The functionaries under the code of criminal procedure, 1973

The functionaries under the code of criminal procedure, 1973 | Overview

• Introduction
• Magistrates and courts
• The Police
• The Prosecutors
• Defence Counsels
• Prison Authorities

Introduction

The functionaries exercising powers and discharging duties under the Code of Criminal Procedure, 1973 are 1) the police, 2) the prosecutors, 3) defence counsels 4) Magistrates and Courts and 5) Prison Authorities and Correctional Home Services.

Amongst these, the role of the Magistrates and courts is pivotal while other functionaries are, in a way, accessories to it. It is, therefore, expedient to consider the constitution, powers and functions of the courts first and then followed by the other functionaries.

I. Magistrates and courts

The entire territory of India consists of States and for the purpose of the Code, “the basic territorial divisions of the State are the districts and the Sessions Divisions”[1]. The Code has also considered the special needs of big cities like Bombay, Calcutta, Madras, etc. and has recognised them as metropolitan areas[2] and each such area shall be considered as a separate sessions division and district.

According to this territorial demarcation, the criminal courts in the country include the Supreme Court of India, High Courts of every State, Court of Session in every Session Division and Courts of Judicial Magistrates in every district.

• Supreme Court and the High Courts

The Supreme Court of India and the State High Courts have been created by the Constitution, and their jurisdictions and powers have been defined by the Constitution itself. Besides, Cr.P.C makes the provision of appeal to the Supreme Court from any order of conviction from a High Court under Sections 374 and 379. Further, Section 406 empowers the Supreme Court “to transfer any case or appeal from one High Court to another or from one subordinate court to another in the interest of justice”[3].

With respect to the High Courts, Section 483 of the Code provides that “every High Court shall exercise superintendence over the courts of Judicial Magistrates subordinate to it to ensure expeditious and proper disposal of cases” [4]. Besides, the High Court is also entrusted with the powers to hear appeals and references from decisions of Court of Session and also revisions of its own judgments.

• Court of Session

The Court of Session is established under Section 9 of the Code which is presided over by a session judge appointed by the High Court of the State. Section 9 further establishes the Court of Additional Sessions Judges and Assistant Session Judges for the purpose of ease and expediency.

In its original jurisdiction, the Court of Session is empowered to try offences which are specifically triable by it under Schedule 1 of the Code. It has the power to examine witnesses and pass sentences of imprisonment of any term and levy death penalty subject to confirmation by the High Court. In its appellate jurisdiction, it has the power to hear appeals against orders and decisions of Judicial Magistrates.

• Courts of Judicial Magistrates

The courts of Judicial Magistrates are “established by the State Government in consultation with the High Court”[5]. The State is empowered to establish as many courts of Judicial Magistrates of First Class and Second Class in every district as it deems necessary. The provision also provides for “establishment of one or more special courts of Judicial Magistrates of First Class and Second Class to try any particular case in any local area”[6]. Moreover, under Section 12, the High Court is required to “appoint a Judicial Magistrate of the First Class as the Chief Judicial Magistrate who shall be the head of the Magistracy”[7].

The magistrates’ courts are the court of the first instance and try all offences exclusively triable by it under Schedule 1 of the Cr.P.C. Even an offence triable by the Court of Session needs to be committed by the Magistrate under Section 209. The Magistrates are empowered “to pass sentences of imprisonment for a term not exceeding 7 years”[8] (7 years is the maximum punishment by a Magistrate and can be passed only by Chief Judicial Magistrate).

II. The Police

As seen before, the ordinary criminal courts originate from the provisions of the Criminal Procedure Code, 1973. In the case of the police force, it is somewhat different. The Code does not establish or create the Police or Police Officers, but presupposes their existence and arms them with certain powers and directs them to discharge certain duties.

• Establishment of the Organisation of Police

The police organization is an establishment under the Police Act, 1861. The Act states that “the police force is an instrument for the prevention and detection of crime”[9]. The legislative power with respect to the establishment of State police forces vests on the State legislature and any person eligible to join the force requires to be enrolled to the State forces.

The force may contain any number of officers as the State prescribes and such officers are provided with certificates that vests upon them the powers and duties. The Supreme Court held that “such certificates shall cease to be effective and shall be returned as soon as the police officer ceases to be an officer”[10].

• Powers and Functions under Cr.P.C.

The Cr.P.C confers specific powers, for instance, “power to arrest, search a place, etc. on members of the police force who are enrolled as police officers”[11]. Further, extensive powers have been vested upon officer-in-charge of the police station.

These officers, usually called the Station House Officers are also required “to discharge onerous duties in relation to detection, investigation and prevention of offences”[12]. Further, Section 36 of the Code vests extra-territorial powers upon officers above the rank of officer-in-charge for the purpose of investigation and prevention of crime[13].

III. The Prosecutors

A crime is considered to be a wrong against the society and therefore, the State takes the responsibility to prosecute such persons who wrong. Thus, the State is represented by lawyers specifically appointed for this purpose called the Public Prosecutors. The Public Prosecutors conduct prosecution of all the offences in any criminal court.

• Appointment and Constitution

Section 24 of the Code empowers the Central and State Government to “appoint Public Prosecutors at the State level and District level to conduct appeal or prosecution in the High Court and Subordinate Courts”[14] respectively. The provision further provides for the appointment of Additional and Assistant Public Prosecutors to work under the direction of the Public Prosecutor.

“A person shall be eligible to be appointed as Public Prosecutor of High Court or District Court if s/he has been in practice as an advocate for not less than 7 years”[15]. In Phool Singh v. the State of Rajasthan, the court held that “the State may appoint a special public prosecutor in a case if requested by the victim and insist that he be paid by the victim or his dependents” [16].

• Powers and Functions under Cr.P.C

The Code states that “trial before a court of the session shall be conducted by the Public Prosecutor”[17]. Further, Section 301 empowers the Public Prosecutor and the Assistant Public Prosecutor to appear before any criminal court and conduct the prosecution without any written authority. Thus, “a Public Prosecutor can conduct prosecution as a matter of right”[18]. Now, with respect to duties, the code does not specifically mention “the spirit in which the duties of the prosecutor are to be discharged”[19].

The purpose of the trial is to determine the truth; whether the accused is guilty or innocent. Thus, whether the prosecution is duty-bound to obtain a conviction since he represents the victim or his role is only to assist the court in determining the truth is questionable. The court in Ghirrao v. Emperor held that “the prosecutor should place before the court all evidence in his possession whether it be in favour of or against the accused” [20].

The role of the prosecutors under Cr.P.C was elaborately explained by the apex court in Md. Mumtaz v. Nandini Satpathy. The court observed that “a public prosecutor should be personally indifferent to the result of the case. His duty should consist of placing all the available evidence in order to aid the court in discovering the truth” [21]. Therefore, it can be inferred that in the machinery of justice, a Public Prosecutor has to play a very responsible role; “his impartial conduct is equivalent to the impartiality of the court itself”[22].

IV. Defence Counsels

The basic principle of natural justice says that no one should be condemned unheard. This is ensured by requiring the Magistrate to record the statement of the accused person under Section 313 of the Cr.P.C and this is the first instance where the accused gets an opportunity to speak for himself and defend himself before the trial commences.

However, an accused person is a layman (in most cases) and is not well versed with the technicalities of law and rhetoric of the lawyers. Considering this, Section 303 of the code vests upon the accused “the right to be defended by a pleader of his choice”[23] who is known as the ‘defence counsel’.

• Appointment and Establishment

Unlike other functionaries under the Code, the defence counsel is not a government employee but is employed by the accused person or his family to defend him against the alleged charges. Nevertheless, they are considered to be the officers of the court because their existence is indispensable to meet the purpose of a fair trial. These defence counsels acquire their right to represent the accused by independent contracts called the ‘vakalastnama’ and are not established under the code.

However, the code does provide for defence counsel in the form of free legal aid to persons who cannot employ an advocate due to certain social or economic backwardness[24]. Providing free legal aid and appointing a defence counsel for indigent accused has been pressed by the apex court repeatedly in Khatri (2) v. State of Bihar [25]and Suk Das v. UT of Arunachal Pradesh[26].

V. Prison Authorities

Similar to the police force, the prison authorities are also not established under the Code but the Code presupposes their existence. The prison and its regulation are overlooked by the Prisons Act, 1894, the Prisoners Act, 1900, the Borstal School Acts and the Probation of Offenders Act, 1958. The role of the prison authorities, however, is vital in all the three stages in any criminal case, i.e. pre-trial, trial and post-trial.

During the pre-trial stage, the Magistrate is empowered to order the detention of an arrested person in judicial custody if he has reason to believe that the safety of the accused might be endangered under police custody.

Any person under judicial custody is under the surveillance of the prison authorities of the district prison of that area. Further, the code also empowers the Magistrate and judges under certain circumstances, such as when an investigation is not completed in 24 hours under Section 167, order detention of such undertrial prisoners in jail during the pendency of the proceedings.

Lastly, the courts are also empowered “to impose sentences of imprisonment on convicted persons and to send them to prison authorities for the due execution of such sentences”[27].

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[1] §7, Cr.P.C, 1973.

[2] §8, Cr.P.C, 1973.

[3] §406, Cr.P.C, 1973.

[4] §483, Cr.P.C, 1973.

[5] §11, Cr.P.C, 1973.

[6] Ibid.

[7] Delhi Judicial Service Assn. v. The state of Gujarat, (1991) 4 SCC 406.

[8] §29, Cr.P.C, 1973.

[9] Police Act, No. 5, Act of Parliament, Preamble, 1861 (India).

[10] Supt. of Police v. Dwarka Das, AIR 1979 SC 336.

[11] Ratanlal & Dhirajlal, Commentary on the Code of Criminal Procedure 101 (18^th ed. 2006).

[12] R.V. Kelkar, Lectures on Criminal Procedure 24 – 25 (6^th ed. 2017).

[13] State of Bihar v. J.A.C. Saldanha, (1980) 1 SCC 554.

[14] §24 (1), Cr.P.C, 1973.

[15] §24 (7), Cr.P.C, 1973.

[16] Phool Singh v. the State of Rajasthan, 1993 Cri. L.J 3273 (Raj).

[17] §225, Cr.P.C, 1973.

[18] Pillai, supra note 3 at 77.

[19] Ibid.

[20] Ghirrao v. Emperor, (1933) 34 Cri. L.J 1009.

[21] Md. Mumtaz v. Nandini Satpathy, (1987) 1 SCC 288.

[22] George Dekle, Prosecution Principles: A Clinical Handbook, 28 (1es ed. 2007).

[23] §303, Cr.P.C, 1973.

[24] Code of Criminal Procedure, No. 2, Act of Parliament, §304, 1973 (India).

[25] Khatri (2) v. the State of Bihar, (1981) 1 SCC 627.

[26] Suk Das v. UT of Arunachal Pradesh, (1986) 2 SCC 401.

[27] Ratanlal, supra note 11 at 117.

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