffer
it."[11]

The use of torture as an investigative technique waned with the rise of

Christianity since it was considered "antithetical to Christ's teachings," and
in 866 Pope Nicholas I banned the practice. But after the 13th century
many European states such as Germany, France, Portugal, Italy, and
Spain began to return to physical abuse for religious inquisition, and for
secular investigations.[11] By the 18th century the spreading influence of the
Enlightenment led European nations to abandon officially state-sanctioned
interrogation by torture. By 1874 Victor Hugo could plausibly claim that
"torture has ceased to exist." Yet in the 20th century authoritarian states
such as Mussolini's Fascist Italy, Hitler's Third Reich, and Lenin's and
Stalin's Soviet Union once again resumed the practice, and on a massive
scale.[12]
During the Cold War, the American Central Intelligence Agency was a
significant influence among world powers regarding torture techniques in its
support of anti-Communist regimes.[13] The CIA adopted methods such
as waterboarding, sleep deprivation, and the use of electric shock, which
were used by the Gestapo, KGB, and North Koreans from their involvement
in the Korean War. The CIA also researched 'no-touch' torture, involving
sensory deprivation, self-inflicted pain, and psychological stress.[14] The CIA
taught its refined techniques of torture through police and military training to
American-supported regimes in the Middle East, in Southeast Asia during
the bloody Phoenix Program, and throughout Latin America
during Operation Condor.[15] In some Asian and South Pacific nations, such
as Malaysia and the Philippines, torture for interrogating and terrorizing
opponents became widespread. "In its pursuit of torturers across the globe
for the past forty years," writer Alfred McCoy notes, "Amnesty International
has been, in a certain sense, following the trail of CIA programs."[16]

After the revelation of CIA sponsored torture in the 1970s and the
subsequent outcry, the CIA largely stopped its own interrogations under
torture. Throughout the 1980s and 1990s, it "outsourced" such interrogation
through renditions of prisoners to third world allies, often called torture-by-
proxy.[17] But in the furor over the September 11 attacks, American
authorities cast aside scruples,[18] legally authorizing some forms of
interrogation by torture under euphemisms such as "enhanced interrogation
techniques"[19] or "interrogation in depth"[20] to collect intelligence on Al
Qaeda, starting in 2002.[21] Ultimately the CIA, the US military, and their
contract employees tortured untold thousands at Abu Ghraib, Bagram, and
secret black site prisons scattered around the globe, according to
the Senate Intelligence Committee report on CIA torture and the bipartisan
U.S. Senate Armed Services Committee report[22][23] Whether these
interrogations under torture produced useful information is hotly disputed.[24]

The administration of President Barack Obama prohibited so-called

enhanced interrogation in 2009, and as of March 2012 there is no longer a
nation which openly admits to deliberate abuse of prisoners for purposes of
interrogation.[25][26]

By country[edit]
Film set of a Japanese police interrogation room
United Kingdom[edit]
Statutory law and regulatory law, various legal precedents called 'case law'
also impact interrogation techniques and procedures. One of the first
attempts by British Courts to guide and set standards for police officers
interrogating suspects was the declaration of the 'Judges' Rules' in 1912 by
the judges of the King's Bench Division in England. These rules, although
not law, still have weight in the United Kingdom and Canada.[27]

British military personnel were found to have misused a number of

techniques during the detention of suspects in Northern Ireland in the early
1970s.[28] Police deception in interrogation was banned in the UK in 1984
with the passage of the Police and Criminal Evidence Act (PACE).[29]

United States[edit]
Police interrogation[edit]
In the United States, police interrogations are conducted under
an adversarial system, in which the police seek to obtain material that will
aid in convicting a suspect rather than discovering the facts of the case. To
this end, a variety of tactics are employed.[30]

The Reid technique is widely used by U. S. law enforcement officers for

interrogation purposes. It involves steps to obtaining a confession and
methods for detecting signs of deception in the suspect's body language.
The technique has been criticized for being difficult to apply across cultures
and as eliciting false confessions from innocent people.[31] An example is
described in the analysis of the Denver police's January 2000 interrogation
of 14-year-old Lorenzo Montoya, which took place during its investigation of
the murder of 29-year-old Emily Johnson.[32]

Constitutional protections[edit]
The Fifth Amendment, which states that one cannot be made to be "a
witness against himself", prohibits law enforcement from forcing suspects
to offer self-incriminating evidence.[33]

As a result of the Miranda v. Arizona ruling, police are required to read

aloud to suspects under interrogation their Miranda Rights afforded to them
by the Fifth Amendment, such as the right to remain silent and the right to
seek counsel. If the police fail to administer the Miranda rights, all
statements under interrogation are prohibited from being used as evidence
in court proceedings.[34]

Push for mandatory recording of interrogations in the U.S.[edit]

By the 2000s, a growing movement calls for the mandatory electronic
recording of all custodial interrogations in the United States. [35] "Electronic
recording" describes the process of recording interrogations from start to
finish. This is in contrast to a "taped" or "recorded confession," which
typically only includes the final statement of the suspect. "Taped
interrogation" is the traditional term for this process; however, as analog is
becoming less and less common, statutes and scholars are referring to the
process as "electronically recording" interviews or interrogations. Alaska,
[36]
Illinois,[37] Maine,[38] Minnesota,[36] and Wisconsin[39] are the only states to
require taped interrogation. New Jersey's taping requirement started on
January 1, 2006.[40][41] Massachusetts allows jury instructions that state that
the courts prefer taped interrogations.[42] Neil Nelson of the St. Paul Police
Department, an expert in taped interrogation,[43] has described taped
interrogation in Minnesota as the "best tool ever forced down our throats".

 Rights Of An Accused

Chapter I: Constitutional Rights

The Constitution of India itself provides certain basic fundamental rights to every
citizen of the country. An accused person also is supposed to enjoy those rights.

 Right to equality before law and equal protection of law (Article 14)[12] is
one of such rights that are provided to the citizens by the Constitution of
India. Every person in the country should be treated equally despite being
an accused criminal.
 Protection against retrospective provisions of an Act {Article 20(1)}:
No person shall be convicted of any offence except for violation of a law in
force at the time of the commission of the act charged as an offence, nor be
subjected to a penalty greater than that which might have been inflicted
under the law in force at the time of commission of the offence. [13] The
crime of a person can only be judged by the law that is in force. This means
a person cannot be punished for an act which was not a crime when it was
committed but which became one after it was committed.

 Right to protection against double jeopardy {Article 20(2)}:

No person shall be prosecuted and punished for the same offence for more
than once. This is a restriction on enforcement of criminal law. By
undergoing trial, the accused has cleared his debt to society and he cannot
be prosecuted twice even though he is in fact guilty.

 Right to protection against self-incrimination {Article 20(3)}:

No person accused of any offence shall be compelled to be a witness
against himself. In Selvi v. State of Karnataka[14] the Supreme Court has
held that the protection against self-incrimination is a broad protection that
extends to stage of investigation. Therefore, the right of self-incrimination
protects persons who have been formally accused as well as those who are
examined as suspects in criminal case. It also extends to cover witnesses
who apprehend that their answers could expose them to criminal charges
in the ongoing investigation or even in cases other than the one being
investigated[15].

 Right to be released on bail:

Bail is the rule and jail exception. The Supreme court has aptly said that the
primary purpose of bail in a criminal case are to relieve the accused of
imprisonment, to relieve the state of the burden of keeping him, pending
the trial, at the same time, to keep the accused constructively in the
 custody of court, weather before or after the conviction, to assure that he
will submit to the jurisdiction of the court and be in attendance thereon
whenever his presence is required[16]. Also, undertrial prisoners have a
right to legal aid for the purpose of applying for bail[17].

 Right to know the reason of arrest. {Article 22(1)}:

No person who is arrested shall be detained in custody without being
informed, as soon as may be, of the grounds for such
arrest nor shall he be denied the right to consult and to be defended by, a
legal practitioner of his choice[18]. A person who is said to have been
involved in a crime has a right to know the reason of his arrest.

 Right to engage an advocate {Article 22(1):

Accused or arrested person has the right to consult and to be defended by
a legal practitioner of his choice. This is a fundamental right[19].

 Right to free legal aid {Article 39-A:

In M.H. Hoskot v State of Maharashtra[20] the Supreme court stated that
if a prisoner is disabled from engaging a lawyer on reasonable grounds such
as indigence, on in communicate situation, a court shall, if the
circumstances of the case, the gravity of the sentence and the ends of
justice so require, assign a competent council for the person�s defence,
provided the party does not object to that lawyer.

 Right to be presented before the Magistrate {Article 22(2)}:

Every person who is arrested and detained in custody shall be produced
before the nearest Magistrate within a period of twenty four hours of such
arrest excluding the time necessary for the journey from the place of arrest
to the court of the Magistrate and no such person shall be detained in
custody beyond the said period without the authority of the Magistrate.
This is a fundamental right which puts restrictions to police power. Arrest
 and detention should be according to the law and as prescribed by the law.
Section 56 and 57 of the CrPC also make such provisions. Therefore, this
right is not only constitutional but also a statutory right.

 Right to appeal {Article 132, 134 and 136}:

Right to appeal is a constitutional right and a statutory right[21].

 Right to be free from torture and maltreatment {Article 21}:

In Sunil Batra (2) v. Delhi Admn[22], the Supreme court held that Article 21
prohibited mental torture, physical pressure and physical infliction and
torture beyond the limits of lawful imprisonment.

Chapter II: Rights under Evidence Act

The evidence act, 1872 says that an accused person has:

 Right to be presumed innocent (Section102 and Section 105)[23]- A person

is presumed to be innocent unless and until is proven guilty. This is known
as Presumption of Innocence. However, there are exceptions to
presumption of innocence, such as in cases where mens rea is not required
to be proved and in cases like drug abuse, dowry, and offences regarding
terrorist activities.

 Also, the accused has the right to present a witness or cross examination of
a witness to encourage a decision in favour of him. Section 103, Section
133, Section 166 of the Evidence Act are the provisions for this right.

 Right to confession of guilt (Section 24, 25, 26, 28)- An accused can confess
his guilt in front of the honourable justice in a courtroom trial. The truthful
and country confession of an accused is an effective evidence in the court.
 Sections like 163(1), 163(2), 164(1), 164(2), 164(4), 281 and 463 of the CrPC
talks about the same.

 Right to privacy of conversation (Section 122, 124,126, 129)-

Communications between husband and wife is private and they cannot be
compelled to disclose it. There are exceptions to this though and the
sections elaborates on those.

Section 122 � unless the person who made it, or his representative in interest,
consents, except in suits between married persons, or proceedings in which one
married person is prosecuted for any crime committed against the other.[24]

Section 124 elaborates on official communications. Section 126 and 129 talks
about attorney-client relationship.

Exception of Section 129 �unless he offers himself as a witness, in which case he

may be compelled to disclose any such communications as may appear to the
Court necessary to be known in order to explain any evidence which he has given,
but no others.[25]

Chapter III: Rights under Code of Criminal Procedure

The Code of Criminal Procedure has many provisions expanding about the rights
of accused. They are as follows:

 The case or the trial which is to be conducted has to be done with the
presence of the accused. Section 273 and Section 279 of CrPC grants this
right to an accused person in India.
 An accused, in India, has the right to defence oneself (Section 240, 243 and
247):
He can plead not guilty in the court. The accused is being asked whether he
pleads guilty or not.

Section 240 Framing of charge. (1) If, upon such consideration examination,
if any, and hearing, the Magistrate is of opinion that there is ground for
presuming that the accused has committed an offence triable under this
Chapter , which such Magistrate is competent to try and which, in his
opinion could be adequately punished by him, he shall frame in writing a
charge against the accused.[26]

 Right that his case be conducted in an open court (Section 327):

An accused has this right to have his trial go on in open court where public
or journalists etc. are allowed. However, the court has power to restrict
admission of people according to space available in court. Trials can be
conducted on camera as well[27].

 Right to remain silent (Section 161, Article 20(3) of the Constitution):

Privacy of a citizen is keenly protected by law. No one is bound to answer
questions asked by police, even if he is an accused[28].

 Right relating to statements (Section 161, 162, 164, 273, 200, 202 and 208):
This right emanates from sections 161 and 162 of CrPC. Written statements
before police are not to be signed by the giver and it shall not be used for
any purpose other than the one showed in Section 162(1).

 Right to be own witness (Section 313, 315 and 316):

To be a witness against oneself is not confined to the particular offences
about which the accused has reasonable apprehension of implication from
his answer. A criminal charge covers any criminal charges then under
 investigation or trial or which imminently threatens the accused[29].

 Right to protection against double jeopardy (Section 300):

No person shall be punished more than once for a same offence. But initial
burden is upon the accused to take necessary plea of autrefois convict and
establish the same[30].

 Right that sanction be obtained before prosecution for certain offences

(Section 196 and 197):No cognizance can be taken by any court of the
following offences without the previous sanction of the Central or State
Government:

1. Offences under Chapter 6 IPC.

2. Offences under Sections 153-A, 295-A, 505(1) and criminal conspiracy

for such offences and abetment in India under Section 108 IPC in
regard to an offence committed outside India (Section 1969(1) CrPC).

3. Section 153-B, Sections 505(2), 505(3) or conspiracy to commit such

offences (Sections 136(1-A) CrPC.

4. Criminal conspiracy to which Section 120-B applies (Section 196(2)

CrPC).

 Right to privacy of a woman accused (Section 46 and 54)- Privacy of a

female accused must be protected and honored and towards this end,
amendment have been made in the existing provisions of the Criminal
Procedure Code.

 Right not to subjected to illegal arrest or detention (Section 41, 60-A and
167)
  Right to meet an advocate of his choice during interrogation (Section 41-D)

 Right to obtain free copy of the judgement (Section 363 CrPC)

 Right to have a fair trail

 Right to be released on probation (Section 360)- Courts are obliged to keep

a record of the reasons for which a probation is not granted.

 Right to represent against punishment to be awarded (Section 235(2),

248(2) and 360)- The person convicted has to be heard before any
punishment is awarded to him (Section 235). If the person to be convicted
has special reasons to be pleaded in regard to punishment, he can do so. If
the accused is convicted only then the question of representation regarding
punishments arises[31].

 Right to be released on bail

 Right to take advantage of the period of limitations (Section 468)

 Right to produce and examine witnesses in his defense (Section 240, 243
and 247

 Right to Counsel in India and other Countries

Position in England:
Assigned counsel, a lawyer or lawyers are appointed by the state to provide
representation for indigent persons. Assigned counsel generally are private
lawyers designated by the courts to handle particular cases; in some countries,
particularly the United States, public defenders permanently employed by the
government perform this function.

The right to counsel varies considerably from country to country. Until the late
19th century, access to counsel was almost entirely predicated upon an
individual�s ability to pay. If a person could afford a lawyer, he was entitled to
one; if he was poor, he usually went unrepresented, except at times in capital
cases. In the late 19th century, bar organizations and social-welfare groups
banded together to supply legal aid to the indigent. By the mid-20th century, the
governments of most European countries were participating in these programs in
some fashion, in either their administration or funding or in both.

In civil-law countries and in England, the provision of assigned counsel has been
more limited. For example, in France anyone accused of a crime beyond a minor
misdemeanour must have counsel at the preliminary hearing and the trial, but
this right has not been extended to cover police interrogation.

In Britain, the Franks Committee was of the view that the right to legal
representation:
should be curtailed in the most exceptional circumstances, where it is clear that
the interests of the applicants generally would be better served by a restriction.
There is, however, some difference of judicial opinion on their point in England.

In R vs. Board of Visitors of H.M. Prison, the House of Lords has ruled that a
prisoner could not claim legal representation in a disciplinary proceedings as of
right even when the charge laid against him constituted a crime in law. The
matter of permitting legal representation is one of discretion with the board of
visitors.
Everything must depend on the circumstances of the particular case.

Position in U.S.:
Although Great Britain provided legal aid earlier (1949) than the United States,
the United States was at the forefront in providing assigned counsel. Beginning in
1963 in Gideon vs. Wainwright, the United States Supreme Court issued a series
of decisions that upheld the rights of indigent persons accused of felonies to have
counsel during trial and appeal and even during police interrogation. Although
this right was not extended to cover misdemeanours, some jurisdictions and
many public defender offices give coverage in such cases. Owing to an increase in
prisoners on death row and a diminished emphasis on pro bono work in law firms,
at the beginning of the 21st century, many prisoners sentenced to death in the
United States lacked lawyers during the appeals process.

In U.S.A., the right of legal representation is guaranteed, for many purposes by

the combined effect of the �Due Process� clause of the U.S. Constitution and
section 555(b) of U.S. Code. The US law provides that a person compelled to
appear in person before an agency or representative thereof is entitled to be
accompanied, represented, and advised by counsel or, if permitted by the agency,
by other qualified representative.

Position in India:
Legal assistance from a lawyer is held by the Supreme Court of India as essential
requisite of the procedure established by law. The court holds that if a person
does not have legal aid, her or his deprivation of liberty is unconstitutional and
void. In disciplinary inquiries as in other quasi-judicial proceedings, however,
lawyers are not always considered necessary. In fact, the very purpose of creating
administrative tribunals is to provide a de-professionalized dispute settlement
mechanism and therefore, at times there are statutory provisions for the
exclusion of lawyers.

The right to counsel springs from Article 22 of the Constitution of India which
provides that no person who is arrested shall be detained in custody without
being informed, as soon as may be, of the grounds for such arrest nor shall he be
denied the right to consult, and to be defended by, a legal practitioner of his
choice.
The defence of the indigent accused by a pleader assigned by the State should be
made available to every person accused of an offense (i.e. in all criminal trials) so
that mere poverty may not stand in the way of adequate defence in a proceeding
which may result in the deprivation of liberty or property or loss of reputation.
The right to counsel is thus recognized as a �basic ingredient� of a criminal trial,
and the law should �go as far as possible� in assuring that this ingredient is not
absent.

This principle has also been affirmed by the Indian Supreme Court in the 1974
case of R.M. Wasawa. In R.M. Wasawa, the Court proclaimed that indigence
should never be a ground for denying fair trial or equal justice. Particular
attention should be paid to appoint competent advocates, equal to handling
complex cases, not patronising gestures to raw entrants at the Bar. Sufficient time
and complete papers should also be made available so that the advocate chosen
may serve the cause of justice.

Moreover in Cr.P.C. section 303 provides that any person accused of an offence
before a criminal court, or against whom proceedings are instituted under this
Code, may of right be defended by a pleader of his choice. Section 304 of Cr.P.C.
provides that where, in a trial before the Court of Session, the accused is not
represented by a pleader, and where it appears to the Court that the accused has
not sufficient means to engage a pleader, the Court shall assign a pleader for his
defence at the expense of the State.

The Cr.P.C. provides that in all criminal prosecutions, the accused has a right to
have the assistance of a counsel and the Cr.P.C. also requires the court in all
criminal cases, where the accused is unable to engage counsel, to appoint a
counsel for him at the expenses of the State. Howsoever guilty the appellant upon
the inquiry might have been, he is until convicted, presumed to be innocent. It
was the duty of the Court, having these cases in charge, to see that he is denied
no necessary incident of a fair trial. It is equally true that the absence of fair and
proper trial would be violation of fundamental principles of judicial procedure on
account of breach of mandatory provisions of Section 304 of Cr.P.C.

Section 304 of the Cr.P.C, 1973 enables the Session Courts to assign the pleader
for the defence of the accused at the expense of the state provided he is
unrepresented and the court is satisfied that he has no sufficient means to engage
a pleader. The selection of such pleader, the facilities to be given to him by the
court and his remuneration are to be governed by the rules that may be framed
by the High Court in this regard with previous approval of the State Government.
This facility also extends to any class of criminal trials before other courts as
indicated earlier to try criminal cases in the State as it applies in relation to trials
before Courts of Sessions.

While interpreting section 304 of Cr.P.C. the Court in the case of Ranjan Dwivedi
v. Union of India (1983), also stated that there is �no doubt� that the accused
is entitled to financial assistance to engage a counsel of the accused�s choice. It
also remarked that the government should implement legislation that has
appropriate schemes for free legal aid.

However the right to counsel during interrogation by the police was not
recognised in Cr.P.C. until the amendments made in 2010 due to the judgment of
the SC in the case of D.K.Basu vs. State of W.B. (1997). Section 41-D was inserted
in Cr.P.C. which provided that when any person is arrested and interrogated by
the police, he shall be entitled to meet an advocate of his choice during
interrogation, though not throughout interrogation.

The denial of legal representation in quasi-judicial proceedings is justified on the

ground that lawyers tend to complicate matters, prolong the proceedings, and
destroy the essential informality of the proceedings. It is further justified on the
ground that representation through a lawyer of choice would give an edge to the
rich over the poor who cannot afford a good lawyer.
Thus right to counsel is an essential right and must be safeguarded by the
judiciary.

 The Constitution of India states that every person accused of a crime

has the right to apply for bail, with the exception of certain cases
where the person is considered a repeat offender or a flight risk. Bail
is the provisional release of an accused person on the condition that
they present a bail bond in court and comply with certain terms and
conditions until their case is resolved. The term “bail” is derived from
the old French word “bailer,” which means “to give” or “to deliver.”

“Factors to Consider When Determining the Right Time to Apply for

Bail”
When determining the right time to apply for bail, it is important to consider
the specific details of the case, including the sections, charges, acts,
number of accused, and types of offences involved. The First Information
Report (FIR) filed by the police is the starting point for understanding the
next steps in the legal process. If you are aware of the FIR, there are two
options for bail: anticipatory bail, which is used to prevent arrest, and
regular bail, which is applied for after arrest has already occurred.
Another important factor to consider is the criminal background of the
accused. This information is used to evaluate the person’s past behaviour
and determine their likelihood of committing similar offences in the future.
Depending on the charges and the severity of the offence, bail may be
granted easily or may take longer to be approved. Some offences are
classified as bailable or non-bailable, which can also affect the bail
application process.
Types of Bail in India: Regular Bail, Interim Bail, and Anticipatory Bail
In India, bail is granted on the basis of security and the assurance that the
accused will be available for future court proceedings and investigations.
There are several types of bail that can be applied for, including:
Regular Bail: This type of bail can be applied for once a person has been
arrested and is being held in police custody. The application for regular bail
is typically filed under sections 437 and 439 of the Code of Criminal
Procedure (CrPC).
Interim Bail: This type of bail is a temporary measure granted to an
accused before the hearing for other forms of bail. It is typically granted for
a short period of time.
Anticipatory Bail: This type of bail is similar to an advance bail and can be
applied for when a person fears arrest. The application for anticipatory bail
is typically filed under section 438 of the CrPC to prevent arrest.
It’s important to note that the type of bail that can be applied for will depend
on the specific circumstances of the case, as well as the charges and laws
involved. A skilled lawyer can advise on the best course of action and help
with the application process.
“Conditions for Grant of Bail in India: Bailable and Non-Bailable
offences”
The conditions for grant of bail in India vary depending on whether the
offence is classified as bailable or non-bailable.
A) Grant of Bail in Bailable offences: According to Section 436 of the Code
of Criminal Procedure, 1973, a person accused of a bailable offence under
the Indian Penal Code (IPC) can be granted bail. The following conditions
must be met for bail to be granted in bailable offences:
 There must be sufficient reason to believe that the accused has not
committed the offence.
 There must be sufficient reason to conduct further inquiry into the
matter.
 The accused must not be charged with an offence punishable with
death, life imprisonment, or imprisonment up to 10 years.
B) Grant of Bail in Non-Bailable offences: According to Section 437 of the
Code of Criminal Procedure, 1973, an accused person does not have the
right to bail in non-bailable offences, but the court has discretion to grant
bail. The following conditions may be considered when granting bail in non-
bailable offences:
 If the accused is a woman or a child, bail may be granted.
 If there is a lack of evidence, bail may be granted.
 If there is a delay in lodging the FIR by the complainant, bail may be
granted.
 If the accused is gravely ill.
Cancellation of Bail: Reasons and Process”
Cancellation of bail is a legal process in which a court revokes or withdraws
the bail granted to an accused person. The court has the power to cancel
bail at any stage of the case, under sections 437 (5) and 439(2) of the
Code of Criminal Procedure (CrPC). This can occur if the accused is found
to have violated the conditions of bail, or if there is new evidence that
suggests the accused may pose a danger to society or may abscond.
There are several reasons why a court may choose to cancel bail, such as:
 The accused violates the conditions of bail: If the accused fails to
comply with the conditions set by the court, such as failing to appear
in court or committing a new offence while on bail, the court may
cancel bail.
 The accused poses a danger to society: If there is evidence to
suggest that the accused may pose a danger to the public or a
specific individual, the court may cancel bail to protect the safety of
others.
 The accused is likely to abscond: If there is a likelihood that the
accused may flee the jurisdiction or evade prosecution, the court may
cancel bail to ensure their presence at trial.
 The accused interferes with the investigation or tampering with the
evidence: If the accused is found to be interfering with the
investigation or tampering with evidence, the court may cancel bail to
protect the integrity of the case
 Witness plays a vital role in adversarial system of criminal justice which is
prevalent in India. It is cardinal principle of criminal law that the burden of
proof always lies on the prosecution.
3. Types of Witnesses and Witness Identity Protection:
Since witness is a party that brings relevant facts before the court either
through oral evidence or through documentary evidence, the criminal
procedure law would permit the possibilities of, at least, three categories of
witnesses, namely i) victim witness, ii) accused witness1 and iii)
independent witness.2 The issue of witness protection becomes relevant
only in cases of victim witness or independent witnesses, who face the
threat of violence and harassment at the hands of the powerful and
scheming accused. The problem of hostile witnesses can be said to be a
direct fall out of the growing menace of protection-less victim/witness.

4. Legislative Measures for Witness Protection:

5. 3.1 Procedural Safeguards to Victim/Witness: Right to an open trial or
public hearing and examination of witnesses in the presence of the accused
are among those cardinal principles of fair trial which are found in the
criminal procedure of almost all countries governed by rule of law. Similarly
in our case sections 273 and 327 ensure that all evidence should be taken in
the presence of the accused and requires all trials to be in open court.
These rights of the accused are not absolute. The law needs to make
balance between these rights of the accused as against the need for
protection of victims and witnesses from fear or danger to their lives and
property so that they may depose in court freely. However, the recent laws
have created exceptions to these provisions.
6. 3.1.1 Evidence to be taken in presence of the accused The opening
sentence of section 273 is indicative of the fact that in given cases the
requirement of taking evidence in the presence of the accused can be
dispensed with in the interest of justice.
3.1.2 Open Hearing or a Public Trial The general rule is that the accused
must be afforded a public trial. This rule is embodied in section 327 of the
Code. Though section 327 also creates an exception to this general rule and
the Magistrate, if circumstance demands, may reserve the access of public
or any person in any inquiry or trial of a particular case. The section further
provides that where such an inquiry or trial of cases pertains to sexual
offences then it must be conducted in camera. It prohibits publication of
any matter relating to such proceeding except with the prior permission of
the court. Section 228A of the Indian Penal Code, 1860 prescribes
punishment if the identity of the victim of rape is published. The objective
of trial in camera trial is that it would help the victim/witness to give her
testimony without fear. The presence of the accused or public creates a
sense of pressure and hesitation in the mind of the victim/witness which
may cause discomfort for her to depose voluntarily.
3.1.3 Recording of evidence in absence of the accused Section 299 is an
exception to the general rule that evidence to be taken in presence of the
accused. In cases where the accused has absconded or where there is no
immediate prospect of arresting him the Court may, in his absence,
examine the witnesses produced on behalf of the prosecution, and record
their depositions. Section 299 deals with the right of the accused to cross-
examine the prosecution witnesses. The object of this provision is to
guarantee an open public trial which gives a right to the accused to know
the evidence gathered by the prosecution and also a right to cross-
examination to safeguard the interest of the accused. It is based on the
cardinal principle that the accused is presumed to be innocent unless
proved guilty beyond reasonable doubt.
3.1.4 Complainant and witnesses not to be required to accompany police
officer and not to be subject to restraint 6 2004(6) SCALE 15 7 2003 (4) SCC
601 Section 171 of the Code provides that the complainant or witness is not
required to accompany police officer on their way to any Court. At the
same time they shall not be subjected to unnecessary restraint or
inconvenience, or required to give any security for their appearance other
than their own bond. In case any complainant or witness refuses to attend
or to execute a bond the officer in charge of the police station may forward
him in custody to the Magistrate, who may detain him in custody until he
executes such bond, or until the hearing of the case is completed.
3.1.5 When attendance of witness may be dispensed with and commission
issued Section 284 provides for cases where attendance of witness may be
dispensed with and commission may be issued for examination. If it
appears to Magistrate that the examination of a witness is necessary for
the ends of justice, and that the attendance of such witness cannot be
procured without an amount of delay, expense or inconvenience which,
under the circumstances of the case, would be unreasonable, the Court or
Magistrate may dispense with such attendance and may issue a
commission for the examination of the witness.
3.1.6 Expenses of complainants and witnesses: Section 312 Cr. P.C As per
section 312, any criminal court may if it thinks fit order payment on the part
of Government of the reasonable expenses of any complainant or witness
attending for the purposes of any inquiry, trial or other proceeding before
such Court. It was held in the case of Zahira Habibulla Sheikh v. State of
Gujarat8 that in cases where the venue of trial is shifted from one place to
another to provide more conducive environment to witnesses or victims to
depose freely, the courts are obliged to order payment of reasonable
expenses incurred by the witness or complainant for attending the court as
per section 312 of the Code. 8 (2004) 4 SCC158. 3.2 Penalizing Disclosure of
Identity of victims of sexual offences and threatening witness: 3.2.1
Disclosure of identity of sexual victims to be an offence Section 228A of the
Indian Penal Code provides that the court shall impose a sentence of two
years imprisonment and fine upon any person who prints or publishes the
name which may identify the victim of such offence of rape. The object of
extending this protection is to ensure that the rape victim’s privacy can be
maintained throughout the trial and even after trial is over.

3.2.2 Threatening any person to give evidence Section 195-A was inserted
in the Indian Penal Code by an amendment in the year 2005 which provides
for punishment for threatening any person to give false evidence. If any
person threatens another with any injury to his person, reputation or
property or to the person or reputation of any one in whom that person is
interested, with intent to cause that person to give false evidence, he shall
 be punished with imprisonment for a term which may extend to seven
years. Where any innocent person is convicted and sentenced in
consequence of such false evidence, with death or imprisonment for more
than seven years, the person who threatens shall be punished with the
same punishment and sentence in the same manner and to the same
extent such innocent person is punished and sentenced.

 A hostile witness refers to a witness who appears unwilling or

reluctant to provide testimony that is favorable to the party that
called them to the stand, often contradicting their earlier statements
or acting in a manner that is uncooperative or unfriendly. This
concept is relevant in both civil and criminal proceedings, including
the administration of criminal justice.

In the context of criminal justice, a hostile witness can create challenges for
the prosecution or defense, depending on which side called the witness to
testify. The side that called the witness may seek to impeach their credibility
or challenge their testimony to minimize its impact.

Here are a few scenarios where a witness might be considered hostile in the
context of a criminal trial:

1. Contradicting Prior Statements: If a witness changes their story or

provides testimony that contradicts earlier statements made to
investigators or during pre-trial proceedings, they may be deemed hostile.
2. Unresponsiveness or Evasive Answers: If a witness refuses to answer
questions directly, becomes uncooperative, or appears evasive in their
responses, they may be considered hostile.
3. Hostility Towards the Questioning Party: If a witness displays hostility
toward the party that called them to testify, such as through aggressive
behavior or openly siding with the opposing party, they may be labeled as
hostile.
In response to a hostile witness, the attorney who called the witness may
employ various strategies to address the situation. This can include asking
leading questions, presenting prior inconsistent statements, or requesting
permission from the court to treat the witness as hostile. The goal is often
to undermine the credibility of the witness and to elicit more favorable
testimony.

It's important to note that the designation of a witness as "hostile" is a legal

characterization made by the court or the attorney examining the witness. It
doesn't necessarily imply animosity or aggression in the colloquial sense;
rather, it reflects the legal context of the witness's demeanor and testimony
during the trial.

 Perjury refers to the act of deliberately providing false information or

lying while under oath or during a sworn testimony, often in a court
of law. It is considered a serious offense as it undermines the
integrity of the legal system and the administration of justice. Perjury
can occur in various contexts within the criminal justice system, and
its implications can be significant.
1. Court Proceedings: Perjury often takes place during court proceedings
when a witness, party, or even an expert knowingly provides false
information. This can occur during trials, depositions, or any other legal
proceedings where individuals are required to provide truthful and
accurate information.
2. Affidavits and Sworn Statements: Perjury can also occur in written
statements, such as affidavits or sworn declarations. If a person knowingly
provides false information in a document submitted to the court, it can be
considered perjury.
3. Interrogations and Interviews: In some cases, individuals may lie to law
enforcement officers during interrogations or interviews. While this may
not be perjury in the strictest legal sense (as it typically involves making
 false statements without being under oath), making false statements to law
enforcement can still be a criminal offense.
4. Administrative Proceedings: Perjury can extend beyond criminal trials and
court settings. It can also occur in administrative hearings and proceedings.
Individuals may be required to provide truthful information in various
administrative processes, and providing false information can result in
perjury charges.
The consequences of perjury can be severe and may include criminal
charges, fines, and imprisonment. The exact penalties vary depending on
jurisdiction and the nature of the false statements. Perjury is considered a
crime because it undermines the credibility and reliability of the justice
system, which relies on truthful and accurate information to function
effectively

 The criminal justice process involves several stages, including pre-

trial and trial procedures. Here is an overview of these two phases:
Pre-Trial Procedures:
1. Investigation:
 The criminal justice process often begins with an investigation by law
enforcement authorities.
 Evidence is gathered, witnesses are interviewed, and other relevant
information is collected.
2. Arrest:
 If there is sufficient evidence, law enforcement may make an arrest
based on probable cause.
 The accused is informed of the charges against them, and their rights
are read (Miranda rights).
3. Booking:
 The arrested person is taken to a police station for booking.
 Personal information is recorded, fingerprints and photographs are
taken, and the person may be held in custody.
4. First Appearance/Arraignment:
 The accused is brought before a court, informed of the charges, and
asked to enter a plea (guilty, not guilty, or no contest).
 Bail may be set during this stage.
5. Bail:
 The accused may be allowed to post bail to secure their release from
custody while awaiting trial.
6. Discovery:
 The prosecution and defense exchange information about their
respective cases.
 This includes sharing evidence, witness lists, and other relevant
materials.
7. Pre-Trial Motions:
 Both the prosecution and defense may file motions to address legal
issues before the trial.
 Common motions include requests to suppress evidence, dismiss
charges, or change the venue.
Trial Procedures:
1. Jury Selection:
 If the case goes to trial, a jury is selected through a process called
voir dire.
 Attorneys for both sides question potential jurors to ensure a fair and
impartial jury.
2. Opening Statements:
 Prosecution and defense present their opening statements, outlining
their cases.
3. Presentation of Evidence:
 Witnesses are called to testify, and evidence is presented.
 Both sides may cross-examine witnesses.
4. Closing Arguments:
 Attorneys for both sides summarize their cases, emphasizing key
points and evidence.
5. Jury Instructions:
  The judge instructs the jury on the law applicable to the case.
6. Deliberation:
 The jury deliberates to reach a verdict.
 In some cases, a judge may render a verdict without a jury.
7. Verdict:
 The jury (or judge) announces the verdict: guilty, not guilty, or, in
some cases, a mistrial.
8. Sentencing:
 If the verdict is guilty, a separate sentencing hearing may be held to
determine the appropriate punishment.
These procedures can vary by jurisdiction, and some cases may not go to
trial if a plea bargain is reached. Additionally, some cases may involve
specialized procedures such as those in juvenile or military courts

 Inquisitorial and Accusatory System of Trial in India, England and

France

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.
Types of Criminal justice system:
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 or Accusatory 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.

1. Adversary system:
In the ADVERSARY SYSTEM, two or more opposing parties gather
evidence and present the evidence, and their arguments, to a judge
or jury. The judge or jury knows nothing of the litigation until the
parties present their cases to the decision maker. The defendant in a
criminal trial is not required to testify. The adversarial system seeks
the truth by pitting the parties against each other in the hope that
competition will reveal it.

2. Inquisitorial system:
In the inquisitorial system, the presiding judge is not a passive
recipient of information. Rather, the presiding judge is primarily
responsible for supervising the gathering of the evidence necessary
to resolve the case. He or she actively steers the search for evidence
and questions the witnesses, including the respondent or defendant.
Attorneys play a more passive role, suggesting routes of inquiry for
 the presiding judge and following the judge's questioning with
questioning of their own. Attorney questioning is often brief because
the judge tries to ask all relevant questions. The inquisitorial system
places the rights of the accused secondary to the search for truth.

Process of Criminal Trial in England:

The inquisitorial system was first developed by the Catholic Church during
the medieval period. The ecclesiastical courts in thirteenth-century England
adopted the method of adjudication by requiring witnesses and defendants
to take an inquisitorial oath administered by the judge, who then questioned
the witnesses. In an inquisitorial oath, the witness swore to truthfully
answer all questions asked of him or her.

The system flourished in England into the sixteenth century, when it

became infamous for its use in the Court of the STAR CHAMBER, a court
reserved for complex, contested cases. Under the reign of King Henry VIII,
the power of the Star Chamber was expanded, and the court used torture
to compel the taking of the inquisitorial oath. The Star Chamber was
eventually eliminated as repugnant to basic liberty, and England gradually
moved toward an adversarial system.

After the French Revolution, a more refined version of the inquisitorial

system developed in France and Germany. From there it spread to the rest
of continental Europe and to many African, South American, and Asian
countries. The inquisitorial system is now more widely used than the
adversarial system.

The inquisitorial system followed specially in civil law countries like France,
Germany, New zealand, Italy and Austria and the countries like United
Kingdom, United State of America, India and other common law countries
followed the adversarial criminal justice system.
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.

Process of Criminal Trial in France:

Main principles of criminal law in France are as follows:

 According to French law, the presumption of innocence is there, a

person accused of a crime is innocent until found guilty by a judge.
As a result, an accused can be deprived of liberty during legal
proceedings only if certain conditions are met. Generally, all suspects
are released; detention is done only in exceptional cases.

 In the trial, the guilt must be proved beyond reasonable doubt by the
Prosecuting Attorney. At this stage, any testimony you are asked to
provide may be crucial.

 Court proceedings usually take place in public. In certain cases

involving sexual offences, the judge may decide to proceed in
absence of the public.

 The accused is not bound to testify in his or her own defense, or to

call witnesses.

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 favourable evidence, to seek, neutralize or destroy all
unfavourable evidence, and to press the most favourable
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.

Case:
Mahender Chawla vs Union Of India Ministry Of Home
Affairs (2018)
In this case the SC criticized the prevalent criminal justice
system in India and put emphasis on the importance of
importance of witnesses in the adversarial system. The SC held
that in an adversarial system, which is prevalent by India, the
court is supposed to decide the cases on the basis of evidence
produced before it. This evidence can be in the form of
documents. It can be oral evidence as well, i.e., the deposition
of witnesses.

 Narco Analysis : Unearthing the Truth

There are several methods for Criminal Investigation, to detect lying and
deception by the suspect and accused. Modern techniques like polygraph,
narco-analysis, and brain mapping tests are non-invasive methods that will
detect deception without causing physical or mental injury to the subject.
Scientific techniques are necessary for proving the guilt as well as the
innocence of the accused. Narco – Analysis is one such scientific progress
that has become increasingly, common in India.
The term Narco-Analysis is derived from the Greek word narko ( meaning
anesthesia or Torpor) and is used to describe a diagnostic and
psychotherapeutic technique that uses psychotropic drugs, particularly
barbiturates.
• This technique is used for investigation purpose
• It is a process of abreaction or catharsis
• Also known as Truth Serum Or Drug Hypnosis or Narco interview
technique.
• Hypnosis is induced by using barbiturates or another psychotropic drug as
a means of releasing repressed feelings.
• Technique effective in two ways –
1. Therapeutic
2. Rehabilitative
History of Narco-Analysis
The term Narco–analysis was coined by Horseley. In 1922 first time used in
the criminal investigation in the US, when Robert House, a Texas
obstetrician used the drug Scopolamine on two prisoners. Truth serum is a
psychoactive medication used to obtain information from subjects who are
unable to provide it.
Principle of Narco-Analysis
• By using imagination a person is able to lie.
• In this test, the subject’s imagination is neutralized by making him/her in
semi-conscious.
• In this state, it becomes difficult to lie and answer would be restricted to
facts that he/she is already aware of
• Expert inject the subject with Sodium Amytal.
• The dose is dependant on the person’s sex, age, health and physical
condition.
How the Narco-Analysis test is conducted?
Narco-analysis test is conducted by mixing 3 grams of Sodium Pentothal or
Sodium Amytal dissolved in 3000ml of distilled water. The dose is
calculated as per Kg. of the body weight of the subject and the drug is
pushed by an Anesthetist ( a medical doctor) at the rate of 4ml/min ( 100
mg/ min) of a 2.5% solution of Sodium Pentothal. Narco test refers to the
practice of administering barbiturates or certain other chemical substances,
most often Sodium Pentothal, to lower a subject’s inhibitions in the hope
that the subject will more freely share information and feelings. In the
narco-analysis test, the subject’s inhibitions are lowered by interfering with
his nervous system at the molecular level. In such a sleep-like state, efforts
are made to obtain probative truth about the crime. Experts inject a subject
with hypnotic-like Sodium Pentothal or Sodium Amytal under the
circumstances of the laboratory. The dose is dependant on the person’s
sex, age, health, and physical condition.

Procedure of Narco-Analysis Test

It includes –
1. Pre Test Interview
2. Pre Narcotic State
3. Semi Narcotic State
4. Post Test Interview
Pre Test Interview – Individual is explained regarding the whole procedure
and informed consent is taken.
Pre Narcotic State – Anesthetic induces narco and maintains the pre
narcotic state throughout the interview. The drug is injected till the person
appears relaxed and in a state of good contact.
Semi Narcotic State – After establishing the semi narcotic state and the
individual appears to be –
a. Flushed
b. Slowing and Slurred speech
Forensic psychologists and psychiatrists facilitate the interview.
• The individual is allowed to sleep of and allowed to wake up.
• Once he/she wakes up, the anesthetist checks him/her and allows to
drink coffee or tea.
• Complete narco interview is audio-video recorded and also written.
Post Test Interview – it includes-
a. Memory is checked
b. The individual is allowed to know what he/she has spoken during the
interview.
c. Individuals experience a more relaxed and anxiety-free state.
Narco-Analysis in India
• A few democratic countries, India most notably, still continue to use
Narco-analysis.
• Narco-analysis for the purpose of the interview is conducted in a forensic
laboratory.
• In India, at Bangalore and Gujarat, this test is conducted.
• Consent of Court is required.
Advantages & disadvantages of Narco Analysis in the Indian Criminal
Justice System:
After analyzing the cases of higher courts in India, it can be said that even
the Indian judiciary is not very much clear while in a few cases court has an
affirmative view on the process of narco analysis but in some other cases
court denied it and clearly said it can’t be permitted. In their judicial
pronouncements, the courts have given conditional utilization of the
process. It can be said that the judiciary took harmonious construction
regarding the use of this process and given interpretation of conditional
utilization so that the process absolutely could not be ignored nor it can be
used in each and every case of crime.
Advantages:
By looking at the present pathetic condition of society regarding criminals,
crime rate, and affected innocent people, it seems to be the right time to
check the ways by which this can be reduced. It can be possible by giving
rich technology to the investigation agencies and Narco analysis is one of
them.
The questions are framed by the specialized person and expertise of the
process so there is very little possibility to tell a lie, as indicated by many
foreign and Indian writers.
The evidence extracted through this process may be denied as reliable but
it can be used to get admissible evidence, to corroborate with other
evidence or in support of other evidence.
Disadvantages:
In the process, the chemical is administered in the body of a person so the
dose of the chemical decides according to the physique, mental attitude,
and will power of the person. A wrong dose of chemical may lead to a state
of coma or even death of the person.
If the person is drug-addicted one then again the process is not as much
successful as needed for collecting evidence.
Reliability of information given by the subject is also under some shadow
because the subject from whom the information is collected is in a
semiconscious stage and hence the question of the reliability of such
information is being raised.
The well-known principle of the criminal justice system is that the person
giving information should be “well and fit” but in the narco analysis test the
person is in the semiconscious stage.
Arguments
It is not a hundred percent accurate. It has been found that certain
subject’s made totally false statements.
It has been found that a person has been given false information even after
the administration of the drug.

In the case of State of U.P. V. M.K.Anthony 1985, it has been ruled by the
Supreme Court that S.162 does not provide that evidence of a witness in
the court becomes inadmissible if it is established that the statement of the
witness recorded during investigation was signed by him at the instance of
the police officer. The bar created by S.162 Cr.P.C. in respect of the use of
any statement recorded by the police during the course of investigation is
applicable only where such statement is sought to be used �at any inquiry
or trial in respect of any offence under investigation at the time when such
statement was made.

If any such statement is sought to be used in any proceeding other than an

inquiry or trial or even at an inquiry or trial but in respect of an offence
other than that which was under investigation at the time when such
statement was made, the bar of s.162 would not be attracted. Section 162
of Cr.P.C is enacted for the protection of the accused. The bar created by
S.162 has no application in a civil proceeding or in a proceeding under
Art.32 or 226 of the constitution. It has also no application under s.452 of
the code for disposal of property.

lt is immaterial whether the statement recorded under S.161 Cr.P.C.

amounted to a confession or admission. The statements falling under
s.32(1) and s.27 of the Evidence Act are exceptions to this rule. A dying
declaration recorded by a police officer during the course of investigation
becomes relevant under s.32 of the Evidence Act in view of the exemption
provided by s.162(2).

The restrictions on the use of previous statements of witnesses imposed by

Section 162 of the Code are confined in their scope to the use by the
parties to the proceedings of such statement. However, the Court while
examining a person as a Court witness under Section 311 of the Code or
asking any question of any witness under Section 165 of the Evidence Act,
may make use of the previous statement of such a witness and the
restrictions put by Section 162 of the Code on the use of previous
statements are not applicable in such a case.

 Evidentiary value of statements made during the period of

investigation but not during the course of investigation:
The restrictions imposed on the use of statements before police officer
applicable only to such statements as are made to the police officer during
the course of investigation. The words �in the course of� imply that the
statement must be made as a step in a pending investigation. Any other
statement, though made during the time investigations were going on, is
not hit by the prohibitory rule of Section 162 of the Code of Criminal
Procedure. Therefore, such a statement can be used for corroborating or
contradicting purposes according to the normal rules of evidence contained
in Sections 157 and 145 of the Evidence Act.

In Baleshwar Rai v. State of Bihar (1962), it has been held that it was
admissible as an admission as to the motive of the accused under Section
21 of the Evidence Act, when an anonymous letter was written by the
accused to the police officer complaining about the act of a Chowkidar,
who was ultimately murdered by the accused.

Evidentiary value of Confession:

Confession is not defined in the Act. Confession is an admission made at
any time by a person charged with a crime stating or suggesting the
inference that he committed that crime. A confession may occur in many
forms. When it is made to the court itself then it will be called judicial
confession and when it is made to anybody outside the court, in that case it
will be called extra-judicial confession. It may even consist of conversation
to oneself, which may be produced in evidence if overheard by another.

In Sahoo v. State of U.P. (1966) the accused who was charged with the
murder of his daughter-in-law with whom he was always quarrelling was
seen on the day of the murder going out of the home, saying words to the
effect:

I have finished her and with her the daily quarrels.

The statement was held to be a confession relevant in evidence, for it is not
necessary for the relevancy of a confession that it should be communicated
to some other person.

Section 164 of Cr.P.C. empowers any Metropolitan or Judicial Magistrate

whether or not he has jurisdiction in the case to record any confession or
statement of a person made in the course of investigation by the police, or
(when the investigation has been concluded) at any time afterwards but
before the commencement of the inquiry or trial. It applies only to the
statements recorded in the investigation under Ch. 12 and is limited to the
period before the inquiry or trial.
The Magistrate shall, before recording any such confession, explain to the
person making it that he is not bound to make a confession and that, if he
does so, it may be used as evidence against him; and the Magistrate shall
not record any such confession unless, upon questioning the person making
it, he has reason to believe that it is being made voluntarily.

A confessional statement made by the accused before a magistrate is a

good evidence and accused be convicted on the basis of it but a confession
made to a police officer is not an admissible evidence in the Court of law.

Evidentiary Value of FIR:

First Information Report Commonly known as F.I.R is first and foremost
important step to set the criminal law in motion. Though the term F.I.R is
nowhere mentioned in the code of criminal procedure but information
given under Section 154 of Cr.P.C. is popularly known as F.I.R.

Provision of section 154 makes possible that any person aware of the
commission of any cognizable offence may give information to the police
and may, thereby set the criminal law in motion. Such information is to be
given to the officer �in �charge of the police station having jurisdiction to
investigate the offence. The information so received shall be recorded in
such form and manner as under provided in Section 154.This section is
intended to ensure the making of an accurate record of the information
given to the police.

The evidentiary value of FIR is far greater than that of any other statement
recorded by the police during the course of investigation. It is settled
principle of law that a FIR is not a substantive piece of evidence, that is to
say, it is not evidence of the facts which it mentions. However, its
importance as conveying the earliest information regarding the occurrence
cannot be doubted.
In the case of Hasib vs. State of Bihar (1972) the Apex Court has held that
though the FIR is not substantive evidence, it can be used to corroborate
the informant under S.157 of the Indian Evidence Act, 1872, or to
contradict him under S.145 of the said Act, if the Informant is called as a
witness at the time of trial.

Evidentiary value of dying declaration:

Sham Shankar Kankaria vs. State of Maharashtra (2006) is a case where
the basis of conviction of the accused is the dying declaration. The Apex
court in this case held that The situation in which a person is on deathbed is
so solemn and serene when he is dying that the grave position in which he
is placed, is the reason in law to accept veracity of his statement. It is for
this reason the requirements of oath and cross-examination are dispensed
with. Besides, should the dying declaration be excluded it will result in
miscarriage of justice because the victim being generally the only
eyewitness in a serious crime, the exclusion of the statement would leave
the court without a scrap of evidence.

Though a dying declaration is entitled to great weight, it is worthwhile to

note that the accused has no power of cross-examination. Such a power is
essential for eliciting the truth as an obligation of oath could be. This is the
reason the court also insists that the dying declaration should be of such a
nature as to inspire full confidence of the court in its correctness. The court
has to be on guard that the statement of deceased was not as a result of
either tutoring or prompting or a product of imagination.

The court must be further satisfied that the deceased was in a fit state of
mind after a clear opportunity to observe and identify the assailant. Once
the court is satisfied that the declaration was true and voluntary,
 undoubtedly, it can base its conviction without any further corroboration. It
cannot be laid down as an absolute rule of law that the dying declaration
cannot form the sole basis of conviction unless it is corroborated. The rule
requiring corroboration is merely a rule of prudence.

The dying declaration must be made by the deceased only. In the case
of Suchand Pal vs. Phani Pal (2004) the SC held that the declaration made
by the deceased cannot be called dying declaration because it was not
voluntary and answers were not given by her, it was her husband who was
answering.

Evidentiary value of articles seized:

The police also conduct search and seizures. The search and seizures should
not be unreasonable. They may be conducted by police with or without a
warrant. In case a search is conducted on a warrant issued by a Magistrate
it must invariably, contain the following details:

i. The information as to the statement of facts showing probable cause that a

crime has been committed.
ii. A specification of a place or places to be searched.
iii. A reasonable time limit within which it may be conducted.
The police can also conduct a search without warrant when it is incidental
to be a lawful arrest or where the object of search is a mobile vehicle which
can quickly be removed out of police jurisdiction or when the accused has
consented to it. The burden of proving the consent, however lies upon the
prosecution.

As soon as any property is seized, the Investigating Officer should hand over
the property along with a copy of the seizure memo to the Officer-in-charge
of the Malkhana who will make an entry in the Malkhana Sub-Module or
Seized Property Register. Record of seized property shall be maintained in
 the Malkhana Sub-Module of CRIMES or in the prescribed form in all the
CBI Branches.

Whenever inspection of documents kept in the Malkhana is permitted by a

Court, the Law Officer-in-charge of Malkhana or the SP of the Branch
should make an Officer responsible for supervising such inspection. Such
designated Officer shall be responsible for ensuring safety of all the
documents.

 The admissibility or inadmissibility of evidence in a criminal case is a

crucial aspect of the legal system. The rules governing the admission of
evidence vary across jurisdictions, but there are common principles that
guide these determinations. Here are some general concepts related to
the admissibility of evidence in the criminal justice system:

1. Relevance:
 Admissible evidence must be relevant to the case at hand. In other
words, it must have the tendency to make a fact of consequence
more or less probable than it would be without the evidence.
2. Hearsay:
 Hearsay is generally considered inadmissible. Hearsay is an out-of-
court statement offered to prove the truth of the matter asserted.
There are exceptions to this rule, and certain hearsay statements may
be admissible under specific circumstances.
3. Authentication:
 Evidence must be properly authenticated to be admissible. This
means that the party offering the evidence must provide sufficient
proof that the evidence is what it purports to be.
4. Best Evidence Rule:
  The Best Evidence Rule stipulates that the original, rather than a copy,
of a document or other physical evidence should be presented if
available. Copies may be admissible under certain conditions.
5. Exclusionary Rule:
 Evidence obtained illegally or in violation of constitutional rights may
be deemed inadmissible under the exclusionary rule. This rule is
designed to deter law enforcement misconduct.
6. Privileged Communication:
 Certain communications, such as those between attorney and client
or doctor and patient, may be protected by privilege and are
generally inadmissible.
7. Expert Testimony:
 Expert testimony may be admissible if the court determines that the
witness has specialized knowledge that will assist the trier of fact
(judge or jury) and that the testimony is reliable.
8. Character Evidence:
 Evidence of a person's character is generally inadmissible to prove
conduct on a particular occasion. However, there are exceptions, such
as when a defendant's character is directly relevant to an issue in the
case.
9. Exculpatory and Inculpatory Evidence:
 Both types of evidence can be admissible. Exculpatory evidence tends
to show innocence, while inculpatory evidence tends to show guilt.
The admissibility depends on relevance and other rules.
10. Probative Value vs. Prejudice:
 Even if evidence is relevant, the court may exclude it if its probative
value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury.

It's important to note that the admissibility of evidence is ultimately

determined by the judge in accordance with the rules of evidence
applicable in the jurisdiction. These rules are designed to ensure fair and
just proceedings while protecting the rights of the accused.
 Definition of Expert Witness
Expert evidence is admissible to furnish the court with information which is
likely to be outside the experience and the knowledge of a judge or jury
(Criminal Practice Directions 2023 7.1.1 Expert Evidence).
An expert witness can provide the court with a statement of opinion on any
admissible matter calling for expertise by the witness if they are qualified to
give such an opinion.
The Duty of an Expert Witness
The duty of an expert witness is to help the court to achieve the overriding
objective by giving opinion which is objective and unbiased, in relation to
matters within their expertise. This is a duty that is owed to the court and
overrides any obligation to the party from whom the expert is receiving
instructions - see Criminal Procedure Rules 2020 Part 19.2 (CrimPR 19.
The Criminal Practice Directions 2023 provides examples of information at
7.1.4 that should be disclosed by all experts under CrimPR 19.2(3)(d)
including:
(a) any fee arrangement under which the amount or payment of the
expert’s fees is in any way dependent on the outcome of the case;
(b) any conflict of interest of any kind, other than a potential conflict
disclosed in the expert’s report;
(c) adverse judicial comment;
(d) any case in which an appeal has been allowed by reason of a deficiency
in the expert’s evidence;
(e) any adverse finding, disciplinary proceedings or other criticism by a
professional, regulatory or registration body or authority, including the
Forensic Science Regulator;
(f) any such adverse finding or disciplinary proceedings against, or other
such criticism of, others associated with the corporation or other body with
which the expert works which calls into question the quality of that
corporation's or body's work generally;
Admissibility of Expert Evidence
The general rule is that witnesses should only testify in relation to matters
within their knowledge. Evidence of opinion or belief is inadmissible.
 However, exceptions have been made by statute and at common law in
relation to expert evidence.
Statute
Section 30 of the Criminal Justice Act 1988 states that an expert's report is
admissible as evidence of fact and opinion, whether or not the expert
attends court to give oral evidence. If it is not proposed to call the expert
witness, the leave of the court must be obtained prior to introducing it.
In considering whether to grant leave, the court will have regard to:
 The contents of the report;
 The reasons why it is proposed that the expert will not give live evidence;
 The risk that it may not be possible to controvert statements in the report if
the expert does not attend;
 Any unfairness to the accused; and
 Any other relevant circumstances - which, in practice, should include
consideration as to whether the Criminal Procedure Rules have been
complied with and the extent to which the evidence would have been
admissible at common law.
Common law
Expert opinion evidence is admissible at common law where:
1. It will be of assistance to the court
For expert opinion to be admissible it must be able to provide the court
with information which is likely to be outside a judge’s or a jury's
knowledge and experience, but it must also be evidence which gives the
court the help it needs in forming its conclusions.
The role of the expert is to give their opinion based on their analysis of the
available evidence. The Bench or jury is not bound by that opinion but can
take it into consideration in determining the facts in issue.
If the expert is seeking to advance an opinion which is not relevant to an
issue in the case or which might be deemed a matter of common sense
upon which the jury could reach its own conclusions, then the opinion of an
expert will be inadmissible.
For instance, in R v Turner (1975) 60 Cr App R 80, the issue as to the
credibility of a witness was a matter for the jury. Psychiatric evidence as to
 how an ordinary person who was not suffering from a mental disorder
would react to a given situation was held to be inadmissible.
2. The expert has relevant expertise
The individual claiming expertise must have acquired by study or
experience sufficient knowledge of the relevant field to render their
opinion of value.
The court is concerned that evidence should not be given by experts who
are, patently unqualified or little more than ‘enthusiastic amateurs. More
commonly, it is vital to ensure that an expert does not give evidence in
relation to matters outside of their expertise - see R v Clarke &
Morabir [2013] EWCA Crim 162, a case where an expert in fractures and
bone disease gave an opinion as to cause of death, in circumstances where
the Court of Appeal held that he "did not have the experience or expertise
to consider all of the causes of death" in the way that a Home Office
registered forensic pathologist would.

 direction for criminal prosecution in crime and Administration in criminal

system

1. Investigation:
 The process begins with law enforcement agencies conducting an
investigation into a suspected crime. This involves collecting evidence,
interviewing witnesses, and building a case against the alleged
offender.
2. Arrest:
 If there is enough evidence to support criminal charges, law
enforcement may make an arrest. The arrested individual is then
brought into the criminal justice system.
3. Booking:
  After arrest, the suspect is typically booked into the jail. This involves
recording personal information, taking fingerprints, and creating an
official arrest record.
4. Charging:
 The prosecutor, who is a legal representative of the government,
reviews the evidence provided by law enforcement. If there is enough
evidence to proceed, the prosecutor files formal charges against the
accused.
5. Initial Appearance:
 The accused is brought before a judge for an initial appearance,
where they are informed of the charges against them, and their rights
are explained. Bail may be set during this stage.
6. Preliminary Hearing/Grand Jury:
 In some jurisdictions, there may be a preliminary hearing where the
prosecution presents evidence to show there is enough to proceed to
trial. Alternatively, a grand jury may be convened to decide whether
there is enough evidence for formal charges.
7. Arraignment:
 The accused is brought before the court to enter a plea (guilty, not
guilty, or no contest) in response to the charges.
8. Discovery:
 Both the prosecution and defense exchange information and
evidence to build their cases. This is known as the discovery process.
9. Pretrial Motions:
 The defense or prosecution may file motions to address legal issues
or request specific actions from the court before the trial.
10. Plea Bargaining:
 The prosecution and defense may negotiate a plea bargain, where the
accused agrees to plead guilty to a lesser charge in exchange for a
more lenient sentence.
11. Trial:
 If a plea bargain is not reached, the case goes to trial. The
prosecution and defense present their cases, and a judge or jury
determines the guilt or innocence of the accused.
12. Sentencing:
 If the accused is found guilty, a separate sentencing hearing is held to
determine the appropriate punishment.

Throughout this process, it's essential to adhere to legal and ethical

standards, ensuring a fair and just system for all parties involved. Legal
professionals, including prosecutors and defense attorneys, play crucial
roles in upholding the principles of justice. The specifics can vary based on
jurisdiction and legal systems.