LAW OF CRIMES II: CRIMINAL

PROCEDURE CODE

INTERNAL ASSESSMENT 1

NAMAN KHANNA
DIVISION A
17010125053
 Analyze the concept of fair trial with reference to Criminal Procedure
Code. Answer with the help of case laws.

INTRODUCTION

A fair trial is one in which the rules of evidence are honored, the accused has competent
counsel, and the judge enforces the proper courtroom procedures - a trial in which every
assumption can be challenged. – Harry Browne

The sole aim of law is to provide justice, and assurance of fair trial is the first requirement of
dispensation of justice. A trial primarily aimed at ascertaining truth has to be fair to all
concerned which includes the accused, the victims and society at large. Each person has a
right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the
accused as it is to the victim and society. An accused has a right to fair trial. The right to a
fair trial is a fundamental safeguard to ensure that individuals are protected from unlawful or
arbitrary deprivation of their human rights and freedoms, most importantly of the right to
liberty and security of person. The concept of fair trail is deep rooted in the history, enshrined
in the constitution, sanctified by religious philosophy and juristic doctrines and embodied in
the statute intended to regulate the course of a criminal trial. When a citizen has apprehension
based on some fact, that he would not get a fair trial in a court of law, then it’s the duty of the
said court to remove the apprehension and provide him fair trial and protect his right and
enunciated under the provisions of article 21 of the constitution of India1.

Justice in criminal administration will follow the principles of natural justice. It means the
trial should be fair, just and equitable, which is the expectation of the parties that the fair trial
is provided. The term fair trial “covers in its ambit ―a fair judiciary, which is competent and
impartial; a fair prosecution, which brings all the important points into the notice of the Court
and an atmosphere in which proceeding can be conducted calmly”.2
The concept of a fair trial cannot be limited to a statute and the Courts have gradually
expanded it to include various aspects of criminal procedure. For instance, the Supreme Court
has also in the past transferred cases from one state to another when it is reasonably
anticipated that the accused will not be afforded a fair trial, or the court process may be
interfered with by extraneous considerations.

The formal concept of fair trial has been accepted as human rights jurisprudence in the
Universal declaration of human rights hereinafter referred as UDHR, 19483. Article 10 of
Universal declaration of Human rights 1948 provides: Everyone is entitled in full equality to
a fair and public hearing by an independent and impartial tribunal, in the determination of
his rights and obligations and of any criminal charge against him.

1
Khokan Debbama v state of Tripura,2011 {4] cries 647
2
Basavaraj R. Patil and others v. State of Karnataka and others, (2000) 8 SCC 740.
3
Universal declaration of human rights which was adopted by general assembly on 10,December 1948
“Fair trial” includes fair and proper opportunities allowed by law to prove her innocence.
Adducing evidence in support of the defence is a valuable right. In a criminal case, denial of
that right means denial of fair trial.4

ESSENTIAL COMPONENTS OF FAIR TRIAL UNDER ADVERSARY SYSTEM

The system adopted by the Criminal Procedure Code, 1973 is the adversary system based on
the accusatorial method. All over the world there are two types of criminal justice system one
is adversely system, and another is inquisitorial system. India follows the adversely system
where two parties contest each other, and judge works as a neutral umpire. The burden of
proof is on prosecution to prove the guilt of accused beyond reasonable doubt. In Himanshu
Singh Sabharwal v State of M.P5 the court observed that the fair trail envisaged under this
code is not imparted to the parties and the court has reason to believe that the prosecuting
agencies or prosecutor is not acting in the requisite manner the court can exercise its power
under 311 of the code or under 165 of the Indian Evidence Act 1872 to call in for a material
evidence’s and call for a relevant document as to sub serve the cause of justice.

1. Presumption of Innocence.
➢ An accused is innocent until proven guilty. The onus of proving that the accused is
guilty is on the prosecutor. This principle has been originated from a Latin maxim,
‘eiincumbitprobatio qui dicit, non quinegat’, which means the burden of proof rests
on the one who asserts and not on the one who denies.
➢ In State of U.P. v. Naresh and Ors, the Supreme Court observed “every accused is
presumed to be innocent unless his guilt is proved. The presumption of innocence is a
human right subject to the statutory exceptions. The said principle forms the basis of
criminal jurisprudence in India.”6
➢ As per Section 228 of the Code of Criminal Procedure, if, after consideration and
hearing, the judge is of opinion that there is ground for presuming that the accused has
committed an offence which is exclusively triable by the Court, he shall frame in
writing a charge against the accused.
➢ In Kali Ram v. State of H.P7., the Supreme Court observed “it is no doubt 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 principle of innocence is must in a trial in order to protect the accused from
arbitrary and wrongful conviction.

2. Independent, Impartial and Competent judge

➢ This principle can be said to emerge from the principle of natural justice ‘nemo judex
in causa sua’ which means no one can be a judge in his own cause. Thus, a trial is
said to be fair if it is done before an independent, impartial and a competent judge.
Independence of the judiciary is the essential part of Indian Constitution. Section 479
of the Code of Criminal Procedure explicitly prohibits any judge or magistrate to trial

4
Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.) [(2007) 2 SCC 258].
5
MANU /SC/1193/2008
6
(2001) 4 SCC 324
7
(1973) 2 SCC 808
 any case in which he is a party or personally interested and also prohibits to entertain
any appeal from any order or judgment made by him.
➢ As was held in Shyam Singh v. State of Rajasthan. the question is not whether a bias
has actually affected the judgement. The real test is whether there exists a
circumstance according to which a litigant could reasonably apprehend that a bias
attributable to a judicial officer must have operated against him in the final decision of
the case.8

3. Autrefois Acquit and Autrefois Convict.

➢ If a person is tried and acquitted or convicted of an offence he cannot be tried again
for the same offence or on the same facts for any other offence. This doctrine has
been substantially incorporated in the article 20(2) of the Constitution and is also
embodied in section 300 of the Cr. P.C. The concepts of double jeopardy and the right
against self-incrimination have also been examined in the light of recent case laws
such as Selvi v State of Karnataka9 where the Court concluded that a Narco analysis
test violates this right.
➢ In Kolla Veera Raghav Rao vs Gorantla Venkateswara Rao10, the Hon’ble Apex
Court held that Section 300(1) of Cr.P.C. is wider than Article 20(2) of the
Constitution. While, Article 20(2) of the Constitution only states that ‘no one can be
prosecuted and punished for the same offence more than once’, Section 300 (1) of
Cr.P.C. states that no one can be tried and convicted for the same offence or even for
a different offence but on the same facts.
➢ In Hussainara Khatoon v State of Bihar11, it was held that a speedy trial is an essential
ingredient of fair trial procedure and it is the constitutional obligation of the State to
set up a procedure that would ensure the same.
➢ In Zahira Habibullah Sheikh and ors v. State of Gujarat and ors.12, the Hon’ble Apex
Court observed that “each one has an inbuilt right to be dealt with fairly in a criminal
trial. Denial of a fair trial is as much injustice to the accused as it is to the victim and
to society.

4. Venue of trial, i.e., place of trial.

➢ As per Section 177 of the Code, every offence shall ordinarily be inquired into and
tried by a Court within whose local jurisdiction it was committed.
➢ In Rajendra Ram Chandra Kavalekar v. State of Maharashtra & Another13 it was
observed that the territorial jurisdiction of a Court with regard to criminal offence
would be decided on the basis of place of occurrence of the incident and not on the
basis of where the complaint was filed and the mere fact that FIR was registered in a
particular State is not the sole criterion to decide that no cause of action has arisen

8
1973 Cri LJ 441, 443, (Raj.)
9
Criminal Appeal No. 1267 of 2004
10
(2011) 2 SCC 703
11
1979 SCR (3) 532
12
(2006) 3 SCC 374 at 395
13
2009 ALL MR (Cri) 954 (S.C.)
 even partly within the territorial limits of jurisdiction of another Court. The offence
has to be tried by a Court which has territorial jurisdiction and also have power to try
the offence as per Sections 177 to 189 of the Code of Criminal Procedure.

5. Speedy trial under CRPC 1973

➢ Section 158(2) provides; such superior officer may give such instruction to the officer
in charge of the police-station as he thinks fit, and shall, after recording such
instructions on such report, transmit the same without delay to the magistrate.
➢ Section 309(1) provides.; In every inquiry or trial the proceedings shall be continued
from day-to-day until all the witness in attendance have been examined, unless the
court finds the adjournment of the same beyond the following day to be necessary for
reasons to be recorded.
➢ Section 468 provides; except as otherwise provided elsewhere in this code, no court
shall take cognizance of an offence of the category specified in sub-section {2}, after
the expiry of period of limitation. The period of limitation shall be
o Six months, if the offence is punishable with fine only;
o One year, if the offence is punishable with imprisonment for a term not
exceeding one year;
o Three years, if the offence is punishable with imprisonment for a term
exceeding one year but not exceeding three years.

Under this system an accused has pre-trial and post-trial rights also.

PRE-TRIAL RIGHTS
❖ Knowledge of the accusation:
Fair trial requires that the accused person is given adequate opportunity to defend himself.
But this opportunity will have no meaning if the accused person is not informed of the
accusation against him. The Code therefore provides in section 228, 240, 246, 251 in plain
words that when an accused person is brought before the court for trial, the particulars of the
offence of which he is accused shall be stated to him. The right to have precise and specific
accusation is contained in section 211, Cr. P.C.
❖ Right to Open Trial:
The openness of a trial is associated with fairness. A fair trial requires that trial must be in an
open court. The openness of the court as per section 327(1) of Cr.P.C means in which not
only parties but also, the general public have access to records of the court.
In the case of Naresh Sridhar Mirajkar v. the State of Maharashtra,14 the apex court held that
the right to open trial must not be denied except in exceptional circumstances. High Court has
inherent jurisdiction to hold trials or part of a trial in camera or to prohibit publication of a
part of its proceedings.
❖ Right to Free Legal Aid:
If to ensure a fair trial the accused is to be defended by a legal practitioner, it is also
important to ensure that he has all the necessary means to engage a lawyer. This right is
secured by the Article 39A of the Constitution which provides for equal justice and free legal
aid. Section 304 of Cr.P.C also provides for legal aid at the expense of State. Legal assistance
to accused that has no means to defend himself is crucial to protect his life and personal
liberty.
Legal aid has its root not only in Constitution and Criminal laws but also in human rights.
In Khatri v. the State of Bihar15, the court held that the accused is entitled to free legal
services not only at the stage of the trial but also when first produced before the Magistrate
and also when remanded.
❖ Evidence to be taken in Presence of Accused:
Indian judiciary places its reliance upon evidence and in order to ensure the fair and impartial
administration of justice, it is must that evidence are taken in presence of accused. Section 273
of Cr.P.C requires that all the evidence and the proceedings should take place in presence of
accused. This rule is backed with exceptions as well. The court may take evidence in the
absence of the accused and the accused will appear through his counsel
❖ Protection against Illegal Arrest:
According to section 57 of the Code, no person arrested will be detained for more than 24 hours
and will be produced before the Magistrate within 24 hours. It is also a fundamental right under
Article 22(2) of the Constitution. A detention of a person in excess of 24 hours without the
permission of the Magistrate will be termed as illegal detention.
❖ Right to Bail:
Bail simply refers to the release of a person from the custody of police. When a person is
arrested for a bailable offence, he is entitled to be released on bail. As per section 50(2) of the
Code, it is the duty of the police officer to inform the arrested person of his right to bail and
allow to make arrangements for sureties. By virtue of Section 436 the accused can claim bail
as a matter of right in cases which have been shown as bailable offences in the First schedule
to the Code.

14
AIR 1967 SC I
15
(1981) 2 SCC 493
 ❖ Proceedings in the presence of the accused:
For the conduct of a fair trial, it is necessary that all proceedings related to the case should take
place in the presence of the accused or his counsel. The underlying principle behind this is that
in a criminal trial the court should not proceed ex parte against the accused person. It is also
necessary for the reason that it facilitates the accused to understand properly the prosecution
case and to know the witnesses against him so that he can prepare his defence. Section 273 of
the Code provides that all evidence taken in the course of the trial shall be taken in the presence
of the accused or if the personal attendance of the accused is dispensed with then the evidence
shall be taken in the presence of his pleader.
❖ Prohibition on double jeopardy:
The concept of double jeopardy is based on the doctrine of ‘autrefois acquit’ and ‘autrefois
convict’ which mean that if a person is tried and acquitted or convicted of an offence he cannot
be tried again for the same offence or on the same facts for any other offence. Section 300 of
the Code provides that persons once convicted or acquitted not to be tried for the same offence
or on the same facts for any other offence.
❖ Right against Self – Incrimination:
Article 20(3) of the Constitution reads, “No person accused of any offence shall be compelled
to be a witness against himself.” As per Article 20(3), no person is bound to accuse himself.
The right has been provided to ensure that an accused do not make any statement due to
threatening, influence or any other compulsion. However, where an accused himself admits the
guilt without any inducement Article 20(3) cannot be invoked.

POST-TRIAL RIGHTS
❖ Lawful punishment:
Article 20(1) explains that a person can be convicted of an offence only if that act is made
punishable by a law in force. It gives constitutional recognition to the rule that no one can be
convicted except for the violation of a law in force. Section 3 of the Criminal Law
(Amendment) Act, 1952 inserted Section 165A in the Indian Penal Code, 1860, declaring
offering bribe as punishable. It was held that the accused could not be punished under Section
165A for offering bribe in 1948.
❖ Right to file Appeal:
An appeal is initiated to review a judgement given by the lower court by a higher court. An
appeal is an inherent right of every person in criminal cases. The appellate court under section
389(1) of the Code is empowered to suspend execution of any sentence. The court is also
empowered to release the convicted person on bail if he is confined if the appeal is pending.
Section 374 of the Cr.P.C. provides right to appeal against convictions to Supreme Court, High
Court and Sessions Court.
 CRITICAL ANALYSIS
❖ Indian law is in consonance with the prevailing international legal standards on the right
to be tried by a competent and independent and impartial court. All persons must be
equal before the court. Everyone shall be entitled to a fair trial by an impartial court
established by law. A salient requirement of fair trial is one without undue delay.
❖ The right to a speedy trial flowing from Article 21 of the Constitution encompasses all
the stages such as investigation, inquiry, trial, appeal, revision and re-trial. In a criminal
case, a conviction cannot be based on the testimony of witnesses whose examination in
chief stands contradicted by their cross examination.
❖ Basic concept behind a fair trial is succinctly explained in Manu Sharma v. State (NCT
of Delhi)16. A reasoned judgment diminished the chances of appeal and reduces the
courts overload.
❖ Appreciation of evidence must be rational and dispassionate. In every criminal trial the
degree of probability of guilt has to be much higher, almost amounting to certainty; and
if there is the slightest reasonable or probable chance of innocence of an accused the
benefit must be given to him.
❖ As was observed by His Lordship Justice Krishna Iyer, in State of Rajasthan v Bal
Chand17, “the basic rule perhaps is 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.’’

What are the issues and challenges in criminal justice administration in

India? Answer with reference to Criminal Procedure Code and
appropriate case laws.

CONCEPT AND INTRODUCTION

❖ The criminal justice system is a collective enterprise authorized and supported by the
legitimacy and coercive power of the state to create and administer law. It is first and
foremost a formal system oriented for the control of human affairs. Every society
attempts to work out practical solutions to legal and operational problems in the
administration of criminal justice in accordance with its political philosophy,
experience, resources and the state of society itself. Conservation is the most difficult
hurdle in the process of reform, although there is growing realization that the system
requires some changes. Our system of administration of justice is a transplanted one
which has taken roots in this country but still has colonial vestiges and by a process of
change, it has become a new system to cater to the needs of the people of this country.

❖ The Criminal law in India is contained in a number of sources. The Indian Penal Code
of 1860, together with other Local and Special Laws which outline what constitute

16
(2010) 6 SCC 1
17
AIR 1977 SC 2447
 Criminal offences under Indian law. The Indian Evidence Act sets forth the rules
under which the evidence is admissible in the Indian Courts. Moreover, the Code of
Criminal Procedure,1973, outlines the Procedural Mechanisms for prosecuting the
criminal acts, providing for the constitution of criminal courts, the procedure for
conducting police investigations and arrests, and the procedure for holding criminal
trials and inquiries. Generally speaking, the Code of Criminal Procedure. and other
Statutes are exhaustive enough to cover most situations. However, the Criminal
Justice system in India is based on a complex web of legislations and common laws.
The common law system allows judges the freedom to interpret legislation applicable
to a particular case in a way that will bring about the most just and legal outcome. The
Common Law is shaped through successive judicial interpretations of legislation and
the legal Principles of Stare decisis which is judicial adherence to prior case.

❖ In India, the administration of Criminal Justice System follows the Anglo Saxon-
adversarial pattern. It has four vital units, namely, the Police, Prosecution, Judiciary
and the correctional institutions. These components are supposed to work in a
harmonious and cohesive manner with close co-ordination and cooperation in order to
produce desired results more effectively, fairly and quickly. Moreover, the success or
failure of the administration of criminal justice depends upon the efficacy of these
allied units.

VITAL UNITS OF THE CRIMINAL ADMINISTRATION SYSTEM.

1. POLICE

Indian police forces are largely governed by The Police Act, 1861 which aims to make them
a more efficient instrument for the prevention and detection of crime.18 The Police Act gives
each State government the power to establish its own police force.19 In addition to the Police
Act, other legislation such as the Criminal Procedure Code also regulates police operations. It
is important to note that the police are not above the law. Police officers are not allowed to
behave as they like or to violate the law just because they wear a badge. A person should
fiercely defend his or her rights in relation to the police.
A number of provisions in the Criminal Procedure Code define the rules and regulations for
the police, for example, Section 41 defines the situations in which the police may arrest
without a warrant.

2. The Prosecution

The Public Prosecutor or Assistant Public Prosecutor conducts the prosecution of the accused
on behalf of the State in a criminal trial. Prosecutors play a crucial role in the administration
of justice. The prosecution of accused persons has to be conducted with the utmost fairness.
18
Section 2 Police Act, 1861.
19
Section 4 Police Act, 1861.
A Public Prosecutor should be personally indifferent to the result of the case. His duty should
consist only in placing all the available evidence irrespective of the fact whether it goes
against the accused or helps him, before the court, in order to aid the court in discovering the
real truth.20
3. The Courts

The court system in India is based on the British model. Enforcement of the criminal law is a
State function, meaning that each State has its own facilities, in the form of State Courts, for
dealing with criminal offenders. Within each State there are lower courts at a district level
called Magistrates Courts, middle courts at a session level called Courts of Sessions and High
Courts at a State level. The highest national court in India is the Supreme Court.

ISSUES AND CHALLENGES

1. Abnormal delays in Litigation.

Essentially, the failure of the criminal justice system is manifesting in abnormal delays in
litigation and huge pendency in courts. While accurate statistics are not available, it is
estimated that approximately 3 Crores cases are pending in various law courts all over the
country.21 There are harrowing tales of innocent citizens accused of petty offences
languishing in jails as undertrial prisoners for decades. Most often, the time spent in prison
during trial exceeds the maximum punishment permissible under law, even if the person is
proved guilty.
2. Careless and Faulty Investigation..

The major reason for the decreasing rate of convictions is faulty or slipshod investigation by
the police which, in turn, is largely due inadequate staff for investigational work and inability
of the concerned police officers to pursue investigation on day-to-day basis with a sense of
commitment and determination. There is no denying the fact that crime investigation is a
highly specialized job which requires professional aptitude, skill, patience and scientific
temperament. Unfortunately, most of the police officials involved in investigational work do
not have these qualities in adequate measures. They are not sufficiently exposed to rigorous
training and refresher courses to acquire necessary knowledge, skill and aptitude for crime
investigation.
3. Delayed Investigation.

Many prisoners are constrained to languish in prisons because the police do not finish
investigation and file charge-sheet in time. This is a very serious matter because such people
remain in prisons without any inkling of a police case against them. Proper and prompt
enforcement of Section 167 of the Code of Criminal Procedure can however obviate this

20
14th Report, Law Commission of India, 1958.
21
Times of India, New Delhi, Jan. 13, 2012, p.12.
difficulty. Section 167 of the Code lays down the maximum period within which the police
investigation must be completed, and a charge-sheet filed before the court. This period is 90
days for offences punishable with death, life imprisonment or imprisonment for a term of not
less than ten years and 60 days for all other offences. Where the investigation has not been
completed with the stipulated time-frame, it is mandatory upon the Magistrate to release the
accused on bail, provided he is ready to furnish bail. This provision shields the accused from
suffering incarceration on account of the inability of investigating agency to wind up its
investigation.
4. Low Rate of Convictions.

In India Criminal Courts have not been able to cope up with the number of cases that come
before them for trial every year. The total number of complaints received by the police and
cases registered during the year 2000 in India is 56,62,77322. It is a matter of common
knowledge that several persons who are victims of crimes do not complain to the police.
Quality of justice suffers not only when an innocent person is punished, or a guilty person is
exonerated but when there is enormous delay in deciding the criminal cases. It is a trite
saying that justice delayed is justice denied. %any times such inordinate delay contributes to
acquittal of guilty persons either because the evidence is lost or because of lapse of time or
the witnesses do not remember all the details, or the witnesses do not come forward to give
true evidence due to threats inducement or sympathy. Whatever may be the reason it is justice
that becomes a casualty.
5. Time Consuming and Expensive Legal Process.

There is no denying the fact that our existing legal process is too time consuming. This helps
defendants, who have money power to get the justice delayed in their favour, to emerge as
ultimate beneficiaries, while the victims and the poor and ignorant defendants become the
worst sufferers. The problem of delay in the disposal of cases pending in law courts has also
shaken in some measure the confidence of the people in the capacity of the courts to redress
their grievances and to grant adequate and timely relief.23
The common man for whom the elaborate justice process is designed is puzzled that is a
matter of such importance could be so delayed and protracted, what would be the fate of
thousands of cases pending in courts for years together, may be, in quest for justice, we are
unwittingly defeating the very purpose of administration of justice and lessening it impact. 24
6. Delayed Trial.

Many prisoners are charged with a non-bailble offence which is not very serious and is triable
by a Magistrate. They remain in prisons for long period because of the delay in trial. Section
437(6) of Code of Criminal Procedure was enacted to prevent this and makes it mandatory
for a person to be released on bail where the trial has not concluded within the 60 days from

22
Committee on Reforms of Criminal Justice System, 2003 Volume 1
23
Law Commission of India, Seventy Seventh Report, 1978, para 1.1 p.1.
24
Indian Judicial System Need and Directions for Reforms, 289-90 (2004).
the first date fixed for taking evidence. The Magistrate may however refuse such release, but
only after recording the reasons in writing. Many undertrial prisoners are detained in prisons
for long periods, which in some cases extend beyond the maximum period of imprisonment
prescribed for the offence with which they are charged.
To improve this situation Section 436-A25 was enacted which spells out the right of an
undertrial prisoner to apply for bail once she/he has served one half of the maximum term of
sentence she/he would have served had she/he been convicted. On a bail application filed
under this section, the Court shall hear the public prosecutor and may order the release of
such person on a personal bond with or without surety.
7. Lack of Coordination between Police and Prosecution.

Normally, police alone are blamed for the increasing rate of acquittals. This ultimate success
of police investigations depends on the competence of the prosecuting agency in collecting
the evidence and presenting it in court in a convincing and effective manner. This calls for a
good measure of coordination between the investigating and the prosecuting agencies on a
regular basis from the filing of charge sheets to the end of the trial in court. The actual
problem started with the coming into force of the Criminal Procedure Code, 1973 when a
feeling appears to have grown among the prosecuting staff in states that they form an
independent wing of criminal justice system and do not come under the administrative
purview of the police set-up. This is due to the lack of coordination between the subordinate
officers of these two wings at the district level and ultimately resulted in the poor rate of
conviction.
8. Unnecessary Detentions Causing Overcrowding of Jails.

As in many other countries, the principal causes of overcrowding in Indian prisons are inter
alia, unnecessary detention of undertrials and the heavy influx of short-term convicts. As a
consequence of unnecessary detention, undertrial prisoners constitute bulk of India’s prison
population. The main reason of prison overcrowding is that over 67% inmates are
undertrials.26 The police are essentially the investigating agency in the Indian Criminal
Justice System and work in cooperation with the prosecution to collect evidence against the
accused for the purpose of trial. With the time, it is being realized that the police cannot
discharge both these functions simultaneously and that there is a need to separate the two. In
the words of the Law Commission, “the faculties of the mind which must be brought into
play at the time of investigation are different from those which are to be exercised when
dealing with an urgent situation of breach of public order.”27

25
Code of Criminal Procedure (Amendment) Act, 2005 vide Act 25 of 2005
26
National Crime Record Bureau, Report, 2008.
27
Law Commission of India, 152nd Report
In Prakash Singh v. Union of India28, the following benefits rising from separation of the two
functions were highlighted:
(1) reduction of executive control over police investigation as the latter would enjoy
protection of the judiciary,
(2) better investigation owing to scrutiny of courts which will lead to successful prosecutions,
(3) reduction in the possibility of unjustified and 104 unwarranted prosecutions, (4) speedy
investigation leading to speedy disposal of cases,
(5) enhancement of expertise of investigating police and
(6) increased public cooperation and confidence.

In Sube Singh v. State of Haryana29, the Court recommended the reorientation of police
training “to bring a change in the mindset and attitude of the police personnel in regard to
investigations, so that they will recognise and respect human rights, and adopt thorough and
scientific investigation methods.”

9. Justice to Victim

No doubt Crime is an act against society convict is punished to protect interest of the State
thereby discourage violation of law and social harmony. he State and society5 it was
argued is itself the victim when a citizen commits a crime and thereby Questions its norms
and authority. Victims have a right to testify as prosecution witness. However, victims often
fall prey to intimidation and harassment by offenders which tend to dissuade them from
testifying freely and truthfully. Though it is the duty of the State to prevent such things, the
situation according to available evidence is disturbing. Prosecution of accused is considered
to be state responsibility in which interest of victim largely in stake. In the granting and
cancellation, bail victims have substantial interests though not fully recognized by law. Simil
arly, prosecution can seek withdrawal at any time during trial without consulting the victim
(Section 321 Cr.P.C.) of course the victim may proceed to prosecute the case as a private
complainant, but he seems to have no right to challenge the prosecution decision at the trial
stage itself. here is no victim protection law as such and police is not in a position to protect
every victim. Such conduct of course is prohibited under the Section 504 IPC.

10. Absence of Competent Prosecuting Associate.

The accused is normally represented by a very competent lawyer of his choice. There is a
mismatch in that, an equally competent lawyer is not there to represent the prosecution. The
burden of proof being very heavy on the prosecution, it is all the more necessary for the
prosecution to be represented by a very able and competent lawyer. 1oice of victim who is
28
(2006) 8 SCC 1.
29
(2006) 3 SCC 178
ultimate suffer had no opportunity to question accused this is how justice dispensing in India
looks totally alien to illiterate, ignorant and indigent minds, this is one of the reasons why
people do not believe in Court proceedings. Silence of victim in Court is double blow to
Justice Administration, as it makes finding of truth difficult and on the other hand breaks
confidence of victim on the system.
IMPORTANT CASE LAWS.
❖ Nahar Sing Yadav and another v. Union of India and others.30

In this case the 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 caution at every step of the administration of the justice.
❖ Joginder Kumar v State of the UP 31

Under Section 167 of the Cr.P.C. Magistrate is empowering 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 authorization of detention amounts to
curtailment of personal liberty and, therefore, due caution should be exercised while
authorizing detention of an accused in police or judicial custody on production of the
accused. Therefore, it is duty of the magistrate to examine the case diary as well as all the
material fact before granting the order.
The court held that 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 is being detained.
The police officer shall inform the arrested person when he is brought to the police
station.
❖ People’s Union for Civil Liberties v. Union of India32

The power to arrest the accused person is vested in the police under chapter V of the Code of
Criminal Procedure but the power to arrest are abused by the police defeating the object of
the administration of criminal justice system. In this case, the Supreme Court held that killing
of two persons by the Imphal Police in fake encounter was clear violation of the right to life
guaranteed in Article 21 of the Constitution and the defence of sovereign immunity does not
apply in such case. The Court awarded Rs.1, 00, 000/- as compensation for each deceased.

❖ D.K. Basu v. State of West Bengal.33

30
( 2011) 1 SCC 307.
31
AIR 1994 SC 1349
32
AIR 1997 S C 1203.
33
(1997) 1 SCC 416
In this case, The Supreme Court has dealt with the issue of custodial death, custodial violence
and protection of fundamental rights and human rights of the criminal vis-a-vis duties of the
police. The Court held that „any form of torture or cruelty, inhuman or degrading treatment
given to detenu, convicts, undertrials and other prisoners would fall within the inhibition of
Article 21 of the Constitution whether it occurs during investigation or interrogation or
otherwise. Using any form of torture for extracting any kind of information would neither be
right nor just nor fair and therefore the court declared that it would be offensive to the
fundamental right to the life and personal liberty. The Court further stated that “the precious
right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts,
undertrials, detenus and other in custody, except according to the procedure established by
law by placing such reasonable restrictions as are permitted by laws”.

CRITICAL ANALYSIS

❖ In a country with a vast population of poor people, justice has to be necessarily cheap
and expeditious. Litigation is time consuming and relatively expensive. For this,
alternatives to litigation must be produced by the justice system. Parliament has
provided the statutory basis for it by the recent amendments to the Code of Civil
Procedure, 1908 and Criminal Procedure Code, 1973. Taking advantage of these the
judiciary has prepared a national plan for mediated settlement of disputes which
included training of mediators, development of mediation manuals, setting up of
mediation centres in court complexes and spreading awareness about it among
litigants through the legal aid services. Other modes of settlement are also being
encouraged and judicial officers are instructed to promote ADR as a movement
especially at the first level of courts where the bulk of poor litigants seeks justice. On
the issue of arrears what needs greater emphasis is that we are on the right track with
a multi-dimensional, well-planned national programme, which has started giving rich
dividends. With support from the Central and State governments and co-operation
from the bar and litigant public, in the next couple of years substantial reduction in
number of cases pending in courts and in the time taken for disposal of cases are
expected to take a downward spiral even if fresh filings are going to increase
continuously.

❖ Regardless of the controversy as to whether there is a good criminal justice system or

not, we are concerned with the evaluation of the performance and impact of the
existing arrangements for the administration of criminal justice and exploring possible
avenues of improvement if the overall performance is found to be inadequate or
unsatisfactory. Our system should cater to all possible challenges especially in view
of the new pattern of crimes happening throughout the country. Terrorism,
cybercrimes, white collar crimes, should all be curbed and there should be an
organized endeavour to control anti-social behaviour to attain social harmony through
law and its enforcement.
❖ Once an impression prevails that justice is a purchasable commodity and those who
administer it can be tempted, the common man would be left with no forum to look
for redress of the grievances. There is nothing which rankles in the human so such as
a brooding sense of in justice. We must remember that in the final analysis the people
are the judges and that every trail is a trail of our judicial system also. Its strength and
weakness, its success and failure, its utility and credibility, the respect would depend
ultimately upon the way it satisfies the hopes and aspirations of the people in quest of
justice.