“Criminal Procedure In India”

A
Project
Submitted to the
UNIVERSITY FIVE YEAR LAW COLLEGE
UNIVERSITY OF RAJASTHAN
JAIPUR
In Partial Fulfilment of the Requirement prescribed for the

B.A.LL.B.IX Semester Examination 2019- 20

Under supervision of: Submitted by:

Miss.Poonam Bishnoi, Aditya Sharma
Assistant Professor Class- IX A
Faculty Department of Law, Roll No. - 05
University of Rajasthan,
Jaipur

UNIVERSITY FIVE YEAR LAW COLLEGE

UNIVERSITY OF RAJASTHAN
JAIPUR
2019-2020
 DECLARATION

DATE: - 21.9.2019

I, Aditya Sharma, hereby declare that this project “Criminal Procedure In

India” is based on the original research work carried out by me under the
guidance and supervision of, Miss.Poonam Bishnoi, Faculty University Five Year
Law College, University of Rajasthan .
The interpretation put forth is based on my reading and understanding of the
original texts. The books, articles and websites etc. which have been relied upon
by me have been duly acknowledged at the respective places in the text.

For the purpose which I am submitting to the university, no degree or diploma

has been conferred on me before, either in this or in any other university.

ADITYA SHARMA

ROLL NO. 05

SEMESTER- IX A

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 CERTIFICATE

Miss.Poonam Bishnoi, Date-21-9-2019

Faculty,
UFYLC,
UOR, Jaipur

This is to certify that Ms. Aditya Sharma, student of IX semester, Section A

has carried out project entitled “Criminal Procedure In India”” under my
supervision. The student has completed research work in stipulated time and
according to norms prescribed for the purpose.

SUPERVISOR

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 ACKNOWLEDGMENT

I have written this project titled “Criminal Procedure In India” under the
supervision of Miss.Poonam Bishnoi,, Faculty, University Five Year Law
College, University of Rajasthan, Jaipur. Her valuable suggestions herein
have not only helped me immensely in making this work but also in developing
an analytical approach this work.

I found no words to express my sense of gratitude for Director Dr. Sanjula

Thanvi for her constant encouragement at every step.

I am extremely grateful to the librarian and the library staff of the college for
the support and cooperation extended by them from time to time.

ADITYA SHARMA

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 ABSTRACT

Cr.P.C. is a comprehensive and exhaustive procedural law for conducting a

criminal trial in India, incuding the manner for collection of evidence,
examination of witnesses, interrogation of accused, arrests, safeguards and
procedure to be adopted by Police and Courts, bail, process of criminal trial,
method of conviction, and the rights of the accused for a fair trial. The
procedure for a criminal trial in India, is primarily, except as otherwise
provided, governed by The Code of Criminal Procedure, 1973 (Cr.P.C.). IPC is
the primary penal law of India, which is applicable to all offences, except as
may be provided under any other law in India. IEA is a detailed treaty on the
law of “evidence”, which can be tendered in trial, manner of production of the
evidence in trial, and the evidentry value, which can be attached to such
evidence. IEA also deals with the judicial presumtions, expert and scientific
evidence. There are certain other laws, which have been enacted to deal with
criminality in special circumstances.
It is also important to note that India follows the adversarial system, where
generally the onus of proof is on the State (Prosecution) to prove the case
against the accused, and until and unless the allegation against the accused are
proved beyond reasonable doubt, the accused is presumed to be innocent. In
certain exceptional cases, which may relate to terrorism, etc., the onus of proof
has been put on the accused person, who claims to be not guilty. India has a
highly developed criminal jurisprudence and prosecution system, supported by
judicial precedents, however, there may be certain issues or concerns relating to
the execution of the same by Police and implementation by Judiciary. The
courts in India, particularly High Courts and Supreme Court have been
proactively guarding the rights of the accused. Even Article 21 of the
Constituion of India has been interpreted in a highly dynamic manner to protect
the rights, life and liberty of the citizens, by also incorporating the principles of
natural justice.

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 RESEARCH METHODOLOGY:
The researcher has followed secondary data collection. This is a doctrinal
study. The researcher has also utilized commentaries, books, treaties,
articles, notes comments and other writings to incorporate the various views
of multitude of jurists, with the intention of presenting a holistic view. The
researcher has made extensive use of Case Laws in this project , so as this
project , so as to discern a trend in the judicial pronouncements.

 Research objectives-
The objective behind this project is understand Indian criminal process.

 Mode of Citation
The Mode of Citation used in this project is the Harvard Bluebook
Citation 20th Edition.

 Sources of data
The researcher has mainly referred to the main cases, Acts, and articles
by publicists on the specified topic.

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 Introduction
In medieval India, after the Muslim conquest, the ‘Mohammedan criminal law’
came into prevalence. Subsequent to this, The British passed the ‘Regulating
Act of 1773’ which led to the establishment of Supreme courts in three
presidency towns of Calcutta, Bombay, and Madras. The effect of the statute
was to apply British procedural law while deciding upon the cases of Crown’s
subjects. After 1857 Revolt, the crown took over the Indian administration. The
British parliament passed the Criminal Procedure Code, 1861 which
continued till the post-Independence era and was amended in 1969. It was
finally replaced in 1972.

The Code of Criminal Procedure Code, 1973 1 (Act No. 2 of 19742) is the
main legislation on the procedure for administration on substantive criminal law
in India3 which provides the machinery for the investigation of crime,
apprehension of suspected criminals, collection of evidence, determination of
guilt or innocence of the accused person and the determination of punishment of
the guilty. Additionally, it also deals with public nuisance, prevention of
offenses and maintenance of wife and children. The Act consists of 484
sections, which are further divided into 38 chapters, 2 schedules, and 56 forms.

 Territorial extent, scope, and applicability of this act: It is applicable to

the whole of India but that the provisions of this code, other than those
relating to chapters VIII, X and XI thereof, shall not apply:

1. To the state of Nagaland

2. To the tribal areas in Assam

1. Received the assent of the President of India on January 25, 1974 and came into force on
2. April 1, 1974.
3. An act to consolidate and amend the law relating to Criminal Procedure.
4. Dalbir Bharti, The Constitution and criminal justice system328(A.P.H. Publishing Corporation, New Delhi, 2005).

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But the concerned State Government may, by notification, apply such
provisions or any of them to the whole or part of the state of Nagaland or such
tribal areas, as the case may be specified in the notification.4

Functionaries under the code:

include the Magistrates and Judges of the Supreme Court and High Court,
Police, Public Prosecutors, Defence Counsels Correctional services personnel.

Functions, Duties, and Powers of these Machineries:

a) Police:

The code does not mention anything about the constitution of police. It assumes
the existence of police and devolves various powers and responsibilities on to it.
The police force is an instrument for the prevention and detection of crime.5

The administration of police in a district is done by DSP(District Superintendent

of Police) under the direction and control of District Magistrate. 6 Every police
officer appointed to the police force other than the Inspector-General of Police
and the District superintendent of police receives a certificate in the prescribed
form by the virtue of which he is vested with the powers, functions, and
privileges of a police officer which shall cease to be effective and shall be
returned forthwith when the police officer ceases to be a police officer.7

The CrPC confers specific powers such as the power to make an arrest, search
and investigate on the members of the police force who are enrolled as police

5. 5 Mowu v. The Superintendent (1971) 3 SCC 936

6. The Police Act, 1861 (Act 5 of 1861)

7. S.4.
8. Superintendent Of police v. Dwarka Das (1979) 3 SCC 789.

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officers. Wider powers have been given to police officers who are in charge of a
police station. As per section 36 of CrPC which reads as “ the police officers
superior in charge of a police station may exercise the powers of such
officials.”8

b) Prosecutor

If the crime is of cognizable in nature, the state participates in a criminal trial as

a party against the accused. Public Prosecutor or Assistant Public Prosecutor is
the state counsel for such trials. Its main duty is to conduct Prosecutions on
behalf of the state. The Public Prosecutor cannot appear on behalf of the
accused.9 According to the prevailing practice, in respect of cases initiated on
police reports, the prosecution is conducted by the Assistant Public Prosecutor
and in cases initiated on a private complaint; the prosecution is either conducted
by the complainant himself or by his duly authorized counsel.

c) Defense Counsel:

According to section 303, any person accused of an offense before a criminal

court has a right to be defended by a pleader of his choice. Such pleaders are not
in regular employment of the state and a paid remuneration by the accused
person. Since a qualified legal practitioner on behalf of the accused is essential
for ensuring a fair trial, section 304 provides that if the accused does not have
means to hire a pleader, the court shall assign a pleader for him at state’s
expense. At present, there are several schemes through which an indigent
accused can get free legal aid such as Legal Aid Scheme of State, Bar
Association, Legal Aid and Service Board and Supreme Court Senior
Advocates Free Legal Aid society. The Legal Services Authorities Act,
1987 also provides free legal aid for the needy.

d) Prison authorities and Correctional Services Personnel:

The court presumes the existence of Prisons and the Prison authorities. It
empowers Magistrates and judges under certain circumstances to order the
detention of under-trial prisoners in jail during the pendency of the proceedings.
It also empowers the courts to impose sentences of imprisonment on convicted
persons and to send them to prison authorities. However, the code does not

9 State of Bihar v. J.A.C Saldanha (1980) 1 SCC 554.

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make specific provisions for creation, working, and control of such machinery.
These matters are dealt with in separate acts such as The Prisons Act 1894,
The Prisoners Act 1900 and The Probation of Offenders Act 1958.

Chapter - 1
The rationale of criminal procedure:
a) Importance of a fair trial:

One of the primary goals of criminal law is to protect society by punishing

offenders. However, justice and fair play require that no one is punished without
a fair trial. A person might be under a thick cloud of suspicion of guilt, he might
have been caught red-handed, and yet he is not to be punished unless and until
he is tried and adjudged to be guilty by a competent court. In the administration
of justice, it is of prime importance that justice should not only be done but
must also appear to have been done. Further, it is one of the most important
principles of criminal law that everyone is presumed to be innocent unless his
guilt is proved beyond reasonable doubt in a trial before an impartial and
competent court.Therefore it becomes absolutely necessary that every person
accused of a crime is brought before the court for trial and that all the evidence
appearing against him is made available to the court for deciding as to his guilt
or innocence.10

b) Constitutional perspectives:

Articles 20 and 22 of the constitution of India provide for certain safeguards to

the persons accused of offenses. Article 20 secures the protection of the
accused persons, in respect of conviction for offenses, from Ex post facto laws,
double jeopardy and prohibition against self-incrimination. Similarly, Article
21 of the constitution of India ensures the protection of life and liberty which

10 Sunil Kumar Pal v. Phota Sheikh (1984) 4 SCC 533.

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reads as “no person shall be deprived of his life or personal liberty except
according to the procedure established by law. This right may be affected in
cases of preventive detention under preventive detention laws. As such,
Constitutional protection against arrest and detention is ensured under Article
22(1) to (7) of the constitution of India.

Chapter -2
Criminal Trial in Indian Law: From Charge to Conviction or Acquittal:-

The criminal procedure in India is governed by the CrPC 1973. It divides the
procedure to be followed for the administration of criminal justice into three
stages namely-

 Investigation- where evidences are to be collected.

 Inquiry- a judicial proceeding where the judge ensures for himself before
going on trial, that there are reasonable grounds to believe that the person
is guilty.
 Trial- the judicial adjudication of a person’s guilt or innocence.11

According to the provisions of CrPC, there are three types of criminal trial:

(A) Trial of Warrant cases

 Relates to offenses punishable with death, imprisonment for life or

imprisonment for a term exceeding two years.12
 Employed in most offenses such as theft, Rape, Murder, Kidnapping,
cheating etc. except in cases of defamation.

11 Dr K N Chandrasekharan Pillai, Criminal Procedure 31 (Eastern Book Company, Lucknow, 5th,2008)

12 The Process of Criminal Trial in India, available at:http://www.article2.org/mainfile.php(Visited on November 3, 2013).

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  The trial procedure in respect of these offenses is contained in Sections
238-250.
 The CrPC provides for two types of procedure for the trial of warrant
cases by a Magistrate, viz. those instituted upon a police report where a
lot of records made during investigations by the police is made available
to the court and to the accused person and those instituted upon complaint
i.e. otherwise than on police report where such record cannot be
available.

(B) Trial of Summons cases

 A summon case means a case relating to an offense, and not being a

warrant case. These cases are tried with much less formality than warrant
cases, the manner of their trial is less elaborated and the method of
preparing the record (of evidence) is less formal.
 An abridged form of warrants trial, where some proceedings are omitted
to ensure swift process but at the same time basic postulates of a fair trial
are retained.
 Cases relating to an offense punishable with imprisonment not exceeding
2 years.
 If a magistrate, after examining the case, does not find it fit to be called as
a summons case, he may convert it into a warrant case.

 The trial procedure prescribed for these cases is contained in sections

251-259.
 In respect to these cases, there is no need to frame a charge. The session
court gives the substance of the accusation (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.

(C) Summary Trial

 The trial procedure for these cases is contained in sections 260-265.

 An abridged form of regular trial and is resorted to in order to save time
in trying petty cases.

Section 260(2) of the code lists certain offenses which may be tried summarily
by any Chief Judicial Magistrate, any Metropolitan Magistrate or any Judicial
Magistrate First Class. A First class Magistrate must first be authorized by the
respective High court to that effect before he may try cases summarily under
this section.

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Offenses triable in a summary way:

1. Offenses not punishable with death, life imprisonment, or imprisonment

for a term exceeding 2 years.
2. Theft under section 379, 380, and 381 of the IPC provided that the value
of the stolen property is below Rs 2000.
Receiving or retaining stolen property under section 411 of the IPC
where the value of the stolen property is below Rs 2000.
3. Assisting in the concealment or disposal of stolen property, under section
414 of the IPC, the value of the stolen property being below Rs 2000.
4. Lurking house-trespass (section 454 of the IPC) and house-
breaking(section 456 of the IPC) by night.
5. Abetment of any of the above-mentioned offenses.
Attempt to commit any of the above-mentioned offenses.
Offences with respect to which complaints may be made under section
20 of the Cattle Trespass Act, 1871.

Apart from the above, a Second Class Magistrate may, if so empowered by the
High court, summarily try an offense punishable with fine or with imprisonment
not exceeding 6 months or the abetment or attempt to commit such an offense.
A summary trial tried by a magistrate without being empowered to do so is
void. The maximum sentence that may be awarded by way of a summary trial is
three months with or without fine.13

13 (x) of S.2.

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 Chapter- 3
Stages of Criminal Trial in India
(i) Registration of F.I.R

 Lodged under section 154 of the code which provides for the manner in
which such information is to be recorded.
 Statement of the informant as recorded under section 154 is said to be the
First Information Report. Its main object is to set the criminal law in
motion.
 FIR means the information, by whomsoever given, to the officer in
charge of a police station in relation to the commission of a cognizable
offence and which is first in point of time and on the strength of which
the investigation into that offence is commenced.
 Its evidentiary value: – It is not substantive evidence i.e. not the evidence
of the facts which it mentions. Its importance as conveying the earliest
information regarding the occurrence cannot be doubted.14 It can be used
to corroborate the informant under section 157 of the Indian Evidence
Act, 1872, or to contradict him under section 145 of the Act, if the
informant is called as a witness at the time of trial.15

14 Code of Criminal Procedure 1973, India, available at: http://en.wikipedia.org/wiki

(Last Modified July 2, 2013).

15 Hasib v. State of Bihar (1972) 4 SCC 773.

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ii) Commencement of investigation

 It 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 and taking of their statements in writing
and the search of places or seizure of things considered necessary for
their 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 the charge-sheet.
 Investigation ends in a police report to the magistrate.
 It leads an investigating officer to reach a conclusion whether a charge-
sheet has to be filed or a closure report has to be filed.

iii) Framing of charges

If a person is not discharged, trial begins by framing a charge (nothing but a

specific accusation against the accused) and reading and explaining it to him (so
that he knows what he is to force).16

iv) Conviction on plea of guilty

After framing of charges the judge proceeds to take the ‘plea of guilt’ which is
an opportunity to the accused to acknowledge that he pleads guilty and does not
wish to contest the case. Here the judge responsibility is onerous- a. to ensure
that the plea of guilt is free and voluntary, b. He has to ensure that if there had
been no plead of guilt- was the prosecution version if unrebutted-would have
led to a conviction. If both the requirements are met-then judge can record and
accept the plea of guilt and convict the accused after listening to him on
sentence.

v) Recording of the prosecution Evidence:

16 Ravi Kumar v. State of Punjab (2005) 9 SCC 315.

17 The Laws of India- A Common Man’s guide,available at:http://bharatchugh.wordpress.com(Last Modified March 13,

2012).

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Examination of a prosecution witness by the police prosecutor, marking of
exhibits and cross examination by defense counsel.

vi) Statement of the Accused:

Section 313 of the Criminal procedure empowers the court to ask for an
explanation from the accused if any. The basic idea is to give an opportunity of
being heard to an accused and explain the facts and circumstances appearing in
the evidence against him. Under this section, an accused shall not be
administered an oath and the accused may refuse to answer the questions so
asked. The answers given by the accused may be taken into consideration in
such inquiry or trial, and put in evidence for or against him.17

vii) Evidence of Defense:

In cases of accused not being acquitted by the court, the defense is given an
opportunity to present any defense evidence in support of the accused. The
defense can also produce its witnesses and the said witnesses are cross-
examined by the prosecution. However, in India, the defense does not provide
defense evidence as the criminal justice systemputs burden of proof on the
prosecution to prove that a person is guilty of an offence beyond the reasonable
doubt.

ix) Final arguments on both the sides

once the public prosecutor and the defense counsel present their arguments, the
court generally reserve its jugdement.

x) Judgment

Judgement is the final reasoned decision of the court as to the guilt or innocence
of the accused. After application of judicial mind, the judge delivers a final
judgement holding an accused guilty of an offence or acquitting himof the
particular offence. If a person is acquitted, the prosecution is given time to file
an appeal and if a person is convicted of a particular offence, then the date is
fixed for arguments on sentence. Once a person is convicted of an offence, both
the sides present their arguments on what punishment should be awarded to an
accused. This is done in cases which are punished with death or life
imprisonment. After the arguments on sentence, the court finally decides what
should be the punishment for the accused. While punishing a person, the courts

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consider various theories of punishment for the accused. While punishing a
person, the courts consider various theories of punishment like the deterrent
theory of punishment and reformative theory of punishment. Court considers
the age, background and history of an accused and the judgement is pronounced
accordingly.

Conclusion

The foregoing discussion reveals that police organizations of many countries

have launched various schemes and programmes for people’s participation in
policing. 18

But there is still a need for the modification of the situation and thereby the
agency of criminal justice system namely the police to protect the human rights
of citizens and fulfill the objective of the welfare state. The most important
transition that merits urgent attention hinges on the attitude of the average
policemen in their day-to-day work. To make this task possible, a great amount
of social awareness coupled with the self-awareness on the part of the police
personnel is a primary pre-requisite.In specific cases related to arrests and other

18Criminal Trial in Indian Law, India, available at: http://spreadlaw.blogspot.in(Visited on November 5, 2013).

19Dalbir Bharti, Police and People 106( APH publishing , New Delhi,1st, 2006)

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offences also where there is a scope for the misuse of police power, the abuse of
police power can be stopped by Transparency of action and Accountability. 19

This work provides a lucid study of the fundamental principles of the criminal
procedure in a logic sequence.

The topic-wise treatment of the subject along with references to academic

writings and the judicial decision make the study of criminal procedure
meaningful and comprehensible.

The indispensable role played by judges and magistrates in the fair

administration of justice has been discussed in the assignment. The role of both
the prosecutors and defense lawyers has also been emphasized whenever
relevant.

The Procedure for Criminal Trial in Indian Law had been given due attention in
this assignment. The assignment has tried to provide some of the basic rules that
regulate a fair trial at the pre-trial, investigative and trial stages.

BIBLIOGRAPHY

BOOKS
 D.D.Basu, Criminal Procedure Code 1973, 3 rd ed.,(I), Asoke K. Ghosh, Prentice-Hall of India
Private Limited, M-97, Cannaught Circus, New Delhi-110001,1996.
 Rattan Lal & Dheeraj Lal, The Code of Criminal Procedure, (17th Edn 2010).
 R.V. Kelkar, Lectures on Criminal Procedure.
STATUTES
 The Constitution of India.
 The Criminal Procedure Code, 1973.

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WEBSITES
 https://indiankanoon.org/doc/71706905/
 https://www.lawctopus.com/academike
 https://shodhganga.inflibnet.ac.in

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