TOPIC - 3

FROM INVESTIGATION TO THE TRIAL STAGE

Sl.
Officer Name and Designation Page Nos.
No.
1. Dr. M. Rama Krishna,
2 – 15
I-Addl. District Judge, Machilipatnam.

2. Sri G. Satya Prabhakara Rao,

16 – 26
Chief Metropolitan Magistrate, Vijayawada.

3. Sri Vinod Kumar,

27 – 35
I-Addl. Junior Civil Judge, Machilipatnam.
Smt D. Sony,
4. Spl. JMFC for trying P&E offences, 36 – 57

Machilipatnam.

5. Sri Pattan Shiyaz Khan,

58 – 71
Addl. Junior Civil Judge, Tiruvuru.

6. Smt. D. Sharmila,
72 - 87
Addl. Junior Civil Judge, Gannavaram.
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FAIR TRIAL-FROM INVESTIGATING TO THE TRIAL STAGE

By
Dr. M. Rama Krishna,
I-Addl. District Judge,
Machilipatnam.

1) The investigation is of prime importance in a trial of the case. It is the

foundation on which the whole case rests and revolves. The rights available to
the accused as well as to the victim are to be protected from the initial stage of
criminal investigation since it has an effect on the trial to be conducted in the
court.

2) Each person has a right to be dealt with fairly in a criminal trial. Denial
of a fair trial is as much injustice to the accused as it is to the victim and
society. The fair trial norms include the right to be presumed as innocent, to be
defended by a lawyer, to be informed of the charges levelled against the
accused and to be informed of the rights available to the victim.

3) In order to ensure a fair trial, it is imperative to follow strict procedural

safeguards embodied in the constitution and the criminal procedure code from
the moment the police receive information about an offence and initiate
criminal investigation. Non-implementation of fair trial principles at the early
stages of criminal proceedings can jeopardize the possibility just out case.

4) Many of the rights available to the accused during investigation till the
stage of trial emerge from Article-21 of the Constitution which reads “No the
person shall be deprived of his life or personal liberty except according to the
procedure established by law.” The manner in which a crime is investigated is
not a matter for the police, but it has an effect on the trial to be conducted in
the court.

5) If any information is relating to the cognizable offence is received by the

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officer-in-charge of a police station orally. He shall reduce the same into

writing and read over the same to the informant and he shall obtain the
signature of the informant on it, if written complaint is given it shall be signed
by the person giving it and substance thereof shall be entered in a book
prescribed for the said purpose, as per Sec.154 of Cr.P.C.
6) Since there is a alarming increase in respect of offences against women
and in view of the recent ghastly incidents i.e., sexual assault on a victim
women which is popularly called as “Nirbhaya Case” thereafter an amendment
was brought into Sec.154 of Cr.P.C. by making a proviso in order to protect the
victim in such a cases.

7) The proviso of Sec.154 of Cr.P.C. goes to show that if the information is

given by the women against whom an offence Under Secs.326-A, 326-B, 354,
354-A to D, 376, 376-A to E or Sec.509 of IPC, is alleged to have been
committed or attempted such information shall be recorded by a Woman Police
Officer or any Woman Officer. If such victim is temporarily or permanently
mentally or physically disabled such information shall be recorded by a Police
Officer at the residence of such person or at convenient place of such person’s
choice in the presence of interpreter or a special judicator. The recording of
such information shall be video graphed and the police officer shall get the
statement of such victim by a Judicial Magistrate as per Sec.154 Sub Sec.5 A
(a) of Cr.P.C. as possible.

8) If the above provision is not followed strictly it would affect the fair trial
norms and ultimately it affects the result of the trial process. Hence, the
moment a report is given in respect of cognizable offence, the officer-in-charge
of a police station shall follow the Sec.154 of Cr.P.C. strictly as this information
sets the law into motion i.e., investigation would commence basing on this
information.

9) So far as non-cognizable case is concerned Sec.155 of Cr.P.C. deals with

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the same which reads as follows:

Information as to non-cognizable cases and investigation of such

cases:

1. When information is given to an officer-in-charge of a police station

of the commission within the limits of such station of a non-
cognizable offence, he shall enter or cause to be entered the
substance of the information in a book to be kept by such officer,
in such form as the State Government may prescribe in this behalf,
and refer the informant to the Magistrate.
2. No police officer shall investigate a non-cognizable case without the
order of a Magistrate having power to try such case or commit the
case for trial.
3. Any police officer receiving such order may exercise the same
powers in respect of the investigation (except the power to arrest
without warrant) as an officer in charge of a police station may
exercise in a cognizable case.
4. Where a case relates to two or more offences of which at least one
is cognizable, the case shall be deemed to be a cognizable case,
notwithstanding that the other offences are non-cognizable.
10) Safeguards to be taken by the Investigating Officer during
investigation:-

1. The officer-in-charge of a police station may without the order of

Magistrate investigate any cognizable case within the limits of such
station as per Sec.156 of Cr.P.C. but so far as non-cognizable case
is concerned police officer shall not investigate the same without
the order of the Magistrate having power to trial such case or
commit the case for trial.
2. Sec.157 of Cr.P.C. deals with the procedure for investigation which
says if the police officer has reason to suspect commission of a
cognizable offence he shall forthwith send a report to the
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Magistrate and proceed to the scene of offence investigate the

matter in person or to depute his sub-ordinate to investigate and
investigate the facts and circumstances of this case and to take
steps to discover and arrest of the offender.

11) If the offence alleged as a rape the statement of the victim shall be
recorded at the residence of the victim by a Woman Police Officer in the
presence of her parents or guardian or near relatives or social worker of the
locality. Thus, Sec.157 of Cr.P.C. casts a duty on the investigating officer to
forthwith sent a report pertaining to the cognizable offence to the concerned
Magistrate to keep the Magistrate informed of the investigation of a cognizable
offence to avoid suspicion that the FIR is the result of consultation and
deliberation and antedated and to avoid that investigation is not fair and the
report must be sent to the Magistrate concerned immediately after registration
of the FIR it would ensure the fair trial.

12) During investigation the police officer may secure the attendance for the
witnesses who are acquainted with the facts and circumstances of the case
except a male person under the age of 15 years or above the age of 65 years, a
woman, a male or physically disabled person who shall be examined at their
residence.

13) During investigation and examination of witnesses by the police as per

Sec.161 of Cr.P.C. the Magistrate may orally examine any person who are
acquainted with the facts and circumstances of the case and such person shall
be bound to answer truely the questions relating to the case other than the
questions, the answers to which would have a tendency to expose him to a
criminal charge or a penalty to a forfeiture.

14) As per Article-20 (3) of Constitution of India which provides that "no
person accused of an offence shall be compelled to be a witness against
 6

himself." Since as per our criminal jurisprudence, the accused is must be

presumed to be innocent until the contrary is proved. Hence it is the duty of
the prosecution to prove the offence. The accused need not make any
admission or statement against his own freewill. As such as per Sec.161 (2) of
Cr.P.C. he need not give any answer which would have a tendency to expose
him to a criminal charge or to a penalty to a forfeiture.

15) So far as the statements of a woman against whom the offence Under
Secs.354, 354-A to D, 376, 376-A(2) (e) and 506 of IPC are alleged to have been
committed or attempted, shall be recorded by a women police officer and
sometimes wherever necessary the statements may also be recorded by audio-
video electronic means. We all know that the statement of witness before
investigating officer cannot be used as evidence. It is only that part of the
statement if duly proved may be used by the accused and sometimes the
prosecution with the permission of the court may contradict to the witness
concerned, in the manner provided by the Sec.145 of the Indian Evidence Act.

16) The investigating officer has to perform his duties with the sole object of
investigating the allegations and in the course of investigation he has to take
into consideration the relevant material which is against or in favour of the
accused. The investigating officer makes investigation promptly after prompt
recording of FIR sending the same to the court. If he does not follow the
provisions of Criminal Procedure Code in recording FIR and sending the same
to the court and it is not made prompt investigation, it effects the trial process
itself as the investigation is tainted one ultimately it effects the fair trial norms.

17) Procedure at the time of recording of confession and statements:-

Section 164 of Cr.P.C. deals with the procedure. Said procedure to be

adopted at the time of recording the statements of witnesses and confessional
statements of the accused which reads as follows:
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164. Recording of confessions and statements:

(1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not,

he has jurisdiction in the case, record any confession or statement made to
him in the course of an investigation under this chapter or under any other law
for the time being in force, or at any time afterwards before the commencement
of the Inquiry or trial:
[Provided that any confession or statement made under this sub-section
may also be recorded by audio – video electronic means in the presence of the
advocate of the person accused of an offence:
Provided further that no confession shall be recorded by a police officer
on whom any power of a Magistrate has been conferred under any law for the
time being in force.]

(2) The Magistrate shall, before recording any such confession, explain to
the person making it that he is not bound to make a confession and that, if he
does so, it may be used as evidence against him, and the Magistrate shall not
record any such confession unless, upon questioning the person making it, he
has reason to believe that it is being made voluntarily.

(3) If at any time before the confession is recorded, the person appearing
before the Magistrate states that he is not willing to make the confession, the
Magistrate shall not authorize the detention of such person in police custody.

(4) Any such confession shall be recorded in the manner provided in Section
281 for recording the examination of an accused person and shall be signed by
the person making the confession; and the Magistrate shall make a
memorandum at the foot of such record to the following effect.
If the above said procedural safeguards are taken at the time of recording
confession of the accused and statements of the witnesses it would ensure fair
trial.
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Medical examination of victim and accused in rape cases during

investigation-
18) Belated medical examination of victim of rape and accused in rape cases
would ultimately effect the result of the case. As per Sec.164-A of Cr.P.C.
during investigation of rape cases the victim of rape shall be examined by
Medical Expert i.e., by a Registered Medical Practitioner employed in a
Government Hospital or by a local authority. In the absence of such
practitioner by any other Registered Medical Practitioner with the consent of
such victim within 24 hours from the time of receiving the information relating
to the commission of offence.

19) Sec.53-A of Cr.P.C. says when a person is arrested on a charge of

committing an offence of rape or an attempt to commit rape he shall be
examined by a Registered Medical Practitioner without any delay and report
shall be forwarded to the investigating officer without any delay who shall
inturn forwarded to the Magistrate as referred in Sec.173 of Cr.P.C. so far as
other persons arrested in other cases concerned and Sec.54 of Cr.P.C. says
whenever person is arrested he shall be examined by the State or Central
Government the Medical officer indicates they are not available he shall be
examined by a Registered Medical Practitioner soon after if the arrested person
is a female she shall be examined under supervision of a female Medical officer
or a female Medical Practitioner. The Medical officer shall make a mention
about the injuries or marks of violence upon a person arrested and the
approximate the time with such injuries have been inflected and shall
forwarded copy of said report immediately. A prompt medical examination of
arrested person and the victim would help the court to adjudicate the matter
and to come to a correct conclusion.

20) Rights at the time of Arrest:-

While making arrest the police officer shall follow the guidelines
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prescribed under Sec.46 to 60-A of Cr.P.C. No woman shall be arrested after

sun set and before sun rise and in exceptional circumstances exists a Woman
Police Officer shall obtain prior permission from the Judl. Magistrate of I Class
in writing can arrest a woman during the prohibited time also. At the time of
arrest the police officer shall inform the grounds of arrest and of right to bail as
per Sec.50 of Cr.P.C. The arrested person shall not be subjected to grow
restrained than his answer to prevent his escape and inform about said arrest
of the nearest relatives or friends of the person so arrested and shall inform a
arrested person about his rights and shall produce before the court within 24
hours from the time of arrest it shall be the duty of the person having custody
of the accused to take reasonable care of the health and safety of the accused.

21) Arrest forms an integral part of the investigation and rights at the time of
arrest are also relevant. Hence it is necessary to make a note of the rights
available to the accused at the time of arrest in brief.

22) The accused has a freedom from arbitrary arrest and detention. He must
be informed of all the grounds of arrest, his relatives must be informed of his
arrest and he has a right to consult an advocate i.e., representation by a legal
practitioner of his choice as per Article-22 of the Constitution. The accused
has a right to be produced before a Magistrate within 24 hours of arrest and
not to be detained beyond 24 hours without the approval of a Magistrate.

23) Every police officer arresting the accused without any warrant shall
immediately inform the arrested person of the full particulars of the offence for
which he or she is arrested or other grounds of such arrest. Where police
officer arrests any person without warrant other than a person accused of non-
bailable offence, he shall inform a person that he is entitled to be released on
bail and that he may arrange for sureties. The arresting officer shall inform the
rights available to the accused as per the Constitution and Code of Criminal
Procedure. If the arrested person is a female the searching police officer must
 10

also be a female and perform the search with strict regard to decency. The
women are protected from being arrested between sun set and sun rise, except
in exceptional circumstances. With the prior permission from a judicial
Magistrate, the accused has a right to freedom from torture during
investigation.
Maintenance of dairy of proceedings by the investigating officer

during investigation

24) The Code of Criminal Procedure, Section 172 requires the police to
conduct investigations expeditiously, while keeping through records of their
methods and findings. Section 172(1) requires a police officer to keep a day-to-
day case diary of his investigation “setting forth the time at which the
information reached him, the time at which he began and closed his
investigation, the place or places visited by him, and a statement of the
circumstances ascertained through his investigation.” Underlining the vital
importance of executive record keeping, the Supreme Court has repeatedly
reiterated that the case diary should be maintained with scrupulous
completeness and efficiency.

The Police Officer’s report on Completion of Investigation:

25) Section 173 of the Code of Criminal Procedure imposes further record-
keeping duties on the police. The police must present a police report to the
magistrate containing the following information:

1. The names of the parties;

2. The nature of the information;
3. The names of the persons who appear to be acquainted with the
circumstances of the case;
4. Whether any offence appears to have been committed and, if so, by
whom;
5. Whether the accused has been arrested;
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6. Whether the accused is released on his bond and, if so, with or

without sureties; and
7. Whether he has been forwarded to custody under Section 170.

26) In case of trial before a Magistrate, the police must give the Magistrate all
relevant supporting documents as well as the statements of all witnesses on
which the prosecution intends to rely. Section 173 places a continuous duty
on the investigating officer to forward to the Magistrate any additional reports
that may be necessary to keep the court updated of further facts that may have
come to light or further evidence that the police may have obtained.

27) The Supreme Court has held, in catena of decisions that such
investigation standards require police to question and record statements from
parties who may possibly possess relevant information, to quickly take into
custody hard evidence, and have experts file an urgent forensic report so that
no valuable clues are lost. Police failure to swiftly prepare such records of
investigation, resulting in undue delay at trial, might violate Article 21 of the
Constitution, as the procedure prescribed by law for denying a person’s liberty
is not reasonable, fair and just, if the accused is not afforded a speedily trial.

Custodial violence torture during investigation

28) The recognition that there is violence and coercion in custody led to
Section 176 of the Code of Criminal Procedure being amended to provide that
in the case of death or disappearance of a person, or rape of a woman while in
the custody of the police, there shall be a mandatory judicial inquiry and in the
case of death, an examination of the dead body shall be conducted within 24
hours of death. Whenever a person dies in police custody, Section 176
requires the Magistrate to investigate the cause of death. An inquiry under this
Section is to be conducted independently by the Magistrate and not only with
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the police (Nilabati Behara, para.9). This inquiry confers the Magistrate with
all powers he would normally have when investigating any of these offences.
The inquiring Magistrate shall record all his evidence and, if considered
necessary, examine the dead body. Wherever practicable, the Magistrate may
inform and allow the family of the deceased to participate in the enquiry.

29) The Code of Criminal Procedure certifies the duties of the Magistrate
where it requires that at the time of production of an accused, the Magistrate:
shall
(a) the accused if he has been threatened, tortured or abused in custody;
(b) see if the Memo of Arrest has been filled and then cross checks the facts
in the Memo of Arrest by questioning the accused.

If he suspects that the accused is intimidated by police presence he can

question and record the statement of the accused in the absence of the police;

(c) ensure that the medical examination was conducted and the medical
certificate is attached with the cases papers;
(d) Examine each of these documents to ensure that their contents include
everything that needs to be included.

30) When magistrates observe breaches of procedure by the police and

prosecution or repreated transgressions, they must treat these violations as
serious disrespect for the court and take all steps to address the breach..
These may include:

i) Calling for explanations by superior officers about patterns of

observed behavior by subordinates;

ii) Seeking explanations from the Prosecutor whose duty it is to

ensure that papers are in order before being submitted to court,
Equally the magistrate can haul up the defence lawyer for not
ensuring proper representation of his client;
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If there is no defence lawyer at this stage the Magistrate has the

additional duty of ensuring that a lawyer is provided.

31) Magistrate also need to recognize that the arrested person, even in court,
is in an extremely vulnerable position. It is his duty, not only to ascertain
whether the arrested person can communicate within the court room, where
the arrested person can feel less intimidated and freer to voice his concerns.
He should be particularly attentive to the detainee’s condition. Where
necessary, he should routinely carry out a visual inspection for any signs of
physical injury- or order one to be carried out by a doctor. Magistrates should
also be alert to other clues, such as the individual’s and mental condition and
overall demeanour, them. They should actively seek to demonstrate that they
will take allegations of torture or ill treatment seriously and will take action
where necessary to protect those at risk.

32) If the arrested person alleges before the Magistrate that he has been ill-
treated in custody, it is incumbent on the magistrate to record the allegation in
writing, immediately order a medical examination and take all necessary steps
to ensure that the allegation is fully investigated. This should be done even in
the absence of an express complaint or allegations, if the person concerned
bears visible signs of physical or mental ill treatment. The court can further
safeguard the accused by ensuring that the accused is accompanied by a
relative to any medical examination.

The primary role of judges in preventing acts of torture, therefore, is to

ensure that the law is upheld at all times.

Procedural Safeguards Against torture

33) Section 163 of the Criminal Procedure Code prohibits investigating

officers from obtaining statements from witnesses through threaten in conduct.
In order to reduce the possibility of torture and custodial violence and protect
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the rights of anyone who finds themselves in police custody, first the Supreme
Court and now the statutory law has laid down a considerable set of procedural
safeguards. These include:
1) Immediately on arrest the arresting police officer has an obligation to give
information about the arrest and the place of detention to any person
nominated by the arrested person, and make an entry of the same in the
general diary maintained in every police station, providing the details of
the person who is informed.
2) Draw up an “Arrest Memo” indicating the date, place and time of arrest;
signed by two independent witnesses and countersigned by the arresting
officer.
3) Draw up an Inspection Memo” of all major and minor injuries on the
body of the arrested person.
4) Conduct a medical examination of the arrested person at the time of
arrest. This is to be repeated every 48 hours if the arrestee is in police
custody.
5) It will also be the duty of the Magistrate before whom the accused is
produced to check with the accused whether the police have complied
with the above provisos.
6) The Magistrate must inform the arrested person, when first produced,
about the right to a medical examination and also inquire whether they
have any complaints of torture or maltreatment in custody.

34) The provisions along with the 24 hours production rule and the
provisions that say that restraints must not be more than necessary to prevent
escape, cumulatively create a procedural design aimed at ensuring that the
dangers of torture and illegal detention are minimized.

35) The requirement that accurate records be kept and produce before the
court has a dual purpose. On the one hand, it is aimed at ensuring that no
person is subjected to police action and perhaps even custody without there
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being some reasonable basis for limiting his freedom. On the other hand, it is
a check to ensure that the court’s time and manpower, and the taxpayer
money is not wasted on ill-prepared and shoddy case which will not stand the
test of judicial scrutiny and eventually come to naught. Most importantly, the
court’s scrutiny of the record is designed as a check on police bias,
manipulation or negligence.

36) The judge’s signature on each page of the case diary at the time of
remand before filing the charge sheet also operates as a safeguard against
interpolation, embellishment and manipulation. Any mechanical attestation of
the case diary vitiates the high standards of fair trial and can materially affect
the life and liberty of the accused. This depends considerably on the exercise
of the protective role of the court.

Right to be provided with copies of all the documents relied upon by

the prosecution:-

37) Secs.207 and 208 of the Cr.P.C. mandate that in any criminal
proceedings instituted upon a police report, the Magistrate must freely furnish
the following copies to the accused.
1. Copy of police report.
2. Copy of FIR
3. All the statement of prosecution witnesses.
4. Any recorded confession
5. Any other documents

38) The object behind this is, to give adequate notice to the accused about
the material to be used against them so that he is not prejudiced/surprised
during trial. It ensured a just and fair trail and to ensure the accused an
assessment whether there are real grounds for going forwards and to assist the
accused to argue that there is no case to answer.
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JOURNEY FROM INVESTIGATION TO TRIAL

By

Sri G. Satya Prabhakara Rao,

Chief Metropolitan Magistrate,

Vijayawada.

1. The “Criminal Procedure Code, 1973” (hereinafter referred to as

'Cr.P.C.,') consists of XXXVII Chapters with 484 Sections besides Two (2)

Schedules. It has come into force with effect from '1st day of April, 1974'. It

is referred to as the 'Act' by the Law-makers, although its title is 'Code of

Criminal Procedure'.

2. 'Clause (h) of Section 2 of Cr.P.C'., defines the term “Investigation” in

an inclusive manner “so as to bring into its fold all the proceedings under

the code for collection of evidence conducted by a Police Officer or by any

person, other than a Magistrate, duly authorised by a Magistrate in that

behalf.”

3. The Hon'ble Apex Court in “AIR 2009 SUPREME COURT – 984”,

Between “Nirmal Singh Kahlon Vs. State of Punjab and others” pleased to

hold that,
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“Definition and scope of the expressions investigation and

Officer In-Charge of a Police Station must receive a liberal

interpretation.”

4. STAGES OF CRIMINAL T R I A L: -

i) Registration of First Information Report;

ii) Commencement of investigation and conclusion of

evidence by investigating agency;

iii) Production of accused before Magistrate within Twenty

Four (24) hours of arrest;

iv) Bail hearing before appropriate court;

v) Completion of investigation;

vi) Hearing regarding charge;

vii) Discharge;

viii) Framing of Charge;

ix) Conviction on plea of guilt;

x) Recording of evidence of prosecution;

xi) Statement of accused (U/s 313 of Cr.P.C.,);

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xii) Defence of accused;

xiii) Arguments;

xiv) Judgment and Sentence by the Court;

5. I N V E S T I G A T I O N & E N Q U I R Y–D I F F E R E N C E:-

'Investigation' is different from 'Enquiry'. Investigation is done by the

Police Officer, whereas, enquiry is conducted by a Magistrate. In

proceedings relating to Warrant Procedure Cases, there are two distinct stages.

The first stage is known as 'Enquiry' and the second stage is known as 'Trial'.

'Enquiry' starts when the Magistrate, who receives a complaint or charge sheet

takes cognizance of an offence and it comes to a close with the framing of a

Charge. 'Enquiry' may even end in discharge of the accused in which cases no

Charge will be framed and there will be no trial. The second stage called 'Trial'

begins with the framing of the Charge after enquiry and ends with the

pronouncement of the Judgment, whether it is a Judgment of 'Conviction' or

'Acquittal'. In the case of offences, which are triable by summons procedure

there will not be any enquiry and trial starts with the Magistrate taking

cognizance of the offence and ends with the disposal of the case.

6. All offences which are punishable with 'Death, Imprisonment for Life

or Imprisonment' for a term exceeding Two (2) years shall be triable as

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'Warrant Cases'. All other offences are triable by summons procedure and

they are called as 'Summons Cases'. Sometimes in the course of the same

transaction several offences might have been committed, some of which are

triable by summons procedure and some by warrant procedure. For example,

'Rioting' armed with deadly weapon punishable U/s 148 of IPC, which is a

warrant case and simple hurt punishable U/s 323 of IPC, which is a summons

case. In such a case, only warrant procedure should be adopted for the trial of

all offences. It will not be irregular if a summons case is tried by warrant

procedure. But, the entire trial would be vitiated and becomes irregular if a

warrant case is tried by summons procedure.

7. “The legislative intent behind in enacting the criminal laws is to

maintain law and order, peace and tranquility in the society. Therefore,

the prosecution shall be in the direction of achieving the such goal and in

the said direction of inspiring confidence and faith of the people in the

system and the process of law should never be promoted for wrecking

vengeance against the persons for individual benefits in the said

disguise”. “(2015) 2 ALD (Criminal) – 1043,” Between “K.Venu Gopal Reddy

and others Vs. Deputy Superintendent of Police, Ananthapuram Division,

Ananthapuram and others.”

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8. Cognizance of an offence is taken by a Magistrate (a) when he receives a

complaint, or (b) when a Police Officer lays a Charge Sheet, or (c) when

information is received by the Magistrate from any person than a Police Officer

or upon his own knowledge that an offence has been committed. The first

category relates to Private Complaints laid by private individuals or Officers

other than Police Officers, such as Food Inspector or Income Tax Authority,

Railway Protection Force etc., The second category obviously covers Charge

Sheets laid by Police Officers. The third category relates to information,

whereas the first category refers to complaint. The third category is of very

wide amplitude and covers a variety of situation when a Magistrate may take

cognizance of an offence upon his own personal knowledge or upon information

received from some source other than a private complaint or a Police Charge

Sheet. For example “Section 319 deals with a case where the evidence in

courts of the enquiry or trial before a Magistrate discloses that some

person, who was not originally mentioned in the complaint or the Charge

Sheet as the accused had committed the offence.” The Court may take

action against such other person also. Taking cognizance means the

application of the judicial mind by the Magistrate to the facts brought to his

notice with the object of taking proceedings under the code. It is a mental

process which involves the assimilation of facts alleged in the Charge Sheet or

information regarding commission of an offence and the decision made by the

Magistrate to exercise his ministerial powers to take action as prescribed by the

court. For example if a Magistrate who receives a private complaint proceeds

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to record the Sworn Statement of a complaint or if a Magistrate who receives a

Police Charge Sheet issue summons to the accused person, he can be said to

have taken cognizance of the offence. But, if a Magistrate who receives a

private complaint does not record the Sworn Statement of the complainant but

merely forwards it to the concerned Station House Officer for Investigation and

Report U/s 156 (3), he cannot be said to have been taken cognizance of the

offence. If after receipt of the report from Station House officer, to whom the

complaint was forwarded U/s 156 (3), the Magistrate issue summons to the

accused or makes up his mind to record the sworn statement of the

complainant, he can then be said to have taken cognizance.

9. DIFFERENT TYPES OF T R I A L S: -

i) Summary Trial: -

“Section 260 Cr.P.C.,” provides that any Chief Judicial

Magistrate or Metropolitan Magistrate or a Magistrate of First

Class specifically empowered by the Hon'ble High Court may try

summarily certain offences which are enumerated in that section.

The offences are generally simple offences for which the

imprisonment prescribed does not exceed Two (2) years. In the

case of Summary Trial, as soon as the accused is brought before

the court, he is questioned with reference to the accusation leveled

against him. If he pleads guilty that fact should be recorded in the

 22

Summary Trial Register, but the case record should contain the

questions put to the accused and the answer given by him in his

own words. When the accused pleads guilty the Magistrate can

immediately pass the appropriate sentence by making an entry in

the prescribed column in the Summary Trial Register. No separate

Judgment need to be pronounced in such a case. If, on the other

hand, the accused pleads not guilty, the evidence of the

prosecution witnesses should be recorded. But, here again there is

no need to record the evidence of the witnesses in the form of

elaborate depositions as is done in the case of normal trial, but

only the substance of their statements need to be recorded in the

form of memorandum, which need not be signed by the witnesses.

But, prudence requires that even in the Summary Trials, the

statement of witnesses are recorded faithfully and elaborately and

there is nothing wrong in obtaining the signatures of witnesses

under their statements.

10. T R I A L OF WARRANT CASES INSTITUTED

ON POLICE R E P O R T S: -

After the Charge Sheet in filed, it should be registered as a Calendar

Case and the summons should be issued to the accused. As soon as

accused appears or is produced before the court, the Magistrate should

 23

assure himself whether the accused was supplied with all the documents

referred in Section 207 of Cr.P.C., After considering the record and the

answers given by the accused to the questions put to him, the Magistrate

may discharge the accused U/s 239 of Cr.P.C., after recording his reasons

therefor, if he feels that the Charge against the accused is groundless. If

after considering the material mentioned therein, the Magistrate feels

that it is not a fit case for discharge and that charges under the

appropriate sections should be framed, he may do so and record the plea

of accused. If the accused pleads guilty he may straight away Convict and

pass sentence U/s 241 of Cr.P.C., If the accused pleads not guilty,

evidence of prosecution witnesses should be recorded. After the evidence

of prosecution side witnesses, the accused should be questioned U/s 313

of Cr.P.C., The defence witnesses if any should thereafter be examined.

After the evidence of defence witnesses, arguments are heard and

Judgment of Conviction or Acquittal is to be pronounced U/s 248 of

Cr.P.C.,

11. TRIAL OF WARRANT CASES ON PRIVATE

C O M P L A I N T S: -
 24

In cases instituted on private complaint there was no question of

documents being supplied to the accused as in the case of prosecution

instituted on police charge sheets. But, in “1992 (3) ALT 54 (NRC)”, it

was held that

“It is an elementary principle in Criminal Jurisdiction that

in criminal proceedings the copies of the same have to be

supplied to the accused and unless and until the copies of

the documents are supplied to the accused it is very

difficult for the accused to make out his defence.”

12. “Section 204 (3)” lays down that along with summons or warrant

issued to the accused, a copy of the complaint would also be forwarded to

him. When the accused appears or is produced before court, the

Magistrate may adjourn the case to another date to enable the

complainant to produce his witnesses. When the witnesses are so

produced, their evidence is recorded. If the Magistrate feels that after

recording the evidence of witnesses that no case has been made out

against the accused, if unrebutted would warrant his conviction, the

 25

accused shall be discharged U/s 245 (1) of Cr.P.C. If upon taking of the

evidence referred to in Section 244, the Magistrate considers for the

reason to be recorded, that no case against the accused has been made

out, it unrebutted would warrant his acquittal, the Magistrate shall

discharge him. If a warrant case is instituted on a private complaint, the

accused gets two opportunities to cross-examine prosecution side

witnesses once before framing of the charge and again after the charge is

framed. After the charge is framed the accused should be asked to plead.

If the accused pleads guilty, the Magistrate may immediately convict and

sentence him. If on the other hand, the accused pleads not guilty he

should be questioned on the next date of hearing, whether he desires that

any of the prosecution side witnesses already examined should be recalled

for further cross-examination. If he expresses such a desire, though

witnesses whom he proposed to further cross-examine should be recalled

and the case should be adjourned to an other date. After such further

cross-examination, evidence of remaining prosecution witnesses if any

should be recorded. Thereafter, the accused once again be questioned U/s

313 of Cr.P.C., after completing the defence evidence, if any, arguments

should be heard and a Judgment of Conviction or Acquittal should be

delivered U/s 248 of Cr.P.C.,

13. TRIAL OF SUMMONS C A S E S: -

 26

There is no difference in the procedure between 'Ttrial of Summons

Cases instituted on private complaints' and 'Trial of Summons Cases instituted

on Police Charge Sheets'. When the accused appears or is brought before the

court, he should first of all be questioned with reference to the contents of the

complaint or Charge Sheet and he should be asked whether he pleads guilty or

not U/s 251 of Cr.P.C., If the accused pleads guilty, he may immediately

reconvicted and sentence U/s 252 of Cr.P.C., If he does not plead guilty the

case should be adjourned to another date for examining of prosecution list of

witnesses. If the witnesses are examined, the accused should be questioned

generally with reference to their evidence U/s 313 of Cr.P.C., If the accused

cites any defence witnesses or desires to give evidence, himself, their evidence

should also be recorded and arguments should be heard. Thereafter, a

Judgment of Conviction or Acquittal follows U/s 255 of Cr.P.C.,

 27

From Investigation to the Trial Stage

By
Sri Vinod Kumar,
I-Addl. Junior Civil Judge,
Machilipatnam.

1. Introduction:
The concept of fair trial is based on the basic ideology that State
and its agencies have the duty to bring the offenders before the law. In their
battle against crime and delinquency, State and its officers cannot on any
account forsake the decency of State behaviour and have recourse to extra-
legal methods for the sake of detection of crime and even criminals. For how
can they insist on good behaviour from other when their own behaviour is
blameworthy, unjust and illegal? Therefore the procedure adopted by the State
must be just, fair and reasonable. The Indian courts have recognised that the
primary object of criminal procedure is to ensure a fair trial of accused
persons. Human life should be valued and a person accused of any offence
should not be punished unless he has been given a chance for fair trial and his
guilt has been proved in such trial.
The Hon'ble Supreme Court of India has observed that “each one
has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair
trial is as much injustice to the accused as it is to the victim and to society.
Fair trial obviously would mean a trial before an impartial judge, a fair
prosecutor and an atmosphere of judicial calm. Fair trial means a trial in
which bias or prejudice for or against the accused, the witness or the cause
which is being tried, is eliminated.” in Best Bakery case.
The right to a fair trial is a fundamental safeguard to ensure that
individuals are protected from unlawful or arbitrary deprivation of their human
rights and freedoms, most importantly of the right to liberty and security of
person.

2. From Investigation to Trial Stage:

The Cr. P.C. entitles an accused of certain rights during the course
of any investigation, enquiry or trial of an offence with which he is charged.
Fair trial requires that the accused person is given adequate
opportunity to defend himself. But this opportunity will have no meaning if the
accused person is not informed of the accusation against him. The Code
therefore provides in section 228, 240, 246, 251 in plain words that when an
accused person is brought before the court for trial, the particulars of the
offence of which he is accused shall be stated to him.
In case of serious offences, the court is required to frame in writing
a formal charge and then read and explain the charge to the accused
 28

person. A charge is not an accusation in abstract, but a concrete accusation of

an offence alleged to have been committed by a person. The right to have
precise and specific accusation is contained in section 211, Cr. P.C.

Section 50 provides that any person arrested without warrant shall

immediately be informed of the grounds of his arrest. The duty of the police
when they arrest without warrant is to be quick to see the possibility of crime,
but they ought to be anxious to avoid mistaking the innocent for the guilty. The
burden is on the police officer to satisfy the court before which the arrest is
challenged that he had reasonable grounds of suspicion.

In Pranab Chatterjee v. State of Bihar the court held that Section

50 is mandatory. If particulars of offence are not communicated to an arrested
person, his arrest and detention are illegal. The grounds can be communicated
orally or even impliedly by conduct.

Section 57 of Cr.P.C. and Article 22(2) of Constitution provides that

a person arrested must be produced before a Judicial Magistrate within 24
hours of arrest. In State of Punjab v. Ajaib Singh the court held that arrest
without warrant call for greater protection and production within 24 hours
ensures the immediate application of judicial mind to the legality of the arrest.
The decisions of the Supreme Court in Joginder Kumar v. State of
Uttar Pradesh and D.K. Basu v. State of West Bengal, were enacted in Section
50-A making it obligatory on the part of the police officer to inform the friend or
relative of the arrested person about his arrest and also to make an entry in
the register maintained by the police. This was done to ensure transparency
and accountability in arrest. Sec.160 of Cr. P.C provides that investigation by
any police officer of any male below 15 years or any woman can be made only
at the place of their residence. Section 46(4) provides that no woman shall be
arrested after sunset and before sunrise, save in exceptional circumstances
and where such exceptional circumstances exist, the
woman police officer shall, by making a written report, obtain the prior
permission of the Judicial Magistrate of the first class within whose local
jurisdiction the offence is committed or the arrest is to be made.

By virtue of Section 436 the accused can claim bail as a matter of

right in cases which have been shown as bailable offences in the First schedule
to the Code. Bail is basically release from restraint, more particularly, release
from custody of the police. An order of bail gives back to the accused freedom
of his movement on condition that he will appear to take his trial. If the offence
is bailable, bail will be granted without more ado. But bail under Section 389(1)
after conviction is not a matter of right whether the offence is bailable or non-
bailable. If no charge-sheet is filed before the expiry of 60/90 days as the case
 29

may be; the accused in custody has a right to be released on bail. In non-
bailable offences, the Magistrate has the power to release on bail without notice
to the other side if charge sheet is not filed within a period of sixty days. The
provision of bail to women, sick and old age persons is given priority subject to
the nature of the offence.

Legal Aid:
The requirement of fair trial involves two things: (a) an opportunity
to the accused to secure a counsel of his own choice, and (b) the duty of the
state to provide a counsel to the accused in certain cases. The Law Commission
of India in its 14th Report has mentioned that free legal aid to persons of
limited means is a service which a Welfare State owes to it citizens.
In India, right to counsel is recognised as fundamental right of an
arrested person under article 22(1) which provides, inter alia, no person shall
be denied the right to consult, and to be defended by, a legal practitioner of his
choice. Sections 303 and 304 of the Code are manifestation of this
constitutional mandate.
In Khatri v. State of Bihar the court held that the accused is
entitled to free legal services not only at the stage of trial but also when first
produced before the Magistrate and also when remanded.
Further, article 39-A was also inserted in the Constitution as per
42 nd Amendment, 1976, which requires that the state should pass suitable
legislations for promoting and providing free legal aid. To fulfill this Parliament
enacted Legal Services Authorities Act, 1987. Section 12 of the Act provides
legal services to the persons specified in it.
In Suk Das and Ors. v. Union Territory of Arunachal Pradesh, the
court strengthen the need for legal aid and held that “free legal assistance at
state cost is a fundamental right of a person accused of an offence which may
involve jeopardy to his life or personal liberty. The exercise of this fundamental
right is not conditional upon the accused applying for free legal assistance so
that if he does not make an application for free legal assistance the trial may
lawfully proceed without adequate legal representation being afforded to him.
On the other hand the Magistrate or the Sessions Judge before whom the
accused appears is under an obligation to inform the accused that if he is
unable to engage the services of a lawyer on account of poverty is entitled to
obtain free legal services at the cost of the State.
In Mohd. Hussain @ Julfikar Ali Vs. The State (Govt. of NCT) Delhi
the appellant an illiterate foreign national was tried, convicted and sentenced
to death by the trial court without assignment of counsel for his defence. Such
a result is confirmed by the High Court. The convict, is charged, convicted and
sentenced under Sections 302/307 of Indian Penal Code and also under
 30

Section 3 of The Explosive Substances Act, 1908. Fifty six witnesses and
investigating officer were examined without appellant having a counsel and
none were cross-examined by appellant. Only one witness cross-examined to
complete the formality.

Fair trial also requires public hearing in an open court. The right
to a public hearing means that the hearing should as a rule is conducted orally
and publicly, without a specific request by the parties to that effect. A
judgment is considered to have been made public either when it was orally
pronounced in court or when it was published, or when it was made public by
a combination of those methods.
Section 327 of the Code makes provision for open courts for public
hearing but it also gives discretion to the presiding judge or magistrate that if
he thinks fit, he can deny the access of the public generally or any particular
person to the court during disclosure of indecent matter or when there is
likelihood of a disturbance or for any other reasonable cause.
In the case of Naresh Sridhar Mirajkar v. State of Maharashtra the
apex court observed that the right to open trial must not be denied except in
exceptional circumstances. High court has inherent jurisdiction to hold trials
or part of a trial in camera or to prohibit publication of a part of its
proceedings.
In State of Punjab v. Gurmit the court held that the undue publicity
is evidently harmful to the unfortunate women victims of rape and such other
sexual offences. Such publicity would mar their future in many ways and may
make their life miserable in society. Section 327(2) provide that the inquiry into
and trial of rape or an offence under Section 376, 376-A, 376-B, 376-C or 376-
D of the Indian Penal Code shall be conducted in camera.

Speedy Trial:
Speedy trial is necessary to gain the confidence of the public in
judiciary. Delayed justice leads to unnecessary harassment. The concept of
speedy trial is an integral part of article 21 of the Constitution. The right to
speedy trial begins with actual restraint imposed by arrest and consequent
incarceration, and continues at all stages namely, the stage of investigation,
inquiry, trial, appeal and revision.
Section 309(1) provides “in every inquiry or trial, the proceedings
shall be held as expeditiously as possible, and in particular, when the
examination of witnesses has once begun, the same shall be continued from
day to day until all the witnesses in attendance have been examined, unless
the Court finds the adjournment of the same beyond the following day to be
necessary for reasons to be recorded.”
 31

In Hussainara Khatoon v. State of Bihar the Supreme Court

declared that speedy trial is an essential ingredient of ‘reasonable just and fair’
procedure guaranteed by article 21 and it is the constitutional obligation of the
state to set up such a procedure as would ensure speedy trial to the accused.
The state cannot avoid its constitutional obligation by pleading financial or
administrative inadequacy.
The Supreme Court in A.R. Antulay v. R.S. Nayak issued guidelines
for the time period during which different classes of cases are to be concluded.
It was held “it is neither advisable nor feasible to draw or prescribe an outer
time limit for conclusion of all criminal proceedings. While determining the
alleged delay, the court has to decide each case on its facts having regard to all
attending circumstances including nature of offence, number of accused and
witnesses, the workload of the court concerned, prevailing local conditions etc.-
what is called systematic delay.” The aforesaid decision came up for
consideration in the case of P. Ramachandra Rao and was upheld and
reaffirmed.
In Ranjan Dwivedi vs C.B.I Tr.Director General the accused was
tried for the assassination of Shri. L.N. Mishra, the then Union Railway
Minister. The trial was pending for the past 37 years. In view of delay in
completion of trial for more than 37 years from date of the trial the Petitioners
presented Writ Petitions praying for quashing of the charges and trial. But it
was held that the trial cannot be terminated merely on the ground of delay
without considering the reasons thereof. Hence the petition was dismissed.
For the conduct of a fair trial, it is necessary that all proceedings
related to the case should take place in the presence of the accused or his
counsel. The underlying principle behind this is that in a criminal trial the
court should not proceed ex parte against the accused person. It is also
necessary for the reason that it facilitates the accused to understand properly
the prosecution case and to know the witnesses against him so that he can
prepare his defence.
The Code does not explicitly provide for mandatory presence of the
accused in the trial as section 317 provides that a magistrate may dispense
with the attendance and proceed with the trial if personal presence of the
accused is not necessary in the interests of justice or that the accused
persistently disturbs the proceedings in court. The courts should insist upon
the appearance of the accused only when it is in his interest to appear or when
the court feels that his presence is necessary for effective disposal of the case.
Court should see that undue harassment is not caused to the accused
appearing before them. Section 273 of the Code provides that all evidence
taken in the course of the trial shall be taken in the presence of the accused or
if the personal attendance of the accused is dispensed with then the evidence
shall be taken in the presence of his pleader.
For fair trial, the accused person has to be given full opportunity to
 32

defend himself. This is possible only when he should be supplied with the
copies of the charge sheet, all necessary documents pertaining to the
investigation and the statements of the witnesses called by the police during
investigation. Section 238 makes it obligatory on the Magistrate to supply
copies of these documents to the accused free of cost.

Article 14 of the Constitution ensures that the parties be equally

treated with respect to the introduction of evidences by means of interrogation
of witnesses. The prosecution must inform the defence of the witnesses it
intends to call at trial within a reasonable time prior to the trial so that the
defendant may have sufficient time to prepare his/her defence. In fairness to
the accused, he or his counsel must be given full opportunity to cross-examine
the prosecution witness.
In Mohd. Hussain @ Julfikar Ali Vs. The State (Govt. of NCT) Delhi it
was held that every person has a right to have a fair trial. A person accused of
serious charges must not be denied of this valuable right. Appellant was not
provided an opportunity to cross examine the fifty six witnesses. Only one
witness was cross-examined to complete the formality. Hence appellant’s
conviction and sentence was set aside.
In Badri v. State of Rajasthan, the court held that where a
prosecution witness was not allowed to be cross examined by the defence on a
material point with reference to his earlier statement made before the police,
his evidence stands untested by cross-examination and cannot be accepted as
corroborating his previous statement.
The concept of double jeopardy is based on the doctrine of
‘autrefois acquit’ and ‘autrefois convict’ which mean that if a person is tried
and acquitted or convicted of an offence he cannot be tried again for the same
offence or on the same facts for any other offence. This clause embodies the
common law rule of nemo debet vis vexari which means that no man should be
put twice in peril for the same offence.
Section 300 of the Code provides that persons once convicted or
acquitted not to be tried for the same offence or on the same facts for any other
offence. Plea of double jeopardy is not applicable in case the proceedings for
which the accused is being tried are distinct and separate from the offence for
which the accused has already been tried and convicted.
In Kolla Veera Raghav Rao vs Gorantla Venkateswara Rao the
Supreme Court differentiated between Section 300(1) of Cr. P.C. and article
20(2) of the Constitution. While, Article 20(2) of the Constitution only states
that ‘no one can be prosecuted and punished for the same offence more than
once’, Section 300(1) of Cr.P.C. states that no one can be tried and convicted
for the same offence or even for a different offence but on the same facts.
Therefore the second prosecution would be barred by Section 300(1) of Cr.P.C.
 33

In S.A. Venkataraman v. Union of India the appellant was

dismissed from service as a result of an inquiry under the Public Servants
(Inquiries) Act, 1960, after the proceedings were before the Enquiry
Commissioner. Thereafter, he was prosecuted before the Court for having
committed offences under the Indian Penal Code, and the Prevention of
Corruption Act. The Supreme Court held that the proceeding taken before the
Enquiry Commissioner did not amount to a prosecution for an offence. It was
in the nature of a fact finding to advise the Government for disciplinary action
against the appellant. It cannot be said that the person has been prosecuted.
In Leo Roy Frey v. Superintendent, District Jail, the accused was
prosecuted and punished under the Sea Customs Act, 1878. Later on, he was
prosecuted under Section 120 of the Indian Penal Code, 1860 for conspiracy to
commit the act for which he was already convicted under the Sea Customs Act,
1878. It was held that the second prosecution was not barred by Article 20(2),
since it was not for the same offence. Committing an offence and conspiracy to
commit that offence has been held to be two distinct offences.

Clause (3) of Article 20 provides: “No person accused of any offence

shall be compelled to be a witness against himself.” This Clause is based on the
maxim nemo tenetur prodere accussare seipsum, which means that “no man is
bound to accuse himself.
In State of Bombay vs. Kathi Kalu, the Supreme Court held that “to
be a witness” is not equivalent to “furnishing evidence”. Self-incrimination
must mean conveying information based upon the personal knowledge of the
person giving the information and cannot include merely the mechanical
process of producing documents in Court which may throw a light on any of
the points in the controversy, but which do not contain any statement of the
accused based on his personal knowledge. Compulsion means duress which
includes threatening, beating or imprisoning the wife, parent or child of a
person. Thus where the accused makes a confession without any inducement,
threat or promise article 20(3) does not apply.
The Apex Court inSelvi v. State of Karnataka drew following conclusions:
 The taking and retention of DNA samples which are in the nature of
physical evidence, does not face constitutional hurdles in the Indian
context.
 Subjecting person to narco- analysis, Polygraphy and Brain
fingerprinting tests involuntarily, amounts to forcible interference with
person’s mental processes, and hence violates the right of privacy as well
as Article 20(3).
 A person administered the narco-analysis technique is encouraged to
speak in a drug-induced State and there is no reason why such an act
should be treated any differently from verbal answers during an ordinary
 34

interrogation.
In Dinesh Dalmia v. State of Madras, the court held that the scientific
tests resorted to by the investigating does not amount to testimonial
compulsion. Hence, the petition was dismissed.

3. Post-Trial Rights
Article 20(1) explains that a person can be convicted of an offence only if
that act is made punishable by a law in force. It gives constitutional recognition
to the rule that no one can be convicted except for the violation of a law in
force. In Om Prakash v. State of Uttar Pradesh, offering bribe was not an offence
in 1948. Section 3 of the Criminal Law (Amendment) Act, 1952 inserted Section
165A in the Indian Penal Code, 1860, declaring offering bribe as punishable. It
was held that the accused could not be punished under Section 165A for
offering bribe in 1948. Article 20(1) provides that no person shall be subjected
to a penalty greater than that which might have been inflicted under the law in
force at the time of the commission of the offence. It prohibits the enhancement
of punishment for an offence retrospectively. But article 20(1) has no
application to cases of preventive detention.

A prisoner does not become a non-person. Prison deprives liberty. Even

while doing this, prison system must aim at reformation. In prison, treatment
must be geared to psychic healing, release of stress, restoration of self-respect
apart from training to adapt oneself to the life outside. Every prisoner has the
right to a clean and sanitized environment in the jail, right to be medically
examined by the medical officer, right to visit and access by family members,
etc. Recognizing the right to medical facilities, the National Human Rights
Commission recommended the award Rs. 1 Lakh to be paid as compensation
by the Govt. of Maharashtra to the dependents of an under trial prisoner who
died in the Nasik Road Prison due to lack of medical treatment.

Section 389(1) empowers the appellate court to suspend execution of

sentence, or when the convicted person I in confinement, to grant bail pending
any appeal to it. Court need not give notice to the public prosecutor before
suspending sentence or releasing on bail. Existence of an appeal is a condition
precedent for granting bail. Bail to a convicted person is not a matter of right
irrespective of whether the offence is bailable or non-bailable and should be
allowed only when after reading the judgement and hearing the accused it is
considered justified.

The hanging of Afzal Guru was criticised by human rights activists, legal
experts all over the country. In carrying out Afzal Guru’s death sentence, the
government deliberately ignored the view of the Supreme Court and courts
 35

across the world that hanging a person after holding him in custody for years
is inhuman. Mohammad Afzal Guru was convicted by Indian court for the
December 2001 attack on the Indian Parliament, and sentenced to death in
2003 and his appeal was rejected by the Supreme Court of India in 2005. The
sentence was scheduled to be carried out on 20 October 2006, but Guru was
given a stay of execution after protests in Jammu and Kashmir and remained
on death row. On 3 February 2013, his mercy petition was rejected by the
President of India, Pranab Mukherjee. He was secretly hanged at Delhi’s Tihar
Jail around on 9 February 2013.

4. Conclusion
The judge is not to draw any inferences against the defendant from the fact
that he has been charged with a crime and is present in court and represented
by a counsel. He must decide the case solely on the evidence presented during
the trial. State of U.P. v. Naresh and Ors In this case it was held that the law in
this regard is well settled that while dealing with a judgment of acquittal, an
appellate court must consider the entire evidence on record so as to arrive at a
finding as to whether the views of the trial court were perverse or otherwise
unsustainable.
 36

FAIR TRIAL FROM INVESTIGATION TO TRIAL

By
Smt D. Sony,
Spl. JMFC for trying P&E offences,
Machilipatnam.

INTRODUCTION:

Every person has the right to a fair trial both in civil and in

criminal cases and the effective protection of all human rights very much depends

on the practical availability at all times of access to competent, independent and

impartial courts of law which can and will administer justice fairly. The right to a

fair trial is an ancient one and is synonymous with the trial process itself. A trial is

a process by which a court decides on the innocence or guilt of an accused person.

The procedure for the trial is found in the Code of Criminal Procedure, 1973. The

Indian Penal Code, 1860 and the Indian Evidence Act, 1872. The broader

principles underline the trial processes are also found in international law and

constitution of India. Fairness in procedural terms principally aims to achieve

equality before the law.

In a Criminal matter inquiry is something different from trail.

Under the Code of Criminal procedure, investigation consists steps of 1.

Proceeding to the spot. 2. Ascertain all the facts and circumstances of the case. 3.
 37

Discovery and arrest of suspected offender. 4. Collection of evidence relating to

commence of the offence.

The word investigation cannot be limited only to Police

investigation but includes the investigation carried by any agency whether he be

the Police officer or empowered authorized officer. The word investigation has to

be read understand in the light of not only the powers conferred on Police Officer

but the restitutions placed on them in the use and exercise of such powers. The

powers of the Police officer to investigate in the cognizable offence is ordinarily

not to be interfered with by the Judiciary as was held in State of Bihar Vs. JAC

Saldenna reported in AIR 1980 SC 226.

FAIR TRIAL FROM INVESTIGATION TO TRIAL:

Chapters XII to XVII of Code of Criminal Procedure covering

Sections from 154 to 224 deals with investigation to the trail stage.

The manner in which a crime is investigated is not merely by a matter

for the police, it has an effect on the way the trial is conducted and its fair

outcomes. This is the reason courts have independent powers to inquire into the

manner of investigation.
 38

It is trite that expeditious investigation of offences and trial is a

facet of rule of law and a component of Article 21 of the Constitution. Many of the

rights implicated during the investigation stage emanate from Article 21 of the

Constitution which states “No person shall be deprived of his life or personal

liberty expect according to procedure established by law”. Domestic statutory

provisions and case law also protect these rights and Supreme Court decisions

provide valuable instructions to judges on how to protect the rights of accused

persons. International law reinforces these rights as well.

This section outlines the basic legal rules governing the investigation

of an offence. It specifically examines some of the rights that belong to the accused

from the stage of criminal investigations till the beginning of the trial. Arrest forms

an integral part of the investigation stage and rights at the time of arrest are also

relevant at this stage. These however, have been discussed in the previous chapter

which is solely devoted to arrest and pre-trial detention.

In order to assure a fair trial, it is imperative to follow strict

procedural safeguards embedded in the Constitution and the Criminal Procedure

Code from the moment the police receive information about an offence and initiate
 39

criminal investigation to the first production not the accused at court. But in

practice, police conduct, the prosecution's role and judicial oversight of fair trial

norms are riddled with breaches which have become so routine, that they are no

longer paid attention to as being vital elements that must not be disobeyed. The

courts provide the single most effective check on police malpractice. They are the

first and most important means by which both victim and accused can be assured of

a level playing field which is the essence of maintaining the balance between

individual liberties and state power, to bring justice to people. It is for this reason

that the independence of the judiciary is held sacred and judges and magistrates are

expected to follow every procedural safeguard and protect every assurance

provided by the law to all parties. The police frequently overstep their role of

marshaling evidence and apprehending the suspect by taking on the role of the

judge. Judicial inclinations, especially amongst hard-pressed judges or those

unsure of their role and power, contend towards passive acceptance of police

depredations and versions without bothering to test their veracity by ensuring that

procedural tests are flowed. This abrogation of independence and role blurs the

contours of independent adjudication and results in the possibility of basis which is

fatal to fair trial.

It should be stressed that it is important for a fair trial that judges and
 40

magistrates personally examine the evidence brought forth by the prosecution. This

does not follow from distrust vis-a-vis the police but it is essential that judges and

magistrates receive a direct impression of all the relevant evidence, since they are

the ones who decide the case. Furthermore, the examination by the judge or

magistrate is an additional safeguard against violations of the fair trial principle.

DELAYS IN INVESTIGATION :

The delay during the investigation stage before the case reaches the

court is to be curtailed inorder to assure a fair trial. The causes for delay before the

case reaches the Court for trial are as follows :

1. Apathy and inaction on the part of the police in registering the FIRs and

taking up the investigation in right earnest for various reasons. This is so inspite of

Police Manuals emphasizing the need for speedy and prompt

investigation.

2. Police are either hesitant to proceed with the investigation against

important/influential persons or they are under pressure not to actswiftly especially

if the person accused is in power or an active member of the ruling party. They

adopt a pusillanimous attitude when the accused are such persons.

 41

3. Corruption at Police Station level is affecting the timely and qualitative

investigation. Further, the Police Stations are understaffed and the police personnel

lack motivation to act without fear or favour.

4. When the FIR is not registered within a reasonable time or the pace of

investigation is tardy, there is no internal mechanism to check thiseffectively. Even

in States where Addl. SPs are posted in every District to be mainly in charge of

crimes (as distinct from general law and order duties) the situation has not

improved, except marginally.

5. There is no periodical exercise to upgrade the skills of investigation.

6. There is no intelligence network worth the name to get the inputs of crime

and corruption and to take up preventive measures.

7. Sufficient priority is not given for investigation of crimes. The diversion of

personnel from the Police Stations for various relatively unimportant duties such as

‘Bandobust’ is a common phenomenon. Sanctions for prosecution are unduly

delayed by the Governments.

 42

These reasons are not peculiar to cases of public. They are all

problems surrounding the Criminal Justice system as a whole which are to be

answered to ensure the constitutional right of a person accused of an offence.

QUALITY OF INVESTIGATION AND DOCUMENTATION:

Police are quite often handicapped in undertaking effective

investigation for want of modern gadgets such as cameras, video equipment etc.

Forensic science laboratories are scarce and even at the district level, there is no lab

which can render timely assistance to the investigating Police. Further, it is

common knowledge that there is dearth of forensic and cyber experts in police

departments of various States. The result is that Police heavily lean towards oral

evidence, instead of concentrating on scientific and circumstantial evidence.

Sufficient care and effort is not devoted for examining and recording the statements

of witnesses. Further, promptness in this regard is found to be wanting. The

statements/FIRs/reports recorded are not fed to the computer immediately either

because there is no computer network or there is no personnel trained in the job or

for want of specific instructions. Sufficient care and time is not bestowed in

drafting the final reports/charge- sheets. Defective charge-sheets without narration

of all relevant facts and charge-sheets unaccompanied by annexures are reported to

be very common and tend to delay the proceedings. This important document
 43

which is normally prepared by a ‘Writer’ at the Police Station, is not carefully

scrutinized by the Station House Officer.The ‘Writer’ posted at heavy Police

Stations is overworked and can hardly spare the needed time. The photographs of

accused (not to speak of witnesses) are not affixed

to the charge-sheets/arrest Memos etc. nor even the identification marks are noted,

making it difficult to identify the accused in the course of trial or to trace the

absconding accused.

PROTECTION OF FUNDAMENTAL RIGHTS :

In Indian law, torture is a violation of fundamental rights, a crime, and

a civil wrong. As such, it attracts imprisonment, liability to compensate the victim,

and contempt proceedings. In what has now become famously known as the D.K.

Basu case, the Supreme Court characterized torture as one of “the worst kind of

crimes in a civilised society”. The Court was convinced that the increasing

incident of torture was “affecting the credibility of the rule of law and the

administration of the criminal justice system”. Addressing the competing interests

of individual liberty and society's need to police criminals, the Court stated; “Using

any form of torture for extracting any kind of information would neither be right

nor just nor fair and, therefore, would be impermissible, being offensive of Article

21”.
 44

In Francis Coralie Mullin vs. Administrator, Union Territory of

Delhi, the Supreme Court made it clear that any form of torture, cruel, inhuman or

degrading treatment or punishment, offensive to human dignity, violates the all-

important right to life and personal liberty under Article 21 of the Constitution and

stated. “ Obviously, any form of torture cruel, in human or degrading treatment

would be offensive to human dignity... and it would on this view be prohibited by

Article 21”. The Supreme Court went on to say; “No law which authorises and no

procedure which leads to such torture can ever stand the test of reasonableness and

non-arbitrariness. It would plainly be unconstitutional and void as being violative

of Articles 14 and 21”.

Section 163 of the Criminal Procedure Code prohibits

investigating officers from obtaining statements from witness through threatening

conduct. In order to reduce the possibility of torture and custodial violence and

protect the rights of anyone who finds themselves in police custody, first the

Supreme Court and now the statutory law has laid down a considerable set of

procedural safeguards. These provisions along with the 24 hours production rule

and the provisions that say that restrains must not be more than necessary to

prevent escape, cumulatively create a procedural design aimed at ensuring that the
 45

dangers of torture and illegal detention are minimized.

The Indian Penal Code makes clear that physical and psychological

ill-treatment of the accused by law enforcement officials is impermissible and

punishable. Causing of “hurt” or “grievous hurt” by public servants to obtain

confessions or to compel restoration of property, carry sentences up to seven and

ten years of imprisonment respectively.

Disobedience of the law by a public servant with intent to cause

“injury” (any harm illegally caused to any person in body, mind, reputation or

property) is punishable by imprisonment for up to one year for the disobedience

and criminal liability for the injury. Similarly, wrongful confinement to extort

confessions, compel restoration of property or obtain information that could lead to

detection of an offence, carries up to three years of imprisonment. “Moreover,

Section 330 of the Indian Penal Code explicitly criminalises torture during

interrogation and investigation for purposes of extracting a confession.

In addition to possible imprisonment for up to seven years for

violating Section 330 of the Indian Penal Code any police officer failing to comply

with the aforementioned court mandated requirements intended to prevent torture is

 46

liable to be punished for contempt of court. These can be instituted in any High

Court that has territorial jurisdiction over the matter. Further, any police officer

engaging in torture is liable for civil damages by the victim or victim's family.

The recognition that there is violence and coercion in custody

led to Section 176 of the Code of Criminal Procedure being amended to provide

that in the case of death or disappearance of a person, or a rape of a women while

in the custody of the police, there shall be a mandatory judicial inquiry and in the

case of death, an examination of the dead body shall be conducted within 24 hours

of death. Whenever a person dies in police custody, Section 176 requires the

Magistrate to investigate the case of death. An inquiry under this Section is to be

conducted independently by the Magistrate and not jointly with the police (Nilabati

Behara, para 9). This inquiry confers the Magistrate with all powers he would

normally have when investigating any of these offences. The inquiring Magistrate

shall record all his evidence and, if considered necessary, examine the dead body.

Wherever practicable, the Magistrate may inform and allow the family of the

deceased to participate in the enquiry.

“Preventing torture is the greatest task facing India's courts, and thus

it is essential for courts to adopt a new outlook and attitude toward prosecuting
 47

torture. The Supreme Court urges both transparency of action and accountability

for police officer. This is not the task of Parliament.” In saying this, the Supreme

Court cast a dual responsibility on magistrates who are the primary gatekeepers

against torture. The first responsibility is to ensure adherence to all procedures

designed to safeguard against torture and the second is to hold accountable and

bring to justice any perpetrator of torture.

Torture is an illegal activity and any state actor such as the police who

indulges in this engages in a criminal activity. Yet it is too often condoned by the

courts. It persists as a common practice, in part, because courts turn a blind eye to

police practices which they know to be common and also because they do not

insist on going strictly by the law but tolerate the practice. In fact, by not being

proactive in preventing an punishing the use of torture, courts become silent

partners in the illegality. The code of Criminal Procedure and Supreme Court

guidelines require the courts to be proactive in ensuring judges and magistrate have

a responsibility to ensure that they do not themselves, unintentionally collude with

acts of torture while carrying out their official functions. This means total

intolerance of any form of custodial violence and bring vigilant and vocal when

there is even the slighter likelihood of transgression. There are no circumstances in

which even a “little torture” or “some violence” can be considered legal or

 48

justified.

Preventing torture requires magistrates to take account of the fact that

it is common and very likely and therefore it is necessary to make it clear to police

and prosecutor that the court is ever alert to the possibility that defendants and

witness may have been subject to torture or other ill -treatment.

When magistrates observes breaches of procedure by the police

and prosecution or repeated transgressions, they must treat these violations as

serious disrespect for the court and take all steps to address the breach. These may

include;

2. Calling for explanations by superior officers about patterns of observed

behavior by subordinates;

3. Seeking explanations from the Prosecutor whose duty it is ensure that papers

are in order before being submitted to court. Equally the magistrate can haul up the

defence lawyer for not ensuring proper representation of his client;

4. If there is no defence lawyer at this stage the Magistrate has the additional

duty of ensuring that a lawyer is provided at sate expense;

Magistrates also need to recognise that the arrested person, even in

 49

courts, is in extremely vulnerable position. It is his duty, not only to ascertain

whether the arrested person can communicate freely to the court without any threat

or intimidation, but alos to create circumstances within the courtroom where the

arrested person can feel less intimidated and freer to voice his concerns. He should

be particularly attentive to the detainee's condition. Where necessary, he should

routinely carry out a visual inspection for any signs of physical injury-or order one

to be carried out by doctor. Magistrates should also be alert to other dues, such as

the individual's physical and mental condition and overall demeanour, the behavior

of the police and guards involved in the case and the detainee's attitude towards

them. They should actively seek to demonstrate that they will take allegations of

torture or ill-treatment seriously and will take action where necessary to protect

those at risk.

If the arrested person alleges before the Magistrate that he has been

ill-treated in custody, it is incumbent on the magistrate to record the allegation in

writing, immediately order a medical examination and take all necessary steps to

ensure that the allegation is fully investigated. This should be done even in the

absence of an express complaint or allegation, if the person concerned bears visible

signs of physical or mental ill treatment. The court can further safeguard the

accused by ensuring that accused is accompanied by a relative to any medical

 50

examination.

The primary role of judges in preventing acts of torture, therefore, is

to ensure that the law is upheld at all times.

RIGHT TO PRIVACY :

The right to privacy is essential and fundamental in an

organised society. Without it, an individual would be unable to enjoy the privileges

which belong to him as a member of society. It is a cherished right. There must be

strong, cogent and legally justifiable reasons for law enforcement agencies to

interfere with this right. Here it is essential that proper procedure is always

followed because intrusion into a person's home, professional or family life in the

name of investigation without any proper basis is not permitted.

The right to privacy is now established in India, but as part of Article

21, and not as an independent right in itself. The Constitution does not grant in

express terms any right to privacy. It is not enumerated as a Fundamental Right in

the Indian Constitution. However, such a right has been culled from Article 21 by

the Supreme Court.

 51

According to the majority, Clause 236 of the relevant

regulations in UP, was bad in law, it offended Article 21 in that there was no law

permitting interference by such visits. The majority did not question whether these

visits violated the “right to privacy”. But, the minority view while concurring that

the fundamental right to privacy was part of the right to liberty in Article 21, part of

the right to freedom of speech and expression in Article 19(1)(a), and also of the

right to movement in Article 19(1)(d), held that the Regulations permitting

surveillance violated the fundamental right of privacy. In effect, all the seven

learned Judges held that the “right to privacy” was part of the right to “life” in

Article 21.

In Malak Singh and others vs. State of Punjab reported in

AIR 1981 SC 760, the Supreme Court added another dimension to protections

against invasion of privacy. Malak Singh reiterated that serious encroachments into

privacy can infringe on an individual's right to personal liberty guaranteed by

Article 21. Not only is police surveillance of particular individuals permitted under

the limited circumstances articulated in Chapter 23.4 of the Punjab Police Act,

1861, but such surveillance must be unobtrusive and within bounds.

 52

Telephone tapping or interception of communications must be limited

to the addresses specified in the order or to those likely to be used by a person

specified in the order. All copies of the intercepted material must be destroyed as

soon as their retention is not necessary under the terms of Section 5 (2) of the

Telegraph Act.

RECORDS OF INVESTIGATION :

The necessity to discover the truth in every case demands that

police records must be kept with scrupulous completeness, and investigations

carried out with promptness, urgency, and efficiency.”

The Code of Criminal Procedure, Section 172 requires the

police to conduct investigations expediently, while keeping thorough records of

their methods and findings. Section 172(1) requires a police officer to keep a day

to day case diary of his investigation “ setting forth the time at which the

information reached him, the time at which he began and closed his investigation,

the place or place visited by him, and a statement of the circumstances ascertained

through his investigation”. Underlining the vital importance of executive record

keeping, the Supreme Court has repeatedly reiterated that the case diary should be
 53

maintained with scrupulous completeness and efficiency”.

Section 173 of the Code of Criminal Procedure imposes further record

keeping duties on the police. The police must present a police report to the

magistrate containing the following information:

 The names of the parties;

 The nature of the information;

 The names of the persons who appear to be acquainted with the

circumstances of the case;

 Whether any offence appears to have been committed and, if so, by whom;

 Whether the accused has been arrested;

 Whether the accused is released on his bond and, if so, with or without

sureties; and

 Whether he has been forwarded in custody under section 170.

In case tried before a Magistrate, the police must give the Magistrate

all relevant supporting documents as well as the statements of all witness on which

the prosecution intends to rely. Section 173 places a continuous duty on the

investigating officer to forward to the Magistrate any additional reports that may be

necessary to keep the court updated of further facts that may have come to light or
 54

further evidence that the police may have obtained.

The Supreme Court has held in Bhagwant Singh v Commissioner of

Police, Delhi reported in (1985) SC 1285 that such investigation standards require

police to question and record statements from parties who may possibly possess

relevant information, to quickly take into custody hard evidence, and have experts

file an urgent forensic report so that no valuable clues are lost. Police failure to

swiftly prepare such records of investigation, resulting in undue delay at trial,

might violate Article 21 of the Constitution, as the procedure prescribed by law for

denying a person's liberty is nor reasonable, fair and just, if the accused is not

afforded a speedy trial.

Bhagwant Singh brought claim against his local police department,

alleging that they did not adequately investigate the death of his daughter by

burning. The Supreme Court found the police's investigation deficient in the

following ways; The police did not taken into custody the blanker with which the

fire was said to have been closed. They waited for over five weeks before

attempting to obtain a fingerprint analysis fo a mirror located in the vicinity of the

burning. They allowed a material witness to return to his village without ever

examining him. The police did not question the victim about the incident before
 55

she died, despite being informed by her doctors that she was capable of responding

to questioning. They did not record the statement of the taxi driver who drove the

victim to the hospital; and they did not record ;the statement of an important local

witness.

The value of scrupulously following records keeping procedures laid

down at law in a complete and timely manner cannot be over emphasised.

Complete, detailed and consistent police records indicate the sequence of police

actions in investigations that eventually lead to the specific charges being laid

against the accused before the court. The papers accompanying the charge sheet

reveal the logic that grounds the charges. These documents are only aid available

to the judge when applying his minds as to whether or not the accused has a case to

answer. Incomplete, illogical, records full of inconsistencies and incoherences

mean that the judge has nothing substantial against which to measure to go ahead

with the trial.

The requirement that accurate records be kept and produced before the

court has dual purpose. On the hand, it is aimed at ensuring that no person is

subjected to police action and perhaps even custody without there being some

reasonable basis for limiting his freedom. On the other hand, it is a check to
 56

ensure that the court's time and manpower, and the taxpayer money is not wasted

on ill-prepared and shoddy cases which will not stand the test of judicial scrutiny

and eventually come to naught. Most importantly, the court's scrutiny of the

records is designed as a check on police bias, manipulation on negligence.

The judge's signature on each page of the case diary at the time of

remand before filing the charge sheet also operates as a safeguard against

interpolation, embellishment and manipulation. Any mechanical attestation of the

case diary vitiates the high standards of fair trial And can materially affect the life

and liberty of the Accused. This depends considerably on the exercise of the

protective role of the court.

CONCLUSION :

What is true for the police is also true for the judge. Absence of

timely attention by the judge to the quantity and quality of basic material and

procedural safeguards relating to record keeping, which will ground the charge,

increases pendency and breaches the safeguards built into the procedure that

requires judicial scrutiny at this very juncture of the process. To be able to say that

there is indeed a rational basis for his decision to proceed with or discharge the
 57

case, the judge must ensure that all the required papers accompany the charge

sheet. He must subsequently examine each paper carefully for chronological and

factual consistency and detail. This must be done with absolute objectivity with

the sole purpose of assessing that the alleged actions do ground the charges made

against the accused.

 58

FROM INVESTIGATION TO TRIAL

By
Pattan Shiyaz Khan
Additional Junior Civil Judge,
Tiruvuru,

Introduction
The right to a fair trial is a norm of international human rights law and also adopted by
many countries in their procedural law [1]. It is designed to protect individuals from the unlawful
and arbitrary curtailment or deprivation of their basic rights and freedoms, the most prominent of
which are the right to life and liberty of the person. The concept of fair trial is based on the basic
principles of natural justice. Though the form and practice of the principles of natural justice may
vary from system to system on the basis of prevailing conditions of the society concerned. The
formal account of the concept of fair trial has been accepted as human rights jurisprudence in the
Universal Declaration of Human Rights, 1948 (hereinafter as UDHR). The major features of fair
criminal trial are preserved in Article 10 and 11 of the UDHR [2]. Article 14 of the International
Covenant on Civil and Political Rights (hereinafter as ICCPR) [3] reaffirmed the objects of
UDHR and provides that “Everyone shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law.” The standards against which a trial is to
be assessed in terms of fairness are numerous, complex, and constantly evolving. They may
constitute binding obligations that are included in human rights treaties to which the state is a
party. But they may also be found in documents which, though not formally binding, can be
taken to express the direction in which the law is evolving[4] As far as Indian legal system is
concerned, the international promise of fair trial is very much reflected in its constitutional
scheme as well as its procedural law. Indian Judiciary has also highlighted the pivotal role of fair
trial in catena of cases.

1. Countries like U.S.A., Canada, U.K., India have adopted this norm and it is enshrined in their Constitution. The Sixth Amendment to the
United States Constitution is the part of the United States Bill of Rights which sets forth rights of accused person in relation to fair criminal trial.
Section 11 of the Canadian Charter of Rights and Freedoms, which is part of the Canadian Constitution’s Charter of Rights, protects a person's
basic legal rights in criminal prosecution. Article 6 of the European Convention on Human Rights also provides detailed right to a fair trial,
which is discussed hereinafter.
2. Universal Declaration of Human Rights was adopted by the General Assembly on December 10, 1948. Article 10 of UDHR provides that
“everyone is entitled in full equality to fair and public hearing by an independent and impartial tribunal, in the determination of his rights and
obligations of any criminal charge against him.” Article 11 extends the rights conferred by Article 10 and states that “everyone charged with a
penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees
necessary for his defence.”
3. International Covenant on Civil and Political Rights, UN General Assembly resolution 2200A (XXI), December16, 1966, entered into force
March 23, 1976. http://www2.ohchr.org/english/law/pdf/ccpr.pdf (accessed on 10-11-09).
4 For example, India is not a signatory of the ‘Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’,
(UN General Assembly resolution 39/46, December 10, 1984, entered into force June 26, 1987) but there are many provisions in Criminal
Procedure Code, 1973 which tacitly affirmed the objects of the said Convention.

The Hon'ble Supreme Court of India observed the evolving horizons of fair trial and stated that
the principle of fair trial now informs and energizes many areas of the law. It is reflected in
numerous rules and practices. It is a constant, ongoing development process continually adopted
to new and changing circumstances and exigencies of the situations, peculiar at times and related
 59

to the nature of crime, person involved, directly or operating behind, social impart and societal
needs and even so many powerful balancing factors which may come in the way of
administration of criminal justice [5].
This paper proposes to trace different dimensions of fair trial standards under Indian
criminal Justice System from the stage of investigation to the beginning of trial and will also
focus on the process of achieving ends of justice.

Glimpse of fair trial under The Code of Criminal Procedure, 1973

Adversary trial system
The system adopted by the Criminal Procedure Code, 1973 is the adversary system based on the
accusatorial method. In adversarial system responsibility for the production of evidence is placed
on the opposing party that is prosecutions with the judge acting as a neutral referee between the
parties. But if we take a close look of the Code then we will find that there are some provisions
which negate the strict adherence of the adversarial trial system[6]. The judiciary has also
advocated the role of presiding judge as a participant in the trial rather than a mere spectator in
order to be an effective instrument in dispense of justice[7].
In INDIA
The Rights implicate during the investigation stage emanate from Article 21 of The
Constitution of India which states:
“ No person shall be deprived of his life or personal liberty
except according to procedure established by law”.
The provisions which linger in The Code of Criminal Procedure 1973 from the stage of
investigation to the beginning of trial are in Chapter XII (Sections 154 to 176).
5. Zahira Habibullah Sheikh and ors v. State of Gujrat and Ors.
6. Provisions which show departure from the adversary trial system are sections 228 and 240 which suggest that charge against the accused is to
be framed by the court and not by the prosecution, sections 303 and 304 which confers on the accused not only a right to be defended by a lawyer
of his choice but also provide in case of an indigent accused person a right to get legal aid for his defence at state’s cost(Article 22(1) of our
Constitution confers similar right on the accused person), section 311 which empowers the court to examine any person as a witness though such
person has not been called by any party as a witness (similar power is also given to the court under section 165 of the Indian Evidence Act,
1872), section 313 where the court can examine the accused at any time to get explanation from him, section 320 where certain offences to be
compounded need prior permission of the court, section 321 where the prosecutor cannot withdraw the case without the consent of the court.
7.Ram chander v. State of Haryana (1981) 3 SCC 191. This viewpoint of judiciary acquires support of the recommendations made by Malimath
Committee Report on Criminal Reforms. The Committee recommended that some of the good features of the inquisitorial system, like the duty of
the court to search for truth, pro-active role of judges etc., could be adopted to strengthen the adversarial system and to make it more effective.
See ‘Recommendations of the Committee on Reforms of Criminal Justice System’, Criminal Law Journal 110, 2004 (Jun) J 102.

Chapter XII: Information to the police and their powers to investigate.

5. Chapter XII envisages the manner in which a crime is investigated by the police.
Investigation is not merely a matter for the police it has an effect on the way the trail is
conducted and its fair outcomes, it is the reason where courts have independent powers to inquire
into the manner of investigation.
6. In order to assure a fair trial, it is imperative to follow strict procedural safeguards
embedded in the Constitution and the Criminal Procedure Code from the moment the police
receive information about an offence and initiate criminal investigation to the first production of
the accused at court. Non-implementation of fair trial principles in these early stages of criminal
 60

proceedings can and does jeopardize the possibility of just outcomes.

7. The courts provide the single most effective check on police malpractice. It is for this
reason that the independence of the judiciary is held sacred and judges and magistrates are
expected to follow every procedural safeguard and protect every assurance provided by the law
to all parties. The police frequently overstep their role of Marshalling evidence and apprehending
the suspect by taking on the role of the judge. This abrogation of independence and role blurs the
contours of independent adjudication and results in the possibility of bias which is fatal to fair
trial.
8. Furthermore, the examination by the Judge or Magistrate is an additional safeguard
against violations of the fair trial principle.

FIR
Criminal Law is put into motion by the FIR (First Information Report). Sections 154 and
155 of The Code of Criminal Procedure envisages about the Information. FIR is the important
report with high evidentiary value. Section 154 deals with the information about cognizable
offences and section 155 deals with information and investigation about non-cognizable
offences. According to section 154 of The Code of Criminal Procedure when ever police officer
receives information of commission of offence of cognizable offence he has no option except to
register the case. FIR can be used as substantive piece of evidence[8]. If the accused himself gives
the First Information the fact of his giving the information is admissible against him as evidence
of his conduct under section 8 of Indian Evidence Act [9]. To ensure Fair Trial whether the police
are empowered to conduct inquiry to know the truth and then register FIR and what is the role of
magistrate on such preliminary investigation. If the information reveals the commission of
cognizable offence the officer in-charge is bound to register the FIR. He cannot make
preliminary inquiry.

8. Damidar Prasad Vs State of U.P. AIR 1975 SC 757

9. Aghnoo Nageshia Vs State of Bihar. 1956 Crl.J. 100 SC.

If it appears to the officer in charge of a police station that there is no sufficient ground for
entering on an investigation, he shall not investigate the case[10]. The police officer has to
mention about the investigation in column no.13 of printed FIR.

Role of the magistrate on the FIR and Preliminary investigation.

3. The power of the police to investigate any cognizable offence is uncontrolled by the
magistrate.
4. On receiving the report under section 157(1) (b) the magistrate may direct an
investigation subordinate to him to proceed to hold a preliminary inquiry into or to otherwise
dispose of the case[11].
5. Magistrate cannot interfere with the investigation but he can direct the investigation when
police failed to do so[12].
6. Investigation of offence is the field exclusively reserved for the executive through the
police department[13].
Conclusion: No court under the code has the power to stifle or impinge upon the proceedings in
 61

the investigation and it is only in a case wherein the police officer decides not to investigate the
offence under section 157(1)(b) of The Code of Criminal Procedure.

Investigation
Investigating officers should have open mind in their investigation. It must understood that the
aim of investigation is only to find out the truth. Section 157 to 176 of The Code of Criminal
Procedure envisages the concept of investigation. Chapter: XXII, Chapter No: XXIII, Chapter
XXV and Chapter XXVIII of A.P.Police Manual – Volume II prescribes the procedure and orders
to the police officers for investigation.
10. Section 157 of The Code of Criminal Procedure: Procedure for investigation preliminary inquiry. (1) If, from information received or
otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to
investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and
shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or
special order, prescribe in this behalf, 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; Provided that- (a) when information as to the commission of any such offence is given
against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute
a subordinate officer to make an investigation on the spot; (b) if it appears to the officer in charge of a police station that there is no sufficient
ground for entering on an investigation, he shall not investigate the case. (2) In each of the cases mentioned in clauses (a) and (b) of the proviso
to sub- section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements of
that sub- section, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in
such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated.
11. King Emperor Vs Khwaja Nazir Ahmed AIR 1945 pc 18. Section 159 of The Code of Criminal Procedure:Power to hold investigation or
preliminary inquiry : Such Magistrate, on receiving such report, may direct an investigation, or, if he thinks fit, at once proceed, or depute any
Magistrate subordinate to him to proceed, to hold a preliminary inquiry into, or otherwise to dispose of, the case in the manner provided in this
Code. S.N.Sharma Vs. Bipen Kumar Tiwari.
12. Peral Bewerages Ltd. New Delhi Vs State of A.P 2002(2)ALD32 AP.
13. State of Bihar Vs. J.A.C Saldana AIR 1980 SC 326.
Judicial Pronouncements To Ensure Fair Investigation.

1. An investigator is the kingpin of criminal justice delivery system[14]. An accused is

entitled to a Fair Investigation. Fair investigation and fair trial are concomitant to preservation of
fundamental right of an accused under Article 21 of the Constitution of India[15].
2. The Investigating Officer "is not to bolster up a prosecution case with such evidence as
may enable the court to record conviction but to bring out the real unvarnished truth. The entire
emphasis on a fair investigation has to be to bring out the truth of the case before the court of
competent jurisdiction Investigating agencies are guardians of the liberty of innocent citizens.
Therefore, a heavy responsibility devolves on them of seeing that innocent persons are not
charged on an irresponsible and false implication[16].
3. Investigation is a delicate painstaking and dexterous process. The investigator must be
alive to the mandate of Article 21 and is not empowered to trample upon the personal liberty
arbitrarily. High responsibility lies upon the investigating agency not to conduct an investigation
in tainted and unfair manner. The investigation should not prima-facie be indicative of a biased
mind and every effort should be made to bring the guilty to law[17].
4. Fair investigation is part of constitutional guarantee under Article 20 and 21 of the
Constitution and it is minimum requirement of Rule Of Law. Investigation must be fair,
transparent and judicious and free from objectionable features like bias, ulterior motive or other
similar infirmities. It is the duty of the Investigating Officer to conduct the investigation avoiding
 62

any kind of mischief and harassment to any of the accused. The Investigating Officer should be
fair and conscious to rule out any possibility of fabrication of evidence and his impartial conduct
must dispel any suspicion as to its genuineness[18].
5. Fair and Proper Investigation’ in criminal jurisprudence has twin purpose. Firstly, the
investigation must be unbiased, honest, just and in accordance with law. Secondly, the entire
emphasis on a fair investigation has to be to bring out the truth of the case before the court of
competent jurisdiction[19].

6. No one can insist that an offence be investigated by a particular agency. An aggrieved

person can only claim that the alleged offence be investigated fairly and properly. Accused has
no right with reference to the manner of investigation[20].

14.Amitbhai Anilchandra Shah v. CBI, (2013) 6 SCC 348

15. Nirmal Singh Kahlon vs State Of Punjab & Ors (2009) 1 SCC 441
16. R.P. Kapur Vs. State of Punjab AIR 1960 SC 866
17.State of Bihar Vs. P.P. Sharma AIR 1991 SC 1260
18.Babubhai vs State Of Gujarat (2010) 12 SCC 254
19. Vinay Tyagi vs Irshad Ali @ Deepak (2013) (5) SCC 762
20.CBI vs Rajesh Gandhi(1996) 11 SCC 253
7. Section 156 (3) states: Any Magistrate empowered under Section 190 may order such an
investigation as above mentioned (investigation by the officer in charge of the Police Station.
Section 156(3) provides: Check by the Magistrate on the police performing its duties. In case the
Magistrate finds that the police has not done its duty of investigating the case at all, or has not
done it satisfactorily, he can issue a direction to the police to do the investigation properly, and
can monitor the same[21].
The investigating officer has to remember the fair trail norms in the procedural aspects:
 Right to freedom from torture
 Right to respect for one's private life and
 Duty to keep records of investigation.

Right to Freedom from Torture

1. Torture is absolutely forbidden. The Hon'ble Supreme Court of India characterized torture
as one of “the worst kind of crimes in a civilized society”. The Court was convinced that the
increasing incidence of torture was “affecting the credibility of the rule of law and the
administration of the criminal justice system”[22].
2. A slew of judicial decisions have made it abundantly clear the Article 21 articulates a
strict prohibition of torture. The Supreme Court made it clear that any form of torture, cruel,
inhuman or degrading treatment or punishment, offensive to human dignity, violates the all-
important right to life and personal liberty under Article 21 of the Constitution and
stated:“Obviously, any form of torture or cruel, inhuman or degrading treatment would be
offensive to human dignity…and it would on this view be prohibited by Article 21[23].
3. Investigating officers are prohibited from obtaining statements from witnesses through
threatening conduct[24].
4. The Supreme Court and now the statutory law has laid down a considerable set of
procedural safeguards. These include:
1. Immediately on arrest the arresting police officer has an obligation to give
 63

information about the arrest and the place of detention to any person nominated by the arrested
person [25] and make an entry of the same in the general diary maintained in every police station
[26]
providing the details of the person who is informed.

21. Sakiri Vasu v. State of Uttar Pradesh [(2008) 2 SCC 409]

22. Francis Coralie Mullin v Administrator, Union Territory of Delhi.
23. D.K.Basu Vs. State of West Bengal. AIR 1997 SC 610
24. section 163 of The Code of Criminal Procedure: No inducement to be offered. (1) No police officer or other person in authority shall offer or
make, or cause to be offered or made, any such inducement, threat or promise as is mentioned in section 24 of the Indian Evidence Act, 1872 (1 of
1872 ). (2) But no police officer or other person shall prevent, by any caution or otherwise, any person from making in the course of any
investigation under this Chapter any statement which he may be disposed to make of his own free will: Provided that nothing in this sub- section
shall affect the provisions of sub- section (4) of section 164.
25 Code of Criminal Procedure, 1973, Section 50(A)(1).
26. Section 50(A)(2).

1. Draw up an “Arrest Memo” indicating the date, place and time of arrest; signed by two
independent witnesses and countersigned by the arresting officer [27].
2. Draw up an “Inspection Memo” of all major and minor injuries on the body of the
arrested person[28].
3. Conduct a medical examination of the arrested person at the time of arrest. This is to be
repeated every 48 hours if the arrestee is in police custody[29].
4. It will also be the duty of the Magistrate before whom the accused is produced to check
with the accused whether the police have complied with the above provisions[30].
5. The Magistrate must inform the arrested person, when first produced, about the right to a
medical examination and also inquire whether they have any complaints of torture or
maltreatment in custody[31].
If the arrested person alleges before the Magistrate that he has been ill treated in custody,
it is incumbent on the magistrate to record the allegation in writing, immediately order a medical
examination and take all necessary steps to ensure that the allegation is fully investigated. This
should be done even in the absence of an express complaint or allegation, if the person
concerned bears visible signs of physical or mental ill-treatment. The court can further safeguard
the accused by ensuring that the accused is accompanied by a relative to any medical
examination. The primary role of judges in preventing acts of torture, therefore, is to ensure that
the law is upheld at all times.
Right to Respect for One’s Private Life

The right to privacy is essential and fundamental in an organized society. Without it, an
individual would be unable to enjoy the privileges which belong to him as a member of
society[32]. It is a cherished right. There must be strong, cogent and legally justifiable reasons for
law enforcement agencies to interfere with this right. Here it is essential that proper procedure is
always followed because intrusion into a person’s home, professional or family life in the name
of investigation without any proper basis is not permitted[33].
Two cases decided by the Supreme Court of India laid the foundations for the right
intrusion into a home by the police under state regulations, by way of “domiciliary visits”. Such
visits could be conducted at any time of the night or day, to keep a tag on persons to unearth
suspicious criminal activity, if any, on their part.

27. D.K. Basu v State of West Bengal.

 64

28. D.K. Basu v State of West Bengal

29.D.K. Basu v State of West Bengal.
30.Code of Criminal Procedure, 1973, Section 50(A)(4).
31.Sheela Barse v State of Maharashtra 1983 SCC 96.
32. Roberson v Rochester Folding-box Co., 171 N.Y. 538.
33. Kharak Singh v State of Uttar Pradesh and Others 1 (1964) SCR 332.

The validity of these regulations came under challenge. In the first case, the majority did
not question whether these visits violated the “right to privacy”. But, the minority view while
concurring that the fundamental right to privacy was part of the right to liberty in Article 21[34].
The second case which laid the foundation of this right has stated that, though, the “right
to privacy was not absolute” and as the makers of our Constitution wanted to ensure conditions
favourable to the pursuit of happiness, the privacy right can be denied only when an “important
countervailing interest is shown to be superior”, or “where a compelling state interest is shown.”
Any right to privacy “must encompass and protect the personal intimacies of the home, the
family, marriage, motherhood, procreation and child bearing”. The Court explained that, if there
was state intrusion, there must be “a reasonable basis for intrusion”. The right to privacy, in any
event, would necessarily have to undergo a process of case-by-case development[35].
Several years later in 1991, the Supreme Court observed that the right to privacy is part
of the right to life and personal liberty under the proper procedure must be followed, as intrusion
into a person’s home, professional or family life in the name of investigation or domiciliary visits
– without a proper basis – is not permitted[36].

Duty to Keep Records of Investigation Without Unnecessary Delay

The necessity to discover the truth in every case demands that police records must be kept with
scrupulous completeness, and investigations carried out with promptness, urgency, and
efficiency. It was has held that such investigation standards require police to question and record
statements from parties who may possibly possess relevant information, to quickly take into
custody hard evidence, and have experts file an urgent forensic report so that no valuable clues
are lost, underlining the vital importance of executive record keeping, the Supreme Court has
repeatedly reiterated that the case diary should be maintained with scrupulous completeness and
efficiency[37].
The Code of Criminal Procedure, Section 172 requires the police to conduct
investigations expediently, while keeping thorough records of their methods and findings.
Section 172(1) requires a police officer to keep a day-to-day case diary of his investigation
“setting forth the time at which the information reached him, the time at which he began and
closed his investigation, the place or places visited by him, and a statement of the circumstances
ascertained through his investigation”[38].

34.Kharak Singh v State of Uttar Pradesh and Others 1 (1964) SCR 332.
35. Govind v State of Madhya Pradesh, AIR 1975 sc 1378.
36.People’s Union for Civil Liberties v Union of India AIR 1991 SC 207.
37. Bhagwant Singh Vs Commissioner of Police, 1985(SC)1285.
38. Section 172(1) of The Code of Criminal Procedure.
Police failure to swiftly prepare such records of investigation, resulting in undue delay at trial,
might violate Article 21 of the Constitution, as the procedure prescribed by law for denying a
person’s liberty is not reasonable, fair and just, if the accused is not afforded a speedy trial[39].
The Settled Proposition of law is that the court would not interfere with the investigation
 65

or during the course of investigation from the date of lodging of FIR till filing of report under
section 173(2) The Code of Criminal Procedure[40]. But indirectly the Magistrates play vital role
in the process of investigation in the following modes.
5. Recording of confessions.
6. Recording of Dying Declaration.
7. Conducting Test Identification Parade.
Confessions
The law relating to confession is to be found generally in section 24 to 30 of Indian Evidence Act
and section 162 to 164 of The Code of Criminal Procedure.

1. There is no repugnancy between section 164 of The Code of Criminal Procedure and
Article 20(3) of Constitution of India, section 164 does not violate Article 21 of Constitution of
India[41].
2. Before recording a confession the magistrate is required to explain the person making the
confession that he is not bound to make such confession and if he so desires it might be used
against him. In the memorandum required under section 164(4) of The Code of Criminal
Procedure the magistrate has to mention it.
3. The magistrate recording confession must ensure that the statement is voluntary and
without pressure[42].
4. When one of the co-accused making a confession was discharged and did not face the
trial his confession cannot be used against the co-accused[43].
5. When the accused retracted the confession at a belated stage making some allegations of
torture against the police[44].
6. When Two confessions are there[45].
7. Appreciation of recording the confessional statement was discussed[46].
8. Whether a magistrate can record the statement of any person under section 164 of The
Code of Criminal Procedure even without the request of the investigating officer? No[47].

39. Mihir Kumar Ghosh Vs. State of West Bengal & Othrs 1990 Crlj 26.
40.union of India Vs. Prakash Hinduja. AIR 2003 SC 2612.
41. Kalawati Vs. State of Himachal Pradesh AIR 1953 Sc 131.
42. Dhananjay Reddy Vs.,State of Karnataka 2001 SCC (Crl) 652.
43. Suresh Budharmal Kalani Vs. State of Maharashtra. AIR 1998 SC 3258.
44. Elengban Dharma Singh Vs.,State of Manipur. 1952 Crl.J 1500.
45. In BabuBhai Udesinh Parmar Vs. State of Gujarat it was held that when two confessions were recorded one after another in quick succession
the first confession was recorded in 15 minutes and the accused was not provided legal aid. Conviction was set aside.
46.2012 STPL web 464 Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid Vs. State of Maharashtra.
47.section 164 of The Cr.P.C does not empower Magistrate to record the statement of witnesses on his own even not asked by I.O.
1. It should be reasonable to insist upon giving an accuse person at least 24 hours to decide
whether or not he should make a confession[48].
2. Confession recorded with-out providing legal aid is not proper[49].
3. Recording a statement of an accused on oath is prohibited[50].

Dying Declaration
Section 32 and section 33 of Indian Evidence Act deal with the relevancy of statements by
persons who cannot be called as witnesses. Guide lines on Dying Declaration[51].

(a) There should be no prompting at the time of recording of Statement for Dying
 66

Declaration[52].
(b) It is the duty of the magistrate to take every possible step to ensure that no influence is
brought to bear on the declarant and that he is not prompted or aided in any way in
making his statement[53].
(c) Dying declaration statement recorded on gestures and signs can be accepted[54].

In the process of fair trial and the innovations in the recent trend. Can the Declaration be
recorded through audio, video (Electronic Means). Endorsement. Signature or thumb impression
of the victim be obtained on the Digital Scribe or an application designed for this purpose, which
is less expensive.

Test Identification Parade

Rule 34: For Fairness during the process and proper conduct of TIP the following points to be
considered:
(i) Suspect must be mixed up with other persons of the same height, build, age-group and
appearance.
(ii) To rule out the possibility of a chance identification fairly large number of other persons
should be mixed with other suspects.
(iii)When number of suspects are there it is fair enough to put up a single suspect separately
for identification[55].
(iv) Any objections raised by the suspect during the proceedings should be given proper
consideration. (Doubt)
(v) If an accused desires his counsel to be present at the time of TIP he should be allowed[56].

48.Sarwan Singh Ratan Singh Vs State of Punjab.

49.babubhai Udesinh Parmar Vs.State of Gujarat 2007 Crlj 786.
50.Bahubhai Udesinghparmar Vs State of Gujarat 2007 CRL.J. 786
51.Kushal Rao Vs Bombay AIR 1958 SC 22.
52.Abdul sattar Vs Mysore AIR 1956 SC 168.
53.Nem Singh Vs Emperor AIR 1934 ALL 908
54.Meesala Rama Krishna Vs State of A.P. 1994 SCC 4 182.
55.Satya Narain case.
56. Asharfi Case.
Instance: if the witness saw the offender while he was running or walking away and if the
witness place such a request, it would be perfectly admissible for the magistrate to direct the
persons in the parade to run or walk. The idea behind this that it should not be too easy or too
difficult for a witness to pick out a suspect. It should be a real test of witnesses memory at the
same time it should be fair for both the witness as well as to the suspects.
Right of legal aid Part of Fair Trial
The right is recognized because of the obvious fact that ordinarily an accused person does
not have legal knowledge and the professional skill to defend him before a court of law where in
the prosecution is conducted by a competent and experienced prosecutor.39 In U.S.A., the 6th
Amendment to the Constitution provides, inter alia, Similar right is also provided by the
Constitution under article 20(2) but it only protects the person who is prosecuted and punished
for the same offence and does not include previous acquittal as in case of section 300 of the Code
which considered both situations[57].
Right to counsel is recognized as fundamental right of an arrested person under article
 67

22(1) which provides, inter alia, no person shall be denied the right to consult, and to be
defended by, a legal practitioner of his choice, the right of an indigent person to be provided with
a lawyer at state’s expenses is an essential ingredient of article 21, for no procedure can be just
and fair which does not make available legal services to an accused person who is too poor to
pay for a lawyer.
Section 303 provides a right to accused person to be defended by a pleader of his choice,
whereas section 304 casts a duty on the State to provide legal aid to indigent persons in a trial
before the Court of Sessions. Further, article 39-A was also inserted in the Constitution as per
Constitution (42nd Amendment) Act, 1976, which requires that the state should pass suitable
legislations for promoting and providing free legal aid[58]. To fulfill this constitutional mandate
the Parliament enacted Legal Services Authorities Act, 1987. Section 12 of the said Act provides
legal services to the persons specified in it.

Recommendations of Law Commission For Fair Trial

(a) To improve the credibility of the investigating Police and to improve its efficiency and
professionalism and insulate it from external pressures. Officers of the level of Superintendents
of Police or higher level officers are entrusted under the laws referred to above to record
confessions fairly and without subjecting the accused to duress or inducement. If the confession
is audio/video recorded, it would lend further assurance that the accused was not subjected to any
form of compulsion. It is not our case that the conviction should be based only on a confession.
The confession should be considered by the courts along with other evidence[59].
57. Jitendra Panchal v. Intelligence Officer NCB & Ors. 2009 (2) SCALE 202.
58. Maneka Gandhi v. Union of India
59. Committee on Reforms of Criminal Justice System Government of India, CHAIRMAN Dr. Justice V.S. Malimath. 7.35.4.
 It was recommended that section 25 of the Evidence Act may be suitably substituted by a
provision rendering admissible, the confessions made before a Police Officer of the rank of
Superintendent of Police and above. Provision should also be made to enable audio/video
recording[60].

IDENTIFICATION OF PRISONERS ACT1920

Section 4 and 5 or the Identification of Prisoners Act, 1920, empower a Magistrate to permit
taking of finger prints, foot prints and photographs of a convict or of an accused arrested for an
offence punishable with imprisonment of one year or more. Magistrate to order an accused to
give samples of hand writing, fingerprints, footprints, photographs, blood, saliva, semen, hair,
voice etc, for purposes of scientific examination[61].

Obstacles

In the processes of investigation these days the media is disturbing the fair trial process.

Influence Of Media On Accused Influence Of Media On Witness

If the media projects a suspect or an accused If the identity of witnesses is published, there is
as if he has already been adjudged guilty danger of the witnesses coming under pressure
well before the trial in courts, there can be both from the accused or his associates as well-
serious prejudice to the accused. Even if as from the police. At the early stage, the
 68

ultimately the person is acquitted after the
due process in the courts, such an acquittal
may not help the accused to rebuilt his lost
image in society. Excessive publicity in the
media characterizing him as a person who
indeed committed the crime, it amounts to
undue interference with the administration
of justice, calling for proceeding for
contempt of court against the media.
witnesses want to retract and get out of the
muddle. Witness protection is then a serious
casualty. This leads to the question about the
admissibility of hostile witness evidence and
whether the law should be amended to prevent
witnesses changing their statements.

60. Committee on Reforms of Criminal Justice System Government of India, CHAIRMAN Dr. Justice V.S. Malimath. 7.36.
61. On the Recommendations of Committee on Reforms of Criminal Justice System Government of India, CHAIRMAN Dr. Justice V.S. Malimath
7.36.1. Section 311-A of Cr.p.C inserted by the Cr.P.C9Amendment) Act, 2005.
To prevent the media from reporting anything prejudicial to the rights of the accused in criminal
cases from the time of arrest, during investigation and trial which constitutes interference in the
due course of administration of justice. Including:

(1) Publications concerning the character of accused or (6) Creating an atmosphere of

previous conclusions; prejudice;
(2) Publication of Confessions : (7) Criticism of witnesses:
(3) Publications which comment or reflect upon the (8) Premature publication of
merits of the case; evidence:
(4) Photographs of the case which may interfere with the (9) Publication of interviews with
identification of the accused; witnesses.
(5) direct imputations of the accused‘s innocence;

For the above said Law has to be enacted[62]. The right to a fair trial does not perse supersede the
press‘ right to free speech. The right to fair trial though read under Article 21 of the Constitution
of India is more concerned with the conduct of the State in affording a fair trial to the accused
rather than a private publisher or a journalist.

GUIDE FOR JUDICIAL ENFORCEMENT

Fair Trial is a level of playing field for maintaining the balance between individual
liberties and state power, to bring justice to people. It is for this reason that the independence of
the judiciary is held sacred and judges and magistrates are expected to follow every procedural
safeguard and protect every assurance provided by the law to all parties. The police frequently
overstep their role of Marshalling evidence and apprehending the suspect by taking on the role of
the judge. This abrogation of independence and role of independent adjudication results in the
possibility of bias which is fatal to fair trial.
1. Criminal trial is meant for doing justice not only to the victim but also to the accused and
the Society at large. Every criminal trial is a voyage of discovery in which truth is the quest. The
primary object of criminal trial is to ensure fair trial which is guaranteed under Art.21 of the
Constitution of India. A fair trial has, therefore, two objects in view. It must be fair to the accused
and must also be fair to the prosecution[63].
2. The recent trend is to delay the trial and threaten the witnesses or to win over the
witnesses by promise or inducement. These malpractices need to be curbed and public justice can
 69

be ensured to the satisfaction of all concerned only when trial is conducted expeditiously[64].

62. 178th report of Law Commission of India.

63. Ambika Pd. V. State (Delhi Administration)-2000 SCC Crl.522.
64. Krishnan V. Krishnaveni-1997 SCC Crl.544 = AIR 1997 SC 987.
3. The criminal law has a purpose to serve. Its object is to suppress criminal enterprise and
punish the guilty. In this process it must however be ensured that reasonable doubts alone are
given to the accused[65].
4. Judges should remember that the power of the judge to put questions to any of the
witnesses or parties under Sec. 165 of the Evidence Act is a wide power. The only functionary in
the criminal trial who can ask even irrelevant questions is the presiding judge. Hence, whenever
the presiding judge finds that a particular point emanating from the case needs elucidation or a
further probe, he should not hesitate to intervene and clarify the position. He can also press into
service Section 311 Cr.P.C. in his endeavor to arrive at the truth[66].
5. When the accused objects to the presence of a police officer or other person inside the
court hall, the trial judge has to consider his objections, having regard to the intelligence and the
susceptibilities of the class to which he belongs and such other relevant circumstances [67].
6. The investigating officer must be present at the time of trial of murder cases and if he
fails to be present, the Sessions Judge must issue summons to him[68].
7. Criminal justice should not be allowed to become a causality for the wrongs committed
by the investigating officers. The conclusion of the court in a criminal trial cannot be allowed to
depend solely on the probity of investigation. Even if the investigation is illegal or even
suspicious, the court can independently scrutinize the rest of the evidence uninfluenced by ill-
motivated investigation[69].
8. It is the game of unscrupulous lawyers to get adjournments for one excuse or the other till
a witness is won over or is tired. Not only that a witness is threatened; he is abducted; he is
maimed; he is done away with; or even bribed. There is no protection for him. In adjourning the
matter without any valid cause a court unwittingly becomes party to miscarriage of justice. A
Judge is looked upon as an embodiment of justice. Assurance of fair trial is the first imperative in
the dispensation of justice. It cannot be denied that one of the most valuable rights of our citizens
is to get a fair trial free from an atmosphere of prejudice[70].
9. It is only the duty of the investigating officer to book the real culprit, but it is also duty of
the investigating officer to protect the one who is innocent[71].
10. The investigating officer is not merely present to strengthen the case of the prosecution
with evidence to enable the court to record a conviction but to bring out the real unvarnished
version of the truth[72].

65. State of Kerala v. Narayanan Bhaskaran – 1991 Crl.L.J.238.

66. Sebastian v. Food Inspector - 1987 (1) KLT 130; Ram Chandra v. State of Haryana - AIR 1981 SC 1036.
67. State v. Charulata Joshi - AIR 1999 SC 1373; Kasi Iyer v. State of Kerala - 1966 KLT 452 = AIR 1966 Kerala 316.
68. Shylendra Kumar v. State of Bihar - 2002 SCC Crl. 230 = AIR 2002 SC 270.
69. (Vide State of Karnataka v. Yarappa Reddy - JT 1999 (8) SC 10 = AIR 2000 SC 185).
70. Swaran Singh v. State of Punjab- AIR 2000 SC 2017.
71. Vijay Vs State of Maharashtra & oths 2009 ALL MR(Crl) 2713.
72. Karan Singh Vs. State of Haryana &Othrs AIR 2013 SC 2348

11. faulty investigation – Departmental Enquiry of investigating officer can be

held[73]. Defective Investigation- I.O liable for Departmental Action[74]. Delay in
 70

Forwarding copy of F.I.R to magistrate to be avoided[75].

12. Procedure for arrest in offences punishable upto seven years[76]. Rights and
Duties of Police, Regarding arrest[77].
13. Preliminary Inquiry has to be made Before Registering the case. The police
officer has to make GD Entry when the Police Officer is satisfied that the contents
are Genuine, he can register the case, he can complete preliminary inquiry in 7
[78]
days .
14. Any Police Station can register the case on the point of jurisdiction Case can be
transferred[79].
15. Magistrate need not furnish the grounds to his satisfaction to make investigation[80].
16. Proper way to record 161 statement. Bound and duty of the investigating officer
to record the statement either it is contradictory or confronting and duty bound not to
reproduce the report[81].
17. Explanation of delay in recording 161 statement should be brought to the
knowledge of defence[82].
18. Investigation in a country or place outside India. Procedure is prescribed in sec
166 A and B and guidelines stated in boffers case. (letter was issued by
Indian courts to foreign competent court to help the investigation and collection of
evidence. Money was deposited in Swiss bank- Boffors Case) & Belgium Case - Dr.
Mahender singh bhatia married Namita and killed his wife namita in honeymoon at
Belgium.
19. The victim has a say in the grant of bail to an accused. S. 439 (2) Cr.PC, as
interpreted by the courts, recognizes the right of the complainant or any
“aggrieved party” to move the High Court or the Court of Sessions for
cancellation of a bail granted to the accused[83].

73. State of Gujarat Vs. Kishanbhaite of Gujarat AIR 2014 SCW 557
74. Gajoo Vs. State of Uttarakhand, 2012 AIR SCW 5598
75. Bijiy singh Vs. State of Bihar 2002 AIR SC 1949
76. Arnesh Kumar Vs State of Bihar AIR 2014 SC 2756
77. Joginder Kumar Vs State of U.P. AIR 1994 SC 1349
78. State of Haryana vs. Bhajan Lal AIR 1992 Sc 604.
79. State vs Swamy behuva 1976 crlj 296
80. Karak singh vs hathi singh 1988 crlj 578.
81. g.rajesh vs state of ap 2011 crlj 3506.
82. Prudvi vs Manuraj air 2004 SC 2729
83. Puran v. Rambilas (2001) 6 SCC 338 and R.Rathinam v. State (2000) 2 SCC 391.
Conclusion:

Whenever any offence is committed it results in the invasion of the rights of the citizen
and the victim is entitled to complain about such invasion. The object of the penal law is to
protect life, liberty and property of the citizen. Because of the burden placed on investigating and
producing evidence large number of victims of non - cognizable offences do not file complaints.
They stand deprived and discriminated. This is one of the reasons for the citizens’ losing faith
and confidence in the Criminal Justice System. As justice is the right of every citizen it is not fair
to deny access to justice to a large section of citizens by classifying certain offences as non-
cognizable. Law should provide free and equal access to all victims of crime. Victims feel
ignored and are crying for attention and justice A victim of crime has a right to legal assistance at
every stage of the case subject to the
 71

fulfillment of the means test and the `prima-facie case’ criteria.

Key- word:- Judges have to ensure that not only innocent man is not punished but also see that
a guilty man shall not escape[84].

84. T.H.Hussain V. M.P.Modkakar-AIR 1958 SC 376. It is, therefore, necessary to remember that a judge does not preside over a criminal trial
merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. One is as important as the other.
Both are public duties which the judge has to perform. The object of criminal trial is thus to render public justice by punishing the criminal. It is
also important to remember that the trial should be concluded expeditiously before the memory of the witnesses fades out.
 72

From Investigation to Trial stage

By
Smt. D. Sharmila,
Addl. Junior Civil Judge,
Gannavaram.

India adopted a criminal Justice System known as ' Adversial ' Criminal
Justice System. The prime aim of this system is to give a fair trial to the
persons. The golden principles governing the Criminal Justice System in India
are:
* Presumption of innocence : The accused shall be presumed to be innocent
till his guilt is proved.

* Protection of Innocence : Let hundred criminals escape punishment but no

single innocent person shall not be punished.

* Opportunity of hearing : The accused shall not be punished unheard.

* Reasonable Proof : The proof shall be beyond reasonable doubt to a criminal

charge against the accused.

* Benefit of Doubt : If doubt is created in the mind of the court the doubt shall
go in favour of the accused. It is called the benefit of doubt.

In the criminal Justice System, we have four major functionaries for the
cause of 'quest for truth'. The first functionary is the 'Police' to whom the
system has entrusted with the responsibility of investigation in accordance with
the procedure established by law. Secondly the investigation done by police
shall be prosecuted effectively against the accused by the 'Prosecution
Agency' . Successful prosecution is nothing but achieving the truth after due
process of trial. Thirdly ' the Court' which are prime in following the procedure
by giving a fair trial to the accused and arriving at justice. The innocents are
acquitted and the guilty are punished basing on the evidence before it. The
forth one is 'Prison Department ' which is otherwise called as Correctional
Agency. It will receive the guilty into the prison. They are treated and corrected
for inducting
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back into the society. These four important wings of Criminal Justice System
are working on the foundation of Criminal laws .
Scope: Chapters XII to XVII ( Sections 154 to 224 ) of Code of
Criminal procedure deals with the procedure in respect of stages
from Investigation to Trial .
Under the law the investigator is enjoined upon to unearth the crime. The
object of investigation is not merely to enable the court to record conviction but
to bring out the unvarnished truth.

INVESTIGATION: Section 2(h) Cr.P.C. defines investigation : “ Investigation”

includes all the proceedings under this code for the collection of evidence
conducted a by a Police officer or by any person (other than a Magistrate) who
is authorized by a Magistrate in this behalf;
Main object of investigation of a crime :

(1) Ascertain all the facts and circumstances of the case

(2) Discovery and arrest of suspected offender and

(3) Collection of evidence relating to commence of the offence.

(4) Examination of various persons including the accused and recording their
statements

(5) Search of places, seizure of things considered necessary for the investigation

(6) Formation of opinion as to whether it is a fit case for the accused to be sent
up for trial and, so taking steps to file charge sheet.

The word investigation has to be read to understand in the light of not only the
powers conferred on Police Officer but the restitutions placed on them in the
use and exercise of such powers.
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Importance of " Fair Investigation" :

Stressing the importance of fair and impartial investigation, Hon'ble Supreme

Court in Jammuna Chaudhary vs. The State of Bihar, observed that the duty
of investigating officer is not merely to bolster up a prosecution case with such
evidence as may enable the court to record a conviction but to bring the real
unvarnished truth.

Effect of Omissions, Negligence, illegalities and irregularities in

Investigation:

Irregularities in conduct of investigation are not intended to vitiate the trial

before the courts. The Magistrates are expected to decide cases on the evidence
produced before them ( State vs. Dhanpal, 1967 Cri.L.J. 1450).
Defect in investigation itself cannot be a ground for discharge ( State of Tamil
Nadu by Inspector of Police Vigilance and Anti Corruption vs. N.Suresh
Rajan& Ors., 2014(1) Crimes 1 (SC). The Apex court of India in Shri Durga
Das vs. State of H.P., 1973 Cri.L.J 1138 held that if there is any irregularity
in the investigation that would not vitiate the trial or the conviction, in the
absence of evidence that accused has been prejudiced.

F.I.R : Section 154 Cr.P.C:

According to Sec.154 Cr.P.C., once Police officer receives information relating

cognizable offence shall entered into the book to be kept for the purpose of
mentioning the information. Whenever the S.H.O. registered the crime and
copy of report shall be furnished to the informant (154 (2) Cr.P.C.). If the Police
officer failed to register the crime, the report may be sent to the Superintendent
of Police concerned for the proper action on the report(s.154(3) Cr.P.C).
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Object of F.I.R:

(1) From the point of view of the informant is to set the criminal law in motion.
(2)From the point of view of investigating authorities is to obtain
information about the alleged criminal activity so as to able to take suitable
steps for tracing and bringing to book the guilty party. FIR need not be
encyclopedia of all facts and circumstances. Delay in lodging FIR cannot be a
ground by itself for throwing away the entire prosecution case.
( Jitender Kumar Vs. State of Haryana, 2012(3) ALT Crl 456 (SC).
In Non-cognizable offences the Police Officer has no authority to investigate the
matter without order of the Magistrate. If the Police officer received information
in Non-Cognizable cases including cognizable offences there is no bar to the
Police officer to proceed investigation as if all the offences treated as cognizable
offences.

Sec.156 Cr.P.C: Power of Magistrate to order investigation:

The Investigation Officer can start investigation without order of the Magistrate
in a cognizable offence. Under Sec.156(3) Cr.P.C, Magistrate is empowered to
order for police investigation on a complaint at a pre-cognizance stage. The
Magistrate can also direct a police officer to register a case against the accused.

Sec.157 Cr.P.C: Procedure for investigation :

After receipt of the report in a cognizable offence the Police officer shall proceed
or depute on his behalf to the spot to investigate the facts and circumstances of
the case. Recording of the statement of the woman victim shall be conducted at
the residence of victim or in her place of choice by women Police Officer in the
presence of her parents or Guardian or any social worker of the locality.

Sec.160 Cr.P.C :

According to Sec.160 Cr.P.C., any Police officer made investigation by ordering

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in writing to attend any person before him who acquainted with the facts and
the circumstances of the case.

Sec.161 Cr.P.C:

Any Police Officer making an investigation may examine orally any person who
supposed to be acquainted the facts and circumstances of the case. The Police
officer may reduce into writing any statement may to him in course of her
examination. Examination of the women witnesses against women offences
shall be recorded by a women Police officer. (as amended act No.13 of 2013
w.e.f. 3-2-2013). The witness also can be examine by audio video electronic
means ( as amended Act No.5 of 2009 with effect from 31-12-2009). If a
significant omission is made in a statement of a witness U/s.161 Cr.P.C., the
same may amount to contradiction (Shyamala Ghosh vs. State of Bengal
(2013(1) SCJ 61)

Sec.162 Cr.P.C :

Section 162 Cr.P.C imposes a bar on the use of any statement made by any
person to a police officer in the course of investigation at any enquiry or trial in
respect of any offence under investigation at the time when such statement was
made, except for the purpose of contradicting the witness in the manner
provided by Sec.145 of the Indian Evidence Act ( Hazari Lal Vs. The state
( Delhi Admin.), 1980 CrLJ 564 ).

Sec. 164 Cr.P.C: Confession :

Recording of Statements of the witnesses is a vital part of the investigation.

Whenever any person accused of any offence desires voluntarily to confess to
any crime of which he is alleged to have committed or any co-accused or a
person who is an accomplice voluntarily offers to confess his crime, the
Magistrate shall proceed to record the statement. The investigating Officer can
file a requisition before the Magistrate Under Rule 31 of Criminal Rules of
 77

Practice to record the confessional statement U/sec.164 Cr.P.C. The Magistrate

shall take precautionary before recording while recording the confession. The
Magistrate must satisfy himself that the confession the accused proposes to
make is genuinely voluntary. Before recording the statement, the Magistrate
shall give the accused adequate time to reconsider his decision and after giving
him correct and clear warning that the statement the accused confesses might
be used against him. The statement so recorded by the magistrate shall be
signed by the accused and the magistrate must affix his signature after taking
confession is recorded. Confession shall be signed by the person who confessed
it. According to Sec.25 of Indian Evidence act confession made before the Police
is in admissible evidence but the confession leading to the recovery of fact or
material is relevant U/sec.27 of Indian Evidence Act.
Sec.164 (A): deals with medical examination of the victim of rape and the
Medical officer without delay shall prepare report.

Sec.165, 166 Cr.P.C: dealing with search by the Police officer whenever
necessary and the Police Officer may conduct search during the course of
investigation by issued warrant to enable him for collection of the evidence.

Remand : Sec.167 Cr.P.C.

Section 167 Cr.P.C deals with remand of the accused. During the course of
investigation the Investigation officer can arrest the accused by following the
arrest procedure Under Sec. 41 to 60 (A) Cr.P.C. According to Sec.57 Cr.P.C.
Police officer has no authority to detained the arrested person more than 24
hours in his custody. If he fails to do investigation within 24 hours he shall
produce arrested person before the Magistrate for Judicial custody.

Section 167(2) Cr.P.C: Remand :

The procedure under this section controls investigation by police otherwise the
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accused who is in prison is entitled for bail. Magistrate has authority to detain
the accused person for a period of 90 days where the investigation reveals the
offence is punishable with Imprisonment for life or imprisonment for a time of
not less than 10 years and in other cases the investigation must completed
within 60 days from the date of first remand of the accused. During the course
of investigation, if the investigation officer feels that the accused is necessary
for Police custody he can file a requisition for Police custody. Police custody can
be ordered only during the period of first 15 days prescribed U/sec.167 Cr.P.C.
(Shaik Basha and others Vs. State of Andhra Pradesh 2002 (1) ALD Crl.116
AP.38) After collecting the material during the course of investigation Officer
shall release the accused on executing a bond with or without sureties to
appear before the Magistrate if he takes cognizance on Police report.

Undertrial prisoners detained for period longer than maximum sentence

which could be imposed upon conviction is violation of not only human dignity
but also fundamental right of personal liberty ( Hussainara Khanoon and
others Vs. Home Secretary, State of Bihar, 1979 CrLJ 1134 )

Stoppage of Investigation: Sec. 167(5) Cr.P.C:

In a case triable by a Magistrate as a Summons case, the investigation is not

concluded within a period of six months from the date on which the accused
was arrested, the Magistrate shall make an order stopping further investigation
into the offence unless the officer making the investigation, satisfies the
magistrate that for a special reasons and in the interest of justice the
continuation of the investigation beyond the period of six months is necessary.

Sec.167(6) Cr.P.C: The Session Court has the power to vacate the order made
by the Magistrate stopping the investigation.
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Case Dairy: Section 172 Cr.P.C:

The Police Officer making investigation shall enter his proceedings in a Diary
with time and place of investigation. After collection of the witnesses, material
objects, documents the investigation officer shall file a report before the
Magistrate concerned U/sec.173 (2) Cr.P.C along with all the documents,
objects, medical evidence report and other material papers dealing with a case.

Charge Sheet: Section 173(2) Cr.P.C:

When the investigation is complete, the police officer is required to submit a

report under Section 173 of the Code of Criminal Procedure (in short Cr PC) to
the Magistrate stating the name of the parties, the nature of information, etc.
This report is known as the ‘charge-sheet’ or ‘challan’ . If a prima facie case is
made out against the accused or ‘Final Report’ if no such case is made out.
Charge-sheet forms the basis of the case in the Court. The police report under
Section 173, Cr PC will contain the facts and the conclusions drawn by the
police there from. The Magistrate is expected to apply his judicial mind to the
report and he is not bound by the conclusions drawn by the police. He may
differ with the police report, be it a ‘charge-sheet’ (or ‘final report’). He may
decide to issue process even if the police recommend that there is no sufficient
ground for proceeding further (H.S. Bains vs. State 1981 SCR (1) 935.

Further Investigation Section 173(8) Cr.P.C :

Power of police to conduct further investigation, even after laying final report,
is recognized under Section 173(8) of Cr PC (Sri BSSVVV Maharaj vs. State of
UP 1999 CrLJ 3661 SC).When a power under sub section (8) of Section 173 of
Cr PC is exercised, the Court ordinarily should not interfere with the statutory
powers of the investigating agency. The Court cannot issue directions to
investigate the case from a particular angle or by a particular agency (Popular
Muthiah vs. State 2006 (7) SCC 296).
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Inquest : Section 174 Cr.P.C:

The Police officer when receives information if a person committed a suicide or

killed by any person by any animal by machinery, accident or died under
raising reasonable suspicion. Police officer shall immediately give a information

to the nearest Executive Magistrate. The Executive Magistrate shall proceed

and conduct Inquest U/sec.174 Cr.P.C. The Police Officer shall file a report
signed by him.

In Podda Narayana v. State of A.P. AIR 1975 SC 1252 it was held that the
proceedings under Section 174 have a very limited scope. The object of the
proceedings is merely to ascertain whether a person has died under suspicious
circumstances or an unnatural death and if so what is the apparent cause of
such death.

Section 176 Cr.P.C:

An inquiry into the cause of death of a person while in police custody under
Section 176 of the Code is to be held independently by a Magistrate and not
jointly with a police officer when the role of the police officers itself is a matter
of inquiry.

The Magistrate holding such an inquiry shall record the evidence taken by him
in connection therewith in any prescribed manner according to the
circumstances of the case.

The statements recorded by the Magistrate in the course of an inquiry under

Section 176 can be treated in subsequent proceedings as former statements of
witnesses, or confessions or admissions of accused persons, in accordance
with the subject to the relevant provisions of the Evidence Act.
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The inquiry by the Magistrate into the cause of death under Section 176 of the
Code has nothing to do with the exercise of the judicial power. Such inquiry
cannot best be treated as quasi-judicial in character. The report or a finding by
the Magistrate into the cause of death is not the part of proceedings.

Evidential Value of various Reports prepared during the course of

Investigation :

1. F.I.R- Not a substantive piece of evidence but can be used for

corroboration and contradiction.

2. Scene Observation Report - Not a substantive piece of evidence but can

be used for corroboration and contradiction.

3. Rough Sketch - Not a substantive piece of evidence but can be used for
corroboration and contradiction.

4. 161 Cr.P.C Statements - Not a substantive piece of evidence. It cannot

be used for corroboration . It can be used for contradiction only.

5. 164 Cr.P.C Statements - Not a substantive piece of evidence but can be

used for corroboration and contradiction.

6. Confession before Magistrate - substantive piece of evidence.

7. Inquest - Not a substantive piece of evidence but can be used for

corroboration and contradiction.

8. Postmortem Report - Not a substantive piece of evidence but can be

used for corroboration and contradiction.

9. Dying Declaration - substantive piece of evidence

JURISDICTION OF THE CRIMINAL COURTS IN ENQUIRY AND

TRIALS:CHAPTER XIII

Every offence shall be enquired and tried by the court within local jurisdiction.
According to Sec.178 Cr.P.C.when the offence committed in different places it
may be tried by the court having jurisdiction over such area. If the offence is
 82

committed when one person was in journey the offence may be tried by the
court whose local jurisdiction the person or thing passed in the course of
journey. According to sec.188 Cr.P.C. when a Indian citizen committed offence
outside India he may dealt with in respect of such offence as if he committed
the offence in India. But, the previous sanction of the government is necessary
Sanapureddy Mahidar Seshagiri and another Vs. State of A.P. and another
2007 (1) ALD criminal 526 AP.

Conditions requisite for institution of proceeding : CHAPTER XIV :

The Magistrate may take the cognizance of offence U/sec.190Cr.P.C

(a)Upon receive a complaint of facts which constitute such offence

(b) Upon a Police report of such facts
(c) upon information received other than Police Officer or
(d) Magistrate knowledge that offence has been committed.

Before taking the cognizance, the Magistrate has to peruse the entire Police
report for taking necessary action. Non examination of witness except
complaint would not procured the Magistrate from taking cognizance or offence
U/sec.190 Cr.P.C. (Thota Papireddy and another Vs. Gudalli Eliah, 2006 (2)
ALD Criminal 447 AP ) According to Sec.195 to 197 Cr.P.C, there are specific
bars to take the cognizance by the Magistrate. According to Sec.195Cr.P.C, No
court shall take cognizance except on the complaint in writing of that court.
According to Sec.196Cr.P.C. there is specific bar to take the cognizance for the
offence against the state and Criminal conspiracy. According to Sec.197 Cr.P.C.
No court shall take cognizance against public servant except with the previous
sanction of the concern Government. Sanction to the Public Servant depending
upon facts and circumstances of the each case. Jaisingh Vs. K.K.
Velayutham and another 2006 (2) ALD Criminal 161 SC. 4.
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COMPLAINTS TO MAGISTRATE: CHAPTER -XV :

A Magistrate shall examine the complainant and his witness upon oath. The
Magistrate need not examine the complainant and witness if a public servant
acting while discharging his duties. When a person filed a complaint before the
Magistrate, when the Magistrate is not competent to take cognizance it shall be
return to the party to be present before the Proper court. According to Sec.202
Cr.P.C., the Magistrate can examine the complainant to take the evidence. If
the offence is exclusive triable by the sessions he shall call upon to produce all
his witness and examine upon oath. After considering the statements of
complainant and his witness on oath if the Magistrate opined that there is no
sufficient grounds he shall dismiss the complaint.
Dismissal of the first complaint and filed a second complaint can be
entertained only exceptional circumstances. Poonam VS fazru AIR 2010 SC
659.

Commencement of proceedings before Magistrate : CHAPTER -XVI

(Sec.204 to 210 Cr.P.C):

If the Magistrate opined that there is a sufficient grounds for proceeding and it
appears to the Magistrate that in a summons case he shall issue summons and
in the warrant case he may issue summons or warrants on payment of
process. If, the process are not paid within during the time the Magistrate may
dismiss the complaint. Magistrate can also dispense with the person
attendance of the accused U/sec.205 Cr.P.C. When the Magistrate taking the
cognizance basing on the Police report the Magistrate shall furnish the copy of
the Police report and documents to the free of costs to the accused U/sec.207
Cr.P.C. In the cases triable by the court of sessions the Magistrate shall furnish
the copies statements recorded U/sec.200 and 202, 161 164 Cr.P.C. and any
other documents U/sec.208 Cr.P.C. If the accused appear before the
Magistrate in an offence triable by the exclusively Hon’ble Court of Sessions the
Magistrate shall commit the case to the court of sessions after compliance the
207 and 208 Cr.P.C and also take the custody of the accused subject to the
 84

provisions of the bail. Send the record to the Hon’ble Court of Sessions and
notified the Public Prosecutor by following the procedure U/sec.209 Cr.P.C.
Once the charge sheet is filed in a supporting of offence triable by the court of
sessions the Magistrate shall not looking into a merits thereof except the
following provisions of 207 and 208.Chandrabhushan Vs. State of Uttara
Pradesh 1991 (1) crimes 504, 506 (all) The Magistrate cannot discharge the
accused in an offence triable by the court of sessions. Sanjay Gandhi Vs.
Union of India AIR 1978 SC 514.
When in a case private complaint was filed and it appears to Magistrate that
investigation by the Police is in progress in relation to the offence, the
Magistrate shall stay the proceedings of such enquiry or trial and call for the
report from the Police. The Police Officer filed the report U/sec.173 Cr.P.C. and
cognizance was taken by the Magistrate against the accused who is an accused
in a complainant case, the Magistrate shall enquire into and tried together the
complaint case as if both cases were investigated into Police cases. The object
of sec.210 Cr.P.C. prevents the harassment of the accused more than one
offence.

Charge : CHAPTER –XVII (Sec.211 to 225 Cr.P.C):

The purpose of the charge is to ascertain the accused person as precisely and
concisely as possible of the matter with which he is charged and must
convicted him with sufficient clearness and certainty what the prosecution
intention to prove against accused. At the time of framing of charge court is not
required to screen evidence or to apply the standards whether the prosecution
able to prove the case against the accused at the trial. In a summons case
there is no formal charge need be framed. But in warrants case charge must be
framed. In a criminal trial charge is the foundation of the acquisition and every
care must be taken to see that it is not only properly framed. But, the evidence
is available in respect of the matter within the charge.
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The court must equipped with at least prima facie material to show that the
person who is sought to be charged is guilty of offence alleged against him. If,
there is no prima facie case framing of the charge amounts to illegal exercise of
jurisdiction. The time, place of offence must be spelt out in the charge. This is
an essential requirements for charge. The charge should be so framed referred
to the Section of the Penal code under which the offence charge is framed. The
evidence tendered must relate to matter stated in the charge and not the
matters not covered by the charge.
The accused is entitled to know with certainty and accuracy exact nature of
charge brought against him otherwise he would be seriously prejudiced in his
defence. Absence/error in the charge is only material if prejudiced has been
caused to the accused. According to Sec.216 Cr.P.C. court may alter charge at
any time before pronouncing the Judgment. During the trial, the trial court on
consideration of broad probability of the case based upon total effect of
evidence and documents produced is satisfied that any addition or alteration of
the charge is necessary it is free to do so and there can be no legal bar to
appropriately act as the exigencies of the case warrantor necessity. The court
has a very wide power to alter the charge; however, the court is to act
judiciously and to exercise the discretion wisely. It should not alter the charge
to the prejudice of the accused person ( Harihar Chakravorthy v. State of
W.B., AIR 1954 SC 266)
The object of the section 216 Cr.P.C. is ensure to fail trial. After alteration or
addition it shall be read over and explained to the accused.The accused has a
right to recall the prosecution witness after alteration of charge and the court
shall give an opportunity to recall, resummon, examine any witnesses to such
alterations, additions and also court can summons any further witness if the
court things fit to be material. When charge is altered, conviction without
recalling or re-summoning witness is illegal ( Mousa Abdul Rahman Vs. State
of Kerala 1982 Crl. Law Journal 2087 Kerala Division Bench ).
 86

There should be a separate charge for each distant offence and separate trial
for such charge excepting the provisions Under Sec.219, 220, 221 and 223
Cr.P.C. According to Sec.219 Cr.P.C., that the three charges of three offences of
the same kind committed within one year to be tried together. An accused
person may be charge at one trial with three offences of the same kind though
committed against different persons. Where any one series of acts are so
connected together as to form same transaction and where more than one
offence is committed there can be a joint trial (State of Punjab Vs R. Syam
Cri.L.J. 60 SC ).Sec.220 Cr.P.C. deals with if more than one offence was
committed by the same person he may be charged with at one tried for every
such offence. The offence which are committed in a series of acts are to be tired
together.
The provisions U/sec.221 Cr.P.C. safe guard the powers of the Criminal court
to convict an accused for an offence to which he is not actually charged (K.
Prema S Rao Vs. Yadla Srinivasarao AIR 2003 SC 11 ).

According to Sec.222 Cr.P.C. when a person is charged with major charge but
he may be convicted of the minor offence although he is not charged. According
to Sec.223 Cr.P.C. Clauses (a) to (g) are permitted to be tried jointly. When a
charge more heads than one is framed against the same person on conviction
the complainant or the officer conducting the prosecution may withdrawn the
remaining charge or charges. After framing the charges trial to be commenced
before court of Sessions as per the procedure prescribed under chapter XVIII
(Sec.225 to 237 Cr.P.C) and trial to be commenced before Magistrate as per
procedure under Chapter XIX (sec.238 to 265 Cr.P.C).

Conclusion: Criminal trial is meant for doing justice not only to the victim but
also to the accused and the Society at large. Every criminal trial is a voyage of
discovery in which truth is the quest. The primary object of criminal trial is to
ensure fair trial which is guaranteed under Art.21 of the Constitution of India.
 87

A fair trial has, therefore, two objects in view. It must be fair to the accused
and must also be fair to the prosecution. Judges should remember that the
power of the judge to put questions to any of the witnesses or parties under
Sec. 165 of the Evidence Act is a wide power. Assurance of fair trial is the first
imperative in the dispensation of justice. It cannot be denied that one of the
most valuable rights of our citizens is to get a fair trial free from an atmosphere
of prejudice.

Power to issue directions regarding investigation:

“Any court shall, at any stage of inquiry or trial under Cr.P.C, shall have such
power to issue directions to the investigating officer to make further
investigation or to direct the Supervisory Officer to take appropriate action for
proper or adequate investigation so as to assist the court in search for truth.
It is apparent that ample powers are vested in the magistrate to check arbitrary
arrests and to facilitate a more incisive probe into the discovery of truth, at
various stages of an investigation, and even after filing of the police report. A
conscientious magistrate’s Dharma also lies in the deft use of these provisions,
in order to uphold Constitutional values and the Rule of law, and in this he
ought not to hesitate in recalibrating the scales of justice and even protectively
discriminating to correct systematic asymmetries & disadvantages towards the
weaker accused, witness or the complainant. Existing provisions can be
interpreted creatively. Cues can be taken from the magisterial role, as
envisaged in other jurisdictions.

Hence monitoring of investigation by the Magistrate is, therefore, of vital

importance to protect the integrity of prosecution. In this regard, the
Magistrate has to walk a tightrope and balance, on one side – the separation
of executive from judiciary and the investigative autonomy of the police
on the other, to ensure a fair, free and impartial investigation.
88