In a very informative webinar that was organised by the Student Council of Law,
NMIMS, Navi Mumbai on 12th September 2020 with Advocate Roshan Santhalia(AOR, Supreme Court of India) on the working of the Criminal Justice in India. The
webinar witnessed an overwhelming participation of 80+ students, the following points
were discussed briefly:
When is the criminal justice set in motion:
The most common way to set Criminal Justice in motion is by filing an FIR (First
information report) u/s 154 Code of Criminal Procedure (hereafter referred as CrPC), an
FIR can only be filed when the offence is of cognizable nature.
The investigating officer has the authority to arrest without a warrant. It is important to adhere in mind that when the sentence of the said offence is less than 7 years then the investigating officer has to fulfil various conditions laid down in S.41(1)(b) and 41B of the CrPC.
Several states also made mandatory guidelines/ amendments, that in cases of cognizable offences the investigating officer has to take the permission of the DCP or senior officer. The Supreme Court of India in certain judgments has laid down guidelines to ensure that the arrest made is not arbitrary in nature.
The difference between a criminal complaint and an FIR was discussed: A criminal complaint is not always converted into an FIR as it is not allowed to do so in cognizable offences meaning thereby that a criminal trial can be set in motion without filing an FIR as well. Under section 200 CrPC, one can file a private complaint before the magistrate and the magistrate can take cognizance under section 156(3) read with section 190 CrPC. Discussed the case of Lalita Kumari V. State of Uttar Pradesh 2013, where the Apex Court made it compulsory for the Police to register FIR for a cognizable offence subject to certain exceptions like financial cases, medical cases, corruption cases, etc.
The investigating officer has to produce the accused before the magistrate within 24 hours, the police can request the magistrate to allow police custody, the Police can only Page 2 of 3 keep a person in custody for a maximum period of 14 days and then the accused has to be transferred to the judicial custody.
Life of a typical Criminal Trial:
When the investigation officer fails to file a charge sheet or Police report with the
appropriate time-period of 60 or 90 days then the accused in the Police custody or
Judicial custody will be entitled to default bail meaning thereby that when the
investigation is not concluded with 60 days’ time period or 90 days’ time period
depending upon the severity of the offence then the accused is entitled to default bail
under section 167(2) of CrPC. Once the investigation is complete the police officer is
obliged to send the police report that is known as the charge sheet or investigation
report to the competent magistrate under section 173 of the CrPC. Then the magistrate
will take cognizance based on the police report under section 190 of CrPC.
Based on the report filed by the Police, the argument is done over the charges filed by the Police before the Magistrate and if it appears to the magistrate that the charges are not maintainable then the accused is discharged. When it appears that the charges are true and sustainable then framing of charges is done under sections 228 and 251 CrPC, charges are framed against the accused and accordingly summons are issued to the other concerned persons if required.
The Speaker discussed the concept of bail briefly:
1. One can apply for anticipatory bail under section 438 CrPC when they are
anticipating an arrest for commission of a non-bailable offence. This type of bail
can only be granted by sessions or High court and survives until the charge sheet
is filed.
2. There are two types of regular bail (a) Post charge sheet, and (b) Pre charge
sheet. A regular bail is granted u/s section 437 CrPC for non-bailable offence(s). Under section 439 CrPC a sessions court or High court is empowered to grant
bail. Once regular bail is granted it survives throughout the trial process.
There are three types of the trial (i) Warrant trial u/s 228 CrPC (ii) Summons trial u/s 251 CrPC and (iii) sessions trial u/s 228 of the CrPC.
Once the accused pleads not guilty and that’s when the trial commences. The counsel appearing on behalf of the accused argues based on prima facie facts and evidence.
The statements/ confessions of witnesses and relevant evidence is attached along with charge sheet that are in accordance with section 161 CrPC, it is pertinent to note that these are not signed by the witnesses and hence it is observed that quite often they take a different course or deflect from their written statement when produced in court for statements u/s 164 CrPC meaning thereby that statements given under section 164 Crpc before the magistrate is only admissible and can’t be deviated at the later stage otherwise the offence of perjury stands invited.
Then the procedure u/s 313 CrPC is adopted, that specifies the examination-in-chief of the accused. After this, the process of cross-examinations is carried out. The magistrate court or sessions court will then compile all the incriminating statements and material against the accused then the accused is once again given the chance to justify the materials presented and then the acquittal or conviction judgment is passed.
Above mentioned points were discussed in-depth during the course of webinar that provided the students a preview within the litigating world of criminal law. Several questions from the participants were also answered patiently and diligently by the Speaker throughout the course of the webinar and at the very end.
The important message that the Speaker gave to the participants was that a law student should develop the habit of reading for atleast 5-6 hours per day and it is this habit that will help them develop a better understanding about the Law and they will be able to debate over the law in a better way.
The Student Council of Law on behalf of the whole School of Law, NMIMS, Navi Mumbai expresses its utmost gratitude to the Speaker for apprising the students about the working of the Criminal Justice System in India.
The Student Council of Law hopes to bring some more interactive sessions for its Students.
