CHANAKYA NATIONAL LAW UNIVERSITY
PROJECT ON CRIMINAL LAW-II LAW-II:“ROLE AND RESPONSIBILITY RESPONS IBILITY OF COURT IN A CRIMINAL TRIAL & POWER OF APPELLAT APPELLATE E COURT” C OURT”
PRESENTED BY: - DEEPAK KUMAR B.B.A. LLB, 4! SEMESTER, "#$ YEAR ROLL NO: - %%' SUBMITTED TO: - FATHER PETER LADIS F
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ACKNOWLEDGEMEN ACKNOWLEDGEMENT T
IDe e pakKumarwoul dl i ket oe x pr e s smys pe c i alt hanksof gr at i t udet omyCr i mi nalLawI It e ac he rFATHER PETER LADI S Fwho g aveme met hegol de n oppor t uni t yt odot hi s R)*+ #$ R+)#/0/*/1 )2 wonde r f ulpr oj e c ton t het opi c“ C)3 /# C/5/#* /* & P)6+ )2 A+**+ C)3 ”and
al s of orhi sg ui danc ea ndc o ns t ants u pe r vi s i onaswe we l lasf or pr ovi di ng ne c e s s ar yi nf or mat i on r e g ar di ng t hepr oj e c t& al s of orhi ss uppor ti nc ompl e t i ngt hepr oj e c t .Iam ve r y gr at e f ult ohi se xe mpl ar yg ui danc e . Howeve r ,i twoul dnothavebee nposs i bl ewi t houtt he ki nds uppor tandhe l pofmanyi ndi vi dual s .Iwoul dl i ket o e x t e ndmys i nc e r et hankst oal loft he m. Iwoul dl i ket oe x pr e s smygr at i t udet owar dss t affme mbe r s ofl i b r ar yf ort he i rki ndc oope r at i onwhi c h he l pe dmei n c ompl e t i onoft hi spr oj e c t . My My t hanksand appr e c i at i onsal s og ot o my c ol l e ag uei n de ve l opi ngt hepr oj e c tandpe opl ewhohavewi l l i ng l yhe l pe d meoutwi t ht he i rabi l i t i e s .
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TENTATIVE CHAPTERI7ATION %. INTRODUCTION ". STRUCTURE AND CONSTITUTION OF THE COURT /. DISPOSAL OF CRIME BY THE COURT //. EFFICACY OF CRIMINAL JUSTICE SYSTEM 8. ROLE AND RESPOSIBILITY OF THE COURT 4. APPELLATE COURT AND THEIR POWERS '. CONCLUSION, SU99ESTION AND CRITICISM
%. INTRODUCTION:
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Law is an instrument of social control. It is a rule of conduct. The object of law is to maintain peace and harmony by avoiding disputes and offences. It is the prime duty of a State to protect the rights and liberties of its people, to secure the innocent and punish the guilty. In every civilized society governed by rule of law there is a criminal justice system in place for this purpose. The Indian legal system derives its authority from the onstitution of India and is deeply embedded in the Indian political system. The presence of judiciary substantiates the theory of separation of powers wherein the other two organs, viz., legislature and e!ecutive stand relatively apart from it. The judiciary is divided into two parts for dealing with legal disputes and offences viz., courts dealing with civil cases and courts dealing with criminal cases. The prosecutors have been appointed by the "overnment to conduct criminal cases before ourts of Law. #owever, disputes relating to property, breach of contracts, wrongs committed in money transactions, minor omissions etc are categorized as civil wrongs. In such cases civil suits should be instituted by the aggrieved persons. ourts of law administer justice by considering the nature of the wrong done. riminals are convicted and punished before criminal courts. ivil wrongs are redressed before civil courts by granting injunctions or by payment of damages or compensation to the aggrieved party $. %e have a four tier structure of courts in India. &t the bottom level is the ourt of 'udicial (agistrates. It is competent to try offences punishable with imprisonment of three years or less. &bove it is the ourt of hief 'udicial (agistrates, which tries offences punishable with less than ) years. &t the district level, there is the ourt of *istrict and Sessions 'udge, which tries offences punishable with imprisonment of more than ) years. In fact, the ode specifically enumerates offences which are e!clusively triable by the ourt of Sessions. The highest court in a state is the #igh ourt. It is an appellate court and hears appeals against the orders of conviction or ac+uittal passed by the lower courts, apart from having writ jurisdiction. It is also a court of record. The law laid down by the #igh ourt is binding on all the courts subordinate to it in a state. &t the ape!, there is the Supreme ourt of India. It is the highest court in the country. &ll appeals against the orders of the #igh ourts in criminal, civil and other matters come to the Supreme ourt. This ourt, however, is selective in its approach in taing up cases. The law lay down by the Supreme ourt is binding on all the courts in the country. $ http-www.indianetzone.com/indian0judiciary.htm, retrieved on 12th &pril, 13$4.
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". STRUCTURE AND CONSTITUTION OF THE CRIMINAL COURTS /.
STRUCTURE OF THE CRIMINAL COURTS
India has a +uasi5federal structure with 16 states further subdivided into about 23$ administrative districts. The 'udicial system however has a unified structure. The Supreme ourt, the #igh ourts and the lower ourts constitute a single 'udiciary1. SUPREME COURT OF INDIA
The onstitution establishes the Supreme ourt and defines its jurisdiction and powers /. The Supreme ourt of India is the top of the Indian 'udicial System which is situated in the capital city of our nation the 7ew *elhi. The Supreme ourt is presided by the hief 'ustice of India with 14 'udges. *epending upon the nature and technicality of any matter, the justice is delivered by the &pe! ourt through various benches, such as the *ivisional benches of 1 and / judges8 the 9ull benches of / or 4 judges or constitutional bench of 4 or ) 'udges. HI9H COURT
The onstitution provides establishment of a #igh ourt for each State and generally defines the jurisdiction of such #igh ourt :The #igh ourt of every state is the highest court of such state which is immediately below in hierarchy to the Supreme ourt of India. The #igh ourt wors under the direct guidance and supervision of the Supreme ourt of India. The #igh ourt is the uppermost court in that state, and generally the last court of regular appeals. In some states there is only one #igh ourt and at some states there are Principal benches and circuit benches. SESSION COURTS5 The state is to establish a session court for every session division.
The court is to be presided over by judge appointed by a judge appointed by the #igh ourt. The #igh ourt may also appoint &dditional Session 'udges to e!ercise jurisdiction in the Session ourt.
1 http-www.articlesbase.comnational5state5local5articleshierarchy5of5indian5judicial5system5 /;))//2.html, retrieved on 12th &pril, 13$4
/ &rticle $1:5$:4 of the onstitution.
: &rticle 1$:511; of the onstitution.
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CONSTITUTION OF CRIMINAL COURTS The riminal court means and includes every judge or magistrate dealing with riminal •
cases or engaged in judicial proceedings. S+/)# ;5 lasses of riminal ourts5
following classes of riminal ourts, namely-5 i. ourts of Session8 ii. 'udicial (agistrate of the first class and, in any (etropolitan area, iii. (etropolitan (agistrate8 'udicial (agistrate of the second class8 and iv. =!ecutive (agistrates. • S+/)# <- C)3 )2 S+/)# i. The State "overnment shall establish a ourt of Session for every session division. ii. =very ourt of Session shall be presided over by a 'udge, to be appointed by the #igh ourt. iii. The #igh ourt may also appoint &dditional Sessions 'udges and &ssistant Sessions •
'udges to e!ercise jurisdiction in a ourt of Session. S+/)# %%- C)3 )2 J3$//* M=/+ i. In every district >not being a metropolitan area?, there shall be established as many ourts of 'udicial (agistrates of the first class and of the second class and at such places, as the State "overnment may after consultation with the #igh ourt, by
•
notification specify. ii. The presiding officers of such ourts shall be appointed by the #igh ourt. S+/)# %"- C!/+2 J3$//* M=/+ #$ A$$//)#* C!/+2 J3$//* M=/+, +. i. In every district >not being a metropolitan area?, the #igh ourt shall appoint a
ii.
'udicial (agistrate of the first class to be the hief 'udicial (agistrate. The #igh ourt may appoint any 'udicial (agistrate of the first class to be an &dditional hief 'udicial (agistrate, and such (agistrate shall have all or any of the powers of a hief 'udicial (agistrate under this ode or under any other law
•
for the time being in force as the #igh ourt may direct. S+/)# %8 @ S+/* J3$//* M=/+ i. The #igh ourt may, if re+uested by the entral or State "overnment so to do, confer upon any person who holds or has held any post under the "overnment all or any of the powers conferred or conferrable by or under this ode on a 'udicial (agistrateA of the first class or of the second class, in respect to particular cases or to particular classes of cases, in any local area, not being a metropolitan areaProvided that no such power shall be conferred on a person unless he possesses such +ualification or e!perience in relation to legal affairs as the #igh ourt may, by rules, specify.
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ii.
Such (agistrates shall be called Special 'udicial (agistrates and shall be appointed for such term, not e!ceeding one year at a time, as the #igh ourt may, by general or special order, direct. The #igh ourt may empower a Special 'udicial (agistrate to e!ercise the powers of a (etropolitan (agistrate in relation to any metropolitan area outside his local jurisdiction.
•
S+/)# %'- S30)$/#/)# )2 J3$//* M=/+
=very hief 'udicial (agistrate shall be subordinate to the Sessions 'udge8 and every other 'udicial (agistrate shall, subject to the general control of the Sessions 'udge, be subordinate to the hief 'udicial (agistrate. •
S+/)# %;- C)3 )2 M+))*/# M=/+
i.
In every metropolitan area, there shall be established as many ourts of (etropolitan (agistrates, and at such places, as the State "overnment may, after consultation with the #igh ourts, by notification, specify.
ii. iii.
The presiding officers of such ourts shall be appointed by the #igh ourt. The jurisdiction and powers of every (etropolitan (agistrate shall e!tend throughout the metropolitan area.
•
S+/)# %>- C!/+2 M+))*/# M=/+ #$ A$$//)#* C!/+2 M+))*/# M=/+
i.
The #igh ourt, shall in relation to every metropolitan area within its local jurisdiction appoint a (etropolitan (agistrate to be the hief (etropolitan (agistrate for such metropolitan area.
ii.
The #igh ourt may appoint any (etropolitan (agistrate to be an &dditional hief (etropolitan (agistrate, and such (agistrate shall have all or any of the powers of a hief (etropolitan (agistrate under this ode or under any other law for the time being in force as the #igh ourt may direct.
S+/)# %? @ S+/* M+))*/# M=/+
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i.
The #igh ourt may, if re+uested by any entral or State "overnment so to do, confer upon any person who holds or has held any post under the "overnment, all or any of the powers conferred or conferrable by or under this ode on a (etropolitan (agistrate, in respect to particular cases or to particular classes of cases in any metropolitan area within its local jurisdiction-
ii.
Provided that no such power shall be conferred on a person unless he possesses such +ualification or e!perience in relation to legal affairs as the #igh ourt may, by rules, specify.
iii.
Such (agistrates shall be called Special (etropolitan (agistrates and shall be appointed for such term, not e!ceeding one year at a time, as the #igh ourt may, by general or special order, direct.
iv.
The #igh ourt or the State "overnment, as the case may be, may empower any Special (etropolitan (agistrate to e!ercise, in any local area outside the metropolitan area, the powers of a 'udicial (agistrate of the first class.
•
S+/)# "- E+3/+ M=/+
i.
In every district and in every metropolitan area, the State "overnment may appoint as many persons as it thins fit to be =!ecutive (agistrates and shall appoint one of them to be the *istrict (agistrate.
ii.
The State "overnment may appoint any =!ecutive (agistrate to be an &dditional *istrict (agistrate and such (agistrate shall have such of the powers of a *istrict (agistrate under this ode or under any other law for the time being in force as may be directed by the State "overnment.
•
S+/)# "%- S+/* E+3/+ M=/+
The State "overnment may appoint, for such term as it may thin fit, =!ecutive (agistrates, to be nown as Special =!ecutive (agistrates, for particular areas or for the performance of particular functions and confer on such Special =!ecutive (agistrates such of the powers as are conferrable under this ode on =!ecutive (agistrates, as it may deem fit.
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DISPOSAL OF CRIME BY THE CRIMINAL COURT
It was observed the +uantum of IP cases to be tried by courts and the actual number of cases tried by courts resulting in conviction etc. during last four decades that the percentage of cases tried to total cases for trial and percentage of cases convicted to total cases tried showed a declining trend. These percentages were 1;.;B and 21.3B respectively in the year $6)/ which went down in 13$/ to $/.1B and :3.1B respectively 4. There were 6), ;$,:12 cases for trials >including cases pending from the previous years? during the year 13$/ as compared to 6/, 1;,3;4 cases during the previous year 13$1. The percentage of cases in which trials were completed has decreased to $/.1B in the year 13$/ from $/.:B in the year 13$1. ;:.;B of IP cases remained pending for trial at the end of the year in various criminal courts of the country. Trials in as many as $,:/,;$2 violent crime cases were completed by courts during the year 13$/ representing $$.$B of total IP crime in which trial completed >$1,63,$:; cases? at all5India level. The details regarding crime head5wise pendency percentage of IP cases for trial implies that more than ;3.3B of pendency was observed for most of the IP crimes during 13$/. The conviction rate i.e. the ratio of cases convicted to the total cases tried >sum total of cases convicted and cases ac+uitted or discharged by ourts?. onviction rate of total IP crimes in the year 13$/ was :3.1B which was more as compared to /;.4B reported in the year 13$1. The crime head @ wise analysis revealed that the conviction rate was highest in cases relating to counterfeiting >/).;B?, murder >/2.4B? and culpable homicide not amounting to murder >/:.1B? whereas the lowest conviction rate was observed under crime head cruelty by husband or his relatives >$2.3B?. The highest percentage of cases which were either compounded or withdrawn was reported under Cinsult to the modesty of womenD >:.4B? cases followed by ChurtD >/.6B?2.
4 http-www.indiancourts.nic.in, retrieved on 12th &pril, 13$4.
2 http-ncrb.gov.in*5II13$/hapters:5*isposalB13ofB13casesB13byB13PoliceB13and B13ourts.pdf , retrieved on 12th &pril, 13$4.
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EFFICACY OF THE CRIMINAL JUSTICE SYSTEM The Indian judiciary is often criticized, perhaps justifiably, for the unusual delay in the
disposal of disputes, for the enormous arrears of cases it accumulates year after year and the poor management of the proceedings showing very little concern for the conse+uences to the litigant public and to society at large.
Ene has to have some
understanding of the ourt system and its woring to be able to appreciate this problem of delay and arrears. 9rom the above data one can safely conclude that the performance of Indian judges, +uantitatively speaing, is very impressive. It is a fact that though the disposal of cases in various courts has considerably increased in recent years, the institution of fresh cases has increased more rapidly maing it impossible for the court system to address the huge pendency of /4 million cases. The fact that most of those pending cases are less than 1 years old is no consolation for litigants who eep on nocing the doors of courts in large numbers ). It is interesting to note that a "overnment5appointed ommittee recently recommended a system of impact assessment on worload of courts before legislations are introduced and for maing provision in the financial memorandum for the estimated cost involved in implementing the legislation. If accepted, the situation in respect of delay and arrears is liely to improve particularly in the subordinate courts. It is a matter of deep concern that the bul of cases pending >nearly 23 to 24 percent? relate to criminal matters. En the recommendations of the =leventh 9inance ommission, every State had set up 9ast Trac ourts to deal with pending sessions cases. These courts have been +uite successful in reducing the arrears. Since most of the arrears are pending in magisterial courts, efforts are now being made to e!tend the 9ast Trac ourts to the magisterial level as well. &lso, evening courts are being established in certain States lie "ujarat and Tamil 7adu to contain the mounting arrears in their jurisdictions. Parliament amended the riminal Procedure ode in 1334 maing provision for settlement of criminal cases through the Fplea bargainingG process. It is slowly picing up in some states despite opposition from a section of judges and the bar.
) PHE9. 7.H. (&*#&& (=7E7, L&% &7* 'JSTI=- & LEEK &T T#= HEL= &7* P=H9EH(&7= E9 I7*I&7 'J*II&H, 13$/.
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8. ROLE AND RESPOSIBILITIES OF THE CRIMINAL COURT /. R)*+ )2 !+ C/5/#* )3 The role of the judiciary was reflected in the statement of the then 'I who at the time of the inauguration of the Supreme ourt said thusFEn the court will fall the delicate and difficult tas of ensuring to the citizen the enjoyment of his guaranteed rights consistently with the right of society and the state ;G Thus the hief 'ustice was emphasizing the balancing function of the judiciary while the constitution envisaged the judiciary to be proactive in achieving justice social, economic and political >Preamble and &rt. /;?. The preconstitutional laws lie IP, r.P, =vidence &ct, P etc. despite their being preconstitutional enable the courts to be proactive and to achieve the new role assigned to them by the constitution. &n e!amination of these statutes indicate that they are court centric enabling them to play the lead role. This becomes clear if one e!amines the application of provisions of IP, =vidence &ct or r.P. Let us e!amine, by way of e!ample, the application of IP provisions in certain fact situations. In the case of application of mistae of fact as a defence, the concept of reasonable man comes +uite often tainted by the segment of society the judge belongs. This is so when one applies sudden and grave provocation, insanity defence, right of private defence etc. This can be brought home by way of an analysis of the decision in Ham
133;? $;5$6.
6 &IH $623 Eri $2$.
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analysis of (adhavan v. State of Kerala $3, also indicates that the Creasonable manD who is suddenly provoed could be different depending upon the segments of society to which the judge belongs. It is fruitful to e!amine the various provisions in the Indian =vidence &ct to show that the Indian System empowers the judge to do justice in criminal cases. Leaving apart the provisions lie S5;, 6 etc, the provision in S5$24 declares in une+uivocal terms the supremacy of the Indian trial judge in conducting the trials. It enactsS+/)#-%;'%%- J3$=+ )6+ ) 3 3+/)# ) )$+ )$3/)#: The judge may, in
order to discover or to obtain proper proof of relevant facts, as any +uestion he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant8 and may order the production of any document or thing8 and neither the parties nor their agents shall be entitled to mae any objection to any such +uestion or order, nor, without the leave of the court, to cross e!amine any witness upon any answer given in reply to any such +uestion. Provided that the judgment must be based upon facts declared by this &ct to be relevant, and duly provedProvided also that this section shall not authorize any judge to compel any witness to answer any +uestion, or to produce any document which such witness would be entitled to refuse to answer or produce under sections $1$ to $/$, both inclusive, if the +uestion were ased or the document were called for by the adverse party8 nor should the judge as any +uestion which it would be improper for any other person to as under section $:; or $:6 nor shall he dispense with primary evidence of any document, e!cept in the cases hereinbefore e!cepted. &part from other relevant provisions, section /$3 r.P becomes +uite relevant while considering the position of the trial judge in dealing with evidence. Section /$3 r.P enacts-
$3 &IH $622 Ker 14;. It was a case where the husband was found to have been suddenly provoed by the throw of the mangal sutra at him by his wife. There could be difference of opinion as to Cprudent manD in the same circumstances if the judge is of a different hue and holds different view.
$$ Ham hander v. State of #aryana, $6;$ S >ri.? 2;/, Indian =vidence &ct, $;)1.
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S+/)#-8%%"- L)* I#+/)# @ >$? &ny judge or (agistrate may, at any stage of any
in+uiry, trial or other proceeding, after new notice to the parties, visit and inspect any place in which an offence is alleged to have been committed, or any other place which it is in his opinion necessary to view for the purpose of properly appreciating the evidence given at such in+uiry or trial, and shall without unnecessary delay record a memorandum of any relevant facts observed at such inspection. >1? Such memorandum shall form part of the record of the case and if the prosecutor, complainant or accused or any other party to the cases, so desires, a copy of the memorandum shall be furnished to him free of cost. riminal Procedure ode, right from arrest of the accused till the finalization of the case seems to repose ma!imum faith on the judicial officer. Theoretically speaing, a person is restrained from movement by way of arrest when he is accused of a cognizable case by the police the representative of the society. The accusation is brought before the magistrate the independent and impartial authority interposed between the individual and the society. It is therefore the magistrate to resolve the conflict. The magistrate is also authorized to peruse the records of his arrest, deal with the re+uest for remand, bail etc. S5:: authorizes the magistrate to effect arrest. It declares thusS+/)#-44- A+ 01 5=/+: %hen any offence is committed in the presence of a
magistrate, whether =!ecutive or 'udicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender, and may thereupon, subject to the provisions herein contained as to bail, commit the offender to custody$/. S+/)#-'>%4 maes it obligatory for the arrested person to be brought before the
magistrate within 1: hours of the arrest. In fact this provision reflects &rt. 11 of the constitution which in material part lays down thusA. "" >$? 7o person who is arrested shall be detained in custody without being informed,
as soon as maybe, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. $1 State of #imachal Pradesh v. (ast Ham A133:M ; S 223, riminal Procedure ode
$/ *.K. $66)? $ S :$2
$: Khatri >II? v. State of $6;$? S >ri.? 11;, I.". of Police v. Prem Sagar >$666? 4 S )33.
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>1? =very person who is arrested and detained in custody shall be produced before the nearest magistrate, within a period of 1: hours of such arrest e!cluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate. =!amination of various provisions dealing with initiation of investigation and trial, at every stage shows the tremendous faith the system reposes on our judiciary. %hile S+/)#-%'> re+uires a copy of the 9IH to be forwarded to the magistrate S+/)#-%'; 8
empowers the magistrate to order investigation independently of police. S+/)#-%'< authorizes the magistrate to hold investigation or preliminary in+uiry. The power for remand and granting of default bail rests again with the magistrate. %hile the policy of the code seems to eep the investigation close to the chest of the police, Section5$)1 shows its faith in the impartiality of the judge. 9or S+/)#-%>"" enacts thusF>1? &ny criminal court may send for the police diaries of a case under in+uiry or trial in such court, and may use such diaries, not as evidence in the case, but to aid it in such in+uiry or trialG The report of the investigation is also to be submitted to the court under S+/)#-%>8%'. The provisions enabling the court to in+uire into the cause of death S+/)#-%>4 avoiding presence of the accused from appearing before the court S+/)#-"' supply of copies of documents to the parties S+/)#-"> framing of the charges etc. are to be attended by the court. If there is no case found against a person it is for the magistrate to record it and discharge him. Similarly, on charges being found not sustainable it is for the court to record ac+uittal. In the case of trial before a court of sessions also the position of the judge is above all. It is for him to consider discharge S+/)#-"">, framing of charge S+/)#""? or conviction on plea S+/)#-""<.
In chapter NIN on trial of warrant cases by magistrates it is again the court which plays the active role. It is for it to see whether supply of copies of documents has been complied with and to discharge the person if no prima facie case is found S+/)#-"8<. If not discharged, again it is the court which frames the charge S+/)#-"4 and proceeds further. $4 The accused has a right to fair investigation. (anu SharmaDs case, >13$3? 2 S $
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The new chapter NNI5& on plea bargaining also emphasizes the role of the court in the woring of the scheme S+/)#-";' A-";' H. The court is empowered to summon new witness S+/)#-8%%, get the signature or handwriting samples S+/)#-8%% A , obtain a statement of the accused direct from him S+/)#-8%8 and to e!amine the accused as a witness if he so desires S+/)#-8%'. The
court can also dispense with the presence of accused in certain cases S+/)#-8%>. Ene of the important provisions in chapter NNI is S+/)#-8%< enabling the court to proceed against other persons appearing to be guilty of offence. Though its dimensions are yet to be e!plored it may be stated that this is a very strong provision empowering the court to initiate criminal proceedings against a person if the court is satisfied about such a step having regard to the evidence in the case. In effecting compounding of offences S+/)#-8" and withdrawal of case also the courtDs role is pivotal. The r.P maes provisions enabling the magistrate not to commit any mistae as to his jurisdiction for trial or punishment of an offence S+/)#-8"8, 8"4, 8";.
The code also provides for the trial and punishment of offense affecting administration of justice. Jnder this chapter NNI also it is the court which has the power to deal with these offences. S+/)#-844 provides for a summary procedure for trial for giving false evidence. S+/)#-84? empowers the court to discharge the offender on tendering of apology whereas S+/)#-84< enables the court to impose punishment for refusing to answer courtDs +uestions. Some of the important provisions the court should focus are the sections, dealing with payment of compensation S+/)#-8'> victim compensation S-8'>-A %;, payment of compensation for groundless arrest S+/)#-8'?%> and the statutory obligation to consider release of persons on probation S+/)#-8; #$ 8;%. In short, the 'udiciary has ample powers in all the matters connected with criminal justice administration. Some of the powers given to the court go to the e!tent of reposing much faith on the courts for the protection of the accused. Simultaneously, it is believed that the $2 Palaniappa "ounder v. State of T.7. >$6))? 1 S 2/:.
$) (allappa v. eerabasappa, $6)) ri. L.'. $;42
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court will also loo into the interests of the society though the police and public prosecutors would be primarily taing care of the societal interests. The provisions in the r.P and =vidence &ct are indeed judge centric and therefore the, judgeDs role as protector of the individuals interests and societyDs interests assumes importance and deserves emphasis.
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R+)#/0/*//+ )2 !+ C/5/#* )3
Subject to the other provisions of this ode, any offence under the Indian Penal ode >:4 of $;23? may be tried by the #igh ourt, or the ourt of Session, or any other ourt by which such offence is shown in the 9irst Schedule to be triable $;. &ny offence under any other law shall, when any ourt is mentioned in this behalf in such law, be tried by such ourt and when no ourt is so mentioned, may be tried by the #igh ourt, or any other ourt by which such offence is shown in the 9irst Schedule to be triable. &ny offence not punishable with death or imprisonment for life, committed by any person who at the date when he appears or is brought before the ourt is under the age of si!teen years, may be tried by the ourt of a hief 'udicial (agistrate, or by any ourt specially empowered under the hildren &ct, $623 >23 of $623?, or any other law for the time being in force providing for the treatment, training and rehabilitation of youthful offenders. $6 & #igh ourt may pass any sentence authorised by law .13 & Sessions 'udge or &dditional Sessions 'udge may pass any sentence authorised by law8 but any sentence of death passed by any such 'udge shall be subject to confirmation by the #igh ourt. &n &ssistant Sessions 'udge may pass any sentence authorised by law e!cept a sentence of death or of imprisonment for life or of imprisonment for a term e!ceeding ten years.
$; Section 12 ode of riminal Procedure, $6)/
$6 Section 1) ode of riminal Procedure, $6)/
13 Section 1; ode of riminal Procedure, $6)/
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The ourt of a hief 'udicial (agistrate may pass any sentence authorised by law e!cept a sentence of death or of imprisonment for life or of imprisonment for a term e!ceeding seven years. The ourt of a (agistrate of the first class may pass a sentence of imprisonment for a term not e!ceeding three years, or of fine not e!ceeding five thousand rupees, or both. The ourt of a (agistrate of the second class may pass a sentence of imprisonment for a term not e!ceeding one year, or of fine not e!ceeding one thousand rupees, or of both. The ourt of a hief (etropolitan (agistrate shall have the powers of the ourt of a hief 'udicial (agistrate and that of a (etropolitan (agistrate, the powers of the ourt of a (agistrate of the first class The ourt of a (agistrate may award such term of imprisonment in default of payment of fine as is authorised by law- Provided that the term is not in e!cess of the powers of the (agistrate under section 168 and shall not, where imprisonment has been awarded as part of the substantive sentence, e!ceed one5fourth of the term of imprisonment which the (agistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine. 1$ The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the ma!imum term awardable by the (agistrate under section 16. %hen a person is convicted at one trial of two or more offences, the ourt may, subject to the provisions of section )$ of the Indian Penal ode >:4 of $;23?, sentence him for such offences, to the several punishments, prescribed therefore which such ourt is competent to inflict8 such punishments when consisting of imprisonment to commence the one after the e!piration of the other in such order as the ourt may direct, unless the ourt directs that such punishments shall run concurrently. In conferring powers under this ode, the #igh ourts or the State "overnment, as the case may be, may, by order, empower persons especially by name or in virtue of their offices or classes of officials generally by their official titles.11 =very such order shall tae effect from the date on which it is communicated to the person so empowered. 1$ Section /3 ode of riminal Procedure, $6)/
11 Section // ode of riminal Procedure, $6)/
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%henever any person holding an office in the service of "overnment who has been invested by the #igh ourt or the State "overnment with any powers under this ode throughout any local area is appointed to an e+ual or higher office of the same nature, within a lie local area under the same State "overnment, he shall, unless the #igh ourt or the State "overnment, as the case may be, otherwise directs, or has otherwise directed, e!ercise the same powers in the local area in which he is so appointed. The #igh ourt or the State "overnment, as the case may be, may withdraw all or any of the powers conferred by it under this ode on any person or by any officer subordinate to it.1/ &ny powers conferred by the hief 'udicial (agistrate or by the *istrict (agistrate may be withdrawn by the respective (agistrate by whom such powers were conferred. %hen there is any doubt as to who is the successor5in5office of any (agistrate, the hief 'udicial (agistrate, or the *istrict (agistrate, as the case may be, shall determine by order in writing the (agistrate who shall, for the purposes of this ode or of any proceedings or order thereunder, be deemed to be the successor5in5office of such (agistrate.
4. POWER OF APPELLATE COURT S+/)# 8?;-POWERS OF APPELLATE COURT IN DISPOSIN9 OF APPEALS
confers ade+uate powers on the appellate court for the proper disposal of different inds of appeals. This section maes it clear that these powers are to be e!ercised only after satisfying two essential conditions1: The court must e!amine the record of the case. There must be a clear indication in the • judgment or the order of the appellate court that it has applied its judicial mind to the particular appeal with which it was dealing. Such an indication will be available when the appellate court has considered the material on record, which means not only the •
judgment and petition of appeal, but also the other relevant materials 14. The appellate court must hear the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal against the inade+uacy of sentence under Section /)), or of an appeal against ac+uittal under Section /);, the accused, if he appears. It is a basic rule of natural justice that before a case is decided by the court, the parties to the case must be given a reasonable opportunity of being heard. 1/ Section /: ode of riminal Procedure, $6)/ 1: H.. Kelar, Lectures on riminal Procedure, 4 th eds., =astern
14 Shyani *eo Pandey v. State of $6)$? $ S ;44
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&fter the above mentioned conditions are complied with, the appellate court may e!ercise any of the following powers in disposing of an appeal>$? In an appeal deserving dismissal. 5 If the appellate court considers that there is no sufficient ground for interfering, it may dismiss the appeal. >1? In an appeal from an order of ac+uittal. 5 The appellate court may reverse the order of ac+uittal and direct that further en+uiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law S. /;2>a?. It may be recalled that an appeal against an order of ac+uittal can lie only to the #igh ourt. &nd if the State does not appeal an ac+uittal, it becomes final.12 &s to the e!ercise of the powers of the appellate court, the Supreme ourt in Sanwat Singh v. State of Hajasthan 1) has laid down three principles 1;. 9irstly, the appellate court has full powers to review the evidence upon which the order of ac+uittal is founded. Secondly, the principles which re+uire that the appellate court should give proper weight and consideration to such matters lie the view of the trial judge as to the credibility of the witnesses, the presumption of innocence in favour of the accused, the right of the accused to the benefit of doubt, and the slowness of an appellate court in disturbing the finding of fact arrived at by a judge who had the advantage of seeing the witnesses. Thirdly, the appellate court in coming to its conclusion should not only consider every matter on record having a bearing on the +uestions of fact and the reasons given by the court below in support of its order of ac+uittal, but should also e!press those reasons to hold that the ac+uittal was not justified16. &s our criminal jurisprudence re+uires that the benefit of doubt must be given to the accused, the view in favour of ac+uittal must prevail.O The Supreme ourt has noted that there is no difference between an appeal against conviction and an appeal against ac+uittal e!cept that when dealing with an appeal against ac+uittal, the court eeps in view the position that the presumption of innocence in favour of the accused has been fortified by ac+uittal and if the view adopted by the #igh ourt is a reasonable one and 12 =. &P?.
1) &IH $62$ S )$4. 1; http-www.samrthbharat.comjudiciary.htm , retrieved on 12th &pril, 13$4.
16 Salim ia . State of J.P. >$6)6? 1 S 2:;.
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the conclusion reached by it had its grounds well set on the materials on record, the ac+uittal may not be interfered with. If the appellate court finds the accused guilty, it may reverse the order of ac+uittal and pass sentence on him according to law. /? In an appeal from a conviction.QIt may be noted that the caution the appellate court e!ercises in dealing with an appeal against ac+uittal may not be re+uired in dealing with an appeal from conviction inasmuch as in the former case, it is presumption of innocence which has been strengthened by the ac+uittal.O #ere the appellate court may choose any one of the following three courses>a? The appellate court may reverse the finding and sentence and ac+uit or discharge the accused, or order him to be retried by a court of competent jurisdiction subordinate to such appellate court or committed for trial. AS. /;2>b? >i?M. It may be noted that an order for retrial is made only in e!ceptional cases. >b? The appellate court may alter the finding, maintaining the sentence. AS. /;2>b? >ii?M #ere Oalter the findingO means alter the finding of conviction and not the finding of ac+uittal. If the State does not appeal an ac+uittal, it is final. %here a person is charged with an offence of murder under Section /31, Penal ode, $;23 >IP? but convicted of culpable homicide not amounting to murder under Section /3: IP, there is an implied ac+uittal of the offence of murder under Section /31 IP. If, therefore, the accused appeals against the conviction under Section /3: IP and the State does not appeal against the ac+uittal under Section /31, the appellate court cannot alter the finding under Section /3: IP into one of conviction for murder under Section /31 IP. >c? The appellate court may with or without altering the finding, alter the nature or the e!tent, or the nature and e!tent, of the sentence, but not so as to enhance the same. AS. /;2>b? >iii?M. & sentence is said to be enhanced when it is made more severe. Section /;2>b? does not entitle the appellate judge to confirm conviction and at the same time remit to trial court for reconsidering sentence. >:? In an appeal for enhancement of sentence.QIn such an appeal, the appellate court has got the same powers as in the case of an appeal from conviction as mentioned in sub5para >/? above. #ere, of course, the additional powers to enhance or reduce the sentence have " ( P a g e
been given to the appellate court. A S. /;2>c?M &s mentioned earlier, the appellate court is not to inflict greater punishment for the offence, which in its opinion the accused has committed, than might have been inflicted for that offence by the court passing the order or sentence under appeal. AS. /;2, Second ProvisoM 9urther the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement. AS. /;2, 9irst ProvisoM >4? In an appeal from any other order. The appellate court may in such a case alter or reverse such order. AS. /;2>d?M >2? onse+uential or incidental order. The appellate court may mae any amendment or any conse+uential or incidental order that may be just or proper. AS. /;2>e?M. It has been pointed out by the Supreme ourt that it is a re+uirement of justice that the #igh ourts discuss reasons for their decisions in criminal appeals. POWERS OF APPELLATE COURT TO 9RANT BAIL: Sections /;6 and /63 deal with suspension of sentence pending the appeal, release of appellant on bail, arrest of the accused in the appeal from ac+uittal and his release on bail, etc. 9or granting of suspension of Sentence and bail on admitting appeals, the #igh ourts should adduce reasons failing which these orders might be +uashed by the Supreme ourt.O It may be noted that while the appellate court including the #igh ourt could e!ercise the powers under sub5sections >$? and >1? of Section /;6 in any case of conviction, the jurisdiction of the convicting court under Section /;6>/? is limited to cover cases coming under clauses >i? and >ii? alone which are comparatively short5term sentences. The provisions of Section /;6 are also not applicable to appeals to the Supreme ourt. POWER OF APPELLATE COURT TO OBTAIN EVIDENCE $. If the appellate court considers that the additional evidence is necessary, it shall record its reasons and may >a? tae such evidence itself, or >b? direct it to be taen by a subordinate court or a (agistrate. %hen the additional evidence is taen, the accused or his pleader shall have the right to be present. The taing of the evidence shall be in accordance with the provisions of hapter NNIII, as if it were an en+uiry. 1. %hen the additional evidence is taen by a subordinate court or a magistrate, it or he shall certify such evidence to the appellate court ASec. /6$M. The power to tae additional evidence should be e!ercised sparingly and only in suitable cases. The additional evidence must, of course, not be received in such a way as to cause prejudice to the accused. It should not be received as a disguise for a retrial or to change the nature of the case against him. The step to tae additional evidence should not be resorted to, if the prosecution has had a fair opportunity and has not availed of it, unless the re+uirements "% ( P a g e
of justice dictate otherwise.O The provision to obtain further evidence is not meant to remedy the negligence for filling the latches left in the prosecution case or for allowing the prosecution to indulge in fishing for evidence./3
CONCLUSION, SU99ESTION AND CRITICISM It is the duty of the State to protect fundamental rights of the citizens as well as the right to property. The State has constituted the riminal 'ustice System to protect the rights of the innocent and punish the guilty. The system devised more than a century bac, has become ineffective8 a large number of guilty go unpunished in a large number of cases8 the system taes years to bring the guilty to justice8 and has ceased to deter criminals. There is an emerging une+uivocal need for a clearly defined legal and regulatory framewor and efficient disposal of cases. learly the legal apparatus and infrastructure have failed to eep pace with the rising population, changing societal structure, increasing number of laws, and increasing technological activities. There is no doubt that the judiciary is in dire need of speedy and effective reformsranging from appointing of judges, to instituting a transparent and non5partisan structure of in+uiry free from legislative and judicial interference, to punishing corrupt judges. R//#= /*+ )2 +#$/#= + The baclog of millions of cases in all categories of courts is the most damning evidence of the inade+uacy of the legal apparatus. #owever, it is only a symptom and the remedy must go to address the root causes. Haising number of judges, setting up more courts, and simplifying procedures are always discussed religiously but when it comes to implementation @ it is always too late and too inade+uate. The victims are the ordinary or poor people when they have to deal with courts which are mostly foreign lands for them. The rich, of course, can buy e!pensive lawyers and manipulate things in their favour in the procedural dilemma of Indian judicial system. U#$+ /* #$ !+/ !$!/ The majority of under trials spend more time in jail during trials than the ma!imum sentence that can be imposed upon them. =ven if they donDt, the e!penditure and agony of defending themselves during this long ordeal in c ourts is more painful than serving the sentence that could be imposed. This agony of under trials in the judicial system provides
/3 "opi chand v. State, $626 ri L' $$4/.
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an easy way for the police and powerful people, who can have the police at their side, to harass, intimidate and silence inconvenient persons @ particularly the political activists. A*/+#/)# )2 !+ P)) The alienation of the common man in India with the judicial system leads to his feeling that the court5room is an alien5land where procedures and technicalities, rather than truth and morality, rule. It is difficult for an ordinary man to get past the complicated procedures or the middleman e!ploiting their ignorance to mae money. N) )##+/)# 6/! )/+1 'udiciary is an integral part of the society and its interaction with the local public is healthy thing. In fact, its linages with the society must be strengthened and nurtured. In many countries the system of jury ensures the involvement of common citizens in judicial decision5maing.
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=ncourage Jse of ideo onferencing- & lot of crowding in courts and the hassle of transporting under trials from jails to courts can be saved if e5communication facilities
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lin courts with jails. &ll India 'udicial Service- The "overnment of India should also e!amine the feasibility of creating an all India Service for judicial officers in the same manner as
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that of I&S and IPS officers. It will also attract talent in judiciary services. The 'udicial ommission must not be monopolized by e!isting or retired judges @ and must include respected members from the legislature and academia, independent
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thiners, and activists. Hole of 7"Es and activists- They must e!ert pressure both on the government and the judiciary to speed up judicial reforms at all levels. &nna #azareDs movement has
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generated a massive momentum8 it must not be allowed to die down. Hight to speedy trial instituted in Hight to life and liberty guaranteed by &rticle 1$ of
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the onstitution of India should be promoted to public. %ith an aim to speed up trials there should be strict adherence of the latest amendment of Section /36 of the r.P stating that no adjournment should be granted at the partyDs re+uest, nor can partyDs lawyer being engaged in another court be ground for adjournment.
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BIBLIO9RAPHY: $. H.. Kelar, Lectures on riminal Procedure, 4th eds., =astern
&7* P=H9EH(&7= E9 I7*I&7 'J*II&H, 13$/. The riminal Procedure ode, $;)/ http-www.indianetzone.com/indian0judiciary.htm http-www.indiancourts.nic.in http-www.samrthbharat.comjudiciary.htm http-ncrb.gov.in*5II13$/hapters:5*isposalB13ofB13casesB13byB13Police
B13andB13ourts.pdf ;. http-www.articlesbase.comnational5state5local5articleshierarchy5of5indian5judicial5 system5/;))//2.html,
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