Administration of the Criminal Justice System in India

Introduction

The essential object of criminal law is to protect society against criminals and law-breakers. For this purpose the law holds out threats of punishments to prospective lawbreakers as well as attempts to make the actual offenders suffer the prescribed punishments for their crimes. Therefore, criminal law, in its wider sense, consists of both the substantive criminal law and the procedural (or adjective) criminal law. Substantive criminal law defines offences and prescribes punishments for the same, while the procedural law administers the substantive law.

Therefore the two main statues which deals with administration of criminal cases in our country are criminal procedure code i.e. Crpc and Indian penal code i.e. Ipc being procedural and substantive respectively. However with the changing times the societal norms also change and people who are part of this society have to accept this change either by way of compromise or any other way in order to adjust and make them still the part of the very same society. In earlier days there was no criminal law in uncivilized society. Every man was liable to be attacked in his person or property at any time by any one. The person attacked either succumbed or over-powered his opponent. “A tooth for a tooth, an eye for an eye, a life for a life” was the forerunner of crimi­nal justice [1]. As time advanced, the injured person agreed to accept compensation, instead of killing his adversary. Subsequently, a sliding scale came into existence for satisfying ordinary offences. Such a system gave birth to archaic criminal law.

For a long time, the application of these principles remained with the parties themselves, but gradually this function came to be performed by the State. The germs of criminal jurisprudence came into existence in India from the time of Manu. In the category of crimes Manu has recognized assault, theft, robbery, false evidence, slander, criminal breach of trust, cheating, adultery and rape. The king protected his subjects and the subjects in return owed him allegiance and paid him revenue. The king administered justice himself, and, if busy, the matter was entrusted to a Judge. If a criminal was fined, the fine went to the king’s treasury, and was not given as compensation to the injured party. [2]

Later with the advent of western jurisprudence and passing of various charters and commissions and the advent of British rule the Indian society succumbed or we can probably say adjusted or adapted and aligned itself to the adversarial system of justice dispensation which prevails even today but with a lot of changes which have been time and again being made to it to suit to the needs of the changing times. In today’s world one needs to have a receptive, broad and open mind in order to solve various problems which are discussed in chapter one being faced by our justice system. Since it is evident that a change is required in our criminal justice system and there is a need to adhere to recourse to alternative methods of dispute resolution even in criminal cases instead of making a major change we firstly have to see the common features of a trial and the procedure which is followed by our courts or system for the administration of criminal justice and its flaws which is discussed as further. [3]

At the outset of this chapter the researcher would like to state that owing to paucity of time and nature of topic selected the researcher has limited his scope of study to a certain specific offences only and would be dealing with them and the lacuna which exists in the administration procedure followed and which particular technique of ADR can be used to curb the said problems and side by side would result in a fair and expeditious trial.

Procedure for Administration of Criminal Justice

The procedure of administration of criminal justice in our country is divided into three stages namely investigation, inquiry and trial. The Criminal procedure code 1973 provides for the procedure to be followed in investigation, inquiry and trial, for every offence under the Indian Penal Code or under any other law. Now before discussing the procedure of administration there are certain basic terms one should be aware of these being;

Cognizable offences.

Non cognizable offences.

Inquiry.

Investigation.

Section 2(c) of the Code defines ‘Cognizable Offence’ and ‘Cognizable case’ as follows: –

“Cognizable Offence” means an offence means an offence for which, and “Cognizable case” means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant”.

Whereas section 2(l) defines “Non-cognizable offence” means an offence for which, and “non-cognizable case” means a case in which, a police officer has no authority to arrest without warrant”

Section 2 (g) defines “Inquiry” means every inquiry, other than a trial, conducted under this Code by a Magistrate or court; and section 2 (h) defines “Investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf,

Therefore for a dispute to be resolved the said case has to go through the three stages i.e. inquiry investigation and trial and after this process is completed the judgement of the court is passed by the judge who decides the case and its outcome. Although the said process appears to simple and plain on paper but in practicality is cumbersome and time consuming which is defeating the main essence of a criminal system i.e. fair and expeditious justice and hence warrants a change now.

The three stages: namely investigation, inquiry and trial are as follows

Investigation is a preliminary stage conducted by the police and usually starts after the recording of a First Information Report (FIR) in the police station. Section 154 [4] provides that any information received in the police station in respect of a cognizable offence shall be reduced into writing, got signed by the informant and entered in the concerned register. Section 156(1) requires the concerned officer to investigate the facts and circumstances of such a case without any order from the Magistrate in this behalf. If Magistrate receives information about commission of a cognizable offence he can order an investigation. In such cases citizen is spared the trouble and expense of investigating and prosecuting the case.

Section 157 [5] of the code provides for the procedure for investigation which is as; if the officer-in-charge of a police station suspects the commission of an offence, from statement of FIR or when the magistrate directs or otherwise, the officer or any subordinate officer is duty-bound to proceed to the spot to investigate facts and circumstances of the case and if necessary, takes measures for the discovery and arrest of the offender. It primarily consists of ascertaining facts and circumstances of the case, includes all the efforts of a police officer for collection of evidence: proceeding to the spot; ascertaining facts and circumstances; discovery and arrest of the suspected offender; collection of evidence relating to the commission of offence, which may consist of the examination of various persons including the accused [6] and taking of their statements in writing and the search of places or seizure of things considered necessary for the investigation and to be produced at the trial; formation of opinion as to whether on the basis of the material collected there is a case to place the accused before a magistrate for trial and if so, taking the necessary steps for filing the charge-sheet. The investigation procedure ends with a submission of a police report to the magistrate under section 173 of the code this report is basically a conclusion which an investigation officer draws on the basis of evidence collected.

Now the second phase is, Inquiry dealt under sections 177-189 of the code which consists of a magistrate, either on receiving a police report or upon a complaint by any other person, being satisfied of the facts. Lastly, the third stage is trial. Trial is the judicial adjudication of a person’s guilt or innocence. Under the Crpc, criminal trials have been categorized into three divisions having different procedures, called warrant, summons and summary trials.

Section 2(x) of the Crpc defines Warrant-case i.e. “Warrant-case” means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years; A warrant case relates to offences punishable with death, imprisonment for life or imprisonment for a term exceeding two years. Trial of warrant cases is dealt under sections 238-250 of the code.

The Crpc provides for two types of procedure for the trial of warrant cases i.e. By a magistrate, triable by a magistrate, viz., those instituted upon a police report and those instituted upon complaint. In respect of cases instituted on police report, it provides for the magistrate to discharge the accused upon consideration of the police report and documents sent with it. In respect of the cases instituted otherwise than on police report, the magistrate hears the prosecution and takes the evidence. If there is no case, the accused is discharged. If the accused is not discharged, the magistrate holds regular trial after framing the charge, etc. In respect of offences punishable with death, life imprisonment or imprisonment for a term exceeding seven years, the trial is conducted in a session’s court after being committed or forwarded to the court by a magistrate.

A summons case means a case relating to an offence not being a warrant case, implying all cases relating to offences punishable with imprisonment not exceeding two years. In respect of summons cases, there is no need to frame a charge. The court gives substance of the accusation, which is called “notice”, to the accused when the person appears in pursuance to the summons. The court has the power to convert a summons case into a warrant case, if the magistrate thinks that it is in the interest of justice. The provisions regarding the procedure to be followed in summons case is dealt under section 251-259 of the Crpc.

Summary trials are dealt under section 260 – 265 of the Crpc the procedure is as provided; the high court may empower magistrates of first class to try certain offences in a summary way where as second class magistrates can summarily try an offence only if it is punishable only with a fine or imprisonment for a term not exceeding six months. In a summary trial no sentence of imprisonment for a term exceeding three months can be passed in any conviction. The particulars of the summary trial are entered in the record of the court and in every case which is tried summarily in which the accused does not plead guilty the magistrate records the substance of the evidence and a judgment containing a brief statement of the reasons for the finding.

The common features of the trials in all three of the aforementioned procedures may be roughly broken into the following distinct stages:

1. Framing of charge or giving of notice.

This is the beginning of a trial. At this stage, the judge is required to weigh the evidence for the purpose of finding out whether or not a prima facie case against the accused has been made out. In case the material placed before the court discloses grave suspicion against the accused that has not been properly explained, the court frames the charge and proceeds with the trial. If, on the contrary, upon consideration of the record of the case and documents submitted and after hearing the accused person and the prosecution in this behalf, the judge considers that there is not sufficient ground for proceeding, the judge discharges the accused and records reasons for doing so. [7]

The words “not sufficient ground for proceeding against the accused” mean that the judge is required to apply a judicial mind in order to determine whether a case for trial has been made out by the prosecution. It may be better understood by the proposition that whereas a strong suspicion may not take the place of proof at the trial stage, yet it may be sufficient for the satisfaction of the court in order to frame a charge against the accused person.

The charge is read over and explained to the accused. If pleading guilty, the judge shall record the plea and may, with discretion convict him however if the accused pleads not guilty and claims trial, then trial begins. Trial starts after the charge has been framed and the stage preceding it is called inquiry. After the inquiry, the charge is prepared and after the formulation of the charge the trial of the accused starts. A charge is nothing but formulation of the accusation made against a person who is to face trial for a specified offence. It sets out the offence that was allegedly committed.

2. Recording of prosecution evidence

After the charge is framed, the prosecution is asked to examine its witnesses before the court. The statement of witnesses is on oath. This is called examination-in-chief. The accused has a right to cross-examine all the witnesses presented by the prosecution [8] .

Section 309 of the Crpc further provides that the proceeding shall be held as expeditiously as possible and in particular, when the examination of witnesses has once begun, the same shall be continued day-to-day until all the witnesses in attendance have been examined.

3. Statement of accused

The court has powers to examine the accused at any stage of inquiry or trial for the purpose of eliciting any explanation against incriminating circumstances appearing before it. However, it is mandatory for the court to question the accused after examining the evidence of the prosecution if it incriminates the accused. This examination is without oath and before the accused enters a defence. The purpose of this examination is to give the accused a reasonable opportunity to explain incriminating facts and circumstances in the case.

4. Defence evidence

If after taking the evidence for the prosecution, examining the accused and hearing the prosecution and defence, the judge considers that there is no evidence that the accused has committed the offence, the judge is required to record the order of acquittal [9] .However, when the accused is not acquitted for absence of evidence, a defence must be entered and evidence adduced in its support. The accused may produce witnesses who may be willing to depose in support of the defence. The accused person is also a competent witness under the law. The accused may apply for the issue of process for compelling attendance of any witness or the production of any document or thing. The witnesses produced by him are cross-examined by the prosecution [10] .

The accused person is entitled to present evidence in case he so desires after recording of his statement. The witnesses produced by him are cross-examined by the prosecution. Most accused persons do not lead defence evidence. One of the major reasons for this is that India follows the common law system where the burden of proof is on the prosecution, and the degree of proof required in a criminal trial is beyond reasonable doubt.

5. Final arguments

This is the final stage of the trial. The provisions of the Crpc provide that when examination of the witnesses for the defence, if any, is complete, the prosecutor shall sum up the prosecution case and the accused is entitled to reply. The same is provided for under section 234 of the code [11] .

6. Judgment

After conclusion of arguments by the prosecutor and defence, the judge pronounces his judgment in the trial [12] . Here it is relevant to mention that the Crpc also contains detailed provisions for compounding of offences. It lists various compoundable offences under table 1 of the Indian Penal Code which may be compounded by the specified aggrieved party without the permission of the court and certain offences under table 2 that can be compounded only after securing the permission of the court compounding of offences also brings a trial to an end [13] .

Under the Crpc an accused can also be withdrawn from prosecution at any stage of trial with the permission of the court. If the accused is allowed to be withdrawn from prosecution prior to framing of charge, this is a discharge, while in cases where such withdrawal is allowed after framing of charge, it is acquittal [14] .

The above described is the process how a trial takes place for dispensation of a criminal case although this six stepped procedure looks plain and simple it suffers from many inherent lacunas which become the reasons for delay and hampers an expeditious trial and not to forget the option of appeal is again there where the state or the criminal has option to appeal to appellate court and as well as seek a permission to file a special leave petition to the supreme court where in again all this process is repeated except for the fact that the supreme court only deals with cases where there is a question of law involved.

The following are some of the problems of our trial procedure which pose as hurdles to speedy dispensation of cases;

Investigation though is the foundation of the Criminal Justice System but is unfortunate that it is not trusted by the laws and the courts themselves the same can be explained by a perusal of sections 161 and 162 of the Criminal Procedure Code which provides that the statements of the witnesses examined during investigation are not admissible and that they can only be used by the defence to contradict the maker of the statement, the confession made by accused is also not admissible in evidence. The statements recorded at the earliest stage normally have greater probative value but can’t be used in evidence.

It is common knowledge that police often use third degree methods during investigation and there are also allegations that in some cases they try to suppress truth and put forward falsehood before court for reasons such as corruption or extraneous influences political or otherwise. Unless the basic problem of strengthening the foundation is solved the guilty continue to escape conviction and sometimes even innocent persons may get implicated and punished.

Secondly the police officers face excessive work load due to lack of manpower and the public at large is non co-operative because of the public image of the police officers and there is lack of coordination with other sub-system of the Criminal Justice System in crime prevention to add to the agony there is a lot of misuse of bail and anticipatory bail provisions, more over due to Political and executive interference police is directed for other tasks which are not a part of police functions. It may be apt to point out that the rank of the IO investigating a case also has a bearing on the quality of investigation. The minimum rank of a station house officer (SHO) in the country is sub inspector (SI). However, some of the important police stations are headed by the officers of the rank of Inspector. It has been observed that investigations are mostly handled by lower level officers, namely, HC and ASI etc.

The senior officers of the police stations, particularly the SHOs generally do not conduct any investigations themselves. This results in deterioration of quality of investigations. It is therefore necessary to address ourselves to the problems and strengthen the investigation agency. Furthermore the common citizen is not aware of the distinction between cognizable and non-cognizable offences. There is a general feeling that if anyone is a victim of an offence the place he has to go for relief is the police station. It is very unreasonable and awkward if the police were to tell him that it is a non-cognizable offence and therefore he should approach the Magistrate as he cannot entertain such complaint.

Thirdly, the investigation of a criminal case, however good and painstaking it may be, will be rendered fruitless, if the prosecution machinery is indifferent or inefficient. One of the well-known causes for the failure of a large number of prosecutions is the poor performance of the prosecution. In practice, the accused on whom the burden is little engages a very competent lawyer, while, the prosecution, on whom the burden is heavy to prove the case beyond reasonable doubt, is very often represented by persons of poor competence, and the natural outcome is that the defence succeeds in creating the reasonable doubt on the mind of the court.

Fourthly, the most notorious problem in the functioning of the courts, particularly in the trial courts is the granting of frequent adjournments on most flimsy grounds. This malady has considerably eroded the confidence of the people in the judiciary. Adjournments contribute to delays in the disposal of cases. They also contribute to hardship, inconvenience and expense to the parties and the witnesses. The witness has no stake in the case and comes to assist the court to dispense justice. He sacrifices his time and convenience for this. If the case is adjourned he is required to go to the court repeatedly. He is bound to feel unhappy and frustrated. This also gives an opportunity to the opposite party to threaten or induce him not to speak the truth therefore the right to speedy trial is thwarted by repeated adjournments.

Fifthly, one of the major causes for delay even in the commencement of trial of a criminal case is service of summons on the accused. The Code of Criminal Procedure provides for various modes of service. Section 62 of the Code provides that summons shall be served by a Police Officer, or subject to such rules being framed by the State Government, by any officer of the Court or other public servant. Unfortunately rules have not been framed by many State Governments to enable service otherwise than through police officers. Since the Criminal Procedure Code itself provides for other means of service namely through registered post in the case of witnesses, it should also provide for service on accused through facilities of courier service, fax where available.

Lastly our country suffers from low judge population ratio because of which the pendency of work increases therefore the judges take a long time in delivering judgments this again adds to enlargement of the time frame of a case to be decided from its intuition point because of which the litigants feel that litigation is a time consuming and lengthy procedure the two areas which need special attention for improving the quality of justice are prescribing required qualifications for the judges and the quality of training being imparted in the judicial academics.

Since the above problems curb the speedy dispensation of cases the researcher in order to provide or seek a solution for remedying and trying to move away from the old colonial shackles has undertaken to research upon this topic where the main research ground would be whether introduction ADR techniques in certain criminal cases would lead to speedy dispensation of cases without calling in for a major infrastructural change for this very same purpose the researcher has chosen six particular sections which would be dealt further where each section would be explained along with a its classification and which method of trial is followed and by using a certain technique of ADR in trial of that particular offence would lead to expeditious and fair trial as when compared to the traditional litigation method ,

The researcher owing to paucity of time and since compulsory compromise is not possible all criminal cases the researcher has undertaken to propose the following;

Adding more offences under section 320(1) table from the table under section 320(2) i.e. offence which are to be compounded with the permission of the court should now be allowed to be compounded without eh permission of the court where both the parties agree to settle the matter and refer the said matters for mediation instead of normal trial procedure.

Sending all maintenance and family discord matters under section 125 Crpc for mediation using family group conferencing method instead of normal court trial.

Using victim offender mediation method for cases under section 323 IPC i.e. HURT.

Using victim offender mediation method for cases under section 379 IPC i.e. Theft.

Using victim offender mediation method or early neutral evaluation method for cases of Criminal breach of trust dealt under section 405-408 IPC.

Sending cases of defamation dealt under section 499 IPC for mediation.

For the sake of brevity the researcher would divide the scope of introducing ADR techniques into two chapters being scope of ADR in Code of Criminal procedure where in section 320 and section 125 would be dealt with and the next following chapter would be discussing about introducing ADR techniques in the substantive criminal law i.e. IPC and would deal each section as a sub part of the next chapters where in the following would be its sub –sub parts;

Content of the section and its explanation.

Which technique of ADR to be used for resolution of that dispute and matching the dispute resolution process which would lead fair and expeditious trial.

A case law showing delay caused due to following of normal trial procedure with reference to that particular section and how usage of a particular technique of ADR would resolve the said problem or where already such changes are being incorporated or have been recommended by the Courts.

Now further we would move to the next chapter where in the researcher would discuss about introducing ADR techniques in the Code of criminal procedure, 1973.