Cr PC Notes Part 1 ( Introduction of Cr PC, Constitution & Powers of Criminal Courts) PDF

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Download Cr PC Notes Part 1 ( Introduction of Cr PC, Constitution & Powers of Criminal Courts) PDF

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INTRODUCTION OF CODE OF CRIMINAL PROCEDURE, ITS OBJECTIVES AND SALIENT FEATURES

Introduction Law can be divided into two kinds, namely, (1) Substantial law and, (2) Procedural law. Substantial law defines and regulates the powers rights, duties, and liabilities, of the parties, whereas, Procedural law deals with methods and procedures to enforce the Substantial law. Criminal Procedure Code is a Procedural law. Criminal Procedure Code cannot be separated from any of the penal laws of the country. If Substantial penal law is a major means to protect the society, the Procedural criminal law a Chief mechanism to achieve and enforce the Substantial law. Before coming into force of the Criminal Procedure code, 1973, the criminal Procedure code of 1898 was in force. In this new code, many reforms were made, whose paramount object was the separation of the judicial from the Executive. Code of Criminal Procedure The Code of Criminal Procedure 1973 (Act No. 2 of 1974) consolidates and amends the law related to Criminal Procedure. It was put into practice by Parliament after twenty-four years of the Republic of India as follows. In the Criminal Procedure code, 1973, in all, there are 37 Chapters, 484 Sections, and two Schedules. In this First Schedule, there is the classification of the offenses and in the Second Schedules, several forms have been included. Criminal Procedure code, 1973 extends to the whole of India (Section 1, Short title , extent and Commencement) It shall come into force on the 1st day of April 1974.

Basic legal Definitions under CrPC Under Section 2, the following important definitions have been mentioned:-

(a) “Bailable Offense” means an offense which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and “non-bailable offense” means any other offense. (b) “Charge” includes any head of the charge when the charge contains more heads than one. (c) “Cognizable offense” means an offense for which, and “cognizable case” means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant. 1

(d) “Complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offense, but does not include a police report. (e) “High Court” means-In relation to any State, the High Court for that State. In relation to a Union territory to which the jurisdiction of the High Court for a State has been extended by law, that High Court;In relation to any other Union territory, the highest Court of criminal appeal for that territory other than the Supreme Court of India; (f) “India” means the territories to which this Code extends; (g) “Inquiry” means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court; (h) “Investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf; (i) “Judicial Proceeding” includes any proceeding in the course of which evidence is or may be legally taken on oath; (j) “Local jurisdiction”, in relation to a Court or Magistrate, means the local area within which the Court or Magistrate may exercise all or any of its or his powers under this Code ; (k) “Metropolitan Area”, means any area declared, or deemed to be declared, under section 8, to be a metropolitan area. (l) “Non-Cognizable Offence” means an offense for which, and “non-cognizable case” means a case in which, a police officer has no authority to arrest without warrant; (n) “Offense” means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle-trespass Act, 1871 ( 1 of 1871); (o) “Officer in charge of a police station” includes, when the officer in charge of the police station is absent from the station house or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present.

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(r) “Police Report” means a report forwarded by a police officer to Magistrate under subsection (2) of section 173; (s)“Police Station” means any post or place declared generally or especially by the State Government, to be a police station, and includes any local area specified by the State Government in this behalf ; (u) “Public Prosecutor” means any person appointed under section 24, and includes any person acting under the directions of a Public Prosecutor; (w) “Summons-case” means a case relating to an offense, and not being a warrant-case ; (wa) “Victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir; (x) “Warrant-case” means a case relating to an offense punishable with death, imprisonment for life or imprisonment for a term exceeding two years. Objective of the Code The Important objectives of the Code of Criminal Procedure are: 1. To provide an opportunity to the accused person to get a fair trial in accordance with the principles of natural justice; 2. To make an effort to prevent delay in investigation and trial to ensure fair justice; 3. CrPC also provides a detailed scheme for working of various functionaries of the state to help and assist the administration of Criminal Justice in India.

Salient Features of the Code The CrPC contains 484 Sections and XXXVII Chapters. The CrPC describes that all offences in Indian Penal Code 1860 shall be investigated, inquired into, tried unless it is otherwise dealt. However, CrPC does not affect any special law, local law or any special jurisdiction or power or procedure provided in any other law. Some of the basic features of CrPC are discussed below. •

Organisation of Criminal Courts: The CrPC provides a uniform set of criminal courts throughout the territory of India by conferring jurisdiction, powers and functions. The CrPC 3

mandates separation of judiciary from the executive, which enables the state to work with independently and impartially without interference of any other organs of the State. •

Fair Trial: Under CrPC every person is entitled to fair trial and hearing by an independent and impartial Tribunal. The accused is presumed to be innocent, until the charges are proved. The accused has right to be represented by his counsel. Further, the accused has a right to cross-examine the witnesses of the opposite party.

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Protection to the accused person: Special provisions have been made to protect the interest of the accused person. The Supreme Court also gave some important guidelines with respect to the rights of the accused person in D.K.Basu v. State of West Bengal, AIR 1997 SC 610.

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Special Provision for the protection of the accused person: Free legal aid provision is made if the accused person is poor and cannot afford the costs of the litigation. In petty cases the accused can even plead guilty by post and send the amount of fine specified in the summons to the court, therefore he need not appear before the court.

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Judicial Magistrates are under the control of High Courts: All Judicial Magistrates shall work under the control of High Courts of the respective states. The Judicial Magistrates in Metropolitan cities are named as Metropolitan Magistrates. The CrPC abolished the appointing of honorary Magistrates and Justices of peace.

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Trial Procedure: Procedure for trial of summary cases shall be the same as that for summons cases except where it is provided otherwise. The Court of Sessions also have been given power to exercise the revisional jurisdiction in addition to the High Courts. An appeal by the state against the order of the acquittal can be filed only after obtaining the leave of the High Court. In case of adjournments, costs may be awarded against the party seeking adjournment including the prosecution.

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Duty of the Police: If the police officer refuses to record information about commission of the crime the aggrieved person does have a right to send the information by post to the superintendent of the police.

CLASSES OF CRIMINAL COURTS UNDER CRIMINAL PROCEDURE CODE, 1973

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As per the policy of separation between executive and judiciary, courts have been classified mainly into two parts- Courts of Executive Magistrates and courts of Judicial Magistrate. These courts have also different categories.

Section 6 of the Criminal Procedure Code, 1973 provides followings classes of courts-

1. 2. 3. 4. 5.

Session courts Courts of Judicial Magistrate first class Courts of Judicial Magistrate Second class Courts of Executive Magistrate. Similarly, courts of Metropolitan Magistrate have been established in Metropolitan areas.

In all, there are following categories of Criminal courts• • • • • • • • • • • •

Session courts Courts of Judicial MagistrateCourts of First-class Judicial magistrate, and Courts of Second class judicial magistrate. Courts of Chief Judicial Magistrate Special Judicial Magistrate Metropolitan magistrate courts Special Metropolitan courts Executive Magistrate courtsDistrict magistrate courts, and Sub- Division magistrate courts Special Executive magistrate courts

In Rajasthan, all courts are functioning except Metropolitan Magistrate.

Session Courts According to Section 9 of the code, a court of sessions shall be established for every session – division. Court of sessions shall have presiding judge named as ‘Session Judge’ who shall be appointed by the High Court. The high court shall appoint Additional session judge and Assistant session judge.

Abdul Manam v/s State of West Bengal (A.I.R 1996 S.C.905)

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It has considered that session court shall include Additional session court. Assistant session court shall be subordinate to the session court and the session court shall frame rules regarding the distribution of works between Assistant session courts.

Additional or Assistant sessions court shall try the urgent application in the absence of session court and in the absence of Additional or assistant session court such application shall be tried by a chief judicial magistrate (Section 10).

Powers of Punishment-

According to section 28 of the code – Session judge or Additional session judge can pronounce any sentence provided by law, but the death sentence given by them should necessarily be confirmed by the high court.

Assistant session judge can pronounce any sentence authorized by law other than a death sentence, imprisonment for life or imprisonment exceeding ten years (section 11).

These courts can commute the sentence, but considering the nature of the matter, the gravity of crime and behavior of accused the mere fact that trial was conducted for a long time cannot be the ground to commute a sentence.

Judicial Magistrate courts According to Section 11, every district excluding the Metropolitian area shall have first class and second class judicial magistrate as per the necessity. The state government in consultation with the High court can establish one or more special courts to try special matters or class of special matters. The presiding officer in such courts shall be appointed by the High court and high court can transfer the power of the first class or second class magistrate to any member of state judicial services acting as a judge in a civil court.

Delhi Judicial service union, Tis Hazari court, Delhi v/s State of Gujrat (A.I.R 1991 S.C.2176)Supreme court considered the post of the judicial officer as a post of honor and therefore should behave according to the dignity of post.

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Powers of Punishment:

According to section 29 of the code First class judicial magistrate court may pass a sentence of imprisonment not exceeding three years or of fine not exceeding Rs 5,000/- or both.

The second class magistrate court may pass a sentence of imprisonment not exceeding one year, or of fine not exceeding one thousand rupees or both.

According to sec. 29(2) First class magistrate can impose Rs 5,000/- as fine and not more. The amount cannot be more than Rs.five thousand in matters even of dishonoureof cheque. (Pankaj Bhai Nagji Bhai Patel v/s State of Gujrat, A.I.R 2001, S.C 567).

Court of Chief Judicial Magistrate

Section 12 of the code provides for the establishment of one court of a chief judicial magistrate in every district and of additional chief judicial magistrate court as per the requirement. The High court shall appoint on this post any first class judicial magistrate.

Power of Punishment:

According to section 29(1), The court of the chief judicial magistrate may pass any sentence authorized by law except a sentence of death or imprisonment for life (LI) for a term not exceeding seven years.

Metropolitan Magistrate Courts

Section 16 of the code provides for the establishment of the Metropolitan Magistrate court as per the requirement. The presiding officer of the Metropolitan magistrate court is appointed by the High court.

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The court of Metropolitan magistrate shall have the power of first-class magistrate court Section 29(4). The Metropolitan magistrate court may pass a sentence of imprisonment not exceeding three years or of fine not exceeding Rs 5,000/- or both.

Court of Chief Metropolitan Magistrate Section 17 of this code provides for the establishment of one Chief Metropolitan magistrate court for every Metropolitan area. Similarly, there is also provision for the establishment of additional chief Metropolitan magistrate court as per the requirements. The Court may pass any sentence authorized by law except a sentence of death or imprisonment for life (LI) for a term not exceeding seven years The High court can appoint any Metropolitan Magistrate to the post of Chief Metropolitan magistrate or additional Chief Metropolitan magistrate.

Power of Punishment According to section 29(4), the court of Chief Metropolitan Magistrate shall have the power of the court of Chief judicial magistrate.

Special Magistrate courts Section 13 of the code provides for the establishment of courts of the special judicial magistrate to try particular cases or a particular class of cases. Such courts are established at a particular time for a period of one year by the high court at the request of central or state government. Almost a similar system has been provided by section 18 for Metropolitan areas. A person appointed under sec. 18 shall be called special Metropolitan magistrate.

Courts of Executive Magistrate Section 20 of the code provides for the courts of Executive magistrate.

According to it, the state government could establish in every district and every Metropolitan area, the courts of Executive magistrate as per the requirements. One of this Executive magistrate shall be district magistrate. Similarly, additional district magistrate in a district and sub divisional magistrate in every sub division can be appointed. Section 21 of the code provides for the establishment of a special Executive magistrate court. 8

The powers of Executive Magistrate and special Executive magistrate shall be those which are provided by the state government.

Sub-Ordination The subordination of these courts shall be as followsThe chief judicial magistrate shall be in subordination to session judges. Other judicial magistrates shall be subordinate to Chief judicial magistrate while having a general contest of session judges (section 15 (1)). Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate shall be subordinate to the court of session. Another Metropolitan magistrate shall be subordinate to Chief Metropolitan magistrate while being under the general control of courts of the session. (Section 19(1)). All Executive magistrate other than sub-divisional magistrate shall be subordinate to a subdivisional magistrate while being under the general control of district magistrate.

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