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Functionaries under the CrPC

An Outline: Criminal proceedings under the Criminal Justice System cannot run without functionaries under the CrPC. They are the backbone of the entire scheme and therefore, it is important to know, figure out and understand these functionaries one by one. At a glance, we can see following significant functionaries as tools for running the judicial structure under the Criminal Law: 1. Police 2. Public Prosecutors and Additional Public Prosecutors (S.24) 3. Assistant Public Prosecutors (S.25) 4. Defense Counsel (S.303 and 304) 5. Courts of Magistrate and Sessions Courts 6. Executive, Sub-Divisional and District Magistrates 7. Prison and Prison Authorities 8. Correctional/Remand Homes, Juvenile Care Centre etc. Eight Functionaries with Different Powers and Duties: 1.

POLICE ‘Police’ is not defined under the CrPC, but the “officer in

charge of a police station” [S.2(o)], police report [S.2(r)] and police station [S.2(s)] have been defined. The word ‘police’ is normally used as a noun, which has a dictionary meaning: the civil force of a state, responsible for

the

prevention

and

detection

of

crime

and

the

maintenance of public order. (Oxford Dictionary) Another Definition from New Webster Dictionary says: (it is) ‘A department of government responsible for the preservation of public order, detection of crime and enforcement of civil law.’ Police is part of the executive system. The Indian Police Act, 1861 says: the word ‘Police’ shall include all persons who shall be enrolled under the Police Act. (S.1) Apart from Central – Police Act, some States have its on Police Act e.g. Bombay Police Act (Maharashtra), Gujarat Police Act, Kerala Police Act etc. As the to maintain law and order is the primary duty of each State Government, Police is governed by the State Law. Police is the first machinery, which can be moved and used in case of cognizable offences, as it has power to arrest without warrant and power to investigate in such cases without any orders/s from the magistrate. 2/3. Public

Prosecutors

and

Additional/Assistant

Public

Prosecutors: In

a

case

instituted

upon

police

report,

only

the

Public/additional Public Prosecutors can conduct the trial and can open the case for the prosecution. These Public Prosecutors or Add./asst. public prosecutors are advocates, but after 7 years of practice [not less than seven years

as per S.24(7)], as and when the Government notifies the vacancies for the post for Public Prosecutors, they may apply, appear in written examination and on passing the same – after a personal interview, they would be appointed by the State. This is for the Courts of Magistrate and Sessions Courts. For the High Court, the State selects them. Though, these appointments are technically appeared to be apolitical, but in reality, they are political. All cognizable offences are the offences against the State and when the state machinery has been used to uncover the crime, nab the offenders, then naturally, trial and pre-trial procedure before the courts have to be conducted by the Public Prosecutors on behalf of the State. Section-24 deals with the Public Prosecutors, S.25 is about the Assistant Public Prosecutors and subsequently inserted S.25A (by Act of 25 of 2005, w.e.f.23-6-2006) talks about the Directorate of Prosecution. Thus, all the criminal cases (instituted upon police report) are being conducted either by the Public Prosecutors or by Assistant Public Prosecutors. From the Courts of Magistrate to Sessions Court and High Court, such criminal cases are having prosecution through the Public Prosecutors only. An informant/complainant or a victim may engage a private lawyer for assistance, but a private advocate on behalf of the informant or the complainant cannot independently conduct a police

case. A private advocate can only assist the Public Prosecutor, without addressing the court directly. However, sometimes, if judge/Magistrate permits, s/he can assist on limited points. As and when – before the trial, Investigation Officer appears before the magistrate with accused or without the accused for submitting any report or for issuance of any warrant or for filing any report e.g. adding of sections etc. s/he normally be assisted by the Public/add./assistant

Prosecutor.

Then,

during

the

trial

also,

Investigation officer has to coordinate with the Public Prosecutor about the witnesses, serving of summons etc. Though, after the charge sheet all the police papers are available to the Public Prosecutor,

however,

for

certain

instruction

regarding

the

commission of crime and its detection and collection of evidence, police do have complete insight and so, it is very necessary to line up with the police for conducting the case effectively. 4.

Defense Counsel: Accused person/s, who are facing trial or pre-trial charges

under the criminal law are entitled to engage lawyer of their choice and Section-303 is for the same purpose. It says: Right of person against whom proceedings are instituted to be defended. – ‘Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under the Code, may of right be defended by a pleader of his choice.’

However, in trial before a Court of Session (which is more serious in nature compared to trial before the Court of Magistrate) if the accused person/s could not engage an advocate due to his/her financial condition, then, Legal aid is to be given to the accused at the State Expenses in certain cases (s.304). The objective of this section is: the accused should not be undefended in serious Session Case. This is over and above the Legal Services Authorities Act, which also provides the legal aid to poor, woman and people of weaker sections of the society. 5/6. Criminal Courts/Executive Magistrates: Chapter-II of the CrPC – Section-6 to 23 deals with the Constitution of Criminal Courts and Officers including the Executive Magistrates. Criminal Courts, normally divide into two parts: Courts of Magistrate and Sessions Courts. However, with regard to Courts of Magistrates, there are other species e.g. First Class Magistrate, Second Class Magistrate, Chief Judicial Magistrate, Metropolitan Magistrate etc. These include – Additional Magistrates too. Certain offences are triable by the Magistrates and certain offences are triable by the Sessions Courts. However, in a case instituted upon Police report – whether the case is triable by the Magistrate or not, but till the filing of the charge sheet everything will be submitted before the Magistrate only e.g. forwarding

report/FIR, Application for remand etc., except bail, in cases where the offences are triable by the Court of Session. In some States, there are no Second Class Magistrates. However, they are the lowest in hierarchy, as they do have power to conduct the cases where punishment for offences are up to 1 year and mostly the non-cognizable cases. Then, the Judicial Magistrate First Class (shortly known as JMFC) is having power to conduct the cases where the punishment for offences is up to 3 years.

And

then

comes,

Chief

Judicial

Magistrates

or

Chief

Metropolitan Magistrates [in a metropolitan city (whose population exceeds one million shall be a metropolitan area for the purposes of this Code, if state government issues the notification to this effect as per section-8), they are designated as Metropolitan magistrates] Territorial

Jurisdiction

and

the

local

jurisdiction

of

the

Magistrates as well as of the Sessions Court will respectively determined by the State Government as well as the High Court. Every Police Station in the State/District would be falling under the jurisdiction of a particular Court of Magistrate – to whom initial report/FIR is to be forwarded and accused, too would be produced before such court/s. Apart from the Courts of Judicial Magistrates and Sessions, whose main function is dispensation of justice and they are sitting in Courts, there is also another class of Executive Magistrates, who do not have pure and exclusive judicial power (as they cannot

decide the cases in a strict judicial sense i.e. by way of imposing of punishment or fine etc.) but some administrative powers to deal with the urgent situation i.e. to prevent something, which may create some problem for law and order, or to take personal bonds and security to keep peace in particular area, to prevent a public nuisance and the District Magistrate may pass prohibitory orders u/s.144 of the CrPC, as empowered by the Code. Apart from Executive Magistrates, there are also Sub-Divisional and District Magistrates. Normally in most of the States, these are the persons, who are empowered under the Land Revenue Code as a Collector, Deputy Collector and Mamlatdars. 7.

Prison and Prison/Jail Authorities: Prison or Jail is known as ‘Judicial Custody’. When person,

after an arrest is remained with the police – or when the Magistrate/Courts grant the remand sought by the Police for the purpose of interrogation, then, it is said to be police custody. However, police cannot keep a person with them beyond 24 hours and so, as soon as the remand is over or if it is not grated and bail is not granted for serious nature of offences, person is sent to jail, which is known as Judicial custody. Here, there are two-three types of prisoners are there: 1. Under-trial prisoners, whose trial is pending, case is going on. 2. Convicted prisoners, who held guilty by the competent courts and 3. Detainees under the preventive detention acts.

There are sub-jails in small Districts and there are Central Jails in big or Metropolitan Cities. The head of the prison is known as Jail Superintendent. The prisons/jails normally are governed by Jail Manuals. 8.

Juvenile Homes/Correction Centers/Remand Home for Juveniles: Though, these Juvenile Homes or corrections centers for the

Juveniles do not exactly form part of the ‘functionaries under the CrPC’ however, the trials before the juvenile courts – more or less conducted before the Magistrates and thought, the said court is recognized as ‘Juvenile Court’, the real nature of the said court is of Criminal Court and so, this functionary is ancillary to other functionaries under the Code. Person, who has not completed the age of 18 years, if found in conflict with the law, be not sent to the Jail, but to remand home or correction center created under the Juvenile Justice Act....