Case Proceedings in Court
(Criminal Court Process)
Herein after, it is pertinent to discuss how Criminal Justice system is set in motion? How the process of judiciary is set in motion to adjudicate a matter? In this section, it will be discussed what agencies are involved and the process of trial.
First of all it is to be discussed the Statue which is a the centre of this disposition.
Statute: The Code of Criminal Procedure, 1973 is centre of this disposition in this section. Herein after, it will be quoted as CrPC. CrPC falls under the realm of Procedural Law. Hence, it is a Procedural Law.
Basically, there are two kind of laws: (a) Substantive Law (b) Procedural Law.
There is a difference between Procedural Law and Substantive Law. Substantive Law gives and defines “rights” where as the Procedural Law lays down the machineries to implement Substantive rights. Means to say that Substantive law gives “rights” & Procedural law “implements” it. Code of Criminal Procedure (CrPC) 1973 is a Procedural Law.
Further, it is important to discuss about agencies which are involved in Criminal Court Process. There are three agencies which are involved in it and they are:
All the three agencies are very integral to the criminal justice system and perform very important functions.
Police: The primary task of the police in Criminal court Process is to register complain and investigate the matter.
Prosecution: It involves Prosecutors and Defence counsels. It is the duty of Prosecutor to establish the charge against accused person(s). Any accused person(s) would be charged with a particular offence and it is for the prosecution to prove the charge standing against accused(s). This is the burden on Prosecution. This is the responsibility of prosecution and it never shifts. The burden to prove guilt of accused person(s) lies on the Prosecution. On the other hand there is Defence Counsels which argues and defend the case against Prosecution in the favour of accused person(s) is Defence counsels.
Judiciary: Judge(s), Courts together form the agency called “Judiciary”. It is important to understand their roles, functions and their power to completely understand the virtues of Criminal Court Process.
Before doing so, it is important to discuss there is a difference between “Adversarial Criminal justice system” & “Inquisitorial Criminal Justice System”.
Adversarial Criminal Justice System:- The Adversarial system or adversary system is a legal system used in the common law countries where two advocates represent their parties' case or position before an impartial person or group of people, usually a jury or judge, who attempt to determine the truth and pass judgment accordingly.
Inquisitorial Criminal Justice System:- An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial system where the role of the court is primarily that of an impartial referee between the prosecution and the defence.
A method of legal practice in which the judge endeavors to discover facts while simultaneously representing the interests ofthe state in a trial.
The Indian criminal justice system is moduled on the Adversarial Criminal Justice System. There are three very important attributes to address in Adversarial Criminal Justice System. First is that the accused is presumed innocent unless proven guilty. Secondly the burden of proving the guilt against accused person lies on the Prosecution and it never shifts. Thirdly and the most important in Adversarial Criminal Justice System is Magistrate is treated as a neutral umpire. Magistrate does not take active interest or active involvement in the criminal trial. Magistrate participates or interfares against only whenever it becomes immanent. Therefore, the role of a Magistrate is to act as a neutral umpire to hear both the sides clearly and then to adjudicate.
In order to clearly understand the Criminal Court Process, it has been categorised into two stages as Pre-Trial Process & Post Trial Process. However, before proceeding to discuss the processes in the Criminal Court Process, it is important to understand the administration of courts in India.
Section 6 CrPC, categorises the Criminal Courts. At the top of hierarchy it is High Court followed by Courts of Session (Section 9-10 CrPC) then it is Judicial Magistrate First Class/Metropolitan Magistrate (Section 11-14); followed by Judicial Magistrate Second Class (Section 15 CrPC) and finally the Executive Magistrates (Section 20-23 CrPC).
Firstly, it is important to discuss the power, position & role of High Court . High Court is the highest court exercising criminal jurisdiction in a state. It hears appeal from District & Session Courts. Though, it has original jurisdiction in some matters but predominantly, it is for hearing appeals from the District & Sessions Courts. It can pass any sentence authorised under law including Capital punishment (Death Sentence). But the most important function that is performed by High Court is it exercises administrative control over the District Courts. So, all the District courts are within the administrative control of High Court.
The next court under the hierarchy is the Court of Sessions (Section 9-10 CrPC). Courts of Sessions are established by State Governments in every sessions division. CrPC categorises every district in a state into one session division and for each of a session division there is a provision of Session judge. The Session judge is the judge who presides over the court of Sessions. The court of Sessions is subordinate to the High Court and it can pass any sentence authorised under law in force {Section 28(1)} but a sentence of death has to be confirmed by the High Court {Section 28(2)}.
The next court under the hierarchy is the courts of Judicial Magistrate First Class/Metropolitian Magistrates (Section 11-14). Judicial Magistrate First Class or Metropolitan Magistrates in a district is appointed by the High Court. The senior most Judicial Magistrate of First Class is designated as the Chief Judicial Magistrate. He heads the Magistracy in the district. The Chief Judicial Magistrate can pass any sentence authorised by law, except a sentence of death or life imprisonment or imprisonment exceeding 7 years {Section 29 (1)}.
The High Court may also appoint Additional Magistrates in any district in order to assist the Chief Judicial Magistrate (CJM). Additional Magistrate can pass any sentence of imprisonment not exceeding 3 years or of fine not exceeding fine of Rs. 5000 thousand or both {Section 29(2)}.
Judicial Magistrate Second Class (Section 15 CrPC) are appointed by High Court and they can pass any sentence of imprisonment not exceeding 1 year or of fine not exceeding Rs. 1000 or both {Section 29(3)}.
An Executive Magistrate is an officer of the Executive branch (as opposed to the Judicial branch) who is invested with specific powers under both the CrPC and the Indian Penal Code (IPC). Technically, the police are to assist the Executive Magistrate.
After discussing and understanding the categorisation of courts and kind of agencies involved in Criminal Court Process. Trial process is required to be discussed.
Trial Process: It is categorised into two parts.
Registration of FIR (Section 154) : Registration of FIR is provided under section 154 CrPC. First Information Report (FIR) sets the criminal law in motion. It has very important bearing on the Criminal Court Process. Whenever a cognizable offence is committed, any person can approach a Police Officer and give him the information regarding the commission of the cognizable offence. The Police Officer receiving such information has to mandatorily to register the FIR {Supreme Court verdict in Lalita Kumari Vs State of UP (2014) 2 SSC 1). He has to register the complain and to give a copy of the complaint to the complainant. However, if a Police Officer refuses to register a complain then the aggrieved person can approach to the Senior Superintendent of Police(SSP)/Superintendent of Police (SP) for necessary direction.
A Police Officer is bound to register an FIR whenever he receives any complaint with regard to the commission of cognizable offence. There was some confusion as to whether a Police Officer can before registering an FIR embark upon a preliminary enquiry so as to ascertain the veracity of the facts or he has to mandatorily register the FIR. This situation aroused because there were two line of interpretation by the Supreme Court with regard to Section 154. One line of interpretation it enunciated the view that whenever any information is received regarding commission of a cognizable offence is received by a Police Officer, he has to register the FIR. It is his statuary duty to register an FIR and he has no discretion in refusing to registering an FIR. However, there is another line of judgement which said that in order to ascertain the veracity of the facts, an Police Officer can embark upon in inquiry before registering an FIR. So, it authorise a Police Officer to conduct a preliminary inquiry before registering an FIR. However, this controversy have been settled by the Supreme Court recently in the constitutional bench pronouncement in the case of Lalita Kumari Vs State of Utter Pradesh (UP), wherein, the Supreme Court categorically stated that it is the statuary duty of a Police Officer to register an FIR and he has no discretion in deciding whether or not to register an FIR. However, when an offence predominantly of civil nature or it is a matrimonial offence then in those cases a Police Officer can conduct preliminary enquiry otherwise in normal IPC crimes such as Murger, Kidnapping, Abduction, Rape, Dacoity etc. Police officer has no discretion to decide whether to register an FIR or not. He has to register the FIR.
Now it is pertinent to note here that what is the nature of an FIR? Is it a substantive piece of evidence? No! An FIR is not a substantive piece of an evidence. Though, it can be use to contradict or corroborate the maker. By substantive piece of evidence it can be understand that any evidence which can be used solely for the purpose of convicting an accused. An FIR is not a substantive piece of evidence. However, it can be put into a limited use of contradicting or corroborating.
Court attach great importance to lodging of prompt FIR. Any delay must be explained. A person instead of approaching a Police Officer lodge an FIR can also make a complaint directly to the Magistrate. So any person who has information with regard to commission of any offence can either approach a Police Officer to register his complaint and that will be First Information Report (FIR) or he can also approach to a Magistrate directly to register his complaint under Section 191(1)(a). A magistrate is empowered to accept a complaint and he can order a Police to conduct an investigation against the complaint. After that second stage of Pre-Trial process begins.
Investigation (Section 156-159 CrPC): Investigation has to be done by the Police. The Purpose of the investigation is to collect evidence which can stand in the test of scrutiny. It is the statuary right of the Police Officer to investigate for the purpose of collecting evidence. A Police Officer can investigate any cognizable offence without an order of a Magistrate, however for non-cognizable offence such an order is necessary. Invetigation which is to be done in the purpose to collect evidence, it culminates with submission of report to the Magistrate {Section 173 (2) CrPC}. So, any Police Officer who is conducting an Investigation has to submit his report to the Magistrate and it is on the basis of that report the Magistrate takes cognizance in the case.
Arrest/Search-Seizure (Section 165-166 CrPC): Another aspect of Pre-Trial process is Arrest/Search-Seizure. An arrest is the apprehension of a person by legal authority resulting in deprivation of his liberty. Arrest can be of two types : (i) Arrest made in pursuance of a warrant (ii) Arrest made without such a warrant (Section 41 CrPC ). The objective behind arresting an accused is to ensure that person is present to face the trial. If there is no threat that the person will run away then there is no need to arrest the person. Another important aspect is search and seizure . Section 165 and 166 authorises a Police Officer to search for investigation. However, this can be done only when there are reasonable ground of doing so. Another aspect that is required to be taken into account while discussing Criminal Court Process that the rule of Audi Alteram Partem does not apply to search proceedings. Whenever, a Police Officer is conducting an investigation and in that process conducting search then any person against whom search proceeding is initiated may not get an opportunity to defend himself. If this is allowed then it will defeat the very objective of search proceedings. For this reason the rule of Audi Alteram partem does not apply to investigating state and on particularly on search proceeding. However, if a person has to say anything with regard to the search proceeding he will be given an opportunity at the time of trial.
Remand (167 CrPC): A person arrested without warrant cannot be detained for more than 24 hours, however if further detention is necessary, it can be done only after obtaining an order from a magistrate under Section 167 CrPC known as Remand. The objective of Remand proceeding is that further detention is judicially determined and the person detained is able to make a representation to the judge and the Magistrate will also apply his judicial mind as to whether his detention is necessary or not.
Trial Process: In the Court of Criminal Process, Trial process can be studied under the following categories:-
(e) Bail (f) Sentencing (g) Compensation to Victims (h) Appeals
Cognizance by Magistrate: A Magistrate receiving investigation report under Section 173 CrPC or receiving a complain under Section 190(i)(a) can take cognizance and issue process in the matter. So, the Magistrate can take cognizance either on the basis of Police Report or on the basis of complaint that he received by a personal(complainant). It is important to underscore here that a Magistrate is not bound by the conclusions arrived at, in the investigation report. Even though the investigation report suggest that there is no sufficient evidence to proceed into the matter the Judge may chose to take cognizance. Therefore, the Magistrate is not bound by the findings of the investigation report. He has to take an independent view of the matter. In this connection, the choices available with the Magistrate are three: (i) He can take cognizance and straight way order for process (ii) He can dismiss the case & (iii) He can order further investigation has his own independent view in the matter. The next state is framing of charges. Before the process of framing the charge, there is a process of Discharge.
Discharge (Section 239 or Section 227 CrPC: A discharge is a type of sentence where no punishment is imposed. That means an accused is removed from the charge of the case before proceeding of trial in which he was made an accused. He/She no longer will be part of that offence and can’t be treated as an accused in that particular offence.
In criminal prosecutions, it becomes important to analyse the remedies available with the accused in, especially the option of choosing between the filing an application for discharge.
Bullet: Discharge is to be set in motion before the case is charged.
Type of Discharge:
(a) Discharge under Section 239 CrPC before Magistrate Court Trial.
(b) Discharge under Section 227 CrPC before District and Session Court Trial.
Discharge U/S 239 CrPC: If, upon considering the police report and the documents sent with it under section 173 CrPC and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.
This process of motion under this section is done in the court other than District & Session Court where the case diary of FIR (Challan/Charge Sheet) is submitted.
Discharge U/S 227 CrPC: If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
Points to be reflected in Discharge petition:
v The basis of the nature of the crime is to be emphasized
v FIR and charge sheets are not specified for any material description of the crime, such allegations in the FIR and charge sheets
v The allegations of FIRs and charge sheets are not supported by evidence
v The prosecution has not been supported by any witness.
v There is a contradiction in the prosecution and the versions of the witnesses
v The charge sheet is different from allegations of allegations and separate from the allegations of separate complaints and the accused were not informed by the accused for defending the accused by providing support for them.
Format for Discharge Petition
IN THE COURT OF HON. DISTRICT AND SESSION, PATNA
Session Trial No. _____________ of 2018
State of Bihar Vs Mr. Mukesh Kumar & ors.
U/S 498A/34 and ¾ of Dowry Preventation Act
Crime No. 60/2018
Police Station: S.K. Puri, Patna
Humble application for discharge {Section 227 CrPC} of accused Mr. XXXX .
Sir
Affidivit of XYZ adult son of ABC, R/o ___________
Deponant
1 That the deponent is the husband of complainant Smt. XXX D/O Shri YYY and has been made an accused by the complainant, as such he is fully competent to despose here in as below.
Bullet (Notable points that will affect discharge): (i) If there was a delay in filing an FIR, there is a possibility of manipulation in the fact and accused gets an edge to be discharged in that particular offence. FIR was registered after registration of Divorce Case. (ii) If The spot of crime was not properly investigated by IO. (iii) Witness are hand picked by the complainant. (iv) All Witness are making hearsay evidence. No independence witness is available. (v) Witness are changing their statement regularly. (vi) MLC Report (vii) Counter blast etc.
Judgments (SC):
1) Nitya Dharmananda @ K. Lenin & Anr. Vs Shri Gopal Sheelum Reddy also known as Nithya Bhaktananda and Anr. on 7 December 2017.: In this judgment Hon. Supreme Court states that In cases, Trial Court can summon or rely upon documents not part of charge sheet.
2) Ran Singh & Anr. Vs. State of Haryana & Anr. on 30/01/2008 : Need Material evidence to prove dowry demand.
3) Smt. Neera Singh Vs The State (Govt. of NCT of Delhi ) on 23/02/2007 : The kinds of vague allegations are made in the complaint by the petitioner against every member of the family of husband can not be accepted by any court at their face value and the allegations have to be scrutinized carefully by the Court before framing charge.
4) Umakant & Anr. Vs State of Chhattisgarh on 01/07/2014: If two view are possible on evidence adduced, one pointing towards guilt and other towards innocence, view favorable to accused should be adopted.
5) State of Madhya Pradesh Vs Mohanlal Soni on 19th July, 2000: The crystallized judicial view is that at the state of framing charge, the court has to prima facie cosider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused.
6) State of Haryana & Ors vs Ch. Bhajan lal & Ors on 21 Nov 1990: Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. \
7) Neelu Chopra & Anr Vs Bharti on 07 October 2009: In order to lodge a proper complaint mere mention of the section and the language of those sections is not be all and end the matter. What is requir3ed to be brought to the notice of the court is the particular of the offence committed by each and every accused and the role played by each and every accused in committed of the offence.
Framing of Charges (Section 211-224): This will happens only when the Magistrate has taken cognizance in the offence and he believes that there is sufficient reason/material to proceed with the case. Charge is the foundation of the accusation and the object of a charge is to warn the accused of the case which he has to answer. In every criminal trial there has to be a charge. A valid charge must state the offence of accused person of charge with the law which create the offence, the section of the law and name of the offence.
Further Section 215 CrPC lays down that no error in stating charge is material under prejudice is caused to the accused.
Section 215-16 empowers a court to alter or add to any charge at any time before the judgment is pronounced. So, once the charge has been framed the trial will begun.
Trial: The CrPC categorised four categories of trial:
(a)Trial before a Court of Session (Section225-237)
(b) Trial of Warrant cases by magistrate (Section 238-250)
(c) Trial of Summons cases by Magistrate (Sec. 251-259).
A Court of Session does not has power to take direct cognizance of the matter rather the matter is to be committed to it by the Magistrate (Section 193).
Trial Process flow chart
Opening case for prosecution: Since, the Prosecution is to establish the guilt of accused person(s), the Prosecution will state case first. When the Prosecution states it’s case, and the Magistrate believes that there is no sufficient material to proceed with the trial. He immediately will discharge the case and acquittal of accused person(s) results. However, if the Magistrate believes that there is sufficient evidence or material on record which arises grave suspicion against the accused person then the Magistrate will frame charge in the case.
After the charge is framed against the accused person(s), if the accused person plead guilty to the charge then he will be convicted with that charge. However, if does not pleads guilty and claims to be tried then the Prosecution will produce it’s evidence. If the accused person does not admit his guilt and claims to be tried then it is for the prosecution to prove the guilt of the accused person beyond the shadow of doubt. After this, it is for the Defence to lead it’s evidence. When both the sides have produced their evidence then there are arguments in the matter and finally, the Magistrate pronounces judgment in the case.
So any Criminal case process or criminal trial will begins with the Prosecution stating it’s case followed by the prosecution evidence, Defence evidence, Arguments and finally judgement of the Magistrate
Bail (Section 436-450 CrPC): Another important concept in law of Bail which is discussed in Section 436-450 of CrPC. Bail is defined as security for the appearance of the accused person, on giving which, he is released pending trial or investigation.
The CrPC categorises every offences as Bailable and Non-Bailable. In Bailable offences, Bail is matter of right, while in Non-Bailable offences, it is the discretion of the court {Section 2(a)}.This discretion is inversely proportional to the gravity of of the offence. If the offence is grave then the Magistrate uses very limited discretion in granting Bail.
Section 438 CrPC deals with provision for Anticipatory Bail. Means to say that Bail in anticipation of arrest. This can be granted by Sessions Magistrate or the High Court. It is granted when a person has reasons to believe that he may be arrested on an accusation of having committed a Non-Bailable offence. Whenever any accused has apprehension that he may be arrested for an offence, he may apply to the court of Sessions or to Hon. High Court for grant of Anticipatory Bail and if the Hon. High Court or the court of Sessions satisfied then it may grant the accused person(s) Anticipatory Bail in the matter. Therefore, in any trial process it will begins with the Magistrate taking congnizance of the casse then charges hase to be be framed then Prosecution opening of the case, then Prosecution produces it’s evidence followed by Defence Evidence then arguments and finally the judgement in the case.
A trial will conclude with a judgement which will either convicts or acquits an accused. When the accused person is found guilty, the court to punish him in according with law. Every Crime must meet its just deserts and it is the duty of the judge to punish an accused person who was found guilty of in that offence. the sentence must be appropriate and must fit the crime. However, the court may also having regard to the age, character, antecedents or physical/mental condition of the offender may instead of senteicing him to any punishment, relese him after admonition or probation of good conduct (Sec 360)
Compensation to Victims (Section 357 CrPC) : Another important concept compensation to Victims of crime. Section 357CrPC empowers a court to pass an order of compensation to the victim at the time of passing judgement.
Further, in Section 357(A) lays down the victim compensation scheme, wherein adequate compensation is to be paid to the victim by the District legal Service Authority. Finally the stage of appeal arrived.
Appeals (Section 374 CrPC): It is the final stage of Criminal Court Procedure. A judgement in a trial court may be appealed to the High Courts. Appeal means the right of carrying a particular case from an inferior to a superior court with a view to ascertain its sustainability.Section 374 CrPC lays down the forums filing appeals by the accused against an order of conviction.
Appeals
Metropolitan Magistrate/
If a sentence is pronounced by a Metro Politian Magistrate or Magistrate First class & Second class then the appeal shall lie with Sessions judge/Magistrate. If the sentence is pronounced by a Sessions Judge/Magistrate then appeal shall lie with Hon. High Court of jurisdiction and if sentence is pronounced by the High Court then appeal lie with Supreme Court.
Summery: Registration of FIR is followed by Investigation which culminates when the investigating officer submits the report to the Magistrate followed by framing of charges then the Prosecution will produce it’s evidence, Defence will produce it’s evidence there will be arguments and finally the Magistrate will deliver his judgement in the matter by complying it’s judicial mind. Any aggrieved person by the judgement in the case may approach the High Court by way of Appeal. The victim can claim to compensation under Section 357 & 357(A) CrPC.
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