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2. Pre-trial Procedure. 2.1 Arrest and questioning of the accused. 2.2 The rights of the accused 2.3 The evidentiary value of statements/ article seized/ collected by the police 2.4 Rights to counsel 2.5. Role of the prosecutor and the judicial officer in investigation 3. Trial Procedure. 3.1 The accusatory system of trial and the inquisitorial system 3.2 Role of the judge, the prosecutor and defence attorney in the trial. 3.3 Admissibility and inadmissibility of evidence 3.4 Expert evidence 3.5. Plea bargaining 4. Preventive Measures in India 4.1. Provisions in the Criminal Procedure Code 4.2. Special enactments
5. Introductory 5.1. Definition of Penology 6. Theories of Punishment 6.1. Retribution 6.2. Utilitarian prevention: Deterrence 6.3. Utilitarian: Intimidation 6.4. Behavioural prevention: Incapacitation 6.5. Behavioural prevention: Rehabilitation - Expiation 6.6. Classical Hindu and Islamic approaches to punishment. 7. The Problematic of Capital Punishment 7.1. Constitutionality of Capital Punishment 7.2. Judicial attitudes towards Capital Punishment in India - An inquiry through the statute law and case law. 7.3. Law Reform Proposals 8. Imprisonment 8.1. The state of India's jails today 8.2. The disciplinary regime of Indian prisons 8.3. Classification of prisoners 8.4. Rights of prisoner and duties of custodial staff. 8.5. Deviance by custodial staff 8.6. Open prisons 8.7. Judicial surveillance - basis - development reforms
1.1.Introduction: According to the Constitution of India, the role of the Supreme Court is that of a federal Court, guardian of the Constitution and the highest Court of appeal. There are 18 High Courts in the country, three having jurisdiction over more than one State. Among the Union Territories Delhi alone has a High Court of its own. Other six Union Territories come under the jurisdiction of different State High Courts. There are district Courts in almost every district of the States and under the District Court there are Court of Session or Session Court, Court Chief Judicial Magistrate (CJM), Court of Judicial Magistrate First Class (JMFC). The latest in the reforms in the structure of the Indian judiciary is the Gram Nyayalayas. The Gram Nyayalayas seems to be a combination of the objectives of several special courts in disparity to the regular stress on the adversarial trial. The new enactment for the tribal people is equally important. Public Prosecutor is an important figure in conducting cases fairly he has to be fair and take every decision without any fear or fervour.
1.2 Topic Explanation
1.2.1 Hierarchy of criminal courts and their jurisdiction The Supreme Court of India is the highest court and is a body constituted by the Constitution itself. The High Courts of respective states are also provided by the Constitution. The other criminal courts there power and functions are provided by the Cr. P. C.
1.2.1.1. The Supreme Court of India. The Supreme Court is the apex Court of India. It is established by Part V, Chapter IV of the Constitution. Articles 124 to 147 of the Constitution of India lay down the composition and jurisdiction of the Supreme Court of India.
The original Constitution of 1950 envisaged a Supreme Court with a Chief Justice and 7 Judges - leaving it to Parliament to increase this number. In the early years, all the Judges of the Supreme Court sat together to hear the cases presented before them. As the work of the Court increased and arrears of cases began to cumulate, Parliament increased the number of Judges from 8 in 1950 to 11 in 1956, 14 in 1960, 18 in 1978 and 26 in 1986. As the number of the Judges has increased, they sit in smaller Benches of two and three - coming together in larger Benches of 5 and more only when required to do so or to settle a difference of opinion or controversy.
The Supreme Court of India comprises the Chief Justice and 30 other Judges appointed by the President of India. Supreme Court Judges retire upon attaining the age of 65 years. In order to be appointed as a Judge of the Supreme Court, a person must be a citizen of India and must have been, for at least five years, a Judge of a High Court or of two or more such Courts in succession, or an Advocate of a High Court or of two or more such Courts in succession for at least 10 years or he must be, in the opinion of the President, a distinguished jurist. Provisions exist for the appointment of a Judge of a High Court as an Ad- hoc Judge of the Supreme Court and for retired Judges of the Supreme Court or High Courts to sit and act as Judges of that Court.^1
(^1) http://supremecourtofindia.nic.in/history.htm
substantial question of law of general importance, and (b) that, in the opinion of the High Court, the said question needs to be decided by the Supreme Court. In criminal cases, an appeal lies to the Supreme Court if the High Court (a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to imprisonment for life or for a period of not less than 10 years, or (b) has withdrawn for trial before itself any case from any Court subordinate to its authority and has in such trial convicted the accused and sentenced him to death or to imprisonment for life or for a period of not less than 10 years, or (c) certified that the case is a fit one for appeal to the Supreme Court. Parliament is authorised to confer on the Supreme Court any further powers to entertain and hear appeals from any judgement, final order or sentence in a criminal proceeding of a High Court.^2
1.2.1.2. The High Courts The High Court stands at the head of a State's judicial administration. Each High Court comprises of a Chief Justice and such other Judges as the President may, from time to time, appoint. The Chief Justice of a High Court is appointed by the President in consultation with the Chief Justice of India and the Governor of the State. The procedure for appointing Judges is the same except that the Chief Justice of the High Court concerned is also consulted. They hold office until the age of 62 years and are removable in the same manner as a Judge of the Supreme Court. To be eligible for appointment as a Judge one must be a citizen of India and have held a judicial office in India for ten years or must have practised as an Advocate of a High Court or two or more such Courts in succession for a similar period.
Each High Court has power to issue to any person within its jurisdiction directions, orders, or writs including writs which are in the nature of habeas
(^2) http://supremecourtofindia.nic.in/jurisdiction.htm
corpus, mandamus, prohibition, quo warranto and certiorari for enforcement of Fundamental Rights and for any other purpose. This power may also be exercised by any High Court exercising jurisdiction in relation to territories within which the cause of action, wholly or in part, arises for exercise of such power, notwithstanding that the seat of such Government or authority or residence of such person is not within those territories.
Each High Court has powers of superintendence over all Courts within its jurisdiction. It can call for returns from such Courts, make general rules and prescribe forms to regulate their practice and proceedings and determine the manner and form in which book entries and accounts shall be kept.^3
1.2.1.3. Constitution of Criminal Court and their territorial jurisdiction The criminal courts are constituted according to the Criminal Procedure Code (Cr.P.C) 1973. Classes of Criminal Courts^4 .- Besides the High Courts and the Courts constituted under any law, other than this Code, there shall be, in every State, the following classes of Criminal Courts, namely:- (i) Courts of Session; (ii) Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrates; (iii) Judicial Magistrates of the second class; and (iv) Executive Magistrates. Territorial divisions^5. - (1) Every State shall be a sessions division or shall consist of sessions divisions; and every sessions division shall, for the purposes of this Code, be a district or
(^34) http://supremecourtofindia.nic.in/jurisdiction.htm 5 Section 6 Cr. P. C. 1973Section 7
(5) Where the State Government reduces or alters, under sub-section (3), the limits of any metropolitan area, such reduction or alteration shall not affect any inquiry, trial or appeal pending immediately before such reduction or alteration before any Court or Magistrate, and every such inquiry, trial or appeal shall continue to be dealt with under this Code as if such reduction or alteration had not taken place. Explanation.- In this section, the expression “population” means the population as ascertained at the last preceding census of which the relevant figures have been published. Court of Session^7. - (1)The State Government shall establish a Court of Session for every session division. (2) Every Court of Session shall be presided over by a Judge, to be appointed by the High Court (3) The High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session. (4) The Sessions Judge of one sessions division may be appointed by the High Court to be also an Additional Sessions Judge of another division, and in such case he may sit for the disposal of cases at such place or places in the other division as the High Court may direct. (5) Where the office of the Sessions Judge is vacant, the High Court may make arrangements for the disposal of any urgent application which is, or may be, made or pending before such Court of Session by an Additional or Assistant Sessions Judge, or, if there be no Additional or Assistant Sessions Judge, by a Chief Judicial Magistrate, in the sessions division; and every such Judge or Magistrate shall have jurisdiction to deal with any such application. (6) The Court of Session shall ordinarily hold its sitting at such place or places as the High Court may, by notification, specify; but, if, in any particular case,
(^7) Section 9
the Court of Session is of opinion that it will tend to the general convenience of the parties and witnesses to hold its sittings at any other place in the sessions division, it may, with the consent of the prosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein. Explanation.- For the purposes of this Code, “appointment” does not include the first appointment, posting or promotion of a person by the Government to any Service, or post in connection with the affairs of the Union or of a State, where under any law, such appointment, posting or promotion is required to be made by Government. Subordination of Assistant Sessions Judges^8 .- (1) All Assistant Sessions Judges shall be subordinate to the Sessions Judge in whose Court they exercise jurisdiction. (2) The Sessions Judge may, from time to time, make rules consistent with this Code, as to the distribution of business among such Assistant Sessions Judges. (3) The Sessions Judge may also make provision for the disposal of any urgent application, in the event of his absence or inability to act, by an Additional or Assistant Sessions Judge, or, if there be no Additional or Assistant Sessions Judge, by the Chief Judicial Magistrate, and every such Judge or Magistrate shall be deemed to have jurisdiction to deal with any such application. Courts of Judicial Magistrates^9 .- (1) In every district (not being a metropolitan area), there shall be established as many Courts of Judicial Magistrates of the first class and of the second class, and at such places, as the State Government may, after consultation with the High Court, by notification, specify. (2) The presiding officers of such Courts shall be appointed by the High Court
(^89) Section 10 Section 11
Provided that no such power shall be conferred on a person unless he possesses such qualification or experience in relation to legal affairs as the High Court may, by rules, specify. (2) Such Magistrates shall be called Special Judicial Magistrates and shall be appointed for such term, not exceeding one year at a time, as the High Court may, by general or special order, direct. Local jurisdiction of Judicial Magistrates^12 .- (1) Subject to the control of the High Court, the Chief Judicial Magistrate may, from time to time, define the local limits of the areas within which the Magistrates appointed under section 11 or under section 13 may exercise all or any of the powers with which they may respectively be invested under this Code. (2) Except as otherwise provided by such definition, the jurisdiction and powers of every such Magistrate shall extend throughout the district. Subordination of Judicial Magistrates^13 .- (1) Every Chief Judicial Magistrate shall be subordinate to the Sessions Judge; and every other Judicial Magistrate shall, subject to the general control of the Sessions Judge, be subordinate to the Chief Judicial Magistrate. (2) The Chief Judicial Magistrate may, from time to time, make rules or give special orders, consistent with this Code, as to the distribution of business among the Judicial Magistrates subordinate to him. Courts of Metropolitan Magistrates^14 .- (1) In every metropolitan area, there shall be established as many Courts of Metropolitan Magistrates, and at such places, as the State Government may, after consultation with the High Court, by notification, specify.
(^1213) Section 14 14 Section 15Section 16
(2) The presiding officers of such Courts shall be appointed by the High Court (3) The jurisdiction and powers of every Metropolitan Magistrate shall extend throughout the metropolitan area. Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrates^15 .- (1) The High Court shall, in relation to every metropolitan area within its local jurisdiction, appoint a Metropolitan Magistrate to be the Chief Metropolitan Magistrate for such metropolitan area. (2) The High Court may appoint any Metropolitan Magistrate to be an Additional Chief Metropolitan Magistrate, and such Magistrate shall have all or any of the powers of a Chief Metropolitan Magistrate under this Code or under any other law for the time being in force as the High Court may direct. Special Metropolitan Magistrates^16 .- (1) The High Court may, if requested by the Central or State Government so to do, confer upon any person who holds or has held any post under the Government, all or any of the powers conferred or conferrable by or under this Code on a Metropolitan Magistrate, in respect to particular cases or to particular classes of cases or to cases generally, in any metropolitan area within its local jurisdiction: Provided that no such power shall be conferred on a person unless he possesses such qualification or experience in relation to legal affairs as the High Court may, by rules, specify. (2) Such Magistrates shall be called Special Metropolitan Magistrates and shall be appointed for such term, not exceeding one year at a time, as the High Court may, by general or special order, direct.
(^1516) Section 17 Section 18
Magistrate so placed in charge of a sub-division shall be called the Sub- divisional Magistrate. (5) Nothing in this section shall preclude the State Government from conferring, under any law for the time being in force, on a Commissioner of Police, all or any of the powers of an Executive Magistrate in relation to a metropolitan area. Special Executive Magistrates^19 .- The State Government may appoint, for such term as it may think fit, Executive Magistrates, to be known as Special Executive Magistrates for particular areas or for the performance of particular functions and confer on such Special Executive Magistrates such of the powers as are conferrable under this Code on Executive Magistrates, as it may deem fit. Local jurisdiction of Executive Magistrates^20 .- (1) Subject to the control of the State Government, the District Magistrate may, from time to time, define the local limits of the areas within which the Executive Magistrates may exercise all or any of the powers with which they may be invested under this Code. (2) Except as otherwise provided by such definition, the jurisdiction and powers of every such Magistrate shall extend throughout the district. Sub ordination of Executive Magistrates^21 .- (1) All Executive Magistrates, other than the Additional District Magistrate, shall be subordinate to the District Magistrate, and every Executive Magistrate (other than the Sub-divisional Magistrate) exercising powers in a sub-division shall also be subordinate to the Sub-divisional Magistrate, subject, however, to the general control of the District Magistrate. (2) The District Magistrate may, from time to time, make rules or give special orders, consistent with this Code, as to the distribution of business among the
(^1920) Section 21 21 Section 22Section 23
Executive Magistrates subordinate to him and as to the allocation of business to an Additional District Magistrate.
1.2.2. Nyaya Panchayats in India: The Gram Nyayalayas Act was passed in January 2009 (got President’s assent on 7 January 2009) to provide for the establishment of Gram Nyayalayas at the grass roots level for the purpose of providing access to justice to the citizens at their doorsteps and to ensure that opportunities for securing justice are not denied to any citizen by reason of social, economic or other disabilities and for matters connected therewith or incidental thereto. The 114th Law Commission of India back in 1986 proposed the Gram Nyayalaya as a different court. The report recommended the concept of the Gram Nyayalaya had two objectives. While addressing the pendency in the subordinate courts was the major objective, the other objective was the introduction of a participatory forum of justice. To make it participatory the Law Commission recommended that the Magistrate be accompanied by two lay persons who shall act as Judges, that the legal training of the Magistrate will be complemented by the knowledge of the lay persons who would bring in the much required socio-economic dimension to adjudication. It was proposed that such a model of adjudication will be best suited for rural litigation. However the participatory aspect has been set aside in the current Act and we find the Gram Nyayalaya manned by the regular Judicial First Class Magistrate. The Law Commission also observed that such a court would be ideally suited for the villages as the nature of disputes coming before such a court would be ‘simple’, ‘uncomplicated’ and obviously would be easy for solution and that such disputes should not be trapped in procedural claptrap. This act extends to whole of India except the State of Jammu and Kashmir, the State of Nagaland, the State of Arunachal Pradesh, and the State of Sikkim and to the tribal areas of the country. The Tribal area under this act
Jurisdiction of Gram Nyayalaya. – The Gram Nyayalaya shall exercise both civil and criminal jurisdiction in the manner and to the extent provided under this Act. And act according to the Code of Criminal Procedure, 1973 or the Code of Civil Procedure, 1908 or any other law for the time being in force. The Gram Nyayalaya may take cognizance of an offence on a complaint or on a police report and shall- (a) try all offences specified in Part I of the First Schedule; and (b) try all offences and grant relief, if any, specified under the enactments included in Part II of that Schedule. (c) shall also try all such offences or grant such relief under the State Acts which may be notified by the State Government under sub-section (3) of section
At the end of the trial, if the decision is not by consensus between the parties, the Presiding Judge shall draw a brief statement of the dispute, the evidence led, the decision and the reasons in support of the decision. It shall be signed by all the three Judges. In the event of a difference of opinion, the decision of the majority will be binding. On a question of law, the view expressed by the Presiding Judge shall be binding on the lay Judges. If the Gram Nyayalaya finds that it has no jurisdiction, it may make over the case to the District Court having jurisdiction for transfer of the case to the Court having jurisdiction. As a first step, it is advisable to retain the procedure prescribed in the Code of Criminal Procedure, 1973 for trial of offences before the Gram Nyayalaya. An attempt, however, should be made to devise a still simpler procedure which may stand the test of Article 21 of the Constitution. The Evidence Act as such stricto sensu would not apply.
The parties appearing before the Gram Nyayalaya will be entitled to appear through lawyers of their desire both in civil and criminal proceedings. But the Gram Nyayalaya shall not adjourn the case, or change the venue, to accommodate the lawyer. The proposed National Legal Services Act should assign two lawyers to be attached to each Gram Nyayalaya who would be independent of party influence and who would assist as court officers in disposal of the disputes, and also would be readily available to the parties if they so desire. The Gram Nyayalaya will have power to : ( a ) enforce the attendance of any person and examine him on oath; ( b ) compel the production of documents and material objects; ( c ) issue commissions for the examination of witnesses or if the witness is unable to appear before it on account of physical incapacity; and ( d ) do such other things as may be prescribed. The proceedings before the Gram Nyayalaya shall be conducted in the State language permitting the dialect of the locality to be used. Records shall be maintained in the State language and copies shall be furnished to those who desire the same. The decision shall be, if not by consent of the parties, recorded in the language of the court. No court fee shall be levied in the proceedings before the Gram Nyayalaya. No appeal would lie against any decision of the Gram Nyayalaya except the one in which at the end of a criminal trial a substantive sentence is imposed. A revision petition would lie to the District Court of the district in which the Gram Nyayalaya is functioning. Only errors of law can be corrected by this revisional forum. Even if it comes to the decision that another view is possible, it would have no jurisdiction to interfere with the decision of the Gram Nyayalaya. A decision by peers should not be interfered with by a court presided over by a Judge considering the matter from a purely technical legal approach.