Legal Studies

Civil and Criminal Courts and Process Indian Judiciary under the constitution of India is unified/Integrated. This is the structure of our Judiciary. Supreme Court of India High Court of States District Court & Subordinate Courts Criminal wing 1- Court of Session Judge (i) session Judge (ii) Additional session Judge (iii) Assistant session Judge Civil wing 1- Court of District Judge District Judge Adl. D. J. 2- Court of Civil Judge Civil Judge (Senior Division) Civil Judge (Junior Division)

(i) (ii) (iii) (iv)

Court of Magistrates (i) (ii) (iii) (iv) Court of Chief Judicial Magistrate/Chief Judicial metropolitan Court of Assistant Chief Judicial magistrate Court of Judicial Magistrate first Class/metropolitn Magistrate Court of Judicial Magistrate second Class.

Note: Supreme Court is the apex Court in India below S.C there are High Courts of States below high court of a state there are District & Subordinate Courts. S.C. is the union Judiciary where as High Court, District Court & Subordinate Courts are under State Judiciary.

The procedure of Investigation and prosecution in criminal courts is governed by the code of criminal procedure, 1973 (Cr.P.C.) and the procedure of civil proceedings in civil courts is governed by the code of civil procedure, 1908 (C.P.C.). The law of Evidence is common for all proceedings either civil or criminal because our Judicial system is based on evidence. Without evidence no one can claim any right or no one can be punished for any criminal liability. Now criminal process is discussed below. There are two types of cases which are instituted in criminal courts. 1. By Police Report 2. By Complaint
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When case instituted by police report then parties called as state Vs Accused. (for example: Name of State vs Name of Accused.) When case instituted by complaint then name of parties are Complainant vs Accused. (i.e., Name of Complainant vs Name of Accused). Now you should have clear the terminology which is used in criminal process/procedure these are following (1) (2) (3) "Offence": offence means any act or omission made punishable by any law for the time being in force. Accused : Accused is a person who commits any offence. Bailable offence : Bailable offence means an offence which is made bailable by any law for the time being in force. Generally in bailable offence bail (to release) is matter of right of accused person and it is not punishable more than 3 years of imprisonment. Non-bailable offence : Non bailable offence means an offence under which bail is discretion of court; Court may grant the bail or may reject the bail. Generally it is punishable more than 3 years of imprisonment. Cognizable offence means an offence in which case a police officer may, arrest the offender/Accused without warrant. Non Cognizable offence, Such offence in which police can not arrest the person without warrant. "Complaint" means any allegation made to a magistrate with a view to his taking action under the law against the person who has committed an offence. "Police report" means a report forwarded by a police officer to a magistrate. First information report (F.I.R) means an information about the commission of cognizable offence. Which is given to police officer incharge of Police Station. He has duty to lodge the information under the book prescribed for it under the law. "Police Station" means any post or place declared generally or specially by the state government, to be a Police Station. "Victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged. "Summon Case" means a case relating to an offence under which punishment is not more than 3 years of imprisonment. "Warrant Case" means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. "Inquiry" means every inquiry, other than a trial, conducted by the magistrate or court.
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(4)

(5) (6) (7) (8) (9)

(10) (11) (12) (13) (14)

(15) "Investigation" includes all the proceedings for the collection of Evidence Conducted by a police officer or by any person who is authorised by magistrate in this behalf. (16) Charge means allegation which made by court over the accused for commission of offence against any person. (17) "Trial" means the process of court to make conclusion through examination of witnesses of prosecution and accused. In the Indian Penal Code, 1860 (I.P.C) these are following kinds of punishments which can be awarded by court of law in prosecution of any offence as made punishable under the code. 1. Death sentence/Capital Punishment (i.e., the end of life). 2. Imprisonment for life. (i.e., till natural death). 3. Imprisonment Simple Rigorious (with solitary Confinement) 4. Forfeiture of property (permanent attachment of property for state govt.). 5. Fine. (Payable in money) Power of Punishment of Courts Under the Code of Criminal Procedure. High Court : Any punishment prescribed by law. Court of Session Judge and Additional S.J. :- Any punishment prescribed by law but in case of death sentence must be confirmed by High Court. Court of Assistant S.J. :- upto 10 years of Imprisonment. Court of C.J.M/C.J.MM :- upto 7years of Imprisonment and unlimited fine. Court of J.M (First Class) M.M :- upto 3 years of Imprisonment or fine upto 10,000 Rupees or both. Court of J.M (Second Class) :- upto 1 year of Imprisonment or fine upto 5000 or both. Courts by which offence are triable Generally Trial held by Court of Session Court of Magistrate

(High Court makes the trial under extraordinary Jurisdiction)

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on account of Cases Warrant Cases Summon Cases by (Magistrate) Court of Magistrate

Court of Session

Cases instituted on a Police report

Cases Instituted on Complaint

[In court of session trial is conducted by public prosecutor and in court of magistrate by Assistant public prosecutor appointed by State government in this behalf.]

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Process to Compel Appearance of Accused for Inquiry and trial before Court

Summons (to call the accused) (In Summon Cases generally Summons is Issued)

Warrant (order for arrest) (In warrant cases either summons or warrant is issued)

Proclamation Publication of Notice (when court has reason to believe that accused will not appear by Summons or Warrant)

Attachment (order for ceasing of property belongs to accused whether movable or immovable)

Bond (with or without sureties to ensure the appearance of accused)

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Criminal Process
F.I.R P.S. Offence Information
Court of Magistrate

N.C.R Complaint

Cognizence

Investigation

Inquiry Police Report Investigation

Discharge

Framing of Charge

Trial Judgement

Acquittal
Acquittal means No guilt is proved.

Conviction
Conviction means when guilt is proved beyond reasonable doubts.

Appeal/Revision Appeal is the Judicial scrutiny by Superior Court of the Judgment of Subordinate Court. Where appeal not allowed Superior Court may examine the records of proceedings under revision.
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When any offence is committed by any person it can be informed by any person of society either to police station under which local area it is happened or to court of magistrate. Generally information at first step is given to police station because police is empowered to maintain Law and order and to prevent the offences, to make arrest, to conduct investigation, to produce the accused/offender before court of magistrate. When information is given to police station. Then police officer incharge of police station lodges the information as to F.I.R when it is cognizable case and as to N.C.R when case is non-gognizable. When case is cognizable police officer starts the investigation, arrest etc. and makes the police report to magistrate. When case is commission of non-cognizable case then police refers the informant to file the Complaint. When court of magistrate receives the complaint or police reports takes the cognizance of offences and either makes the order for investigation or inquires the case and issue the process Summons or warrant for appearence of accused for trial as the case may be. Generally court of magistrate takes the cognizence of offence. Cognizence means to take judicial notice. Magistrate who is empowered to take cognizence either held the trial itself or commits the case to court of session if the offence are exclusively triable by court of session. Under the inquiry Court makes the order of discharge when there is not sufficient evidence for prosecution or frames the charges when there are sufficient evidence for prosecution of accused. Commencement of trial from the framing of charges. Under the trial, court examines the witness of prosecution and accused and gives the opportunity to prove the guilt to the prosecution and to produce the defence to the accused. The conclusion of trial proceeds either in judgment of acquital or conviction. The judgment of acquital or conviction is subject to appeal and revision. No review lies against the judgment of criminal courts:Appeal Courts Supreme Court (Supreme appellate jurisdiction)

High Court

Court of Session
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Court of Magistrate is only trial court where as court of session (trial Court and Appeal both). High Court and Supremant a Court of appeal. The final judgment/order of supreme Court is subject to review in that Court. After finality of decision in case of death or imprisonment for life, accused may pursue the mercy Petition to president of India. President of India is not act as a Court. Supreme Court is the apex Court/Last Court of India. The power of president is exercised as a head of union executive, power of president is exercised according to the provisions of constitution of India in accordance to the aid and advise by council of minister led by Prime Minister.

Questions on Criminal Process

(Very short answer (2 Mark) Q. 1. What will be procedure when a person is aggrieved by a refusal to record the F.I.R? Ans. Any person aggrieved by a refusal to record the First information report (F.I.R) may send the substance of information, in writing and by post, to the superintendent of police concerned. Q. 2. Who may issue warrant? Ans. Every warrant is issued by court of magistrate or court of session to execute sentences, where as warrant for arrest by the magistrate. Q. 3. What is the principle of double jeopardy. Ans. Under the principles double jeopardy no one can be prosecuted and punished for the same offence twice. Q. 4. What is the principle of Innocence? Ans. Any person/accused is presumed innocent unless his guilt is proved in court under the trial. Q. 5. Who can furnish the information of any offence? Ans. Any person of society, either he is aggrieved or not. Q. 6. Do you know about the apex punishment which can be awarded to any person. Ans. Yes that is death sentence/Capital punishment. Q. 7. What do you know about imprisonment for life. Ans. Imprisonment for life means till the natural death. Q. 8. Who takes the cognizence of offences? Ans. Court of Magistrate generally takes the cognizence of offence.

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Short Answer (4 Marks) Q. 1. Define the offence and provide the kinds of punishment which by court of law can be awarded? Ans. Any act or omission punishable by law time being in existence is known as offence. these are following kinds of punishments. 1. Death Sentence 2. Imprisonment for life 3. Imprisonment which may be simple or regorious. 4. Forfeiture of property 5. Fine Q. 2. What is the hearchy of criminal courts in District. Ans. In District these are the following courts. Court of session includes (i) Session Judge (ii) Additional Session Judge (iii) Assistant Session Judge Court of Magistrates (i) Court of Chief Judicial Magistrate/Chief Judicial metropolitan magistrate. (ii) Court of Additional chief judicial Magistrate (iii) Court of judicial Magistrate first class/metropolitan Magistrate. (iv) Court of judicial Magistrate second class Q. 3. How can a case instituted in Criminal Court? Ans. There are two types of cases which are instituted in Criminal Court. 1. By Police report 2. By Complaint After lodging of F.I.R Police investigates the case and submit's the police report to court of magistrate. Where as a private person in non-cognizable case files the complaint to a court magistrate. Q. 4. What are difference between cognizable and non cognizable offence. Ans. In cognizable case police can arrest the person without warrant. Where as in non-cognizable case police cannot arrest the person without warrant.

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Long Answer (6 Marks) Q. 1. What are the processes issued by court to compel the appearance of accused for inquiry and trial? Ans. Court has ensure the presence of accused before court during inquiry and trial for two reasons. One is that there should be faire trial and second is that to give the reasonable oppourtunity to make his defence. Generally these processes issued by court to ensure the appearance; 1. Summons: Personally accused is called by court to appear. 2. Warrant: order for arrest to police officer order to 3. Proclaimation: Publication of notice of absconding. 4. Attachment: order of court to cease the property of accused belongs to him. 5. Bond: Court requires the bond with or without sureties to ensure the appearance of accused.

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