Challenges to the
UNIT 15 CRIMINAL JUSTICE SYSTEM Informal Sector
in India
Structure
15.1 Introduction
15.2 Learning Outcomes
15.3 Law, Police and the Courts
15.4 Criminal Laws
15.5 Criminal Courts
15.6 Trial Procedure
15.7 Women and Criminal Justice System
15.8 Let Us Sum Up
15.9 Unit End Questions
15.10 References
15.11 Suggested Readings
15.1 INTRODUCTION
Crimes are serious wrongs committed in a society. Certain wrongs are serious
due to the type of harm done. For example – assault, murder, robbery and
rape are serious wrongs and are classified as crimes. Criminal justice system
in India consists of the police, prosecution and the courts. Women are
vulnerable to violence in the patriarchal society. It becomes important to
understand how the criminal justice system works. The unit explains the
structure and functions of the criminal justice system and how it works in the
society.
15.2 LEARNING OUTCOMES
After reading this Unit, you are able to:
• Learn about the relationship between law, police and courts.
• Know the concept of crime and criminal law and various criminal
provisions of IPC and CrPC.
• Gain the knowledge regarding cognizable and non-cognizable offences
• Understand categories of criminal courts in India and stages in criminal
proceeding bailable and non bailable offences.
15.3 LAW, POLICE AND THE COURTS
The Judiciary, in India, today is an extension of the British Legal System.
The Judicial system has been granted a number of powers and functions by
the Indian Constitution. One of the duties of courts is not to be influenced by
the legislative or the executive and conduct its function in impartial ways. As
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Women and India has a written constitution, courts have an additional function of
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safeguarding the supremacy of the Constitution by interpreting and applying
its provisions and limiting the functioning of all authorities within the
constitutional framework.
The Supreme Court is the apex body, followed by 24 High Courts, which in
turn supervise and govern numerous District Courts. Article 129 of the
Constitution of India makes the Supreme Court a 'court of record' and confers
all the powers of such a court including the power to punish for its contempt
as well as of its subordinate courts. Article 141 of the Constitution of India
provides that the law declared by the Supreme Court is binding on all courts.
Along with the court system, there is an establishment of the police. Police
are a body of officers that are assigned with the aim to enforce the law and
maintain the safety of life and property. The police do not have the power to
punish a culprit. It can hand over the accused to the court. It is the court
which tries the person and decides whether the accused is guilty or innocent.
Thus, the police and the court together work on imparting justice to all and
maintaining law and order in the society. This body of officers are governed
by the Police Act, 1861. The Police Act, 1861 describes the structure and
function of the police in general. The Police Force is an instrument for the
prevention and detection of crime. The overall administration of the police in
a state is vested with the Inspector General of Police who is in charge of the
overall administration of the state police force. However, the administration
of police in every district is vest in the District Superintendent of Police
under the general control and direction of the District Magistrate. The police
officers are given a wide range of powers in the investigation and prevention
of crime. The police as well as courts work hand in hand for maintaining
peace and justice in the society.
15.4 CRIMINAL LAWS
The law of crimes has been as old as civilization itself. Wherever people
organized themselves into groups or associations there was a need to regulate
the behavior of the members of that group. And there lies the necessity of
devising some ways and means to curb such tendencies in the society that
lead to violation of its rules. In all organized society certain acts are
forbidden. In some cases, the punishment might be some monetary
compensation, in others the state shall impose certain penalties upon the
wrongdoer with the object of preserving peace in the society and promoting
good behavior towards each other and the community. The main problem in
such cases is to determine which acts are forbidden and which are not.
Generally, the concept of crime has been dependent on public opinion. As in
the case of other laws, criminal law is a mirror of public opinion. To
understand law and crime separately it would be difficult. Law is a command
of the sovereign and the crime is said to be an act which is forbidden by law
and against the moral sentiments of the society. An act to be a crime, it must
be one done in violation of law and at the same time it should be opposed to
the moral sentiments of the society. Morals are a varying concept as it goes
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changing with the change in the necessities of the society of the times. Moral Challenges to the
Informal Sector
values vary from country to country and from time to time. Thus, it becomes in India
difficult to define the nature of crime. It is analyzed that “crime is behaviour
in violation of a criminal law. No matter, how immoral, reprehensible or
indecent an act may be, it is not a criminal act unless it is outlawed by the
state” (Sutherland,Donald and David,2013:4).It is also observed that “In the
conventional view,a crime is an offence against the state, while the tort is an
offence against the individual. A particular act may be regarded as an offence
against an individual and the state, and it is either a tort or a crime or both,
depending on the way it is handled” ( Sutherland,Donald and
David,2013:6).There multiple interpretations related to the nature of the
crime.
The basis of criminal law is that there are certain standards of behavior of
moral principles which society requires to be observed, and the breach of
them is an offence not merely against the person who is injured but against
the society as a whole. A crime even if it is addressed to a single person is a
threat to the entire society. The function of criminal law is to preserve public
order and decency to protect citizens from what is offensive or injurious and
to provide sufficient safeguards against exploitation and corruption of others,
particularly those who are young, weak in body or mind, inexperienced or in
a state of physical, official or economic dependence. The law does not wish
to intervene nor is its function to intervene in the private lives of its citizens
or to enforce a particular behavior on its citizens. The law will intervene only
if it is against the public good. Criminal law does not just protect the
individual but the society and community at large. The law while performing
its function not only protects the individual from injury, annoyance and
exploitation, the law must also protect the institution and the community of
ideas, political and moral, without which people can't live together.
The laws that govern criminal law in India are the Indian Penal Code, 1860
and Criminal Procedure Code, 1974. Law is divided into substantive and
procedural. Substantive law deals with the rights, definitions and obligations
and procedural law deals with the process of how the substantive law can be
enforced. In criminal law the Indian Penal Code is the substantive one and
the Criminal Procedure Code is the procedural one. Former deals with
various definitions and rights and the latter the procedure to do so.
Indian Penal Code, 1860 is a very comprehensive code that covers all the
substantive aspects of criminal law. The IPC was drafted by Thomas
Babington Macaulay in the 1830s. Since then, it has been amended several
times and also supplemented by other provisions of criminal nature. Even
though it is a very comprehensive code in addition to its various penal
statutes governing various offences have been created. The Indian Penal
Code, 1860 divided into 23 chapters comprising 511 sections. The code starts
with an introduction and the territorial limits of the code.
Some of the important ones are:
Chapter I contains introduction
Chapter II General exceptions
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Women and Chapter III Punishments
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Chapter VI General Exceptions
Chapter V Abetment
Chapter VA Criminal Conspiracy
Chapter VI Offences against the state
Chapter VII Offences relating to the Army, Navy and Air Force
Chapter VIII Offence against Public Tranquility
Chapter IX Offences relating to Public Servants
Chapter XIV Offences affecting public health, safety, convenience, decency
and morals
Chapter XV Offences relating to religion
Chapter XVI and XVII Offences affecting human body and property
Chapter XX Offences relating to marriage
Chapter XXI Defamation
There have been many amendments to the code even then the code is
universally acknowledged as a cogently drafted code ahead of its time.
Modern crimes involving various technologies can easily fit into the
provisions of the code mainly because of the broadness of the code's drafting.
The procedural code i.e., the Criminal Procedure Code is intended to provide
a mechanism for the enforcement of criminal law. Without proper procedural
law, the substantive criminal law which defines offences and provides
punishment for them would be almost worthless. Because in the absence of
the enforcement structure, the threat of the punishment mentioned in the IPC
would go vain. Thus, the CrPC is meant to be complementary to criminal law
and has been designed to ensure the process of its administration. The main
objective is to create a machinery for the detection of crime, arrest of
suspected criminals, collection of evidence etc. It aims to strike a balance
between the individual rights as well as the ability of the officers to maintain
peace and justice.
The offences are classified as cognizable and non cognizable for general
understanding of this code. The CrPC has not given any test to define
cognizable or non-cognizable offences. The First Schedule of CrPC,
however, indicates that all offences punishable with imprisonment for not
less than three years are taken as serious offences and are treated as
cognizable and can be arrested without warrant. Offences such as murder,
robbery, dacoity, rape and kidnapping are cognizable offences. Other
offences where the police officer has no authority to arrest without warrant
are termed as non cognizable.
In CrPC there is a mention of bail and non-bailable offences. The objective of
arrest is to ensure the attendance of an accused person at trial. The bail is at
the discretion of the judges. CrPC has classified all offences into 'bailable'
and 'non-bailable' offences. Read with Section 2(a) of the CrPC, it can be
180 generally stated that all serious offences, i.e., offences punishable with
imprisonment for three years or more have been considered as non-bailable Challenges to the
Informal Sector
offences. This general rule can be suitably modified according to specific in India
needs. If a person accused of a bailable offence is arrested or detained
without warrant he/she has a right to be released on bail (Section 436 of Cr
P.C). But if the offence is non-bailable that does not mean that the person
accused of such offence shall not be released on bail. In such a case bail is
not a matter of right, but only a privilege to be granted at the discretion of the
court. The power to cancel bail has been given to the court and not to a police
officer. The court which granted the bail can alone cancel it. CrPC mentions
the mechanism to arrest an accused, procedure for investigation, trial
procedure etc.
Check Your Progress-1
1. Write your understanding on the relationship of Law, Police and the
Courts in India.
15.5 CRIMINAL COURTS
The constitution as well as other statutes provides powers and jurisdiction to
try and punish the accused in various courts in India.
1) Supreme Court - The Constitution establishes the Supreme court and
defines its jurisdiction and powers. It also provides various provisions
for appeal, revision and transfer in the interest of justice.
2) High court - The High Court has the jurisdiction over the entire state in
which it is present. The law also provides jurisdiction over the courts of
judicial magistrates to ensure for the speedy and proper disposal of cases.
The law also provides the High court the power to prevent the abuse of
the process of any court, or to secure the ends of justice.
3) Sessions Court - The state establishes a sessions court for every session
division. The court is presided over by a Judge appointed by the High
Court of that particular state. The High Court may also appoint
Additional Sessions Judges and Assistant Sessions Judge to exercise
jurisdiction in the sessions court.
4) Courts of Judicial Magistrate - In every district the state government
after consultation with the High court, establishes Courts of Judicial
Magistrate of the First Class and Second Class as it may consider
necessary. It might also establish Special Courts of Judicial Magistrates
of the first class or the second class to try any particular case or a
particular class of cases. The High court is required to appoint a Judicial
Magistrate of First Class to be the chief Judicial Magistrate of the
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Women and district. His main function is to guide, supervise and control other
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judicial magistrates.
5) Courts of Metropolitan Magistrate - In every metropolitan area, the state
government after consultation with the High court establishes Courts of
Metropolitan Magistrate at such places it deems fit. In every
metropolitan area, the High court may appoint a metropolitan magistrate
as chief metropolitan magistrate. It might also appoint Additional CMM.
6) Special Judicial or Metropolitan Magistrates - In any district or
metropolitan area, the High court on the request of the government may
confer upon any government servant or retired government servant all or
any of the powers of a Judicial Magistrate or a Metropolitan Magistrate
as the case may be in respect of particular cases or a particular class of
cases. Such a government servant must possess such qualifications or
experience in relation to legal affairs as mentioned by the High court.
7) Court of Executive Magistrate - The judicial magistrate and Metropolitan
Magistrate are under the control of the High Court while the Executive
Magistrate are kept under the control of the State Government. In every
district and in every metropolitan area, the state government may appoint
an executive magistrate and shall appoint one of them to be the District
Magistrate; it may also appoint an additional district magistrate and for
subdivision a sub divisional magistrate.
15.6 TRIAL PROCEDURE
The primary object of criminal procedure is to ensure a fair trial to every
person accused of a crime. The principles of basic and universally accepted
human rights are followed. The trial provides the accused person an
opportunity to present his side of the case. Innocence until proven guilty is
followed. In criminal cases even if an individual is harmed the state considers
it as a threat to the society at large. Hence a prosecutor representing the state
would accuse the defendant of the commission of the alleged crime. India
follows an adversarial system as such recognizes equal rights and
opportunities to both the parties to present their cases.
Before the process of trial is followed there are two othersi.e., investigation
and inquiry. The first stage is investigating where the main duty of the
investigating officer is to collect evidence for the purpose of inquiry or trial.
Investigation is a preliminary step conducted after filing of First Information
Report in the police station. The main objective is to set criminal law in
motion. FIR can be filed in the police station under whose jurisdiction the
crime has occurred. Investigation basically includes ascertaining the facts and
circumstances of the case. It includes collecting evidence, inspection of the
place of crime, discovery of any article or object related to the crime,
arresting and interrogating the suspected person etc.
Once the investigation is complete the matter is brought before the magistrate
or the concerned court. Inquiry is the second stage where the Magistrate
determines whether the case should be dismissed or brought before the trial.
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According to Section 2 (g) of the CrPC, "inquiry" means every inquiry, other Challenges to the
Informal Sector
than a trial, conducted under this Code by a Magistrate or Court. It is a in India
proceeding before the Magistrate before the framing of charges which does
not result in conviction.
Trial is the third stage where a person's guilt or innocence is determined. The
accused person is presumed to be innocent unless his guilt is proven beyond
reasonable doubt. Presumption of innocence is a very cardinal principle in the
Indian Criminal justice system. The principles of fair trial are a very
necessary condition. To ensure that each and every person is ensured with a
fair trial the states as well as courts make numerous attempts. Free legal aid is
one such initiative where the state provides legal services to people to ensure
that there is justice. The court plays a more active and positive role than that
of a degree in the combat between the prosecutor and the accused.
Criminal cases are classified into warrant cases and summons cases
depending upon the gravity of the offences to which they relate. A warrant
case is the one which relates to offences punishable with death, imprisonment
for life or imprisonment for a term exceeding two years. The CrPC provides
for two types of procedure for a trial of warrant cases by a Magistrate, triable
by a Magistrate viz, those instituted upon a police report and those instituted
upon complaints. With respect to the former, it provides for the magistrate to
discharge the accused upon consideration of the police report and documents
if there is no legal basis for the case. In the latter the Magistrate hears the
prosecution and takes the evidence. If no case is established then the accused
is discharged. If the accused is not discharged the Magistrate would hold trial
after framing of the charges.
A summons case means a case which is not so severely punished as warrant
cases, which implies cases where the offences are punishable with
imprisonment less than two years. In summons cases it is not necessary to
frame charges. The court gives substance of the accusation which is called
notice to the accused when the person appears in pursuance of the summons.
The court has a power to convert a summons case into a warrant case if it
deems fit in the interest of justice. Such a classification is very necessary to
determine which type of trial procedure needs to be adopted in a particular
case. The High court may empower Magistrate of First Class to try certain
offences in a summary way. In a summary trial, no sentence of imprisonment
for a term exceeding three months can be passed in any conviction. The
particulars of summary trial are entered in the record of the court. In every
case tried summarily in which the accused does not plead guilty, the
Magistrate records the substance of the evidence and a judgement containing
a brief statement of the reasons for the finding.
A criminal trial has the following distinct stages:
1) Framing of charge: Framing the charges and issuing of notices indicates
the beginning of a trial. At this stage the judge is required to sit and
weigh the evidence presented for the purpose of finding out whether
there is a prima facie case against the accused. If the evidence presented
before discloses the commission of offence, the court shall frame the
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Women and charges and proceed with the trial. On the other hand, if there is no
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sufficient evidence then the court discharges the accused and also
mentions the reasons for doing so. Once the charges are framed it is read
out in the court in front of the accused and asked whether he pleads
guilty of the offence charged.
2) Recording of prosecution evidence: After the charge is framed, the
prosecution is asked to examine the witnesses before the court. The
statement of the witness is taken under oath. This is called an
examination in chief. The accused also has a right to cross examine the
witnesses presented. And the same right is also given to the prosecution.
3) Statement of accused: The court has powers to examine the accused at
any stage of inquiry or trial for the purpose of eliciting any explanation
against incriminating circumstances appearing before it. However, it is
mandatory for the court to question the accused after examining the
evidence of prosecution if it incriminates the accused. The purpose of
examination is to give the accused a reasonable opportunity to explain
the incriminating facts and circumstances in the case.
4) Defense Witness: If after taking the evidence for the prosecution,
examining the accused and hearing the prosecution and defense the judge
considers that there is no evidence that the accused has committed the
offence the court might order for the acquittal. The accused may produce
witnesses who may be willing to depose in support of the defense. The
accused is also a competent witness under oath. The accused may also
apply for the issue of process for compelling attendance of any witness
or production of any document. The evidence presented can be cross
examined by the prosecution. The burden of proof is on the prosecution
to prove that the accused has committed the crime beyond reasonable
doubt.
5) Final arguments: This is the final stage of the trial. The provisions of
CrPC provide that when examination of the witnesses for the defense if
any is complete the prosecutor shall sum up the prosecution case and the
accused is entitled to reply.
6) Judgement: After the conclusion of arguments by the prosecution and
defense, the judge pronounces his judgement in the trial. If after hearing
both the parties the judge considers that the prosecution could not prove
the guilt of the accused beyond reasonable doubt the judge orders for
acquittal. If the prosecution is successful in proving the guilt the judge
shall hear the accused on the question of the appropriate sentence.
Questions related to women and criminal justice system raise various
questions related to society, gender and criminal justice systems.
Check Your Progress-2
1. Write your understanding about Criminal Laws in India.
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Challenges to the
Informal Sector
in India
15.7 WOMEN AND CRIMINAL JUSTICE
SYSTEM
CEDAW Committee, gender-based discrimination is based on gender
stereotypes, stigma, harmful and patriarchal cultural norms and gender-based
violence, all of which has affected the women's ability to gain access to
justice. While women are generally related to criminal justice as victims of
crime but in recent times they are also featured as accused and prisoners of
crime. The role of women in the criminal justice system can be seen in two
aspects: the first one as victims and the second is the involvement of women
in crime.
In the first case, violence against women including domestic or intimate
violence, sexual assault and other crimes which include - sexual harassment,
stalking etc. has been recognized as a persistent problem with severe
consequences for the victims and their family as well as society at large.
While the various forms of violence separate, there exists a very strong
relationship among them. Many of the crimes committed against women are
by someone known to them. It might be harassment, rape or assault.
The second part where the women are the offenders there exists
discriminatory practices throughout the world. There exists a very strong link
between the violence against women and violence by women. There is much
evidence that shows that exposure to extreme, traumatic events can cause or
contribute to borderline disorder, antisocial personality disorder, substance
abuse and post traumatic stress disorder which are directly relevant to violent
behavior by women. In some cases, it is seen that when the women are
accused of killing a male family member or a partner there has been a history
of domestic and sexual violence from them.
The criminal justice system has been historically dominated and designed by
men for men which means that the policies fail to consider the woman's point
of view. There have been many stages where there was injustice against
women either as an accused or a victim.
• In the case of framing of statutes, the unique experiences of women are
not considered.
• In many parts of the world women still suffer from Illiteracy and lack of
awareness of their legal rights and may also be at risk of sexual or other
forms of violence from either the state officials or other accused.
• In the stage of investigation most police officers are male and are not
trained to deal with sensitive interrogation techniques.
• Illiterate women are more susceptible to coercion.
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Women and • The woman at the pretrial stage may suffer serious trauma and there
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might be even instances where there might be no legal representation.
• In the post-trialstage, the women are subjected to stigmatization either by
the family or the society at large.
• Female prisoners are at a high risk of getting sexually assaulted in the
prison system.
• There is a lack of care and hygiene for women who are imprisoned,
especially those who are pregnant.
These conditions can be changed either by challenging the age-old practices
followed both in the implementation as well as framing of the laws.
15.8 LET US SUM UP
The unit dealt with the Constitution that provides a wide number of powers
and functions to Supreme Court. It informs us about the police officials are
governed by Police Act. It tells us about the Inspector General of Police is in
charge of overall administration of the state police. The concept of crime is
largely dependent on public opinion. The IPC is a substantive law and CrPC
is a procedural one. The unit therefore apprise the establishment of various
courts for the implementation of justice. Thus, we learnt about the three
stages in criminal proceedings- Investigation, Inquiry and Trial. The wide
range of discriminatory practices against the women as a victim as well as an
accused are discussed in the unit.
15.9 UNIT END QUESTIONS
1) What is the relationship between police and courts?
2) Write a note on the salient features of Indian Penal Code and Criminal
Procedure Code.
3) Discuss the structure of criminal courts in India.
4) What are the various the discriminatory practices against women?
15.10 REFERENCES
• Criminal Courts( NCERT textbook )
• Research on Women and Girls in the Justice System: Plenary Papers of
the 1999 Conference on Criminal Justice Research and Evaluation -
Enhancing Policy and Practice through Research, Volume 3 - National
Institute of Justice, US Department of Justice
• Sutherland,Edwin H,Donald [Link] and David F Luckenbill(2013)
Principles of Criminology,Delhi:Universal Law Publishing [Link]
• UNODC: The Doha declaration: Promoting a culture of Lawfulness
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Challenges to the
15.11 SUGGESTED READINGS Informal Sector
in India
• Criminal Courts (NCERT textbook )
• Research on Women and Girls in the Justice System: Plenary Papers of
the 1999 Conference on Criminal Justice Research and Evaluation -
Enhancing Policy and Practice through Research, Volume 3 - National
Institute of Justice, US Department of Justice
• Sutherland,Edwin H,Donald [Link] and David F Luckenbill(2013)
Principles of Criminology,Delhi:Universal Law Publishing [Link]
• UNODC: The Doha declaration: Promoting a culture of Lawfulness
187