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Contents

ACKNOWLEDGEMENTS .......................................................... .Error! Bookmark not defined.

OBJECTIVES: ......................................................................................... .Error! Bookmark not defined.

Literature Review...5

RESEARCH METHODOLOGY:Error! Bookmark not

defined...................................................................................................................6

Research Question.6

Scope and Limitation6

INTRODUCTION: ....................................................................................... Error! Bookmark not defined.

PROCEDURE FOR ADMINISTRATION OF CRIMINAL JUSTICE: ................................... Error! Bookmark not defined.

INVESTIGATION: ......................................................................................... 9Error! Bookmark not defined.

INQUIRY : ................................................................................................ 11Error! Bookmark not defined.

Trial..12.

CONSTITUTIONAL RIGHT OF THE ACCUSED TO FAIR AND EFFECTIVE INVESTIGATION: . Error! Bookmark not defined.

CONCLUSION: .............................................................................................. Error! Bookmark not defined.

BIBLIOGRAPHY: ............................................................................................ Error! Bookmark not defined.


OBJECTIVES

To understand the trial procedure in India

To review the implication of the doctrine of the accused to fair and effective investigation
in Indian Criminal Justice systems aspects including Constitutional Rights especially
the rights of the accused before the criminal proceedings of a court, Criminal
Procedure Codes, Indian (Supreme) Court Judgments, Judicial Review and International
Human Rights Law and other international instruments of criminal aspects.
LITERATURE REVIEW

Until recently many researchers, scholars, authors have interested in this area of research
on criminal justice and published. They have carried out numerous of handful researches by focus
on different topics of research involving with criminal justice as far as criminal investigation, to
illustrate the knowledge of fair trial in a criminal justice system and the value of protection of
human rights of the accused as well as the victims of the crime. Their findings and suggestions are
reviews here.

R.V. Kelkar & K.Chandrashekharan Pillai (2008), in his written book on Criminal
procedure noted generally the techniques of criminal investigation. He worked generally of all the
duties that an official can be called upon to perform in the course of his service, those of an
Investigating Officers are certainly not the least important. That is, his services to the public are
great and his labours full of interest will be generally admitted, but rarely, even among specialists,
is full credit given to the difficulties of the position. An Investigating Officer must possess the
vigour of youth, energy ever on the alert, robust health, and extensive acquaintance with all
branches of the law. He ought to know men, proceed skilfully, and possess liveliness and vigilance.
This is a general concept of criminal investigation. He did not work on human rights aspects and
its protection.
Amir Ratna Shrestha (1992), in his handful thesis on Constitutional Rights of an
Accused: a comparative study under the Constitutions of Nepal and India, observed that the
concept of protection of human rights in the administration of criminal justice has been change,
gradually. The cardinal principle of criminal justice administration is to be presumed an accused
innocent till he is proved guilty. He is required to prove on involvement in an offence and such
proving must be conducted in fair and just manner in according to procedure established by law
of that country. The state has to collect evidence against him and has to prove that he alleged
accused as involved in an offence, the accused has the right to keep silent while interrogation and
any other stage of criminal proceedings. And he also has exclusive right to defend his case before
the court. This is a comparative work on Indian and Nepal criminal justice systems. He actually
covered the rights of the accused which guaranteed by the Constitutions. A part of his work also
included a part of criminal investigation.
Research Methodology

This research paper is descriptive & analytical in approach. It is largely based on secondary &
electronic sources. Books & other reference as guided by faculty of labour law are primarily
helpful for the completion of this project.

Research Questions

What is the process of trial in India under Code of criminal procedure, 1973?
What are the rights of the accused should be granted or safeguarded by the Constitutional
provisions in order to ensure the rights of the accused to fair and effective investigation
before the criminal justice proceedings, particularly the pre-trial stage proceedings?

SCOPE AND LIMITATION

The geographical scope of this Project work is mainly limited to India in criminal matters in
general. However, to some specific crimes, of its criminal investigation, such as terrorist crime
investigation, corruption matters, or drug smuggling crimes, and other organized crime may not
be covered by this topic. Therefore, the study will cover on only Indian Constitutional Provisions
and their own Criminal Procedure Codes. However, the research will also take some
jurisprudential concept fair and effective investigation to make additional exploring the concept of
right to fair and effective investigation in specifically criminal case proceedings area.
INTRODUCTION

The essential object of criminal law is to protect society against criminals and law-breakers. For
this purpose the law holds out threats of punishments to prospective lawbreakers as well as
attempts to make the actual offenders suffer the prescribed punishments for their crimes.
Therefore, criminal law, in its wider sense, consists of both the substantive criminal law and the
procedural (or adjective) criminal law. Substantive criminal law defines offences and prescribes
punishments for the same, while the procedural law administers the substantive law.

Therefore the two main statues which deals with administration of criminal cases in our country
are criminal procedure code i.e. Crpc and Indian penal code i.e. I.P.C. being procedural and
substantive respectively. However with the changing times the societal norms also change and
people who are part of this society have to accept this change either by way of compromise or any
other way in order to adjust and make them still the part of the very same society. In earlier days
there was no criminal law in uncivilized society. Every man was liable to be attacked in his person
or property at any time by any one. The person attacked either succumbed or over-powered his
opponent. "A tooth for a tooth, an eye for an eye, a life for a life" was the forerunner of criminal
justice. As time advanced, the injured person agreed to accept compensation, instead of killing his
adversary. Subsequently, a sliding scale came into existence for satisfying ordinary offences. Such
a system gave birth to archaic criminal law.

With the advent of western jurisprudence and passing of various charters and
commissions and the advent of British rule the Indian society succumbed or we can probably say
adjusted or adapted and aligned itself to the adversarial system of justice dispensation which
prevails even today but with a lot of changes which have been time and again being made to it to
suit to the needs of the changing times. In todays world one needs to have a receptive, broad and
open mind in order to solve various problems which are being faced by our justice system. Since
it is evident that a change is required in our criminal justice system and there is a need to adhere
to recourse to alternative methods of dispute resolution even in criminal cases instead of making a
major change we firstly have to see the common features of a trial and the procedure which is
followed by our courts or system for the administration of criminal justice and its flaws.
PROCEDURE FOR ADMINISTRATION OF CRIMINAL JUSTICE

The procedure of administration of criminal justice in our country is divided into three stages
namely investigation, inquiry and trial. The Criminal procedure code 1973 provides for the
procedure to be followed in investigation, inquiry and trial, for every offence under the Indian
Penal Code or under any other law.

Therefore for a dispute to be resolved the said case has to go through the three stages i.e. inquiry
investigation and trial and after this process is completed the judgement of the court is passed by
the judge who decides the case and its outcome. Although the said process appears to simple and
plain on paper but in practicality is cumbersome and time consuming which is defeating the main
essence of a criminal system i.e. fair and expeditious justice and hence warrants a change now.

The common features of the trials in all three of the aforementioned procedures may be
roughly broken into the following distinct stages:

Registration of FIR
FIR stands for first information report which is lodged under section 154 of the Criminal Procedure
Code. The FIR is only the basis information which is made available to the police when a
cognizable offence takes place. FIR is the first stage from which a criminal case takes the birth.
Laita Kumari1 a landmark and latest judgment, the Supreme Court directed and held that;

(i) Registration of FIR is mandatory under Section 154 of the Code, if the information
discloses commission of a cognizable offence and no preliminary inquiry is
permissible in such a situation.
(ii) If the information received does not disclose a cognizable offence but indicates the
necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain
whether cognizable offence is disclosed or not.
(iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be
registered. In cases where preliminary inquiry ends in closing the complaint, a copy
of the entry of such closure must be supplied to the first informant forthwith and not

1
Lalita Kumari v. U.P., (2012) 4 SCC 1.
later than one week. It must disclose reasons in brief for closing the complaint and
not proceeding further.
(iv) The police officer cannot avoid his duty of registering offence if cognizable offence
is disclosed. Action must be taken against erring officers who do not register the FIR
if information received by him discloses a cognizable offence.
(v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the
information received but only to ascertain whether the information reveals any
cognizable offence.

Investigation
FIR in a criminal case leads to investigation in the case. Investigation leads an investigating officer
to reach to a conclusion whether a charge sheet has to be filed or a closure report has to be filed in
the case. If the investigation result in discovery of an offence, a charge sheet is filed, otherwise a
closure report is filed before the concerned court.2
In in the case of H.N. Rishbud and Inder Singh 3 the Supreme Court of India observed that
Investigation usually starts on information relating to the commission of an offence given to an
officer in charge of a police station and recorded under Section 154 of the Code. If from
information so received or otherwise, the officer in charge of the police station has reason to
suspect the commission of an offence, he or some other subordinate officer deputed by him, has
to proceed to the spot to investigate the facts and circumstances of the case and if necessary to take
measures for the discovery and arrest of the offender. It is further held thus, investigation
primarily consists in the ascertainment of the facts and circumstances of the case. By definition, it
includes all the proceedings under the Code for the collection of evidence conducted by a police
officer.

State of Bombay V. Rusy Mistry4 First information report is not defined in the code but a report
recorded under this section is known as first information report.

2
S.N. Mishra,Code of Criminal Procedure,1973,Central Law Publication 15TH edition.
3
H.N. Rishbud and Inder Singh v. The State of Delhi [1955] 1 S.C.R. 1150.
4
AIR 1960SC 391.
State of Haryana V.Ch. Bhajan Lal5 When any information disclosing a cognizable offence is
laid before the officer-in-charge of a police station, he has no option but to register the case on
the basis thereof.

Procedure for Investigation

The Procedure for Investigation in Indian Criminal Justice system is prescribed by section 157 of
the Code, the section requires that immediate intimation of every complaint or information
preferred to an officer in charge of a police station of the commission of a cognizable offence shall
be sent to the Magistrate having jurisdiction. The object of this provision is obvious, and it involves
more than a mere technical compliance with the law. The Magistrate is primarily responsible for
the condition of the district as regards repressible crime, and he is not at liberty to divest himself
of that responsibility or to relax that supervision over crime which the law intends that he should
exercise and execute his functions. In considering with the question of whether accusation made
in the complaint makes out a case for commission of offence or not, the police while reaching to
the prima facie satisfaction of suspecting the commission of cognizable offence, cannot ignore the
general exception was provided under IPC. After registering FIR, he must send the report to the
Magistrate and it is a duty-bound of the police officer in charge. It is mandatory in nature. 6 The
report is to be sent forthwith to the competent Magistrate. The word forthwith in section 157(1)
does not mean that the prosecution is required to explain every hours delay in sending the copy
of FIR to the Magistrate. Of course the same has to be sent with reasonable despatch, which means
within a reasonable time.7 The word forthwith in such section means promptly and without any
undue delay.8 Then he must start to proceed upon the investigation into the case registered if it is
a mere cognizable offence. He must forthwith proceed to the spot and without delay take all
necessary measures for the discovery and arrest the offenders. The ordinary investigation is
undertaken on information he received, the receipt of information is not a condition precedent for
investigation. Section 157 prescribes the procedure in the matter of such investigation which can

5
1992 Cr LJ 527(SC).
6
Ahmad Nabi v. State of U.P., 1987 (1) Crime 85 (All).
7
Alla China Apparao v. State of A.P., AIR 2002 SC 3648: (200) 8 SCC 440.
8
Arjun Marik v. State of Bihar, 1994 SCC (Cri) 1551 (1561).
be initiate either on information or otherwise. It is clear from the said provision that a police officer
in charge a police station may start investigation either on information or otherwise.9

The commencement of investigation in a cognizable


offence by a police officer is subject to two conditions, firstly, the police officers should have
reason to suspect the commission of a cognizable offence as required by section 157(1) and
secondly the police officer should subjectively satisfy as to whether there is sufficient ground for
entering on an investigation even before he starts an investigation into the facts and circumstances
of the case as contemplated under clause (b) of the proviso to section 157(1). As the clause permits
the police officer to satisfy himself about the sufficiency of the ground even entering the
investigation, it postulates that the police officer has to draw satisfaction only on materials which
were placed before him at that stage, namely, the FIR together with the documents, if any,
enclosed. In other words, the police officer has to satisfy himself only on the allegations mentioned
in the FIR before he enters on an investigation as to whether those allegations to constitute a
cognizable offence warranting an investigation. 10 The law is designed to keep the Magistrate
informed of the investigation so as to be able to control the investigation and if necessary to give
appropriate direction under section 159.

Inquiry

Now the second phase is, Inquiry dealt under sections 177-189 of the code which consists of a
magistrate, either on receiving a police report or upon a complaint by any other person, being
satisfied of the facts.Every offence shall ordinarily be inquired or tied in the court within whose
jurisdiction it was committed11 when it is uncertain in which of several local areas an offence was
committed, or

(a)Where an offence is committed partly in one local area and partly in another,or

9
State of U.P. v. Bhagwant Kishore Joshi, AIR 1964 SCC 221: (1964) 3 S.C.R. 71: 1964 (2) Cri. L.J. 919.

10
Ratanlal & Dhirajlal, The Code of Criminal Procedure 551 (LexisNexis Butterworths Wadhawa, 19th edn.,
2010).
11
Sec. 177 CrPC.
(b)Where an offence is a continuing one,and continues to be committed in more local area than
one,or

(c) where it consisits of several acts done in different local areas. It maybe inquired by a court
having jurisdiction over any such local area.12

Hiralal V. Emperor13 Local area means a local area to which this code applies. it does not include
a local area in foreign countries. In spite of the provision of sec 178 a mere fact that proceedings
were taken in a wrong court, a wrong place would not vitiate the trial unless it occasion the failure
of justice.

Trial

Trial is the judicial adjudication of a persons guilt or innocence. Under the Crpc, criminal trials
have been categorized into three divisions having different procedures, called warrant, summons
and summary trials.

Section 2(x) of the Crpc defines Warrant-case i.e. Warrant-case means a case relating to an
offence punishable with death, imprisonment for life or imprisonment for a term exceeding two
years; A warrant case relates to offences punishable with death, imprisonment for life or
imprisonment for a term exceeding two years. Trial of warrant cases is dealt under sections 238-
250 of the code. the trial starts either by filing of FIR or by filing a complaint before a magistrate.
And if the magistrate finds that the case relates to an offence carrying a punishment for more than
two years, the case is sent to the sessions court for trial.14

Section 193 of the Criminal Procedure Code


clearly states that the session court can not take cognizance of any offence unless the case has been
sent to it by a magistrate. The process of sending it to sessions court is generally called committing
it to sessions court.15 The Crpc provides for two types of procedure for the trial of warrant cases
i.e. By a magistrate, triable by a magistrate, viz., those instituted upon a police report and those
instituted upon complaint. In respect of cases instituted on police report, it provides for the

12
Sec. 178 CrPC.
13
AIR 1946 (Nag) 1128.
14
Emperor v. (Md.),AIR 1934 (All) 963.
15
Ranjit Singh V. State of Punjab; 1998 CrLJ,4618(SC)
magistrate to discharge the accused upon consideration of the police report and documents sent
with it. In respect of the cases instituted otherwise than on police report, the magistrate hears the
prosecution and takes the evidence. If there is no case, the accused is discharged. If the accused is
not discharged, the magistrate holds regular trial after framing the charge, etc. In respect of
offences punishable with death, life imprisonment or imprisonment for a term exceeding seven
years, the trial is conducted in a sessions court after being committed or forwarded to the court by
a magistrate.

A summons case means a case relating to an offence not being a warrant case, implying all cases
relating to offences punishable with imprisonment not exceeding two years. In respect of summons
cases, there is no need to frame a charge. The court gives substance of the accusation, which is
called notice, to the accused when the person appears in pursuance to the summons. The court
has the power to convert a summons case into a warrant case, if the magistrate thinks that it is in
the interest of justice. The provisions regarding the procedure to be followed in summons case is
dealt under section 251-259 of the Crpc. In this case, one must understand that if a magistrate, after
looking into the case, thinks that a case is not a summon case, he may convert it into a warrant
case.16

Summary trials are dealt under section 260 265 of the Crpc the procedure is as provided; the
high court may empower magistrates of first class to try certain offences in a summary way where
as second class magistrates can summarily try an offence only if it is punishable only with a fine
or imprisonment for a term not exceeding six months. In a summary trial no sentence of
imprisonment for a term exceeding three months can be passed in any conviction. The particulars
of the summary trial are entered in the record of the court and in every case which is tried
summarily in which the accused does not plead guilty the magistrate records the substance of the
evidence and a judgment containing a brief statement of the reasons for the finding.

Supreme of India in the case of Manu Shamar17 observed that the right to a fair trial is a norm of
international human rights law and its designed to protect individuals from the unlawful and
arbitrary curtailment or deprivation of other basic rights and freedoms or liberty, the most
prominent of which are the rights to life and liberty of the person. The result of justice in conviction

16
Section 259 CrPC.
17
Manu Shamar v. State (NCT of Delhi), (2010) 6 SCC 1.
of the accused and proofing his innocent are resulted from the acts of fair and effective
investigation and following a just, reasonable and fair procedure of Law (Act). An accused is
presumed to be innocent till proved guilty, the alleged accused is entitled to fairness and true
investigation and fair trial and the prosecution is expected to play balanced role in the trial of a
crime. The investigation should be judicious, fair, reasonable, transparent and expeditious to
ensure compliance with the basic rule of law.

Arraignment18
The suspect makes his first court appearance at the arraignment. During arraignment, the judge
reads the charges filed against the defendant in the complaint and the defendant chooses to plead
"guilty," "not guilty" or "no contest" to those charges. The judge will also review the defendant's
bail and set dates for future proceedings.
Preliminary Hearing or Grand Jury Proceedings
The government generally brings criminal charges in one of two ways: by a "bill of information"
secured by a preliminary hearing or by grand jury indictment. In the federal system, cases must be
brought by indictment. States, however, are free to use either process. Both preliminary hearings
and grand juries are used to establish the existence of probable cause. If there is no finding of
probable cause, a defendant will not be forced to stand trial.
A preliminary hearing, or preliminary examination, is an adversarial proceeding in which counsel
questions witnesses and both parties makes arguments. The judge then makes the ultimate finding
of probable cause. The grand jury, on the other hand, hears only from the prosecutor. The grand
jury may call their own witnesses and request that further investigations be performed. The grand
jury then decides whether sufficient evidence has been presented to indict the defendant.19
Filing of the charge sheet
The charge sheet is the brief summary of how an offence had been committed? What was the role
of each person who was involved in the crime and the sections under which the investigating
officer had charged all the accused. The charge sheet also contains the names of the person who
were investigated but could not be charged due to lack of evidence in the eyes of the investigating
agency. Filing of the charge sheet generally means that the investigation in the case is over and
now the court has to consider the evidence collected by the investigating agency. It is to be noted,

18
https://www.justia.com/criminal/docs/stages-of-a-criminal-case.html .
19
Ibid.
that if during the course of trial, some new facts come to the light, the agency may file additional
charge sheets.
K.VEERASWAMI vs UNION OF INDIA20
The investigating officer collects material from all sides and prepares a report, which he files in
the court as charge-sheet. The charge-sheet is nothing but a final report of police officer under
Section 173(2) of the Cr.P.C. The statutory requirement of the report under Section 173(2) would
be complied with of the various details prescribed therein are included in the report. This report is
intimation to the magistrate that upon investigation into a cognizable offence the Investigation
Officer has been able to procure sufficient evidence for the court to inquire into the offence and
the necessary information is being sent to the court. In fact, the report under Section 173(2),
purports to be an opinion of the Investigating Officer that as far as he is concerned he has been
able to procure sufficient material for the trial of the accused by the Court. The report is complete
if it is accompanied with all the documents and statements of witnesses required by Section 175(5).
Nothing more need be stated in the report of the Investigating Officer. It is also not necessary that
all the details of the offence must be stated. The details of the offence are required to be proved to
bring home the guilt to the accused at a later stage i.e. in the course of the trial of the case by
adducing acceptable evidence.

Framing of charge or giving of notice.

Charge is required to be framed in three types of cases and those are ---

1. Sessions cases under section 228 of Cr.P.C,

2. warrant cases triable by Magistrate instituted on police reports under section 240 of Cr.P.C and

3. warrant cases triable by Magistrate instituted otherwise than on police report or instituted on the
basis of private complaint under section 246 (1) of Cr.P.C.

In trials of summons cases and in summary trials , charge is not framed , instead of charge plea is
held.21

20
(1991) 3 SCC 655)
21
http://lawstudentshelpline.com/index.php/criminal-procedure-code.
This is the beginning of a trial. At this stage, the judge is required to weigh the evidence for the
purpose of finding out whether or not a prima facie case against the accused has been made out.
In case the material placed before the court discloses grave suspicion against the accused that has
not been properly explained, the court frames the charge and proceeds with the trial. If, on the
contrary, upon consideration of the record of the case and documents submitted and after hearing
the accused person and the prosecution in this behalf, the judge considers that there is not sufficient
ground for proceeding, the judge discharges the accused and records reasons for doing so.

The words not sufficient ground for proceeding against the accused mean that the judge is
required to apply a judicial mind in order to determine whether a case for trial has been made out
by the prosecution. It may be better understood by the proposition that whereas a strong suspicion
may not take the place of proof at the trial stage, yet it may be sufficient for the satisfaction of the
court in order to frame a charge against the accused person.

The charge is read over and explained to the accused. If pleading guilty, the judge shall record the
plea and may, with discretion convict him however if the accused pleads not guilty and claims
trial, then trial begins. Trial starts after the charge has been framed and the stage preceding it is
called inquiry. After the inquiry, the charge is prepared and after the formulation of the charge the
trial of the accused starts. A charge is nothing but formulation of the accusation made against a
person who is to face trial for a specified offence. It sets out the offence that was allegedly
committed.

Recording of prosecution evidence

After the charge is framed, the prosecution is asked to examine its witnesses before the court. The
statement of witnesses is on oath. This is called examination-in-chief. The accused has a right to
cross-examine all the witnesses presented by the prosecution.

Section 309 of the Crpc further provides that the proceeding shall be held as expeditiously as
possible and in particular, when the examination of witnesses has once begun, the same shall be
continued day-to-day until all the witnesses in attendance have been examined.

Statement of accused
The court has powers to examine the accused at any stage of inquiry or trial for the purpose of
eliciting any explanation against incriminating circumstances appearing before it. However, it is
mandatory for the court to question the accused after examining the evidence of the prosecution if
it incriminates the accused. This examination is without oath and before the accused enters a
defence. The purpose of this examination is to give the accused a reasonable opportunity to explain
incriminating facts and circumstances in the case.

Defence evidence22

If after taking the evidence for the prosecution, examining the accused and hearing the prosecution
and defence, the judge considers that there is no evidence that the accused has committed the
offence, the judge is required to record the order of acquittal .However, when the accused is not
acquitted for absence of evidence, a defence must be entered and evidence adduced in its support.
The accused may produce witnesses who may be willing to depose in support of the defence. The
accused person is also a competent witness under the law. The accused may apply for the issue of
process for compelling attendance of any witness or the production of any document or thing. The
witnesses produced by him are cross-examined by the prosecution .

The accused person is entitled to present evidence in case he so desires after recording of his
statement. The witnesses produced by him are cross-examined by the prosecution. Most accused
persons do not lead defence evidence. One of the major reasons for this is that India follows the
common law system where the burden of proof is on the prosecution, and the degree of proof
required in a criminal trial is beyond reasonable doubt.

Final arguments

This is the final stage of the trial. The provisions of the Crpc provide that when examination of the
witnesses for the defence, if any, is complete, the prosecutor shall sum up the prosecution case and
the accused is entitled to reply. The same is provided for under section 234 of the code .

Judgment

22
SEC. 243,CrPC,1973.
After conclusion of arguments by the prosecutor and defence, the judge pronounces his judgment
in the trial. Here it is relevant to mention that the Crpc also contains detailed provisions for
compounding of offences. It lists various compoundable offences under table 1 of the Indian Penal
Code which may be compounded by the specified aggrieved party without the permission of the
court and certain offences under table 2 that can be compounded only after securing the permission
of the court compounding of offences also brings a trial to an end.

Under the Crpc an accused can also be withdrawn from prosecution at any stage of trial with the
permission of the court. If the accused is allowed to be withdrawn from prosecution prior to
framing of charge, this is a discharge, while in cases where such withdrawal is allowed after
framing of charge, it is acquittal .

The above described is the process how a trial takes place for dispensation of a criminal case
although this six stepped procedure looks plain and simple it suffers from many inherent lacunas
which become the reasons for delay and hampers an expeditious trial and not to forget the option
of appeal is again there where the state or the criminal has option to appeal to appellate court and
as well as seek a permission to file a special leave petition to the supreme court where in again all
this process is repeated except for the fact that the supreme court only deals with cases where there
is a question of law involved.

The following are some of the problems of our trial procedure which pose as hurdles to
speedy dispensation of cases;23

Investigation though is the foundation of the Criminal Justice System but is unfortunate that it is
not trusted by the laws and the courts themselves the same can be explained by a perusal of sections
161 and 162 of the Criminal Procedure Code which provides that the statements of the witnesses
examined during investigation are not admissible and that they can only be used by the defence to
contradict the maker of the statement, the confession made by accused is also not admissible in
evidence. The statements recorded at the earliest stage normally have greater probative value but
can't be used in evidence.24

23
http://www.lawteacher.net/free-law-essays/administrative-law/administration-of-criminal-justice-law-essay.
24
http://www.scribd.com/doc/146615841/Justice-Malimath-Committee-Report.
It is common knowledge that police often use third degree methods during investigation and there
are also allegations that in some cases they try to suppress truth and put forward falsehood before
court for reasons such as corruption or extraneous influences political or otherwise. Unless the
basic problem of strengthening the foundation is solved the guilty continue to escape conviction
and sometimes even innocent persons may get implicated and punished.

Secondly the police officers face excessive work load due to lack of manpower and the public at
large is non co-operative because of the public image of the police officers and there is lack of
coordination with other sub-system of the Criminal Justice System in crime prevention to add to
the agony there is a lot of misuse of bail and anticipatory bail provisions, more over due to Political
and executive interference police is directed for other tasks which are not a part of police functions.
It may be apt to point out that the rank of the IO investigating a case also has a bearing on the
quality of investigation. The minimum rank of a station house officer (SHO) in the country is sub
inspector (SI). However, some of the important police stations are headed by the officers of the
rank of Inspector. It has been observed that investigations are mostly handled by lower level
officers, namely, HC and ASI etc.

The senior officers of the police stations, particularly the SHOs generally do not conduct any
investigations themselves. This results in deterioration of quality of investigations. It is therefore
necessary to address ourselves to the problems and strengthen the investigation agency.
Furthermore the common citizen is not aware of the distinction between cognizable and non-
cognizable offences. There is a general feeling that if anyone is a victim of an offence the place he
has to go for relief is the police station. It is very unreasonable and awkward if the police were to
tell him that it is a non-cognizable offence and therefore he should approach the Magistrate as he
cannot entertain such complaint.

Thirdly, the investigation of a criminal case, however good and painstaking it may be, will be
rendered fruitless, if the prosecution machinery is indifferent or inefficient. One of the well-known
causes for the failure of a large number of prosecutions is the poor performance of the prosecution.
In practice, the accused on whom the burden is little engages a very competent lawyer, while, the
prosecution, on whom the burden is heavy to prove the case beyond reasonable doubt, is very often
represented by persons of poor competence, and the natural outcome is that the defence succeeds
in creating the reasonable doubt on the mind of the court.
Fourthly, the most notorious problem in the functioning of the courts, particularly in the trial courts
is the granting of frequent adjournments on most flimsy grounds. This malady has considerably
eroded the confidence of the people in the judiciary. Adjournments contribute to delays in the
disposal of cases. They also contribute to hardship, inconvenience and expense to the parties and
the witnesses. The witness has no stake in the case and comes to assist the court to dispense justice.
He sacrifices his time and convenience for this. If the case is adjourned he is required to go to the
court repeatedly. He is bound to feel unhappy and frustrated. This also gives an opportunity to the
opposite party to threaten or induce him not to speak the truth therefore the right to speedy trial is
thwarted by repeated adjournments.

Fifthly, one of the major causes for delay even in the commencement of trial of a criminal case is
service of summons on the accused. The Code of Criminal Procedure provides for various modes
of service. Section 62 of the Code provides that summons shall be served by a Police Officer, or
subject to such rules being framed by the State Government, by any officer of the Court or other
public servant. Unfortunately rules have not been framed by many State Governments to enable
service otherwise than through police officers. Since the Criminal Procedure Code itself provides
for other means of service namely through registered post in the case of witnesses, it should also
provide for service on accused through facilities of courier service, fax where available.

Lastly our country suffers from low judge population ratio because of which the pendency of work
increases therefore the judges take a long time in delivering judgments this again adds to
enlargement of the time frame of a case to be decided from its intuition point because of which the
litigants feel that litigation is a time consuming and lengthy procedure the two areas which need
special attention for improving the quality of justice are prescribing required qualifications for the
judges and the quality of training being imparted in the judicial academics.25

25
http://www.lawphil.net.
CONSTITUTIONAL RIGHTS OF THE ACCUSED TO FAIR AND EFFECTIVE
INVESTIGATION:

i) Right to Protection Against Arbitrary Arrest and Detentionetc.


To arrest and detain anyone without observing due process of law is a serious infringement
of individual liberty. Anyone who has been arrested will lose educational, employment and other
opportunities seriously. In fact, an act of arrest and detention which damage reputation of person
irreparably tarnishes the name of his family and deprive the source of sustenance. The stigma of
arrested person remains subsequent to the release after 24 hours of his arrest. Thus, it is said that
the arrest is a doomsday device.26 The freedom from unlawful arrest and detention is the one of
the most fundamental and important right among the civil and political right. Any arrest should be
justified to avoid unsecured life of individual in society. Generally, it can be justified on the
grounds that individuals prosecution is actually intended or at least contemplated as a possibility.
Grounds of Arrest to be Informed
The police arrest powers are indeed awesome even though they protect society, they can
destroy a life of a person. There are numerous jurists that support the idea that the law of arrest
unduly hamper police in the performance of their duties. Public makes the work of the police more
difficult by their captious attitude and the public expects and demands that police should provide
protection and should give justice to accused person promptly. Anyone arrested has right to enquire
with police, Prosecutor, or Investigating Judge that on what ground he has been arrested. If a
person or persons arrested with warrant, he is entitled to ask to show warrant to him. He has to be
satisfied himself that he is being arrested properly. Arrest will be illegal if warrant is not shown to
the person arrested with warrant. It is considered that warrant is a media of information of arrest.
Thus, the person arrested with warrant will be able to know the grounds of his arrest immediately.
The person arrested without warrant has to be served with separate note of information of grounds
of arrest. In Christie and another v. Leachinsky and another27, the House of Lords of the United
Kingdom held that:
If a policemen arrests without warrant upon reasonable suspicion of felony, or of
the other crime of a sort which does not require a warrant, he must in ordinary
circumstances inform the person arrested of the true ground of arrest. He is not

26
J. Shame Creamer, The Law of Arrest, Search and Seizure 64 (New York, Rinehart & Winston, 1980).
27
[1947] AC 573
entitled to keep the reason to himself or to give a reason which is not the true
reason, in other words, a citizen is entitled to know on what charge or on suspicion
of what crime he is seized.
Thus, the arrested person must be informed of precise act done by him for which he would
be tried. In a landmark Judgment regarding with arrest, the Supreme Court of India in the case of
Joginder Kumar28 case held that Constitutional and legal provisions requiring an arrested person
to be informed about the grounds of arrest, her/his right to be represented by a lawyer and to be
promptly produced before a court must be strictly followed.
Making Presence of Accused before the Court
Legally arrested person is liable to lawful detention in police custody in further criminal
proceeding. However, detention can only be done in accordance with law and the police custody
must follow the procedures for detaining an arrested person. As per law, the arrested person can
be detained up to 24 hours in police custody. It is an absolute and mandatory of 24 hour of police
custody under Indian Criminal Procedure Code, 1973. Police is required to produced such detainee
before a judicial officer within the said period of his arrest excluding period of journey. The
arrested person cannot be detained more than the statutory period provided. During this period,
police has to investigate into the involvement of accused in offence committed. If police found
him guilty he will be charged formally otherwise he would be released. Though, the permissible
period has been claiming insufficient there is no reason at all, to extend statutory period provided
by law of police custody. This extension will harm the individual liberty. The Police have power
to detain accused for longer period than the statutory period by the order of the court for thorough
investigation.
The right to be brought before a Magistrate (Judicial Officer) within a period not more than
24 hours of arrest have been created with a view (i) to prevent arrest and detention for the purpose
of extracting confessions, or as a means of compelling people to give information; (ii) to prevent
police stations being used as though they were prisons, a purpose for which they are unsuitable;
The act of arbitrary arrest and detention or police custodial torture etc. are also under the
provisions of international laws, especially the Universal Declaration of Human of the United
Nations. The state parties to the international declaration, conventions or whatsoever regarded as

28
Joginder Kumar v. State of U.P., 1994 SCC 260.
the international instruments, the states signatory and ratified them, are binding with obligation to
enforce them as their own municipal laws. The following table is containing of the international
instruments speak on laws of arrest, detention and torture, adopted by the United Nations.
Year
N Name of International Instruments/Laws

1 Universal Declaration of Human Rights 1948

2 Standard Minimum Rules for the Treatment of Prisoners 1955

3 International Covenant on Civil and Political Rights (ICCPR) 1966

4 Code of Conduct for Law Enforcement Officials 1979

Declaration on the Human Rights of Individual who are not Nationals


5 1985
of the Country in which they live

Body of Principles for the Protection of All Persons under Any Form of
6 1988
Detention or Imprisonment, 1988

While reviewing the above international instruments it can be concluded that the international laws
of arrest, detention and torture are exhaustively adopted by the United Nations from time to time.
To sum up, right to be informed of grounds of arrest and right to be produced before the judicial
officer of a court which is competent to jurisdiction of the case are the fundamental principle of
criminal jurisprudence.
Conclusion
After analyzing different provisions of the code, it can be submitted that though the system adopted
by the Indian justice administration is adversary in nature but the reflections of inquisitorial system
can also be not negated. The Code provides a balancing approach while dealing with trial. As far
as other basic components of fair trial are concerned, the adherence of these components can be
seen in different provisions of the Code. But the real issue comes with the implementation part of
these provisions. One of the example is provision for speedy trial which seeks quick disposal of
cases but the truth is that around 1.7 lakh under trials languishing in jail who are booked for petty
offences (though the total number of under trials are approximately 2.45 lakh) and despite having
served a major part of the prescribed maximum sentence. In these circumstances the role of counsel
in an adversary criminal system, which is triangular in nature, is very crucial because in such cases
the prosecution, which represents state, is in a stronger position because it has also the support of
investigating agencies. On the other hand, the accused person can solely rely on his counsel who,
being the last resort for him can save him from the arbitrary and oppressive action.
BIBLIOGRAPHY
STATUES:
Code of Criminal Procedure of 1973.
The Indian Constitution, 1950.

Books :
Dalbir Bharti, the Constitution and Criminal Justice Administration (APH Publishing,
2005).
Dr. Chandrasekha K.N. Pillai, R.V. Kelkars Criminal Procedure (Eastern Book Company,

5th edn., 2008).

S.N. Mishra,the code of criminal procedure .1973(central law publication,15th edn. 2008)
Ratanlal & Dhirajlal, The Code of Criminal Procedure (LexisNexis Butterworths

Wadhawa, 19th edn., 2010).

Websites:

https://www.justia.com/criminal/docs/stages-of-a-criminal-case.html
http://lawstudentshelpline.com/index.php/criminal-procedure-code.
http://www.lawteacher.net/free-law-essays/administrative-law/administration-of-
criminal-justice-law-essay.
http://www.scribd.com/do/Justice-Malimath-Committee-Report.
http://www.lawphil.net.