1

TABLE OF CONTENT

S. No Topics Page No.

1. List of Abbreviations 5
2. List of cases 6
3. INTRODUCTION 7

4. OBJECT OF THE CRIMINAL JUSTICE SYSTEM 7

5. Criminal Justice System (CJS) 8

6 NEED TO REFORM IN CRIMINAL JUSTICE SYSTEM 9
7. COMPONENTS OF THE CRIMINAL JUSTICE SYSTEM 10
8. Malimath committee : Recommendation made by the committee 18
9. Conclusion 21

Bibliography 23
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List of Abbreviations

CJS CRIMINAL JUSTICE SYSTEM

NJC NATIONAL JUDICIAL COMMISSION

IPCC Independent Police Complaints Commission

SHO STATION HOUSE OFFICER

FIR FIRST INFORMATION REPORT

IPC INDIAN PENAL CODE

CR.P.C CRIMINAL PROCEDURE CODE

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LIST OF CASES
1. Central Bureau of investigation v. Kishore singh and others
2. Mehboob Batcha and others v. state represented by superintendent
of police
3. D. K. Basu v. State of WB
4. A.S. Mohammed Rafi v. state of the Tamil nadu
5. Joginder Kumar v. State of the U.P
6. Nahar Singh Yadav and another v. Union of India and others
 5

INTRODUCTION

A fair procedure is the foundation of the criminal justice system. The motive of the criminal justice system
is to render public justice, to punish the criminal and to see that the trial is concluded expeditiously before
the memory of the witness fades out1. However, it is matter of concern that administration of the criminal
justice system in India is degrading day by day. Therefore, there is urgent need to review and bring changes
in current criminal justice system in india. Specially if we talk about investigation of the crime by police
and court proceedings. Hence, the courts should try to maintain the public faith of the people in
administration of the justice by ensuring the concept of the human rights in administration of the Criminal
justice .Therefore, the purpose of the Paper is to understand the administration of criminal justice system
and its reformation, because this is the only way by which the faith of the people in the rule of law can be
restored.

India is world’s largest democracy. But unfortunately, over the period of the time its shine is fading away
because of defective criminal justice system. Therefore, we are in a serious point of time, there is need to
again reanalyse and reformulate the justice system to address the challenges of the present day. Because of
urgent need in demand of justice. There are some defectiveness which necessitate the development of
various techniques and strategies that can be effectively fit into the policy framework. Therefore, in order
to better understand the criminal justice system it is worth examining the motive of the criminal justice
system.

OBJECTIVE OF THE CRIMINAL JUSTICE SYSTEM

The object of the criminal justice system is to provide public justice, to give punishment to the criminals
and to make sure that the trial is concluded expeditiously before the memory of the witness fades out. The
purpose of criminal trial does not mean only doing the justice with the accused but also providing justice to
the victim and society. So, that law and order is maintained in society. A judge does not chair over a
criminal trial merely to see that no innocent man is punished, but also to make sure that the guilty man does
not escape. Both are the duties that is to be performed by the judge2 .

Hence, the courts should always try to maintain the faith of the people in administration of the justice by
ensuring the concept of speedy and unbiased justice to the people.

1
Justice Palok Basu, Law relating to protection of Human Rights under the Indian Constitution and allied laws,
Allahabad: Modern Law publication,
2
Justice Palok Basu, Law relating to protection of Human Rights under the Indian Constitution and allied laws,
Allahabad: Modern Law publication,
 6

Criminal Justice System

 Criminal justice system is a system established by the government to control crime and provide
justice to the people. It has three components police, judiciary and prison.

 Criminal justice systems aim is to protect the rights and personal liberty of the citizen of the
country and society against its taken away by others and provide justice.

 Criminal law in India constitutes of – The Indian Penal Code , the Protection of Civil Rights Act,
, Dowry Prohibition Act, and the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act3.

 Penalty can be imposed on those persons who violates the law of the land. And this penality is
imposed by criminal justice system

Indian Criminal Justice System (Background)

 The Indian criminal justice system is very old system based on colonial law penal legal system.

 There has been no substantial change in this criminal justice system after independence.

 The vohra committee was appointed for reforming criminal justice system it was the first step of
this kind towards reanalysis of this system. Vohra committee surveyed and found nexus between
criminal and politics and criminalization of politics.

 A panel headed by Justice malimath the former chief justice of high court was appointed to give
his suggestions on this colonial era law for its restructuring.

 The committee submitted its report with 158 recommendations but those recommendations were
not implemented by the government.

 The committees point was that the current system was biased in the favour of the accused and
didn’t focused on the victims.

3
Retrieved from (https://www.humanrightsinitiative.org/publications/police/police_organisations.pdf) Last visited on 17th
December, 2018.
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REFORM IN CRIMINAL JUSTICE SYSTEM

 The criminal justice system was made by the state to protect the rights of the victims and to
punish the accused but the problem is that the CJS is based on colonial era law, it has led the
public to suffer by the government departments and also put pressure on the judiciary.

 The process of delivering justice to the people is very time taking and is unable to catch
criminals. There is no balance between between the judiciary and the prosecution and the
police. A huge amount of guilty person are left unpunished by this system. Many innocent
people remain under trail prisoners for many years.

 Due to the invention of new technologies the crimes have become more complex and its rate is
also increasing rapidly.

 The current systems leads to delay in investigation of crime and is unable to give instant justice
to the victim.

 The accused who has money and power rarely gets convicted even in the cases of serious
crimes. The joint working of criminals and politicians has added a new dimension.

 The road to justice is very expensive and complex

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In today’s era, where the society is changing frequently there is still need of improvement in “criminal
justice system”. There is still lack of accountability, ineffective enforcement of the law, and delay in
disposal of the cases, lack of trained police, an overburdened court system and Poor prison conditions.
These all are the main problems in the criminal justice system. In India, the administration of criminal
justice system follows the adversarial system pattern it has three main components, namely,

a) Police

b) Judiciary

c) Prison

COMPONENTS OF THE CRIMINAL JUSTICE SYSTEM: PRESENT SCENARIO

I. POLICE

Police, being a frontier of the criminal justice system, have a very important role in administration of the
justice. Therefore, for understanding the criminal justice system it is important to know about the police.
Under Article 246 The Constitution of India the police, public order, courts, prisons, reformatories, and
other allied institutions are placed in the State List4. Different substantive and procedural laws under
which police is governed is as follow:

The criminal law is made of the substantive law contained in the Indian Penal Code (IPC) as well as the
special and local laws were enacted by the central and state legislatures at different times and the
procedural law laid down mainly in the Code of Criminal Procedure, 1973 (Cr.P.C) and the Indian
Evidence Act, 1872. These three major Acts, i.e. the IPC, Cr.P.C and the Indian Evidence Act were
made by the British during the second half of the 19th century. Of these, the only major law that has
been revised since Independence is the Cr.P.C, which was revised in 1973 on the recommendations that
was made by the Law Commission of India. The other two laws, except for some minor amendments,
have remained unammended.

4
Chenthilkumar Paramasivam, Police organization of India, Common Wealth Human Rights Initiative.
 9

The Process of Criminal Justice

The process of criminal justice has the following main steps5:

Step- 1: Registration of the First Information Report ( FIR) The process of initiation of criminal justice
is done with the registration of the First Information Report. The FIR is a written document written by
the police when they receive information about the commission of a cognizable offence.

Step- 2: The police officers examine the scene of crime and investigates the facts of the case. Police
investigation mainly includes:

1. Examination of the scene of crime

2. Examination of witnesses and suspects

3. Recording of statements Š Conducting searches

4. Seizing property

5. Collecting fingerprint,

6. Footprint and other scientific evidence

7. Consulting records and making entries in the prescribed records, like case diary, daily diary, station
diary etc.

8. Making arrests and detentions

9. Interrogation of the accused

Step-3: After completion of investigation, the S.H.O of the police station sends a report to the area
magistrate. The report sent by the I.O is in the form of a charge sheet, if there is sufficient evidence to
prosecute the accused. If there is unavailability of evidence, such a report is called the final report.

Step-4: After receiving the charge sheet, the court takes cognizance and initiates the trial of the case.

Step- 5: The charges are framed. The prosecution has to prove the charges against the accused beyond a
shadow of doubt. The accused is given a full opportunity to defend himself.
5
Retrieved from (https://www.humanrightsinitiative.org/publications/police/police_organisations.pdf) Last Visited on 18
Dec, 2018.
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Step- 6: And if the trial ends in conviction, the court may award any of the following punishments: Š
Fine, Forfeiture of property, Simple imprisonment, Rigorous imprisonment, Imprisonment for life,
Death Sentence.

Now the next emerging question towards is, about the liability of police. Which is important part of the
Indian Criminal Justice system. Is the article 246 competent to evaluate this problem.

Liability of police.

Indian police Act of 1861, is outdated law which, made in colonial era with the aim of suppressing the
people. Unfortunately, instead of the continuous demand of The National Police Commission, Indian
government is not ready to do any change in this old colonial law.

Further, in the Police Act, 1861 there is no as such provision of the liability of the police not like in the
UK criminal justice system , in which the Independent Police Complaints Commission (IPCC)
supervises and investigates public complaints against the police and can take over the investigation of
any complaints case6. Whereas Indian Police Act, doesn’t has this provision. It can be clearly seen
from the matters involving the atrocities of the police often come before the court some are as follow:

Central Bureau of investigation v. Kishore singh and others7

In this case Hon’ble Justice Markandey Katju said that, what should be done to policemen who
“Bobbitt” a person in police station and think that they can get away it? That is the question decided in
the case. Court held that in our opinion, policeman who commit criminal act deserve harsher punishment
that other person who commit such act, because it is duty of the policemen is to protect the people, and
not to break the law by themselves. “If the protector becomes the predator civilized society will cease to
exist”. As the Bible says that, “If the salt has lost its flavor, wherewith shall it be salted?”

Or as the ancient Roman used to say that “who will guard the praetorian guards?”

Hence, the police is supposed to protect the people and uphold the law, but if they themselves become
the criminals, then it’s a difficult task to ensure the protection of the human rights.

6
Retrieved from (www.humanrightsinitiative.org/.../police/) Last visited on 19 Dec, 2018.
7
(2011) 6 SCC 369.
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Mehboob Batcha and others v. state represented by superintendent of police :Judges Markandey
Katju and Gyan Sudha Mishra8 .

In this case Supreme Court held that, as murder by policemen in police custody is rarest of rare case.
They should be given death penalty and we give a warning to all country that this will not be tolerated.
Further, court upheld that custodial violence in police custody is in violation of this court’s directive
issued in D. K. Basu v. State of WB9,

A.S. Mohammed Rafi v. state of the Tamil nadu10

In this case court granted 1.5 lakhs compensation to the victim for police custodial death. However,
apart from the above cases, one of the most important question is the illegal and arbitrary arrest by
police person.

Judiciary view on Arbitrary arrest and illegal detention. The power of the police to arrest is also often
very obnoxiously abused. This can be seen by following cases. There are numbers of the cases where
Apex Court directed various guide lines regarding the arrest for example in D.K Basu v. State of West
Bengal in instant case court streamlined the procedure relating to the arrest. The Court stated in this case
that, protection from arbitrary arrest is flow from Article 21 and 22 (1) of the constitution and are to be
enforced strictly. The Supreme Court in Joginder Kumar v. State of the U.P11. has put clear limitations
on the powers of police to make arbitrary arrests.

The above cases are really, a ground breaking judgments. Therefore, it’s time to look into the power of
the President provided in Art. 372 (2) of the India Constitution12. Which empowers the President to
amend the laws in compliance with the Constitution.

8
[2011] 7 SCC 45, [2011] 3 SCR 1091.
9
1997 1 SCC 416.
10
2010 (12) TMI 1146.
11
1994 4 SCC 260.
12
M.P. Jain, Indian Constitutional Law, 2011, Sixth Edition (2015).
 12

II JUDICIARY

The judiciary contains a important role in implementation of rule of law. the first and most
significant duty of the courts is to guard and enforce the human rights, additionally as give the relief to
the victim. Such duty and obligation is necessary for a democratic country. this criminal justice system
in Indians courts is to relinquish additional attention to the defendant and take a look at to guard all
his/her rights i.e. Presumption of the innocence, right against arrest, and double jeopardy etc. no doubt
accused has all these rights but now in changing situation, it is also expected from the courts focus upon
the Victim as well as witness.

Hierarchy of courts13

Supreme Court of India (The apex court)

High Court (Highest court at the state level)

Sessions/District Court

Judicial Magistrates of the First Class/Metropolitan Magistrate’s Court

Court of the Judicial Magistrates of the Second Class

Executive Magistrates

13
R. V. Kelkar, Criminal Procedure, Eastern Book Co., Lucknow,(2015).
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Role of the court during criminal proceedings

Here the relevant question is that, what should be the role of court in restructuring the criminal justice
system? Because we already discussed that, it is the Judiciary which has a important role in
implementing the rule of law. Further, it is noted that, there are some provisions in legislation , the
proper implementation of which can bring the remarkable change in the field of the criminal Justice
system.

1. Limitation on power of the arrest

The criminal Procedure Code, 1908 confers broad powers of the arrest mainly to the police in various
Sections i.e Sec. 41, 42, and 151 of the code. There are number of the incidents , which show how the
police officers have misused there power. Therefore, the concept of the arrest procedure must be in
consonance with Art. 21 and 22 of the Constitution of India. Hence, the magistrate shall satisfy himself
that all requirements of the arrest has been fulfilled. A new Section 436-A of the Cr.P.C14. talks about
the “Maximum period for which prisoner under trial can be detained”. The motive of this Section is to
ensure the human rights of the person in prison. Now it is on the judiciary for all the rights provided to
the person. Moreover, the court should take care tha the Section 310 of the Cr.P.C15. this runs as follow:

“Any Judge or Magistrate may, at any stage of any inquiry, trial or other proceeding, after due notice
to the parties, visit and inspect any place in which an offence is alleged to have been committed,………”

Therefore, it is clearly seen from the above Section that magistrate has huge amount of power for proper
implementation of human rights at any stage of any inquiry.

2. Limitation on the adjournment of the cases

In todays time adjournment of cases has become the rule instead of exception. This is one of the
prominent reason in disposal of cases.

14
Id.
15
Id.
 14

There is a provision given in (Order XVII, Rule1 of the Civil procedure code, 1908) which prohibits
courts from adjourning cases for more than three times, but still there is no one cares about it. Therefore,
the Courts should keep in mind all the provisions regarding early disposal of the cases.

3. Judge should be sensible:

There is need that Judges should take a more active role in the criminal justice system. They can use
their power in the process where they found necessary in interest of the justice. There are some judges
who restrict themselves from advancing the criminal justice system because they have old fashioned
thinking. The old fashioned judge looked to the letter of the law and their believe is that, justice can only
be done according to strict interpretation of the law. That is why judges should observe the effect of the
judgment that is passed by them on the common people. Therefore, justice does not reside in the judge’s
mind only. It is also in his heart. It is the mixture of the heart and the mind that result in justice.
Therefore now a day’s criminal justice reanalysis is a matter of the serious concern, and for effective
activeness of judges is very much required.

4. Case of the bail application and remand order

At the begining there is no hard and fast rules regarding grating and refusing the bail. Each case should
be decided on the basis of their own facts. But it should be decide for jurisdiction of the courts. In
Cr.P.C Section 436 provides the law relating to bailable offences. Similarly, Sec. 437 dealing with non-
bailable offences. Now it is the responsibility of the courts to take care of caution and care when
granting and denying the bail.

5. Power to grant the Remand

Under Section 167 of the Cr.P.C.16 Magistrate is empower to grant the remand either in police or
Judicial custody, for a period not exceeding fifteen days at a time (in case of police custody, only for
initial fifteen days). Judicial authority of detention amounts to restriction of personal liberty and,
therefore, due caution should be exercised while sending in detention of an accused in police or judicial
custody on production of the accused. Therefore, it is duty of the magistrate to check the case diary as
well as all the material fact before granting the order.

16
Id.
 15

Case Study:

Joginder Kumar v State of the UP17

There are some guidelines laid down by the courts:

An arrested person being held in custody , if he so asks 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 is being detained.

The police officer shall inform the arrested person that why he is brought to the police station.

The entry should be requiring to be made in the diary as to who was informed of the arrest. This

protection from power must be held to flow from Art 21 and 22 of the Indian Constitution.

Nahar Singh Yadav and another v. Union of India and others18.

In instant case court held that “a true and fair trial is sine qua non of Article 21 of the constitution.
Therefore, it can be clearly documented from this case, that court should take care and be cautious at
every step of the administration of the justice.

III. PRISON

Violation of the right’s of the prisoners:

The condition of the prisoners remained disgraceful in the India. The police men were responsible for
widespread violation of the human rights in including the apprehension of death in alleged encounters,
deaths in custody and indiscriminate use of the firearms. According to the NCRB of the Government of
the India, eight persons died in the custody and 42 civilian died in police firing during 2005.

17
AIR 1994 SC 1349.
18
(2011) 1 SCC 307.
 16

Malimath Committee: Recommendations19

 There is urgent need to increase number of judges.

 The Constitution of a NATIONAL JUDICIAL COMMISSION deals with the appointment of

judges for the higher courts and by amending Article 124 to make the process of impeachment
of judges less difficult.

 A separate criminal division should be constituted consisting of judges who have specialized in
criminal law.

 The countries like Germany and France follow Inquisitorial system that should be followed.

 Court has the power to summon any listed or non listed witness or any person,if it feels
necessary.

 It is necessary to bring an amendment in Article 20 (3) of the Constitution that provides

protection to the accused from being forced to be a witness against himself. The court should
have freedom to question the accused to take out information and draw an adverse inference
against the accused in case the person refuses to answer the questions asked by the court .

 A schedule to the Code be printed in all the regional languages to make the accused about the
rights available to him and the process to avail those rights.

 “Proof beyond reasonable doubt” is taken as a basis to convict a criminal in a criminal case
which is an burden on the prosecution and hence a fact should be taken in consideration as
proven “if the court is convinced that it is true” after listening the matters before it.

 The victim should be allowed to become a party in the cases involving serious crimes and should
be given compensation for the loss. In the case where victim dies, the victims legal
representative shall have the right to become a party to the suit, in the case of serious offences.
The State should provide an advocate of victim’s choice to plead on his behalf and the cost has to
be provided by the state if the victim is unable to afford pay.

19
Retrieved from (https://mha.gov.in/sites/default/files/criminal_justice_system.pdf) Last visited on 18th Dec, 2018
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 Under the victim compensation law a victim compensation fund should be created and assets
seized from organised crime should be donated in the compensation fund.

 Two commission should be made one is National Security Commission and State Security
Commissions that is for security of victims.

 Special task force should be made to deal with organised crime.

 To maintain a balance between the investigating and prosecuting officers there should a new post
made i.e Director of prosecution

 Witness protection is a major concern there is a need of strong witness protection scheme . and
the dying declarations, confession, and audio/video recorded statements should be accepted by
the courts as a evidence.

 Cases pending from more than two years should be solved by lok adalat.

 The current criminal law the offences are classified into congnizable and non-cognizable
offences instead of this it should be classified in social welfare code, correctional code, and
economic and other offences.

 Central law must be enacted to deal with organised crime federal crime and terrorism.

 For unbiased working of criminal justice system a periodical review by presidential commission
is recommended.
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Key issues in the recommendations

 As per suggestions given by the committee the senior police officers should have the power to
take confession and the confession should be admissible in the court of law.

 The court can reexamine the confession should not reject it.

 It means that if a proof is enough to make the court believe that something is true, then it can be
considered as a standard proof.

 The government should pay more attention on the protection of the victims.
 19

Conclusion

a) Crimes are often committed silently in a well-planned manner so that there may not be any direct
evidence against the accused. Under these circumstances, it is necessary to have strong and intelligent
investigating agency capable of using modern tools. Various technologies , such as physical examination
of accused, victim’s medical examination , and comparison of finger prints, foot prints, photographs and
writing, use of tape records, forensic ballistics, wiretapping and other means of electronic surveillance,
lie detectors, and truth serums can be used by the police or any other investigating agency .

b) The police, the Government and the society each have a significant role to play in improving the
enforcement of rule of law and in developing pro-citizens police in the country. Organizational
behaviour is largely the result of training and education. Police training is archaic in content and
methods. All sections of society, and most important the media, can help in improving the status and
efficiency of the police force. At least, they can afford not to disparage the police without rhyme or
reason. If they can extend cooperation in implementation of law, there is bound to be a good response
from the other side, which eventually will result in much better social defence and better law and order
situation.

c) Though cheap and speedy trial has been recognized as a fundamental right because it is a requirement
of a fair procedure under Article 21, yet the delay in administration of criminal justice is a common
thing. it can be seen that delay is the most common thing in both the processes whether it be at the stage
of investigation and prosecution as well as in the trial. It is important to prescribing some time limit for
each process as Supreme Court has done in Sheela Barse V. Union of India, Of course, the time limit
should not be unreasonable or rigid because justice delayed is justice denied and also justice hurried is
justice buried. A balance between the two extremes is very important.

d) To prevent human rights violations, it is suggested that an official declaration of uniform policy by
the governments that violations of Human Rights of accused by police is punishable should be enacted.
Governments should also enact a strict law to punish the accused of human rights violations.

e) The mechanism for protecting human right of accused at the International, national and regional
levels must be taken care , States should not save themselves from International check on the issues of
human rights. The State should provide an effective mechanism of remedies for human rights violations.
 20

Investigating agencies, prosecuting agencies, judiciary and legal profession should make efforts to
prevent the human rights violations of accused by providing him proper and legal aid.

f)The challenge before India is to develop human rights in its domestic criminal administration by
reanalysis of criminal justice system, and on the other hand not to be taken away at the cost of social
development and nation's unity. A balance lies in improving the domestic culture of human rights which
in turn will redefine our image in the international platform also. At present there are numerous cases
pending in the courts and unfortunately, there is no data in this regard and moreover, Supreme Court and
High Courts do not publish any annual administration report in reference to the pendind cases.

g). Now the another drawback is sanction of the government (Sec.197) before prosecuting the public
servant in Section 166 of the I.P.C. it creates a great obstacle in exercise of the power under section 166
of the Indian penal code. Therefore, its need to be withdrawn. Even National police Commission 1979-
1981 in its 8th Report recommend the withdrawal of Sec. 132, 197 of the Cr.P.C.
 21

BIBLIOGRAPHY

1. Justice Palok Basu, Law relating to protection of Human Rights under the Indian
Constitution and allied laws, Allahabad: Modern Law publication.
2. (https://www.humanrightsinitiative.org/publications/police/police_organisations.pdf
) Last visited on 17th December, 2018.
3. Chenthilkumar Paramasivam, Police organization of India, Common Wealth
Human Rights Initiative.
4. (https://www.humanrightsinitiative.org/publications/police/police_organisations.pdf
) Last Visited on 18 Dec, 2018
5. (www.humanrightsinitiative.org/.../police/) Last visited on 19 Dec, 2018.
6. M.P. Jain, Indian Constitutional Law, 2011, Sixth Edition (2015).
7. R. V. Kelkar, Criminal Procedure, Eastern Book Co., Lucknow,(2015).
8. (https://mha.gov.in/sites/default/files/criminal_justice_system.pdf) Last visited on
18th Dec, 2018
9. https://www.legal-tools.org/doc/70d1c6/pdf/
10. https://mha.gov.in/sites/default/files/DraftPolicyPaperAug.pdf