Criminal Justice System in India

 

Dr. Alekh Kumar Sahu

 

Sr. Asstistant Professior, School of Studies in Law. Pt. Ravishankar Shukla University, Raipur

 

ABSTRACT:

The golden rule in the criminal justice is that "it is better that a thousand or even a million guilty persons should escape than that one innocent person should suffer." In as much as the Supreme Court observed "criminal trial is not like a fairly tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of an interplay of different human emotions. The honourable court while dealing with the question of wrong acquittals and convictions observed:

 

The Constitution of India guarantees fundamental rights to the people, some of which are the rights available to all the people whether citizens or not but others are available to the citizens only. These rights are really speaking some of the human rights have constitutional status. The Courts have been zealous to guard these rights. No executive or legislative action can stand in contravention of these rights. Article 21 in this respect can be said as a pioneer of these rights which provides that 'No person shall be deprived of his life or personal liberty except according to procedure established by law’. The interpretation of the term 'procedure established by law' has widened the dimension of Fundamental Right to Life and Personal Liberty so as to be a specific charter of the human rights guaranteed in India. In A.K. Gopalan v. State of Madras,¹ the effect of the Supreme Court's view was that a person deprived of his life and personal liberty by the procedure established by the legal provision could not complain the denial of due process as understood in America. The legality of the provisions could not be tested on the ground of due process.

 

 

 

INTRODUCTION:

Concept of criminal justice:

The present judicial system of India was not a sudden creation. History of our judicial system takes us to the hoary past when Manu and Brihaspati gave us DharamShastras, Narada the Smritis, and Kautilya the Arthshastra.

 

A civil judicial proceeding in ancient India as at present commenced ordinarily with the filing of a plaint or what was known as purvapaksha before a competent authority.Manu prescribed the following oath for parties and witnesses: “Let the Judge cause a Brahmin to swear by his truth or sat, a Kshatriya by his chariot or the animal he rides or by his weapons, a Vaishya by his cattle, grain and gold. and a Shudra by imprecating on his head the guilt of all grievous offences.” if the idea of oath, according to Bentham, is to have a ceremony composed of words and gestures by which the Almighty is engaged eventually to inflict on the taker of the oath punishment in quanity and quality in the event of his doing something which be engages not to do or omitting to do something which he in like manner engages to do the oath administered in ancient India was perhaps more effective compared to the present lifeless recital of a formula about searing to speak the truth. In the early Vedic times, we do not find any reference as regards the establishment of judicial procedure. However, the Rigveda gives, for first time some clue as civil law and it is on this basis that Roth and Zimmer accept the existence of mediator and judge in the early society. Generally justice was was administered by the King’s judges. A clear. A reference to judicial procedure is available from the time of Brahmans. But justice was still to be done with the help of the mediator.

 

Every society, according to the pattern of social structure in which it exists, the modes of criminal justice are devised to suit its social conditions. It can be well said that the criminal justice system could be a barometer to gauge or measure the civilization of a society at a given point of time. Criminal Justice Process is the litmus test and an indicator of the prevailing societal conditions. Since 1967, the term 'criminal justice system' came into pre­ponderant usage.

 

The Union of India is a federal Polity consisting of different states. The states have their own powers and functioning under the constitution of Indies. The Police and Prison are the state subjects However the federal laws one followed by the police Judiciary, and correctional institutes. The system followed in India for dispensation of criminal gustice is the adversarial sustem of common law in herited from the British colonial Rulers.

 

Rule of low. Democracy. Development and human rights we dependant on the degree of success. That the governments one able to achieve on the criminal justice front. The objectives of the crimincal justice one prevention and contrel of crime. Maintance of public order and peace protection of the rights of victinal as well as persons in conflict with law. Punishment and rehabiritation of those adjudged guility of committins of crimes and generally protection of the life and pro pertyageinstcrme and criminality. Get is considered the primary obligation of the state under the constitation of India.

 

The Criminal Justice System (CJS) is a systematized form, to render justice; it also represents the organized societal response to crime. In the eyes of the general public, criminal justice is viewed as a glittering land­mark in the annals of crime history and portrays the sanctum sanctorum of justice. It is perceived as a monument of divinity and sanctity. The unim­peachable faith is reposed in the Criminal Justice System as an institution which renders social welfare, equality, morality and highly adorned doc­trines and dogmas.

 

Buckley defines Criminal Justice System as "a complex of elements or components directly or indirectly related in a casual network such that each component is related at least to some others in more or less suitable way within any particular period of time."² It is at this altar, the presiding officer—a Magistrate or a Judge is perceived as a custodian and symbolic representation of fairness and justice. A Judge is extolled as an embodi­ment of justice and his pronouncements and verdicts are the manifestations of divine commands. As Krishna Iyer J. quotes Felix Frankfurtur."a judge, should be compounded of the faculties that are demanded of the historian, the philosopher and the prophets". In the criminal' justice process more often than not the truth is so cleverly and inextricably manoeuvred and interwoven with lies that a magistrate or judge finds it extremely difficult to arrive at a conclusion with certainty in which way the truth lies. It is at this juncture the criminal justice system follows the due process' of law as envisaged under the rules, regulations, laws, precedents, customs, case laws and so forth.

 

The law of criminal procedure is complimentary to criminal law. The process of its administration is looked after by the law of criminal proce­dure. To fulfil this objective, the criminal procedure envisages the machin­ery for prevention of crime, registration and detection of crime, arrest of suspicious persons, surveillance on criminals, investigative techniques, collection of evidence, determination of guilt or innocence of suspected persons, safeguards of freedom guaranteed under the constitution and the infliction or imposition of the quantum of punishment on the guilty person. The criminal justice system is equipped with immense powers so as to nullify the misuse or abuse of power from non-criminal and to punish the guilty and to give the 'benefit of doubt' to the accused where fool-proof evidence has not come up. The judiciary sails even in rough weather to arrive at the justice rendering forum. The criminal procedure code defines, explains, regulates and above all demarcates the jurisdictional exercise of power which play a vital role in the criminal justice system. An equilib­rium is maintained by giving wide powers to the functionaries for investi­gative and adjudicatory processes to be strong and effective but at the same time enforces reasonable restrictions on jurisdiction for probable misuse or abuse of powers. As pronounced in the case (supra) by the Supreme Court of India:

"The object of the code of criminal procedure is to ensure for theaccused a full and fair trial in accordance with the principles of naturaljustice"³.

 

In as much as the rules of law and natural justice demand that the quantum of punishment inflicted is proportional to the gravity of the crime committed.

Major stages of criminal justice process:

The criminal justice system comprises of the following six stages:

(1)   Legislation

(2)   Law enforcement

(3)   Adjudication

(4)   Penalization and correctional methods

(5)   Rehabilitation

(6)   Recidivism; enhanced punishment.

 

In certain cases of dangerous, desperate and hard-core criminals, the cyclic process starts from the release. From their release after completion of sentence or after acquittal they once again come in the clutches of law enforcement agency as they relapse into the commission of crime.

 

OBJECTIVES OF CJS:

(1)   The motivations and compulsions of the direct and indirect part­ners engaged in the task of prevention and control of crime may vary.

(2)   The prevention and control strategy calls for a coordinated approach, which, at times, may be lacking, diffused or absent.

(3)   The challenge of crime is to be tackled on a comprehensive man­ner.

(4)   The ongoing modifications in the social system call for an innova­tive approach by different sectors engaged in assisting adjudication process.

(5)   Criminal justice does not distinguish or discriminate. It is to pro­tect the cherished social values and procedurally to ensure fairplay and justice

(6)   It is to humanize the process of adjudication, control arbitrariness, guarantee as well as translate the notion of liberty, promote a sense of security amongst the members of a given set-up, ensure the rights of the victim and the accused"⁴.

 

CLASSIFICATION OF OFFENCES:

1.	(i)	Cognizable offence—An offence for which a police officer may arrest without warrant,
	(ii)	Non-cognizable offence—An offence for which a police officer has no authority to arrest without warrant.
The basis of this categorization appears to rest on diverse conditions. The seriousness of the offence is given under the category of cognizable offence.
2.	(i)	'Bailable offence',
	(ii)	Non-bailable offence.
		According to the gravity of the offence it is made bailable and non-bailable.
3.	(i)	Summons case,
	(ii)	Warrant case.
This classification depends upon the issuing of summons or warrant at the first instance.

FUNCTIONARIES OF THE CRIMINAL JUSTICE SYSTEM:

(i)    Police

(ii)  Prosecutors

(iii)          Defence counsels

(iv)Magistrates, Judges of the higher courts.

(v)  Prison authorities.

(vi)Correctional service personnel (Govt. agencies and voluntary or­ganizations).

 

Pre-trial procedure:

(i)     Information regarding commission of offence; investigation, search and seizure; arrests; examination of witnesses, charge-sheet-challaning.

(ii)   Bail:

Bailable offence - bail by police officer.

Non-bailable offence - bail by magistrate.

(iii) Cognizable offence - Police has the jurisdiction to investigate.

        Non-cognizableoffence – With the permission of magistrate pol­icy may investigate.

 

Trial procedure:

(iv)  Cognizance of offence-committed to trial court-sessions trial etc., Charge-fair trial-defence counsel- safeguards to the ac­cused.

 

Types of trials- in-camera trials- judgment:

(v)   Review procedure:

Reference, Appeal, Revision, Challenging the judgments. Inher­ent powers of High Court-superintending court-Special leave petitions-Supreme  Court- Apex  court  of the  Nation-Reversing 

" power of the Supreme Court.

 

(vi)  Execution of the final verict of the court:

Prison, condemned prisoner, solitary cell, hangman's noose.

 

(vii)                    Mercy petitions:

The Governor, the President of India.

 

The case of the guilty comes up before the court after due investigation and charge sheeting by the investigating agency viz., Police. The prosecu­tion collects all evidences and places before the honourable court for fair trial. The safeguards are guaranteed under the Constitution of India for the accused. Fair trial procedure includes due opportunity to defend the case of accused by defence counsel. Wherever defence counsel is not available the stole provides the defence counsel. There are voluntary organizations like 'free legal aid' guild which helps the poor and the down-trodden. The basic piety of the criminal justice is founded on the altar of reverence that 'punishment should fit the crime'.

 

The golden rule in the criminal justice is that "it is better that a thousand or even a million guilty persons should escape than that one innocent person should suffer."⁵ In as much as the Supreme Court observed "criminal trial is not like a fairly tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of an interplay of different human emotions"⁶. The honourable court while dealing with the question of wrong acquittals and convictions observed:

 

"It is no doubt, true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system; much worse, how­ever is the wrongful conviction of an innocent person. The conse­quences of the conviction of an innocent person arc far more serious and its reverberations cannot but be felt in a civilized society." The criminal justice system is based on the plane that the prosecution is forced to prove the guilt of the accused beyond any reasonable doubt. However, no such burden is placed on the accused to prove his innocence. He has to rebutt the accusations only.

 

'For most of the offences the law prescribes the maximum sentence but not the minimum. Power, consequently, is bestowed upon the judicial officers to impose a suitable sentence in the light of the facts and circumstances of the, individual case. What has to be ensured is that the discretion, which must in the very nature of things be granted to judicial officers, for this purpose is exercised in a proper judicious manner and that is not allowed to degenerate into some kind of caprice and arbitrariness.”⁷

 

Judicial arbitrariness is lethal. The criminal justice should dawn as social justice. Through the modes of social organization, the human beings should be made to realize the potentialities and the significant role that has to be played by the law. If only, man sheds off the brutish characteristics which protrude at times and break loose his emotions unconditioned, the glimpses of angelic characteristics of man may glitter for the better path of life and divinity.

 

It is worth bringing home the point as Hidayatullah J. observes how the judge reacts to the fact and the law applicable to them is not uniform from one judge to another. One has to decide about the guilt of the innocence in the background of forceful arguments and counter arguments."⁸ A judge has to have an intimate knowledge and understanding of cultural values, cus­toms and traditions, precedents, norms, laws and rationale of laws, taking into consideration of the specific situations. A judge has to be exposed to these realities and attuned to understand, analyse and arrive at the conclu­sion giving serious thought to human behaviour, human refluxes and cul­tural setting as the situation and the case demands. Human perceptions, motivations and expressions should also be taken into account as attributes and variables of human mind while deciding the case.

 

To bring about new dimensions, timely reforms are needed. The re­forms are in the form of recruitment, training and re-orientation processes to make them as best of the magistrates and judges by acquiring desired knowledge, the CJS functionaries can handle the cases with appreciable comprehensions, understanding, assimilation and evaluation. The CJS takes up the noble task of social engineering for ensuring social justice to the masses. There is no denial of the fact that the criminal justice has the utmost responsibility and obligation to translate the democratic ideals and functions in letter and spirit. As custodians of democratic philosophy and norms, CJS takes in its fold the functional parameters such as social real­ity, social change and other modified social relations of the society.

 

Let the sanctity and divinity of the criminal justice system glitter with dawning horizons for a better and brighter tomorrow of the Indian nation.

 

Follow of the Judicial justice System in India :

The judicial system provided by the Constitution of India is comprised the three type of courts. At the top, it is Supreme Court, at middle the High Courts and at bottom the subordinate Courts in addition to the Constitution, there are other laws and rules which direct the composition, power and jurisdiction of these courts. Here discussion is given of all the three types of courts.

 

CRIMINAL JUSTICE PROCESS:

 

Indian Constitution of Criminal Justice:

The Constitution of India guarantees fundamental rights to the people, some of which are the rights available to all the people whether citizens or not but others are available to the citizens only. These rights are really speaking some of the human rights have constitutional status. The Courts have been zealous to guard these rights. No executive or legislative action can stand in contravention of these rights. Article 21 in this respect can be said as a pioneer of these rights which provides that 'No person shall be deprived of his life or personal liberty except according to procedure established by law’. The interpretation of the term 'procedure established by law' has widened the dimension of Fundamental Right to Life and Personal Liberty so as to be a specific charter of the human rights guaranteed in India. In A.K. Gopalan v. State of Madras,^"9 the effect of the Supreme Court's view was that a person deprived of his life and personal liberty by the procedure established by the legal provision could not complain the denial of due process as understood in America. The legality of the provisions could not be tested on the ground of due process.

 

However, in Maneka Gandhi v. Union of India,^"10 the view of the Supreme Court with a radical change that the 'procedure established by law’ must not be any procedure under the statute but it must be "just, fair and reasonable", has really pervaded human rights jurisprudence as understood presently.

Prisoner's rights:

The Courts are ready to protect these rights in India. Justice Krishna Iyer in Sunil Batra v. Delhi Administration,^"11 regarding the prisoners rights inside the prison observed at a place in the judgment as follows:

 

"The rule of law meets its Waterloo when the State's millions become law breakers and so the Court, as the sentinel of the nation and the voice of the Constitution runs down the violators with its writ and secures compliance with human rights even behind iron-bars, and by prison warders. A person does not lose; his right when he is in lawful confinement and if his rights are violated, he is entitled to writ. He described Article 21 as a magna carta that 'may toll the knell of human bondage beyond civilised limits."

 

In Prein Shankar Shukla v. Delhi Administration,^"12 the Supreme Court declared handcuffing as inhuman and unreasonable and over harsh and at the first flush arbitrary as a result to zoological strategy because of torturous and defiling to the human dignity, the prisoner being a person not an animal.

 

The judicial attitude that the prisoners do not lose their rights inside the prison except those which are subject to the sentencing process has set a new trend for the prisoner's humane living and reformation. The prisoners are entitled to the amenities of proper sanitation, recreation and entertainment, access to the literature/meeting their relatives. and friends inside the prison and to consult the lawyers of their choice. They shall be granted parole from time to time to visit their families and relatives.^"13 A prisoner can get the book published outside the prison written in the prison.^"14

 

Those who are put in incarceration without any fault of their or are subjected to imprisonment beyond the permissible period, are entitled to compensation. Besides the torture the cases are also reported of custodial deaths. The judiciary responding to human rights jurisprudence has not only ordered the guilty to be brought to the book but has also awarded compensation in such cases.^"15

 

Arrest and Detention:

In D.K. Basu v. State of West Bengal,^"16 the Supreme Court laid down some basic requirements in all cases of arrest and detention till the enactment of law to prevent custodial violence which are as follows:

 

1.      The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

2.      That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.

3.      A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

4.      The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

5.      The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

6.      An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed' of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

7.      The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

8.      The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union 'Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.

9.      Copies of all the documents including the memo of arrest, referred to above, should be sent to the Ilaqa Magistrate for his record.

10.   The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

11.   A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within. 2hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board."

 

"The requirements mentioned above shall be forwarded to the Director General of Police and the Home Secretary of every State/Union Territory and it shall be their obligation to circulate the same to every police station under their charge and get the same notified at every police station at a conspicuous place. It would also be useful and serve larger interest to broadcast the requirements on All India Radio besides being shown on the National Network of Doordarshan and by publishing and distributing pamphlets in the local language containing these requirements for information of the general public. Creating awareness about the rights of the arrestee would in our opinion be a step in the right direction to combat the evil of custodial crime and bring in transparency and accountability. It is hoped that these requirements would help to curb, if not totally eliminate, the use of questionable methods during interrogation and investigation leading to custodial commission of crimes."

 

The Supreme Court in this case said that the factors to comply with the aforesaid directions would not only bring departmental action against the guilty police officials but it would also be contempt of the Court, the proceedings to be initiated therefore by any High Court having territorial jurisdiction over the matter. The Court later on1 directed the Registry to send the copies of the order and to have the report/reports from the Director General of Police and the Home Secretary of the concerned State/Union Territory sent to the Supreme Court regarding the compliance of the direction concerning arrestees indicating in a tabular form as to which of the requirements had been carried out and in what manner, as also the requirements still remaining to be carried out. The report would also be obtained from All India Radio and Doordarshan, as per direction, for broadcasting the requirements.

 

No arrest of woman between sun-set and sun-rise:

The amendment of Cr. P.C. in 2005 adds a new sub-section (4) to Section 46 which provides:

 

"(4) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where. such exceptional circumstances exist, the woman police-officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made."

 

Insurgency and Terrorism:

Insurgency and terrorism have spread in many parts of the world and governments have failed to curb the terrorism either because the holds of insurgents are strong enough and the governments fail to solve their problems or because the terrorism is the practice resorted to by the enemy countries to destabilise the civil and political life. The humail rights violation from both sides by the terrorists as well as by the administration is dealing with terrorism is reported. In India, the Government had to face much criticism J national as well as international level regarding the operation of Terrorist and Disruptrvf Activities (Prevention) Act, 1987 so the Government had to succumb to the pressure is not giving the fresh lease of life to the Act in 1995.

 

CONCLUSION AND SUGGESTION:

The violation of human rights by the law enforcing agencies, the police and jai officials is highly disgusting. Under the pressure of Amnesty International and the United States, India enacted the Protection of Human Rights Act, 1993 with Human Right Commission and Human Rights Courts both at the national as well as States level These institutions have started to function. The Commission has recommended systematic reforms of the police and the prisons and the revision of Indian Prisons A.c (1894. It has'also recommended the protection of civil liberties in the areas hit bj terrorism and insurgency. It has stressed upon the association of the local Magistrate' where pardon and search operations are carried on. It has recommended that the 198' convention against torture and other forms of cruel, inhuman and degrading treatment o punishment to be acceded to by the government. The District Magistrate shall regular chair the meetings involving the Security forces in insurgency hit areas and he must b kept informed fully of the operation. The non-officials and the representatives of nor governmental organisations should also be associated with the meeting. The proi.ij: action against the Security forces for the violation of human rights and the prosecution c the concerned personnel were other recommendations"¹⁷

 

However, in Maneka Gandhi v. Union of India,^"18 the view of the Supreme Court with a radical change that the 'procedure established by law’ must not be any procedure under the statute but it must be "just, fair and reasonable", has really pervaded human rights jurisprudence as understood presently.

 

Let the sanctity and divinity of the criminal justice system glitter with dawning horizons for a better and brighter tomorrow of the Indian nation.

 

REFERENCE:

1.       AIR 1950 SC 27

2.       W. Buckley. Sociology and Modom System Theory. Englewood Cliffs. N.J. Prantice Hall. 1967.

3.       Lqbal Ismail SodawalaVs The State of Maharashtra SCC (Cri.) 764, 770, 1974 Cri LJ 1291.

4.       K.S. Shukla. Criminal Justice-- Emerging Issues and Challenges. Eighth Course on 'Policing A District for IPS Officers' IIP A New Delhi December 1990.

5.       Sir Carletion Allen.

6.       Kali Ram Vs. State of Himachal Pradesh.

7.       H.R. Khanna i. Some Reflection on Criminal justice--Excerpts -- speech at the v. Annal Conference of the Indian Society of Criminology at Pondicherry -- 15-3-1976.

8.       M. Hidayatullah J. Judicial Methods p. 22-23

9.       AIR 1950 SC 27.

10.     AIR 1978 SC 597.

11.     1980 Cr LJ 1099 (SC).

12.     1980 Cr LJ 930 SC.

13.     See the Chapter 'Prison Administration' in this book.

14.     State of Maharashtra v. Prabhakar, AIR1966 SC 424.

15.     See the preceding chapter.

16.     1997 AIR SCW 233; (1997) 1 SCC 416.

17.     Annual Report 1994-95; See the Sunday Times of India (Lko. 27-8-1995) p. l.

18.     AIR 1950 SC 27

 

 

 

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