Thursday 7 January 2016

LAYMAN SERIES: How the State functions? Judiciary and courts of law in India: Part 1: Criminal Justice system:

Courts always intimidated Raju, not because Raju did anything wrong, but because Raju could never understand how things proceed in the Courts! So, he decided to ask his ‘All knowing’ Vani Aunty about how things happen in the Court!

“Aunty, when police arrests somebody, why can’t they punish the criminal? Why do they have to go to a court? And why do the courts take so many years to hear the lawyers? Can’t they just do everything in few days? And why the procedure in the court is so intimidating?”

Vani Aunty looked at him smiling! “Good, when you start asking about courts and judiciary, I know you are growing up! Else, small boys are more bothered about ‘Kalla & Police’ only!

Raju, before I tell you about the court, I will tell you in simple words about the system of justice followed in our country.

Infact one of the original function of the State is to ensure people obey law, and hence there are no fights between individuals or organisations. Fights or conflicts (a more refined term!) arise when there is a difference of opinion or disagreement between two individuals. It is desirable that differences are sorted out and we move ahead in life, as disagreements may cause harm at times.

So, how do we avoid difference of opinion or disagreement? Easy! We make rules and ask everybody to follow that! Rules are like the Traffic signals! They tell people what to do and what not to do! If everybody obeys them, then there are no conflicts! Everything will be smooth!

But, if anybody violates? Then we need to reform or punish that person. Otherwise, everybody will start violating the law and the purpose of law will be defeated!”

“Oh yes Aunty! It’s clear to me! How do they punish the violators? Like the police issue challan and collect fine for traffic rule violations?”

“Yes! Just that, there are different punishments for different violations. Traffic violations are different from physically violating somebody or even murdering somebody! Isn’t?

So, the law has categorized the possible violations. The violations are called by a technical term ‘offence’, and commonly called as ‘crime’. The basic law which categorizes the offences and the punishment for them, is called the ‘Indian Penal Code’, or in short, IPC. This law book lists most of the crimes and the punishment for the same! The punishment varies from Rs 100 fine to death sentence!”

“Oops! That’s what the Judges refer to in the movie court scenes, when the Judge says, ‘Under IPC section 302, the accused shall be hanged till death?”


“Ok!! Then what is CRPC Aunty? I hear lawyers talking about it often!”

“It’s not CRPC, it’s written as ‘CrPC’. It is another law book by the name, ‘Code of Criminal Procedure’. Lawyers refer it to as, ‘Criminal Procedure Code’, and thus its short form ‘CrPC’. This is nothing but the law, which gives the details of the procedure that is to be followed before punishing a person as per the IPC!”

“Oh yes, I think I get that! We follow the procedure outlined in CrPC to punish a person under the provisions of IPC?”

“Wow! You will become a good lawyer Raju!”

“Ha-ha!! Now, tell me in brief what the procedure is as per the CrPC?”

“The procedure is different for different offences committed Raju. You can easily understand the logic; for example, an offence of stealing a pencil is different from an offence of murdering somebody! For both offences we can’t have a common procedure! The offence of murder needs to be dealt in detail.

There are so many procedures outlined and explained in the CrPC. Following the procedure ensures that no mistake happens in imposing punishment, whether on the person or on the quantum of punishment! For small offences the procedure is simple. For major offences, the procedure is long and complex. And we have different courts to look into different types of offences."

“Oh ok! So it’s the CrPC which tells that police can’t punish anybody, but take them to the court?!”

“Yes Raju! The CrPC tells who will do what! It also delegates some power to the police too! For example they can levy fine for small offences, where the offender pleads guilty, as in the case of traffic violations. But, if the individual doesn't agree that he did the offence, then, police has no other option but to take him to the court!

This is done to ensure that police do not punish an innocent, intentionally or by mistake!

Also, those offences where the police can see the crime committed clearly, like murder, theft etc, the police are given powers to immediately 'take note of' the offence and investigate into it! Such offences are called as 'Cognizable offences'.

When the police is not able to come to conclusion if the crime is committed or not, then they can't take any action, but need to go to the nearest court and narrate the incident and seek the permission of the Court (judge) to initiate and investigation! These are called as 'non-cognizable offences' (NC offences).

In cognizable cases, the police can arrest a suspected person without any approval from the court!. But, in NC offences, they would need the approval of the court! This approval, given in writing, is called as 'warrant'."

“Wait aunty! Please explain me the steps! What is arrest? What is FIR? What is investigation? What is a charge sheet?”

“Raju, when any crime or offence occurs, it shall be informed to the nearest police station. Then the police officer registers the information in his diary. This diary entry is called as FIR or First Information Report. As this is an important information, it’s entered nowadays in the computer! For NC cases they will not generate this FIR. Instead they will make a 'NC entry' and then inform that to the court, and ask permission to write the FIR and investigate.

Once the police officer enters the FIR, then the officer has to start the investigation to find out the nature of the offence, who committed the offence, on whom, how, why etc. The officer will take 1 or 2 months to complete his investigation. This is called as ‘Police investigation’ or simply as 'investigation’.

During the investigation time, the police officers has the power to call anyone to police station to enquire about the crime! The person who is doubted to have committed the crime is called as an ‘accused’.

Once the Investigation is completed, the police officer will know the details of the crime. With those details, the police will prepare a detailed report called as ‘Charge sheet’. This charge sheet is then submitted to the court. This charge sheet will be the basis on which the accused will be enquired in the court.

The procedure of enquiry in the court, regarding the crime committed is called as ‘Trial’.

During the trial, the police officer, with the help of a lawyer, will present the charges on the accused and ask the court to impose the punishment as per the IPC. This lawyer is called as ‘Prosecution lawyer’. Because, he is prosecuting the accused! The police and prosecutor will team up and work together.

However the court will not blindly believe the prosecutor/police department! The court will give a chance to the accused to give the version of the accused. The accused person may accept the mistake and plead guilty or the accused person can reject the charges on him, and say that he is innocent.

And he can take help of a lawyer to argue on his behalf. This lawyer is called as ‘defence lawyer’, as he is defending the accused!”

“Okk! Now things are getting clearer to me Aunty! But, why lawyers are required? Can’t the court hear just the police and the accused and decide?

“Yes, that is possible if the accused is well learned and he knows the law! But, that is not the case with every citizen. Isn’t it? So, what to do? That is why the accused is allowed to get a good lawyer for him to argue on his behalf! And, when one side has a lawyer, then the other side also should be given a lawyer. Isn’t?! That’s why lawyers are allowed on both sides!”

“Aunty, that means, it’s actually becomes a fight between two lawyers!”

“Haha!! Raju, of-course their knowledge in law and how they present the case matters! But, the facts can’t be changed! These facts are called as ‘evidence’, when the lawyers place those truths and facts before the court.

The court is headed by the Judge. The Judge will listen patiently to both the lawyers, analyse the evidences given by both the lawyers, and then decide who is right and who is wrong, as per law!

If the Judge comes to a conclusion that the accused indeed did the crime, then the Judge will go ahead to impose the punishment under the provision of IPC. Else the judge will release the accused as a free-person. This is called as ‘acquittal’.”

“Ha-ha! So, that’s how Salman Khan got acquitted Aunty?”

“Raju, now you will get me into problem!!! Run away from here! Haha!!”

(Part 2 on this topic will be on civil justice.)