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CHAPTER – II

CRIME AND CRIMINAL JUSTICE SYSTEM

(A) GENERAL

It is a known fact that every country of this world has its own legal setup,
which aims for a nation whose inhabitants are free from any kind of fear of crime.
Promoting a secure life and cultured society is its foremost principle. A legal system
recognizes certain rights, prescribes duties upon people and also provides the means
of enforcing the same. The legal system which enforces the same does it through a
machinery. This machinery is termed as ―Law Enforcing Machinery‖. It includes of
Judges, Advocates, para legal personnel as well as various investigating agencies
like the Police, Central Bureau of Investigation, Criminal Investigation Department
of States and many other preventive and enforcement agencies. Together this
machinery helps in combating the crime and the criminals.

Normally, when a crime is committed, the police department of that


jurisdiction in which the crime has occurred is responsible for bringing the culprits
to the notice of the law. But there are situations in which crimes of very complex
nature and which are related with larger public interest need to be investigated. In
such cases, either the police department itself feels that such investigation is not
their cup of tea or the law suo motto hands over the case to ―Special Investigating
Agencies‖. Here comes into the picture the need of Special Investigating Agencies.
The Special Investigating Agencies have to work in a particular legal framework
which comprises of various acts such as the Indian Penal Code, 1860 (I.P.C.),
Evidence Act and Criminal Procedural Code (Criminal Procedure Code, 1973
(Cr.P.C.)) and other special Acts. The Special Investigating Agencies have to move
stepwise in a staircase known as the legal framework. If a step is not taken with
utmost care, the legal setup can be distributed and its tremors can be felt all over.
For the regulation and guidance of the law implementing machinery the father of all
laws i.e. ―Constitution of India‖ has been provided, which governs the principles and
procedures according to which the law implementing machinery works.

All the investigating agencies have been equipped with wide range of powers
for combating the crime and the criminals. But only the proper use of such power

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lead to an effective investigation. Abuse of power will lead to dissatisfaction and
lack of trust among the individuals of the society. Role of such investigating
agencies is very wide, much far from the thinking of a layman.

The role of Special Investigating Agencies cannot be diminished at any cost.


We know that the Central Bureau of Investigation (CBI), Criminal Investigation
Department (CID) and other enforcement and preventives forces have to play a very
crucial role in the enforcement of law. Their working has to be very effective
because they are the protectors of life and liberty of the subjects of the country. It is
bounden duty of the investigating agencies to work efficiently, particularly the
Special Investigating Agencies which have been provided with extra powers. It is
very obvious that in certain situations of criminality, the society looks forward to
these agencies. For the purpose of maintaining law and order in the society, certain
other agencies also come under the special investigating agencies like the Central
Vigilance Commission (CVC), Enforcement Directorate etc. In fact the Special
Investigating Agencies have helped unearthened many conspiracies which are
hatched at International levels and have helped even in apprehending national and
International Criminals.

(a) Concept of Crime and the Criminal Justice System

We know that the concept of crime has been changing with the change in the
socio-economic background of the society. The definition of crime and
administration of criminal justice are the subject matter of criminology. During the
early ages, crimes were very few, since the society was more simple. With the
passage of time society has become very complex and so is the nature of crimes. The
concept of crime is essentially concerned with the conduct of individuals in society.
Crime is an act of an individual associated with anti-social elements who for some
reasons or the other deviate from the normal behavior pattern of individuals. Since,
man‘s interests are best protected in the social life of society, therefore every
member of society owes certain duties towards the other members and also has
certain rights and privileges, which he insures for him from others. It is the
obligation on the state to maintain normalcy in society through Crime Control
Machineries.

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A Criminal Justice System is a set of legal and social institutions for
enforcing the criminal law in accordance with a defined set of procedural rules and
limitations. Criminal Justice System includes several major subsystems, composed
of one or more public institutions and their staffs: police and other law enforcement
agencies, trial and appellate courts prosecution and public defender offices,
probation and parole agencies, custodial agencies and the most important
investigating agencies. In addition, there are numerous administrative agencies
whose work includes criminal law enforcement. The outline of the Criminal Justice
System can given us such:-

(a) Criminal Justice is concerned with the violation of criminal law and strictly
interpreted, deals with the enforcement and procedures of criminal law
(Schmallegen, 1977)2
(b) Samaha (1991) states that there are two aims of the Criminal Justice System :
to control crime and to assure due process.3

A notion of a ―System‖ suggests something highly rational-carefully planned,


coordinate and regulated. Much of the functioning of criminal justice agencies is
unplanned, poorly coordinated and unregulated.4 Some components of criminal
justice system are very ancient. Each of the institutions and factors listed above has
its own set of goals and priorities which sometimes conflict with those of other
institutions and actions.

So, we can say that all components of a criminal justice system interact with
each other to a certain extent and can be said to be dependent on each other to a
certain limit.

(b) Objectives of Criminal Justice System

The richness of Indian Culture has left stamp in all institutions designed by
the mind of ancient India. Criminal Justice System refers to the agencies of
government charged with enforcing law, adjudicating crime and correcting criminal
conduct. It is essentially an instrument of social control. Behaviours which are
dangerous and destructive are strictly controlled or society outlaws them outright.

2
Schmalleger, F. (1977) Criminal Justice : A Brief Introduction, Upper Saddle River, N.J. Prentice-
Hall Publishing.
3
Samaha, J. (1991). Criminal Justice (2nd Ed) St. Paul : West
4
Wikipedia (Free Encyclopedias) By Richard S. Frase and Robert R. Weinder
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Agencies of justice prevent such behaviours by apprehending and punishing
transgressors. Only the Criminal Justice System has the power to control crime and
punish criminals. The Criminal Justice System is cumbersome, expensive and
cumulatively disastrous. The poor can never reach the temple of justice because of
heavy costs involved in gaining access. The hierarchy of courts with appeals after
appeals ends legal justice beyond the reach of the poor. By making the legal process
costlier, there is more denial of justice to the people. In fact the legal system has lost
its credibility for the weaker section of the community. So, we can say that the main
objectives of the Criminal Justice System are as follows:-

 To prevent the occurrence of crime.


 To punish the transgressors and the criminals.
 To rehabilitate the transgressors and the criminals.
 To compensate the victims as far as possible.
 To deter the offenders from committing any crime in future.

Another very important content of Criminal Justice System is the criminal


investigation. Criminal Investigation System needs higher standards of
professionalism and it should be provided adequate logistic and technological
support. Serious offences should be classified for purpose of specialized
investigation by specially selected trained and experienced investigators. They
should be entrusted exclusively with the investigation of serious offences. The
greatest asset of the police in investigation of crimes and maintenance of law and
order is the confidence of the people. Today, such public confidence is at the lowest
ebb. If police are seen as violators of law themselves, public will automatically
develop an attitude of revulsion, thus the police loosing confidence of people in
them.

In order that citizen‘s confidence in the police administration is enhanced, the


police administration in the districts should periodically review the statistics of all
the arrests made by the police and see as to, in how many of the cases in which
arrests were made, culminated in the filing of the charge sheets in the court and how
many of the arrests turned out to be unnecessary.

(c) Constituents of Criminal Justice System

By now we know, what the objectives of Criminal Justice System are:


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Basic Objectives of Criminal Justice System are

 To prevent growth of deviant behavior in the society.


 To detect deviant behavior.
 To evaluate the degree of deviance
 To adjudicate the damages and consequences of the deviant behavior
to the society.
 To prescribe the quantum of punishment needed to correct the
deviance.
 To administer the corrective steps.

Thus we can say that the basic philosophy in Criminal Justice System is to
reform the errant member and to reintroduce him as a useful member into the
society.

CRIMINAL JUSTICE SYSTEM CONSISTS OF FOUR COMPONENTS

They deal with different aspects of Crime Control in Society. 5 They are as
follows:-

(i) Law givers


(ii) The Law Enforcers
(iii) Judiciary-Adjudicators of guilt
(iv) Correctional Administration

i) The Law Givers

They delineate the parameters of behavior in society and define a crime


according to the perceptions and needs of society, prescribe the procedure for
verification of deviance, investigation, procedures for determining the guilt, nature
and quantum of punishment.

ii) The Law Enforcers

The first contact an offender has with the Criminal Justice System is usually
with the police i.e. law enforcers who investigate a suspected wrong doing and make

5
D.Banerica, ‗Criminal Justice India‘.
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an arrest.6 All societies, to enforce their laws have a police service which is the
primary law enforcement agency. They are charged with:-

 Maintenance of peace in society.


 To prevent and detect the occurrence of crime.
 To collect and present material evidence in proof of violation before judicial
adjudicators.
 To assist in the administration of justice.

iii) Judiciary-Adjudicators of Guilt

It acts as the protector of the constitution and ensures that all organs of the
state follow the same. It serves as the venue where disputes are settled and justice is
administered. It aims to ascertain and determine whether a breach of law has in fact
taken place or not. This has to be done on the basis of evidence adduced and
determine the guilt, extent of violation and prescribe such quantum of punishment
that would serve the purpose of reforming the citizen.

iv) Correctional Administration

This wing carries out the punishment awarded by the judiciary. Offenders are
turned over to the correctional authorities from the court system after the accused
has been found guilty. Like all other aspects of Criminal Justice, the administration
of punishment has taken many different forms throughout history. Governing
philosophy of punishment is reformation and not retribution. Punishment may serve
a variety of purposes. First and foremost, the incarceration of criminals removes
them from the general population and inhabits their ability to perpetrate further
crimes. In fact, the new goal of prison punishment is to offer criminals a chance to
be rehabilitated.

Criminal Justice System has adopted the concept of ―Due Process‖, in order
to prevent arbitrariness. Under this process, everyone is presumed to be innocent
unless the guilt against him is proved beyond reasonable doubt. All are equal before
the eyes of law and fair and reasonable opportunity should be given to the accused to
prove his innocence.

(d) Safeguards in Criminal Justice System

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Harper Douglas, ‗Police‘.
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Concerned with the dignity of the individual, the Criminal Justice System
provides many safeguards to ensure that the citizens are protected against
harassment and their rights are not violated. These are:-

 All laws are to be in consonance with the Basic Law-The Constitution.


 Enforcement should be in accordance with the procedures prescribed by law.
 Adjudication of guilt should be done by the judiciary alone.
 All wings of Criminal Justice System should strictly follow the due process
and principles of natural justice.

Hence, it is understood that unless there is perfect co-ordination among the four
wings of Criminal Justice System, the criminals will go scot free and society will
suffer.

(e) Shortcomings of Criminal Justice System in India

The Indian Criminal Justice System suffers from discrimination of certain


sections of society, old fashioned and inefficient institutions, lack of human and
technical resources, lack of investigation expertise, lack of punitive action against
abusers of human rights and a level of corruption.

 Lack of Resources : Indian criminal justice system suffers from serious


under funding and understaffing and is also very slow. The population judge,
ratio is very low. There is a need for training of all judicial and investigating
personnel.
 Torture : Torture is endemic in India. Police forces are poorly trained on
investigation methods and also on the absolute prohibition of torture of cruel
inhuman treatment. Most cases of torture by state officials occur in police
custody. Torture is used systematically in Criminal Justice System as a
method of investigation. Thus the distrust of the population of criminal
justice system has shown a rapid growth. In fact torture has become
acceptable under extreme circumstances and for ―hardened criminals‖. The
Supreme Court and High Courts of India as well as the National Human
Right Commission have handed down many recommendations to prevent
torture but it has not lead to eradication of torture.
 Discrimination : On the basis of gender, religion caste, social economic
background is widespread throughout India and lays the foundations for
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endemic torture. Although discrimination is out leveled in the Indian
Constitution, the reality in India does not reflect these legal commitments,
partly because they have not been accompanied by the adequate increase in
resources.
 Corruption : There exists many accounts of corruption throughout the
criminal justice system and this contributes to spreading of torture practices,
to more discrimination and to miscarriage of justice.

(B) HISTORICAL PERSPECTIVE OF CRIMINAL JUSTICE SYSTEM

While discussing evolution of Criminal Justice System, history of India is


covered from Vedic Period onwards, dividing it into three periods : -

(a) Ancient India (1000 BC-AD 1000)7


(b) Medieval India (AD 10000-1757)8
(c) Modern India (1757 AD-147)9

(a) Ancient India (1000 BC-AD 1000)

(i) Origin

The Criminal Justice System originated a way back during the ancient period
of Hindus during 1000 BC to AD 1000. The origin of Criminal Justice System in
India has an antiquarian past. The concept of crime and Criminal Justice System of
today owe its origin to the epics and other authoritative sources such as
Manusmariti, Naya Mimamsha and Kautiliya‘s, Aurthosastra. These sources clearly
show that a well defined criminal policy existed in early days of Hindu Society. An
anecdote in the Mahabharta throws light on the concept of criminal law in pre-
historic Hindu society. The anecdote tells of two Rishis-Shankh and Likhit. One of
them on his way to the other‘s Ashram saw some tempting fruits in the latter‘s
orchard. He took some without the owner‘s permission. On meeting the owner, he
confessed to what he did and asked for punishment. There upon he was directed to
appear before the King. The Kind offered to pardon him, for the reason of his being
honest, but the culprit insisted for punishment. Finally his right hand was severed as

7
The Gazetter of India Vol. II
8
The Gazetter of India Vol. II
9
The Gazetter of India Vol. II
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penalty. This anecdote illustrates that an offence could neither be compounded nor
pardoned.

The Hindu mythology enumerated the concept of Dharamraj who is the diety
appointed to administer justice. The Smritis record the precepts for administration of
justice. The administration of Criminal Justice according to the Hindu system was
evidently actuated by a high sense of duty as elucidated and elaborated in
Dharamsutras, Dharamsastras, Arthosastra of Kautilya. The idea of Dharma was
indeed a marked feature of the Indian mind, which thought to attach a spiritual
meaning and a religious sanction to all. Though the king was the Supreme Head of
the state, but he was subject to the ―rule of law‖ as formulated by social
philosophers and sages at that time. The king was not entitled to make any law
himself, he was simply to execute the law. The rules given by the Hindu law givers
were not unreasonable and detrimental to the interest to the community at large.

Since human society is possible only when individuals comply with its rules.
By studying Hindu Criminal Law one gets an insight into the political, social,
economic and religious conditions of the country in ancient times. The Criminal
Laws laid down by Gautama, Vasistha, Apastamba and Baudhayana represent a
stage which was even earlier than those of Manu*. The Criminal Laws laid down by
them are as yet rudimentary. Hence, it becomes difficult to understand the laws. It
was during the Manu‘s time, that criminal law reached a stage of development.
Among the oldest of the known legal codes with schedules of penalties for specific
crimes, are those of ancient Sumarians and Babylonians. Out of these, the code of
Hamburabi, the 6th Kig of Babylon, has been most completely preserved and is dated
around 2000 B.C. While the Sumarian codes are thought to be somewhat older and
the Mosaic Code is about 800 years later or around 1400-1200 B.C. Although it
seems that the ancient criminal law is a haphazard code, but if we look a little closer,
we come to know that it is in fact based on scientific principles.

India‘s culture is one of the oldest of the world. ―Danda‖ was considered to
be a very crucial constituent of legal and social system. Anybody who violated law
of the society was served with a danda or the so called ―punishment‖. The laws of
the society were framed by the ruling classes and on many points, the principle of
Varna or class legislation was followed. The Simritis prescribe various rules relating

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to punishments to be awarded for different crimes. Simritis lay down punishments
for offenders according to his caste. Narada‘s10 definition of Vakparusya also points
to such a conclusion. The nature of punishment as well as its degree prescribed in
the Simritis appears to have the objective of preventing acrimony based on caste and
other prejudices and to maintain the social position of castes as laid down in Vedas
and Simritis. The fact that Manu makes abusing a sudra punishable with a fine of 12
Panas whereas Gautama prescribes nothing11 shows that during the time of Manu,
Sudra‘s position improved somewhat in this respect.

Simriti laws seem to have appreciated clearly the difference in nature and
gravity of sexual crimes involving woman belonging to another man (married
woman adultery) and unwilling woman and a willing woman. Simritis clearly
distinguish between the offences involving the woman of 3 categories stated above.
The Simritis Law treats crimes not only crimes as such but also as wrongs or tort.
Many rules in the Simritis uphold the principle, wrath for wrath in dealing with the
perpetrators of crime.

As I mentioned before, the jurisprudence of ancient India, was shaped by the


concept of ―Dharma‖ or rules of right conduct as given in Puranas and Simritis. The
distinction between a civil wrong and a criminal offence was clear. While the civil
wrongs related mainly to dispute arising over wealth, the concept of Pataka or sin
was the standard against which crime was to be defined.12

The Mauryas Dynasty during the 4th Century BC had a rigorous penal system
which prescribed mutilation as well as death penalty for even trivial offences such as
theft and robbery. The Harmasahtra Code was drawn up by Manu in 2nd or 3rd
Century A.D. The Code recognized assault and other bodily injuries and property
offences such as theft and robbery.

Judicial Hierarchy was formed during the rule of Gupta Dynasty between 4th
to 6th Century A.D. The judiciary was comprised of the guild, the folk assembly or
the council and the King himself. (Griffith, Percival, To Guard My People : The
HInstory of the Indian Police. Bombay : Allied Publishers, 1971. Pillai; Atchutan,
Criminal Law. Bombay : N.M. Tripathi, 1983. Legal and Constitutional History of
10
(Narda Smriti) – XV.1
11
Gautam DH.5, XII, 13-14.
12
Basham, A.L., The Wonder that was India. London : Sidgwick & Jackson 1967.
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India, Vol. I & II. Bombay. N.M. Tripathy Ltd., 1990).13 The Guptas adopted the
older models in the branch of province with changed official nomenclature and some
striking innovations. After the Guptas, King Harshvardhana in northern India,
administered efficiently and soundly: Although - HieunHiuen Tsang, the
contemporary Chinese Buddhist Pilgrim, Praises, Harshvardhana for his sense of
justice and efficiency in dispensing his duties, yet the penal law was harsh in
contrast to the mildness adopted by Guptas.

(1) Evolution of Police, Investigation

Institution of police may be traced to pre-Mauryan Period. Its full


development is recorded in Kautilya‘s Arthshastra. It is mentioned there that the
police was divided into 2 wings, namely the regular police and the secret police. The
regular police consisted of 3 tiers of officials:-

1. The Pradesta (rural)


2. The Nargarka (urban) at the top
3. Sthanikas in the middle (rural and urban)
4. Gopas (rural and urban) at the bottom.

Kautilya describes the duties of Pradesta and tells how an inquest was held in
case of sudden death. Post mortem of the body was held together with police
investigation.

In Kautilya‘s work secret police is divided in two categories14 namely:-

(a) The peripatetic


(b) The Stationary

The Manu Samriti prescribes instructions for the King to detect offences with the
help of soldiers and spies. The Katyayana Simriti mentions of informant and
investigating officer. This suggests that an agency like modern police existed during
that period to assist the king in administration of justice.15

Institution of state jails also begins with the pre Mauryan period. The
Arthashastra gives a detailed account of jail administration.16 It was provided that a

13
Pillai 1983; Griffith 1971; Thapar (1990).
14
51 Jois, op.cit., PP 320-21
15
Main IX264-67, Katyana 33-34, PP 318-23.
16
Kulshreshta PP 149-150 Rangarajan, Op.Cit PP 57-58.
22
jail should be constructed in the continued : Capital and should have separate
accommodation for men and women. The Dharamamhantras were charged with the
duty of protecting prisoners from molestation and releasing the deserving ones. It
was also prescribed that prisoners should be employed in useful work. Violation of
criminal laws by any member of the public was considered as an offence against the
State. Any person could bring this into the notice of king. The king could take
orgnizance on his own, with or without any complaint of criminal offences.17 It was
the duty of the king to apprehend and punish the offender. Anybody could complain
about the offences, not necessarily the injured party. The person who on his own
accord detected commission of offences and reported to the king was known as
stobhaka i.e. informant and he was entitled to get remuneration from King.18

While a person who was appointed by the King to detect commission of offences
was called Suchaka i.e. Investigation Officer.19

(b) Medieval India A.D. (1206-1757)

(i) Development

Medieval India (A.D. 1206-1757) The Hindu rule came to a downfall


towards the end of 11th Century. Hindu rulers were attacked and defeated by foreign
invaders of Turkish race.20 The never ending dynastic wars and revolutions did not
bring about any development of political institutions. The Indian Administration
gradually became weak due to the power and ambitions of feudal families, which
became a threat to the stability of Central Govt.

During A.D. 1000 to 1026 Mahmud Ghazani invaded India.21 After that
Mohammad Ghori, attacked India and defeated Prithvi Raj Rajut King in the year
1192 and occupied Delhi. Ghori left the Indian compaign in the hands of his slave
Qutub-ud-din-Aibak and died in 1206. Qutubud-din-Aibak established slave dynasty
and became the 1st Muslim King to rule from Delhi.22 Subsequently Khiljis (AD
1290-1320) the Tughlaqs (AD 1320-1414).

17
55 Jois, Op.Cit p. 318.
18
56 Jois, op.cit. P. 320 (quoting Katyana 33).
19
57 Jois, (quoting Katyana 34)
20
84 Kulshreshtha, op.cit; p. 14.
21
88 The Gazetter, op.cit., Vol. II p. 325.
22
89 Jois, op.cit., Vol. II, pp 3-21.
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The Syeds (AD 1414-50)

The Lodhi AD 1451-1526)

ruled India as Sultans of the Delhi Sultanate. Babur defeated Ibrahim Lodhi in the
famous, first battle of Panipat in AD 1526 and established the Mughal Empire.
Mughal Emperors ruled India effectively upto Ad 1707. In between the period from
AD 1540-1555 India was ruled by Sher Shah Suri. It was after the death of
Aurangzeb in 1707, that the Mughal Empire started declining. Bhadurshah-II was
the last muslim ruler. The Muslim rule came to an end in 1858 when the British took
over the control of Indian affairs from the East India Company.

The Muslim rulers emphasized the importance of administration of criminal


justice and introduced many reforms to improve the judicial machinery.

The Sultans and Mughal Emperors followed Islamic law or Shara. Muslims
followed the principle of equality for men and did not believe in the ―Caste System‖.
However, the concept of equality was applicable only to Muslims. Non Muslims did
not enjoy all the rights and privileges which Muslims did. They were not treated as
equal to Muslims in law and were called ―Zimmis‖. Their evidence was inadmissible
in the courts against the Muslims. Also they had to pay an additional tax called
―Jizya‖. Also they paid double, what a muslim paid as normal tax.23

Criminal law was treated as a branch of private law rather than a public law.
The State could not suo-motto take cognizance of an offence.24 Private persons had
to move the state machinery against offences.

Quran, Sunnah or hadis are the main sources of Muslim Law i.e., Shara.
Sunnah or hadis which means the practices and traditions of the prophet who is
considered to the best interpreter of Quran. Matters on which Quaran is silent,
Sunnah or Hadis is regarded as a paramount authority.

Ijma which means consensus of opinion of the learned in Quran and Qujas
which means analogical reasoning having due regard to the teachings of Mohammad
were the other two sources which developed inevitably in order to meet the needs of

23
99 Kulshreshtha, op.cit. p.28.
24
100 Jois, op.ci., pp. 12-13.
24
Muslim Society. Four different schools came to be recognized by different sections
of the Muslim Society.25 They are the:-

(a) Hanafi School


(b) Maliki School
(c) Shafi School
(d) Hanbali School

One of the primary functions of the king was to administer justice. The ruler
constituted the highest court of justice in Islamic jurisprudence,26 the same way as it
was under Hindu jurisprudence. King had the supreme authority to administer
justice in his kingdom. Different courts were constituted at central capital and at the
headquarters of a province, district and Paraganah. Diwan-e-Mulzim was the highest
court of criminal appeal during the Sultanate period. A separate court Diwan-e-
siyasat was established to deal with the cases of criminal prosecutions of rebels and
those charged with high treason. Both the judiciary and the police were placed under
the Chief Sadar and Chief Quazi, both offices held by the same person usually. Later
a hierarchy of Qazis was established to dispose of civil and criminal cases.27 Adalat-
Qazi-e-Subah was established at provincial headquarters to try civil and criminal
cases of any type and to hear appeals from district courts. There were courts at
district and paraganah headquarters. Appeals were filed before the district court
from the judgments of parganah Qazis, Kotwals and village panchayat.28 While petty
criminal cases were filed before the Kotwal who was the principle executive officer
in towns.

Sher Shah Suri introduced many reforms in the court system. During the
Mughal rule a separate department of justice Mahukma-e-adalat was created to
regulate justice properly. The Emperor‘s Court had jurisdiction to hear original and
criminal cases. In criminal cases the Mohtasib-e-Mumlik or the Chief Mohtasib, like
the Attorney General of India today, assisted the Emperor. The public was allowed
to make representations and appeal to the Emperor‘s court.

25
101 Jois, pp. 9-10.
26
103 Choudhari
27
104 The Gazetter, pp. 457-58.
28
105 Chaudhari, op.cit. pp. 69-70
25
The second important court of the empire was the court of Chief Justice-
Quazi-ul-Quazat. It had original civil and criminal jurisdiction and also heard
appeals and supervised the working of provincial courts.

(ii) Police and Jail

The Kotwals were entrusted to police the cities and towns while the
countryside was entrusted to fauzdars. Both the judiciary and the police were placed
under Chief Sadar and Chief Qazi, both offices being held usually by the same
person.29 Mughals had established Kotwali system in the cities and Chowkidari
system in the villages. Imprisonment as punishment was not expressly provided for
under the Islamic criminal law and thus there was generally no need of Prisons as
penal instruments. Both the prisoners awaiting trial were detained in prisons in the
Muslim period.

Contrary to the practice under Hindu law, all crimes were not considered
injuries to the state under Islamic Penal Law. Offences were classified under 3
heads:-

(1) Crimes against God.


(2) Crimes against State
(3) Crimes against private individuals.

Crimes against God and State were treated as offences against Public morals
while other crimes were treated as offences against individuals. It was for the private
persons to move the State machinery against such offences and the State would not
suo-motto take cognizance of the same. Murder which is considered a heinous crime
under Modern Law, was considered an offence against individual but drinking wine
was considered a serious offence against society. In criminal cases, a complaint was
presented before the court either personally or through a representative. A public
prosecutor known as Mohtasib was attached to every criminal.

Evidene was classified by the Hanafi law into three categories:-

(a) Tawatur i.e. full corroboration.


(b) Ehad i.e. testimony of a single individual
(c) Iqrar i.e. admission including confession.

29
115 The Gazetter, op.cit., pp. 457-58
26
The law of evidence prescribed for proving the offence was highly technical.

The legal profession flourished during the Muslim period. Litigants were
represented before the courts by professional legal experts known as Vakils. A Vakil
was expected to maintain high standard of legal learning and behavior.30 Chief
Justice and other judges of higher ranks were appointed by the Emperor. Selection
of Qazi as a rule was made from amongst the lawyes practicing in the courts.
Corrupt judicial officers were punished and dismissed. Efforts were made to keep
judiciary at a high standard. Thus the criminal justice system marked a significant
change from that of the Hindu period to that of the Muslim period.

(c) Modern India (A.D. 1757-1947)

The British ruled in India till 1947. In order to control the vast area and
population of India, the British revamped the existing Criminal Justice
System of India. Existing laws were modified, new laws were passed and introduced
new principles. It was during the British period, that the criminal justice system was
extended as it exists today.

Muslim criminal law had replaced the Hindu law as the law of the state
during the Muslim rule in India. Muslim criminal law was allowed to continue by
the British not only for the Muslims but also for the non-muslims.

Illbert who was a legal adviser to the Council of India describes the
circumstances, which made the application of Muslim Criminal Law inevitable and
the compulsions which rendered the change of the criminal law a must in the
following words:-

“The object of the East India Company was to make as little alteration as
possible in the existing state of things. Thus the country courts were administered by
the Mohammadan law. But soon it appeared that there were portions of the
Mohmmadan law, which no civilized Governmentt, could administer.”

Considering the Muslim Criminal Law to be irrational and draconian, the


company brought about several reforms through a series of regulations which
modified or expanded the definition of some offences, introduced new offences and

30
127 Kulshrestha.
27
altered penalties to make them more logical and reasonable31 An Indian Penal Code
(IPC) defining crime and prescribing appropriate punishment was adopted in 1860,
following the painstaking work of the 1st law commission particularly its Chairman
Lord Macaulay. As a sequel to Indian Penal Code (IPC), Criminal Procedural Code
(Cr. P.C.) was enacted in 1861 which gives the rules to be followed in all stages of
investigation, trial and sentencing.32 This code was repeated and a new code came
into effect in 1974. These two codes along with parts of Indian Evidence Act of
1857, form the essence of Indian Criminal Law. Thus it was in 1860 that the
codification of laws changed the discriminatory provisions of Muslim Criminal
Law. Lord Cornwallis introduced many reforms to revamp the Muslim Criminal
Justice System. Lord Hastings took deep interest in reorganizing the police force to
deal with criminals and maintain law and order. Lord Bentick abolished the practice
of Sati and created the post of District and Sessions Judge. In 1843 Sir Charles
Napier introduced a police system on the lines of Royal Irrish Constabulary. He
created the post of Inspector General of Police to supervise the police in the whole
province. Subsequently the Police Act of 1861 was enacted on the recommendations
of a Commission which studied the police needs of the Governmentt. They codified
the existing laws, established High Court‘s and Prison Laws. Hence it was the
British period which saw major development in the Criminal Justice System and
creating the Criminal Justice System as it exists today.

(C) CONTEMPORARY CHALLENGES AND PROBLEMS FACED BY


THE CRIMINAL JUSTICE SYSTEM

Indian Criminal Justice System is in shambles as we all know this. It is on


the verge of collapse and will collapse for sure, some day or the other, if we do not
take it seriously. The unsatisfactory state of Criminal Justice in India has nothing to
do with the adversarial system. Infact the problem lies somewhere else. The
Criminal Justice System is plagued with many problems and is in need of serious

31
Jois, Vol. II, 1990.
32
Rao, 1991.
28
reform. Fair and effective administration of justice is the corner stone of a free
society and this builds up the essential component of public confidence in the
institutions of government. Revamping the criminal justice system is a holistic
exercise and requires wide ranging measures. These measures include, formulating
changes in laws, streamlining procedures and developing new techniques. By now,
you are familiar with idea that our criminal justice system was devised more than a
century ago to protect the rights of the innocents and to punish the guilty. The
present criminal justice system is suffering from many malafides. Let us go through
the problems and challenges which are being faced by our criminal justice system.

In order to determine the quality of Criminal Justice System of a country one


of the best way is to know the conviction rate in criminal offences of that country.
The latest official report33, reveals that there has been a steody declming trend in the
constructional rate. In 1961 it was 64.8 per cent, it declined to 62% in 1971, 52.5%
in 1981, 47.8% in 1991 and 40.8% in 2008. Thus the report clearly shows that the
present system is suffering from certain malafides, resulting in a declining trend in
performance chart.

One of the problems which serve as a severe obstacle for the development of
India‘s Criminal Justice System is the problem of discrimination. It is the very seed
for the systematization of torture and acts as an impediment to the functioning of the
Criminal Justice System. Discrimination is based on many basis. Some of them are
gender, religion, caste, ethnicity, social economic and poltical background. All these
lay down the foundation for endemic torture. Torture involves and encourages the
dehrumanization and this process of dehurmanization is made more easier, if the
victim is from an oppressed class. Discrimination does not let the general public,
reach and have the fruits of the facilities of Criminal Justice System provided by the
Government. It is very common to see and hear about the oppressed classes from
being reached to the epitome of justice i.e. our courts. Some or the other factor of
discrimination comes in the way of such oppressed classes to have the labour of
Criminal Justice System.

Another malafide of our existing criminal justice system is that our Criminal
Justice System is ―Accused Oriented System‖. It means that the victim has to prove

33
Crime in India Report 2008. (NC RB New-Delhi, National Crime Record Bureau).
29
that his rights have been invaded. The accused is supposed to be an innocent, until
and unless the victim proves that the accused has infringed his rights. Infact the
victim is treatedly very badly in our system. He runs from pillar to post for years to
prove his case. He has no role to play in the investigation. Hence to some extent we
can say that this approach is a little hindrance for the criminal justice system to run
efficiently.

Faulty and slipshod investigations is another challenge for Criminal Justice


System. The investigations conducted are often time consuming, frustrating and very
often counter productive. The investigators often try to construct an incident which
deliberately aims to misguide the counsel. It is a very common and normal practice
in the Indian Judicial System, which often leads to wrong judgements, thus
frustrating the victims. The investigative machinery regarding crimes is terribly
under developed, both in terms of attitude as well as facilities.

Time consuming legal process: is acting like termites who is eating up the
Criminal Justice System, slowly and slowly. Over three million cases are pending in
India‘s High Courts.34 About 26.3 million cases are still pending in subordinate
courts all across the India.35 Almost a quarter million under trials are languishing in
jails across the country and out these some 2069 have been in jail for more than 5
years,36 even as their guilt or innocence is yet to be ascertained. Many non violent
offenders are sent to jail while the most violent are set free. The National Human
Right Commission reports claim that jails in various parts of the country are plagued
with the problem of overcrowding with a total prison population of 3,24,852 against
the total authorized capacity of 2,34,462.37 Many people with a mental illness, or
drug or alcohol addiction or those who are non-violent offenders are in our prison
system, when they belong in mental hospital or rehabilitation centres.

Lack of resources has also been a very serious problem of Indian Criminal
Justice System. Our Criminal Justice System suffers from serious under funding and
even under staffing, for example the population judge ratio is extremely low. There

34
Revealed by Offical figures emerging from the Home Ministry Department of Justice under a Right
to Information Act application placed by a citizen. Text of Speech – Union Law Minister on the
Programme to reduce pendency in Courts July, 2011.
HTTP://pib.nic.in/neusite/erelease.aspx?relid=72970. Last visited September 29th, 2011.
35
Ibid.
36
Naional Crime Records Bureau, Crime in India, 2008, New Delhi.
37
Naional Crime Records Bureau, Crime in India, 2008, New Delhi
30
is an urgent need for training of all judicial personnel and court administrators.
Corruption exists in the roots of our Criminal Justice System. This contributes to
spreading of torture practices to more discrimination and to miscarriage of justice.
Thus it can be summed up by saying that ―Corruption is one root cause in our
Criminal Justice System which is making many other serious threats to flower‖.

Torture is one of those serious threats of corruption. It is endemic in India


and the authorities acknowledge it too. Poor training imparted to police officials for
investigation methods also lead to this disease. Torture is used systematically in our
Criminal Justice System as an investigative method. Infact a vicious circle has been
created of deficient interrogation, falsified investigation results and ultimately
distrust of Criminal Justice System. Indians have made a perception in their minds
that torture has to be accepted under extreme circumstances for hardened criminals
and terrorists. Due to the overload within the Criminal Justice System, public
tolerance towards violence has increased. The word ―investigation‖ in Indian
Criminal Justice System merely means ―beatings and torture‖ in the police custody.
It has nothing to do with humanity. Although National Human Rights Commission
and Supreme Court as well as High Courts of India have given many
recommendations to prevent torture, but still it has not lead to any productive answer
against torture. Hence our Criminal Justice System needs a makeover very urgently,
otherwise the Criminal Justice System of India might collapse down like a ―house of
mud‖. The number of judges in India per million population is about 12-13 judges
while for U.S.A. it is 107, U.K. is 51, for Canada 75 and Australia was 41 about 12
years ago.38 This shows how grossly inadequate is the judge strength per million of
population in India.

The foundation of the Criminal Justice System is the investigation by the


police. The success/failure of the case depends entirely on the work of the
Investigating Officer. But unfortunately Criminal Justice System does not trust the
police. Section 161 of Criminal Procedure Code (Cr.P.C.) says that it is only the
accused that can make use of his statement U/s 161 Criminal Procedure Code
(Cr.P.C.) So far as the prosecution is concerned the statement can be used only to
contradict the maker. Any confession U/s 25 Indian Evidence Act is not admissible.

38
Committee on Reforms of Criminal Justice System, Government of India, Minisry of Home
Affairs; Report (Vol. I).
31
The Investigating Officers (I.Os). are not given proper training in interrogation
techniques and sophisticated investigation skills unlike other countries. This is a
major cause for the failure of Criminal Justice System. Also there is lack of co-
ordination between the investigation and the prosecution. This makes things worse.

(D) CONCLUSION

The aim of criminal law is to protect the rights of the individuals and to
safeguard the weak against the strong, law abiding against lawless and peaceful
against violent. The state has prescribed certain rules of conduct, sanctions for their
violations and machinery to enforce sanctions and procedure to protect that
machinery. ―If men were angels no government would be necessary. James
Madison‖.

Hence, it is the primary function of the government to protect the basic rights
to life and property. There can be no liberty without protection of the basic rights of
the citizens by the government.

―Whatever views one holds about the penal law, no one will question its
importance to society. This is the law on which men place their ultimate reliance for
protection against all the deepest injuries that human conduct can inflict on
individuals and institutions. By the same token, penal law governs the strongest
force that we permit official agencies to bring to bear on individuals. Its promise as
an instrument of safety is matched only by its power to destroy. Nowhere in the
entire legal field is more at stake for the community or for the individual.‖ Herbert
Wechsler : Since there was no criminal law in uncivilized society, hence the law of
revenge was the only source of justice. With the advancement of time, more
peaceful methods came to be accepted by the society for criminial justice. For
example compensation became one of those methods of justice. For a long time the
application of these principles remained with the parties themselves, but gradually,
the state took over to perform these functions. Post independence and promulgation
of our constitution, there has been a rapid growth in almost all the fields.
Constitution has been embodied with many articles which tried towards making
India have a good Criminal Justice System; Article 21 is one of them i.e. Right to
Life and Personal Liberty. People of India have become more receptive to quick, fair
and affordable justice. The entire existence of the orderly society depends upon
32
sound and efficient functioning of the criminal justice system. It is rightly said that
‗Justice delayed is Justice denied‘. Whether a guilty person is exonerated or an
innocent is punished or there is an enormous delay in deciding the case, quality of
justice suffers in both the cases. Since the objections of the criminal justice system
are not codified anywhere hence they can be just inferred from different statutes.
Every democratic country aims at providing maximum sense of security to the
people at large by dealing with crimes and criminals effectively and legally. Our
criminal justice system aims at reducing the level of criminality in society by
ensuring maximum detection of reported crimes, convictions of accused persons
without delay and to meet the ends of justice.

India inherited the adversarial system of common law from the British
Colonial Rulers and the criminal justice system of India is followed on the same
track. In adversarial system truth is supposed to emerge from the respective versions
of the facts presented by prosecution and the defence before a neutral judge. The
term ―neutral judge‖ is emphasized here because in adversarial system there is no
positive duty on the judge to discover the truth. He plays a passive role. So, we can
say that our system is quite in favour of the accused i.e. ―accused oriented‖ and is
insensitive to the victims plight. We need to incorporate some of the features of
inquisitional system into our adversarial system because the mix and match formula
can bring out the desired results which will make out criminal justice system more
efficient and durable.

Criminal Justice System needs to be reformed but any reform should be


based on the respect for human rights. Whether we adopt adversarial or inquisitional
criminal justice system, we have to keep it in our mind the International Human
Rights obligations before drafting any reforms.

Our Criminal Justice System should give particular attention to improving


the investigation, prosecution and punishment of state officials who commit crimes
and human rights violations. There must be prompt, effective, impartial and
independent investigation into all allegations of death or disappearance or other
serious human rights violations.

It is very essential for all the wings of criminal justice system to clearly
understand their role and limitations and act lawfully and ethically. Much of the
33
problems faced by the police or law enforcement agencies, are due to lack of
understanding of their roles in scheme of criminal justice system. If this is clearly
understood, there will be no complaints of police excesses. Unless there is perfect
co-ordination among the 4 wings of criminal justice system, the criminals will go
scot free and the society will suffer.

Criminal justice system in India is facing serious challenges and may loose
the confidence of the people unless the challenges are addressed and met with the
right type of prescriptions. Speedy justice and fair trial are part of criminal justice
system and different wings associated with that objective are expected to work in
coordination to achieve the goal. The delay in administration of justice is taking
away the sting from the criminal justice system. In the absence of a common forum
to meet and discuss the issues relating to criminal justice system and also coordinate
successfully to remove the misapprehensions of the people, the system will continue
to receive criticism.

34