Administration of Criminal Justice

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

Therefore the two main statues which deals with administration of criminal
cases in our country are criminal procedure code i.e. Crpc and Indian penal
code i.e. Ipc being procedural and substantive respectively. However with
the changing times the societal norms also change and people who are part
of this society have to accept this change either by way of compromise or
any other way in order to adjust and make them still the part of the very
same society. In earlier days there was no criminal law in uncivilized society.
Every man was liable to be attacked in his person or property at any time by
any one. The person attacked either succumbed or over-powered his
opponent. "A tooth for a tooth, an eye for an eye, a life for a life" was the
forerunner of criminal justice [1] . As time advanced, the injured person
agreed to accept compensation, instead of killing his adversary.
Subsequently, a sliding scale came into existence for satisfying ordinary
offences. Such a system gave birth to archaic criminal law.

For a long time, the application of these principles remained with the parties
themselves, but gradually this function came to be performed by the State.
The germs of criminal jurisprudence came into existence in India from the
time of Manu. In the category of crimes Manu has recognized assault, theft,
robbery, false evidence, slander, criminal breach of trust, cheating, adultery
and rape. The king protected his subjects and the subjects in return owed
him allegiance and paid him revenue. The king administered justice himself,
and, if busy, the matter was entrusted to a Judge. If a criminal was fined, the
fine went to the king's treasury, and was not given as compensation to the
injured party. [2]

Later with the advent of western jurisprudence and passing of various

charters and commissions and the advent of British rule the Indian society
succumbed or we can probably say adjusted or adapted and aligned itself to
the adversarial system of justice dispensation which prevails even today but
with a lot of changes which have been time and again being made to it to
suit to the needs of the changing times. In today’s world one needs to have a
receptive, broad and open mind in order to solve various problems which are
discussed in chapter one being faced by our justice system. Since it is
evident that a change is required in our criminal justice system and there is a
need to adhere to recourse to alternative methods of dispute resolution even
in criminal cases instead of making a major change we firstly have to see the
common features of a trial and the procedure which is followed by our courts
or system for the administration of criminal justice and its flaws which is
discussed as further. [3]

At the outset of this chapter the researcher would like to state that owing to
paucity of time and nature of topic selected the researcher has limited his
scope of study to a certain specific offences only and would be dealing with
them and the lacuna which exists in the administration procedure followed
and which particular technique of ADR can be used to curb the said problems
and side by side would result in a fair and expeditious trial.

Procedure for Administration of Criminal Justice

The procedure of administration of criminal justice in our country is divided
into three stages namely investigation, inquiry and trial. The Criminal
procedure code 1973 provides for the procedure to be followed in
investigation, inquiry and trial, for every offence under the Indian Penal Code
or under any other law. Now before discussing the procedure of
administration there are certain basic terms one should be aware of these
being;

Cognizable offences.

Non cognizable offences.

Inquiry.

Investigation.

Section 2(c) of the Code defines ‘Cognizable Offence’ and ‘Cognizable case’
as follows: -

“Cognizable Offence" means an offence means an offence for which, and

“Cognizable case" means a case in which, a police officer may, in accordance
with the First Schedule or under any other law for the time being in force,
arrest without warrant".
Whereas section 2(l) defines “Non-cognizable offence" means an offence for
which, and “non-cognizable case" means a case in which, a police officer has
no authority to arrest without warrant"

Section 2 (g) defines “Inquiry" means every inquiry, other than a trial,
conducted under this Code by a Magistrate or court; and section 2 (h)
defines "Investigation" includes all the proceedings under this Code for the
collection of evidence conducted by a police officer or by any person (other
than a Magistrate) who is authorized by a Magistrate in this behalf,

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

The three stages: namely investigation, inquiry and trial are as follows

Investigation is a preliminary stage conducted by the police and usually

starts after the recording of a First Information Report (FIR) in the police
station. Section 154 [4] provides that any information received in the police
station in respect of a cognizable offence shall be reduced into writing, got
signed by the informant and entered in the concerned register. Section
156(1) requires the concerned officer to investigate the facts and
circumstances of such a case without any order from the Magistrate in this
behalf. If Magistrate receives information about commission of a cognizable
offence he can order an investigation. In such cases citizen is spared the
trouble and expense of investigating and prosecuting the case.

Section 157 [5] of the code provides for the procedure for investigation
which is as; if the officer-in-charge of a police station suspects the
commission of an offence, from statement of FIR or when the magistrate
directs or otherwise, the officer or any subordinate officer is duty-bound to
proceed to the spot to investigate facts and circumstances of the case and if
necessary, takes measures for the discovery and arrest of the offender. It
primarily consists of ascertaining facts and circumstances of the case,
includes all the efforts of a police officer for collection of evidence:
proceeding to the spot; ascertaining facts and circumstances; discovery and
arrest of the suspected offender; collection of evidence relating to the
commission of offence, which may consist of the examination of various
persons including the accused [6] and taking of their statements in writing
and the search of places or seizure of things considered necessary for the
investigation and to be produced at the trial; formation of opinion as to
whether on the basis of the material collected there is a case to place the
accused before a magistrate for trial and if so, taking the necessary steps for
filing the charge-sheet. The investigation procedure ends with a submission
of a police report to the magistrate under section 173 of the code this report
is basically a conclusion which an investigation officer draws on the basis of
evidence collected.

Now the second phase is, Inquiry dealt under sections 177-189 of the code
which consists of a magistrate, either on receiving a police report or upon a
complaint by any other person, being satisfied of the facts. Lastly, the third
stage is trial. Trial is the judicial adjudication of a person’s guilt or innocence.
Under the Crpc, criminal trials have been categorized into three divisions
having different procedures, called warrant, summons and summary trials.

Section 2(x) of the Crpc defines Warrant-case i.e. “Warrant-case" means a

case relating to an offence punishable with death, imprisonment for life or
imprisonment for a term exceeding two years; A warrant case relates to
offences punishable with death, imprisonment for life or imprisonment for a
term exceeding two years. Trial of warrant cases is dealt under sections 238-
250 of the code.

The Crpc provides for two types of procedure for the trial of warrant cases
i.e. By a magistrate, triable by a magistrate, viz., those instituted upon a
police report and those instituted upon complaint. In respect of cases
instituted on police report, it provides for the magistrate to discharge the
accused upon consideration of the police report and documents sent with it.
In respect of the cases instituted otherwise than on police report, the
magistrate hears the prosecution and takes the evidence. If there is no case,
the accused is discharged. If the accused is not discharged, the magistrate
holds regular trial after framing the charge, etc. In respect of offences
punishable with death, life imprisonment or imprisonment for a term
exceeding seven years, the trial is conducted in a session’s court after being
committed or forwarded to the court by a magistrate.

A summons case means a case relating to an offence not being a warrant

case, implying all cases relating to offences punishable with imprisonment
not exceeding two years. In respect of summons cases, there is no need to
frame a charge. The court gives substance of the accusation, which is called
“notice", to the accused when the person appears in pursuance to the
summons. The court has the power to convert a summons case into a
warrant case, if the magistrate thinks that it is in the interest of justice. The
provisions regarding the procedure to be followed in summons case is dealt
under section 251-259 of the Crpc.

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

The common features of the trials in all three of the aforementioned

procedures may be roughly broken into the following distinct stages:

1. Framing of charge or giving of notice.

This is the beginning of a trial. At this stage, the judge is required to weigh
the evidence for the purpose of finding out whether or not a prima facie case
against the accused has been made out. In case the material placed before
the court discloses grave suspicion against the accused that has not been
properly explained, the court frames the charge and proceeds with the trial.
If, on the contrary, upon consideration of the record of the case and
documents submitted and after hearing the accused person and the
prosecution in this behalf, the judge considers that there is not sufficient
ground for proceeding, the judge discharges the accused and records
reasons for doing so. [7]

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

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

2. Recording of prosecution evidence

After the charge is framed, the prosecution is asked to examine its witnesses
before the court. The statement of witnesses is on oath. This is called
examination-in-chief. The accused has a right to cross-examine all the
witnesses presented by the prosecution [8] .

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

3. Statement of accused

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

4. Defence evidence

If after taking the evidence for the prosecution, examining the accused and
hearing the prosecution and defence, the judge considers that there is no
evidence that the accused has committed the offence, the judge is required
to record the order of acquittal [9] .However, when the accused is not
acquitted for absence of evidence, a defence must be entered and evidence
adduced in its support. The accused may produce witnesses who may be
willing to depose in support of the defence. The accused person is also a
competent witness under the law. The accused may apply for the issue of
process for compelling attendance of any witness or the production of any
document or thing. The witnesses produced by him are cross-examined by
the prosecution [10] .

The accused person is entitled to present evidence in case he so desires

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

5. Final arguments

This is the final stage of the trial. The provisions of the Crpc provide that
when examination of the witnesses for the defence, if any, is complete, the
prosecutor shall sum up the prosecution case and the accused is entitled to
reply. The same is provided for under section 234 of the code [11] .
6. Judgment

After conclusion of arguments by the prosecutor and defence, the judge

pronounces his judgment in the trial [12] . Here it is relevant to mention that
the Crpc also contains detailed provisions for compounding of offences. It
lists various compoundable offences under table 1 of the Indian Penal Code
which may be compounded by the specified aggrieved party without the
permission of the court and certain offences under table 2 that can be
compounded only after securing the permission of the court compounding of
offences also brings a trial to an end [13] .

Under the Crpc an accused can also be withdrawn from prosecution at any
stage of trial with the permission of the court. If the accused is allowed to be
withdrawn from prosecution prior to framing of charge, this is a discharge,
while in cases where such withdrawal is allowed after framing of charge, it is
acquittal [14] .

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

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

Investigation though is the foundation of the Criminal Justice System but is

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

It is common knowledge that police often use third degree methods during
investigation and there are also allegations that in some cases they try to
suppress truth and put forward falsehood before court for reasons such as
corruption or extraneous influences political or otherwise. Unless the basic
problem of strengthening the foundation is solved the guilty continue to
escape conviction and sometimes even innocent persons may get implicated
and punished.

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

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

Thirdly, the investigation of a criminal case, however good and painstaking it

may be, will be rendered fruitless, if the prosecution machinery is indifferent
or inefficient. One of the well-known causes for the failure of a large number
of prosecutions is the poor performance of the prosecution. In practice, the
accused on whom the burden is little engages a very competent lawyer,
while, the prosecution, on whom the burden is heavy to prove the case
beyond reasonable doubt, is very often represented by persons of poor
competence, and the natural outcome is that the defence succeeds in
creating the reasonable doubt on the mind of the court.

Fourthly, the most notorious problem in the functioning of the courts,

particularly in the trial courts is the granting of frequent adjournments on
most flimsy grounds. This malady has considerably eroded the confidence of
the people in the judiciary. Adjournments contribute to delays in the disposal
of cases. They also contribute to hardship, inconvenience and expense to the
parties and the witnesses. The witness has no stake in the case and comes
to assist the court to dispense justice. He sacrifices his time and convenience
for this. If the case is adjourned he is required to go to the court repeatedly.
He is bound to feel unhappy and frustrated. This also gives an opportunity to
the opposite party to threaten or induce him not to speak the truth therefore
the right to speedy trial is thwarted by repeated adjournments.

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

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

Since the above problems curb the speedy dispensation of cases the
researcher in order to provide or seek a solution for remedying and trying to
move away from the old colonial shackles has undertaken to research upon
this topic where the main research ground would be whether introduction
ADR techniques in certain criminal cases would lead to speedy dispensation
of cases without calling in for a major infrastructural change for this very
same purpose the researcher has chosen six particular sections which would
be dealt further where each section would be explained along with a its
classification and which method of trial is followed and by using a certain
technique of ADR in trial of that particular offence would lead to expeditious
and fair trial as when compared to the traditional litigation method ,

The researcher owing to paucity of time and since compulsory compromise is

not possible all criminal cases the researcher has undertaken to propose the
following;

Adding more offences under section 320(1) table from the table under
section 320(2) i.e. offence which are to be compounded with the permission
of the court should now be allowed to be compounded without eh permission
of the court where both the parties agree to settle the matter and refer the
said matters for mediation instead of normal trial procedure.
Sending all maintenance and family discord matters under section 125 Crpc
for mediation using family group conferencing method instead of normal
court trial.

Using victim offender mediation method for cases under section 323 IPC i.e.
HURT.

Using victim offender mediation method for cases under section 379 IPC i.e.
Theft.

Using victim offender mediation method or early neutral evaluation method

for cases of Criminal breach of trust dealt under section 405-408 IPC.

Sending cases of defamation dealt under section 499 IPC for mediation.

For the sake of brevity the researcher would divide the scope of introducing
ADR techniques into two chapters being scope of ADR in Code of Criminal
procedure where in section 320 and section 125 would be dealt with and the
next following chapter would be discussing about introducing ADR
techniques in the substantive criminal law i.e. IPC and would deal each
section as a sub part of the next chapters where in the following would be its
sub –sub parts;

Content of the section and its explanation.

Which technique of ADR to be used for resolution of that dispute and

matching the dispute resolution process which would lead fair and
expeditious trial.

A case law showing delay caused due to following of normal trial procedure
with reference to that particular section and how usage of a particular
technique of ADR would resolve the said problem or where already such
changes are being incorporated or have been recommended by the Courts.

Now further we would move to the next chapter where in the researcher
would discuss about introducing ADR techniques in the Code of criminal
procedure, 1973.