9 Criminal Court Process

Mr Utkarsh Yadav

1.Introduction

In this module of Criminal Court Process, we would study the process undertaken by a court to adjudicate a criminal matter. The statute which would be at the centre of our discussion is the Code of Criminal Procedure 1973. This code lays down the rules and procedure in accordance with which courts function and dispense criminal justice. However, in order to understand the process, we must first be aware of various agencies involved in the process, their powers and functions. It is only after a clear understanding is developed about the agencies involved, we can proceed to explore the process undertaken by each of these agencies towards the administration of criminal justice. The criminal court process starts with one agency, which is then taken over by the other, in the quest of dispensation of justice. During the entire process, numerous statutory and constitutional requirements have to be adhered to, otherwise it stands vitiated. But most importantly, the two golden rule of criminal jurisprudence must not be lost sight of: that an accused is presumed innocent unless proven guilty and the burden of proving the guilt of the accused lies on the prosecution, which has to be discharged by a proof beyond reasonable doubt.

Learning Outcome:

(i)After studying this module, the students shall have an understanding about the criminal justice administration in India and the process undertaken by the criminal courts to dispense justice.

(ii)Knowledge of various statutory and constitutional requirements in order to initiate criminal prosecution, and for the conduct of criminal trial.

(iii)A fair conception about the role and functions of different agencies involved in the criminal justice system of India.

2.Criminal Court Process and The Code of Criminal Procedure 1973

Criminal court process envisages the procedure adopted by a court to adjudicate criminal matters and dispense justice. This procedure is detailed in the Code of Criminal Procedure 1973 (henceforth ‘the Code’) which has been enacted to ensure that an accused gets a fair trial; that every effort be made to avoid delay in investigation and trial; and that the procedure should ensure fair deal to poorer section of society.

Laws can be broadly categorized under two distinct heads viz. substantive laws and procedural laws. While substantive laws define rights and duties, the procedural laws set out the machinery for implementing them. The Code falls within the realm of procedural laws and describes the procedure through which the substantive criminal law is enforced. The object of the Code is to provide a machinery for punishment of offences against the substantive criminal law and to ensure to the accused a fair trial, for the ascertainment of his guilt or innocence.2The Code is divided into 37 Chapters and 2 Schedules dealing with different stages of criminal process.

Agencies involved in Criminal Court Process

In order to understand the criminal court process, one must be familiar with the agencies involved in the process. It is the cohesive functioning of these agencies which rotates the wheels of criminal process and yields administration of criminal justice.

The first agency involved in the criminal justice administration is the ‘police’ which have been created by the Police Act 1861.The primary task of the police vis-a-vis criminal court process is to register the complaint and investigate the matter for the purpose of collecting evidence. The Privy Council in King Emperor v Khwaja Nazir Ahmad,3observed:

“In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court”.

The role of the police, therefore, is to register the complaint at the first place and then to investigate the matter for the purpose of collecting evidence with regard to the accusation(s). The police, during the course of investigation can apprehend an accused person, conduct search and seizure wherever necessary and also release him on bail in certain cases. The role of the police ends with the submission of the investigation report to the magistrate, who then takes cognizance on the basis of material in the report.

The second agency involved in the criminal court process is the ‘prosecutors’ and the ‘defence counsel’. Sections 24, 25 and 25A of the Code provide for the appointment of the prosecutors. It is the responsibility of the prosecution to establish the guilt of the accused person beyond reasonable doubt and this burden never shifts. An accused person is presumed to be innocent unless proven guilty and it is the bounden duty of the prosecution to prove the guilt of the accused beyond a shadow of doubt.4This presumption is seen to flow from the Latin legal principle ei incumbit probatio qui dicit, non qui negat i.e. the burden of proof rests on who asserts, not on who denies. If the prosecution fails in proving the charges against the accused person, then the court has to acquit him.

The third agency involved in the process is the ‘judiciary’. It is to be emphasized at the very outset that the criminal justice system in India is modeled on the adversarial system of criminal justice. In the adversarial system, truth is supposed to emerge from the respective versions of the facts presented by the prosecution and the defence before a neutral judge. The judge acts like an umpire to see whether the prosecution has been able to prove the case beyond reasonable doubt and gives the benefit of doubt to the accused. The judge in his anxiety to maintain his position of neutrality never takes any initiative to discover truth. He does not correct the aberrations in the investigation or in the matter of production of evidence before court. As the adversarial system does not impose a positive duty on the judge to discover truth, he plays a passive role.6The adversarial model is different from the inquisitorial model wherein the judge takes an active role in the trial process in the quest of truth.

4.Organization and Administration of Courts

Section 6 of the code lays down categories of criminal courts. It provides that besides the High Courts and the Courts constituted under any law, other than this code, there shall be, in every State, the following classes of criminal courts, namely:—

Courts of Session;
Judicial Magistrate of the first class and, in any metropolitan area, Metropolitan Magistrates;
Judicial Magistrate of the second class; and
Executive Magistrates

The High court is the highest court exercising criminal jurisdiction in a state. It primarily hears appeals from all the district courts in the state.8 It can pass any sentence authorized by law,9 but most importantly it exercises administrative control over the district courts. 10 The district judiciary in a particular state is under the administrative control of the concerned high court.

The next rung of courts, in the hierarchy, is the Court of Session. The code designates every district in a state to a ‘session’s division’ and for every session’s division the State shall establish a Court of Session which shall be presided over by a judge to be appointed by the High Court.11 The judge so presiding is known as the Sessions Judge. The High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session.12A Sessions Judge or an Additional Sessions Judge may pass any sentence authorized by law; but any sentence of death passed by any such judge shall be subject to confirmation by the High Court. 13 An Assistant Sessions Judge may pass any sentence authorized by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding ten years.14

The next set of courts is that of the Judicial Magistrates, which is led by the Chief Judicial Magistrate. In every district (not being a metropolitan area15), the High Court shall appoint a Judicial Magistrate of the first class to be the Chief Judicial Magistrate. He heads the magistracy in the district and all the other magistrates function under his supervision and control. The High Court may also appoint any Judicial Magistrate of the first class to be an Additional Chief Judicial Magistrate, and such magistrate shall have all or any of the powers of a Chief Judicial Magistrate as the High Court may direct.16 The high court may also appoint Judicial Magistrate Second Class, which constitutes the lowest rung of criminal courts.

A Chief Judicial Magistrate or a Chief Metropolitan Magistrate may pass any sentence authorized by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years.17A judicial magistrate of the first class or a metropolitan magistrate may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding ten thousand rupees, or of both. A Judicial Magistrate of the Second Class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding one thousand rupees or both.18

5.Pre-trial Process

The criminal court process can conveniently be categorized into pre-trial process and trial process. The pre-trial process covers stage of initiation of criminal proceedings, followed by investigation and submission of investigation report to the magistrate. It is also worthy to state here that during the pre-trial process, it is the police which plays prominent role; while during the trial, it is the prosecutor and the defence counsel who are the prime actors.

5.1 Pre-Trial Process: Registration of First Information Report

Any person can give information to the police relating to the commission of a cognizable19 offence20 and section 154 of the Code provides for the manner in which such information is to be recorded. 21 The statement of the informant as recorded under section 154 is usually mentioned in practice as the first information report. First Information Report (henceforth FIR) sets the criminal process in motion22 and the police cannot refuse to register the information. Any person aggrieved by a refusal on the part of a police officer to record the information, may send the substance of such information to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this court.23The Supreme Court in the case of Lalita Kumari v Govt of UP24 has observed:

Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

An FIR is not a substantive piece of evidence, that is to say, it is not evidence of the facts which it mentions and a conviction cannot be recorded solely on the basis of the allegations in the FIR.25But it can be used to corroborate the informant under section 157 of the Indian Evidence Act 1872, or to contradict him under section 145 of the Act, if the informant is called as a witness at the time of trial.26The FIR should be lodged with the police at the earliest possible opportunity after the commission of the cognizable offence. Courts attach great importance to the lodging of prompt FIR, therefore, any delay in lodging the FIR must be explained during the trial.27 The Code also allows an informant to make a complaint to a Magistrate instead of lodging an FIR with the police.28

5.2 Pre-Trial Process: Investigation

It is the statutory right of the police to investigate for the purpose of collecting evidence.29 In case of cognizable offence, the investigation is initiated by the giving of information under section 154 to the police officer in charge of the concerned police station having territorial jurisdiction. However such information is not an indispensable requisite for the investigation of a crime, and a police officer can suo-moto initiate investigation, if he suspects commission of cognizable offence. 30 Sections 160 and 161 of the code empowers the police officer conducting investigation to require attendance of witnesses and to examine them for the purpose of obtaining evidence. When the investigation is complete and it appears that there is no sufficient evidence or reasonable grounds to proceed against the accused then the police will file the closure report with the magistrate and shall release the accused, on his executing a bond. However, if investigation discloses that there is sufficient evidence then the accused will be forwarded to the magistrate along with the report.31

Pre-Trial Process: Arrest, Search and Seizure

Arrest is the apprehension of a person by legal authority resulting in deprivation of his liberty. The purpose of arrest are twofold, the first being to ensure the presence of the accused at trial, and the second being to prevent him from committing a crime. Arrest can be of two types (i) arrest made in pursuance of a warrant, and (ii) arrest made without such warrant. The Supreme Court in the case of Joginder Kumar v State Of UP32has laid down following requirements to be adhered at the time of making arrest:

An arrested person being held in custody is entitled, if he so requests to have one friend, relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained.
The police officer shall inform the arrested person when he is brought to the police station of this right.
An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow from articles 21 and 22(1) and enforced strictly.

The Supreme Court revisited the jurisprudence on arrest procedure on account of rampant police atrocities and laid down detailed instructions in DK Basu v State of West Bengal,33 to be followed in all cases of arrest or detention.

Sections 165-166 of the code authorizes a police officer to conduct search for investigation provided reasonable grounds exist for doing so. The rule of audi alteram partem does not apply to search proceedings, as it will defeat the very purpose of the procedure.34

7. Pre-Trial Process: Remand

A person arrested without a warrant cannot be detained for more than 24 hours,35 however if further detention is necessary, it can be done only after obtaining an order from a magistrate under section 167 of the code, known as Remand in the common parlance. The objective of remand proceedings is that any further detention beyond 24 hours after the arrest is judicially determined and the person detained is able to make his representation before a magistrate.36The judicial magistrate to whom an accused person is so forwarded under section 167 of the code may, whether he has or has not the jurisdiction to try the case, from time to time authorize the detention of the accused in such custody as such magistrate thinks fit, for a term not exceeding 15days in a whole. In CBI v Anupam JKulkarni,37 it has been reiterated by the Supreme Court that police remand should not be resorted to after 15 days of arrest. Custody after first 15 days can only be judicial custody during the rest of the period of 90 days or 60 days.38On the expiry of the said period of 90 days or 60 days, as the case may be, the accused person shall be released on bail, if he is prepared and does furnish bail.39

8. Pre-Trial Process: Bail

Bail is defined as security for the appearance of the accused person, on giving which, he is released pending trial or investigation. Law of bail has to dovetail two conflicting demands, namely the right of the society to be shielded from hazards and the liberty of an individual.40The Code of Criminal Procedure categorizes all offences as either bailable or non-bailable. In bailable offences, bail is a matter of right, while in non-bailable offences, it is the discretion of the court. Section 437 of the code deals with the cases of non-bailable offences. It provides that whenever any person accused of the commission of any non-bailable offence is arrested or detained, he may be released on bail. The use of the expression ‘may ‘connotes discretion on the part of the court to grant or deny bail to an accused person. This discretion in granting bail is inversely proportional to the gravity of the offence; as the gravity of the offence increases, the discretion to release the accused gets narrowed down. In Rao Harnarain Singh v State41, the Supreme Court laid down certain factors which guide the courts in granting bail, these factors are: (a) nature and gravity of charge (b) severity of punishment which the conviction will entail (c) the danger of accused person’s absconding if he is released and (d) the danger of witnesses being tampered with. In the case of State of Rajasthan v Balchand,42 the Supreme Court has opined:

“The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Court”.

Recently, the Supreme Court has revisited the entire bail jurisprudence 43 and laid down following principles for grant of bail,(a) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (b) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; (c) prima facie satisfaction of the court in support of the charge.

Section438 provides for anticipatory bail, i.e. bail in anticipation of arrest. This can be granted either by the Sessions judge or the High Court. The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest.44It is granted when a person has reasons to believe that he may be arrested on an accusation of having committed a non-bailable offence.

9. Trial Process

The trial process deals with the stage when the judge takes cognizance of the matter and the prosecution gets on to establish the guilt of the accused person. The trial process commences with the magistrate taking cognizance, by the application of judicial mind to the material, oral and documentary, relating to an offence on a complaint, or on a police report, or upon information of a person other than a police officer. A magistrate taking cognizance on the basis of a police report is not bound by the findings contained in the investigation report and he has to make an independent decision whether to take cognizance, or to order further investigation or to dismiss the matter. Even if the police files a closure report, the magistrate can still take cognizance and proceed with the matter if he believes there is sufficient ground to do so.45

The code envisages four categories of trial that can take place depending upon the gravity of the offence. These four categories are:

(a) Trial before a Court of Session (sections 225-237 of the code)

(b) Trial of Warrant Cases46 by Magistrates (sections238-250 of the code)

(d) Summary Trials (sections 260-265 of the code)

7.1 Trial Process: Cognizance by Magistrate

Sections 225-237 of the code lays down the procedure for trial before a court of sessions. A court of sessions cannot take direct cognizance of any offence exclusively triable by such court. A competent magistrate may take cognizance of such an offence and commit the case to the court of sessions for trial.48However in respect of an offence of defamation and perjury, the court of sessions may take direct cognizance of the matter.49

7.2 Trial Process: Opening case for Prosecution

A criminal trial commences with the prosecution opening the case by describing the allegations against the accused person and disclosing the incriminating material collected by the police to prove the allegations. It is the bounden duty of the prosecution to convince the court that there is a prima facie case against the accused. If the prosecution fails to produce sufficient material then the accused will be discharged by the court, else the court will proceed to frame charges against him.50

8 Trial Process: Framing of Charge

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. A valid charge must state the offence the accused is charged with, the law which creates the offence, the section of law and the name of the offence. Where the material placed before the Court discloses grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial. The judge while considering the question of framing the charge under section 227 of the code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.51 Section 215 of the code lays down that no error in stating a charge is material unless prejudice is caused to the accused. Sections 215-216 of the code empowers a court to alter or add to any charge at any time before the judgment is pronounced.

The charge once framed will be read and explained to the accused. The accused will then be asked whether he pleads guilty of the offence or claims to be tried.52 If the accused pleads guilty, then the judge may record the plea of guilt and convict him.53If the accused refuses to plead guilty and claims to be tried, the judge shall fix a date for the examination of witnesses and may issue process54 for compelling the attendance of any witness.55

9 Trial Process: Evidence during trial

On the date so fixed, the judge shall proceed to take all such evidence as may be produced in support of the prosecution. After recording the evidence for the prosecution, examining the accused and hearing the prosecution and the defence, if the judge considers that there is no evidence against the accused, then the judge will record an order of acquittal.56 When the accused is not so acquitted, he shall be called upon to enter on his defence. Section 273 of the code makes it mandatory that evidence for the prosecution and defence shall be taken in the presence of the accused or in the presence of his pleader. This would enable the accused to understand properly the case of the prosecution and the accused will be in a better position to defend himself. Once the defence evidence is complete the prosecution shall sum up his case and the accused or his pleader will be entitled to reply. After hearing arguments and points of law, the judge shall give a judgment in the case.

10 Trial Process: Judgment and Sentencing

Trial concludes with a judgment which either convicts or acquits an accused. If the accused is convicted, he must be given a fresh opportunity of making submissions on the question of sentence.57Crime must meet its just deserts58and it is the duty of the court to punish the accused in accordance with law. The court may also, having regard to age, character, antecedents or physical/mental condition of the offender may instead of sentencing him to any punishment, release him after admonition or probation of good conduct.59

11 Compensation to Victims

In the criminal justice process, the role of the victim is confined only as a prosecution witness to help the state to prosecute the accused. While providing all the rights to the accused, the criminal justice system entirely overlooked the rights of the victims. Though section 357(3) of the code, empowers a court to award compensation to the victim at the time of passing judgment, but this provision has a narrow scope. It is limited to only those cases where the accused is convicted and fine is imposed upon him by the court. This section does not provide for any compensatory relief during the course of trial or if the accused person is absconding, untraceable, not known or the matter ends in an acquittal.

Though the interference of the Supreme Court helped to evolve the compensatory jurisprudence for protecting the victims of crime in India,60 it would not be incorrect to state that victim jurisprudence has been a neglected issue in our criminal justice system.61 In order to give due emphasis to victims of crime, the Parliament incorporated section 357A 62 in the code to establish victim compensation scheme. Under this scheme, power has been given to the State and District Legal Service Authority to decide the appropriate compensation to be paid to the victims of crime. The quantum of compensation is to be decided by the state and it varies depending on the facts of each case.63

12 Appeals

According to Black’s Law Dictionary, an appeal is a complaint to a superior court of an injustice done or error committed by an inferior one, whose judgment or decision the court above is called upon to correct or reverse.64 Sections374, 377 and 378 of the code deal with appeal by the accused against the order of conviction, appeal by the prosecution for enhancement of sentence and appeal by the prosecution against acquittal respectively. In an appeal against acquittal, the court should be more vigilant in reversing the judgment of the trial court since there is already a decision where benefit of doubt against the accused is already established by a court.65 On the other hand, in an appeal against conviction by the accused, the appellate court while taking a decision to reverse the order of conviction to acquittal should be cautious to consider the evidence which was relied on by the trial court to establish the guilt of the accused and must explain the reason for disbelieving such evidence. The victim’s role to respond to a decision of acquittal or imposing lesser punishment to the accused was not addressed by the code till 2009. But the Criminal Law Amendment Act 2009 added a proviso to section 372 of the code providing victim’s right to prefer an appeal against any order of a court acquitting the accused, convicting the accused for a lesser offence and against award of inadequate compensation.

13 Summary

The criminal court process commences with registration of an FIR with the police which is followed by investigation for the purpose of collecting evidence. After completing the investigation, the police places all the material before the magistrate who then has to take cognizance of the case. A magistrate can also take cognizance on a complaint or on any information received from a person, other than a police officer. If the magistrate decides to take cognizance then charges have to be framed against the accused. It is mandatory to frame charge against an accused in case of session trial and warrant trial, however, in case of summon trial and summary trial it is the discretion of the judge. After the charges are framed, the prosecution is called upon to place its evidence, in order to prove the guilt of the accused. If the judge is of the opinion that the evidence tendered by the prosecution doesn’t makes out a case against the accused, then he would acquit the accused of the charges framed against him. However, if he finds credible evidence against the accused then he will call upon the accused to enter upon his defence and produce his evidence. Section 313 of the code mandates that after the prosecution evidence is over the accused shall be given an opportunity to explain the incriminating circumstances existing against him. This is a salutary provision intended to further principle of natural justice and also allow the magistrate concerned to observe the demeanour of the accused. After the evidence of the defence is recorded, the court proceeds to hear the arguments of each of the side. Finally, the court pronounces judgment in the matter, which may either acquit or convict the accused. An appeal can be preferred against the order of acquittal or conviction or for enhancement of punishment before a superior court. The court also has the power to award compensation to the victim of crime, or it may direct the District Legal Service Authority to provide adequate compensation to the victim.

Thus, the criminal court process embodies the collective functioning of various agencies of the criminal justice system, in the quest to dispense criminal justice. These agencies must confirm to the statutory and constitutional requisites, otherwise the entire process stands vitiated. The process is envisaged to ensure a fair trial to the accused by upholding the principles of natural justice.

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1. http://thelawdictionary.org

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3. http://www.prsindia.org/

4. http://lawcommissionofindia.nic.in/

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6. http://www.law.cornell.edu/

7. http://www.worldlii.org/

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