Introduction to Principles of Fair Trial:

There are two systems of Criminal Trial, they are 1. Inquisitorial 2. Adversarial system or adversary system. In Inquisitorial System the Judicial Investigation or enquiry by the Judge where the Public are excluded. This type of system is implementing in France & other countries.

In Inquisitorial System the Judicial Investigation or enquiry by the Judge where the public are excluded. This Type of System is implementing in France & other countries. In adversial system of criminal trial public are allowed in court. In India we have adopted adversial system of criminal trial in this process it has only to decide to which party has succeeded in proving his case.

In Adversarial System of Criminal trial generally speaking the prosecutor representing the state the Accused person is to prove his case beyond reasonable doubt. In this adversial system the rights and opportunities are recognized equally to both the parties i.e., the State and the Accused person to present this case before the court. The most vital, pivotal and indispensable condition for a fair trial is:

1) To have an independent, impartial competent judge to conduct the trial

2) A Fair Prosecutor

3) An atmosphere of Judicial Calm

India is signatory to the International covenants such as “International Covenant on Civil and Political Rights and also Universal declaration of Human rights, 1948“. The said International Covenants guarantee to the citizens of signatory nations to the said covenants various rights such as presumption of innocence etc. These salutary features of the International Convenants and Universal declaration of Human Rights are embodied into our constitutional scheme under various Articles viz. Artl. 14, 20, 21, 22 and 39-A, which deal with Fair Trial. Fair Trial is rule of law and heart of Criminal Jurisprudence of all modern civilized nations. Denial of fair trial is crucification of human rights.

II) WHAT IS TRIAL:-

The word Trial is not defined anywhere in Criminal Procedure Code. A Criminal trial is a judicial examination of the facts in the case process in the discovering truth to decide the facts in issues to arrive at a just decision of the controlling question being the guilt or innocence of the accused.

FAIR TRIAL:

India adopted a criminal justice system known as adversarial criminal justice system. The prime aim of system is to give fair trial to the citizens. Fair trial obviously would mean 1) a trial before an impartial judge, 25 2) a fair prosecutor and 3) an atmosphere of judicial calm. A fair trial means a trial in which bias or prejudice for or against the accused, the witness, or the cause which is being tried is eliminated. In a criminal case the fate of the proceedings cannot always by left entirely in the hands of the parties, crime being public wrong in breach and violation of public rights and duties, which affects the whole community as a community and is harmful to society in general. The courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice-often referred to as the duty to vindicate and uphold the “Majesty of the Law”. The court administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators. The Principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a 26 miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson’s eye to the needs of society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.

III) THE SALIENT PRINCIPLES OF THE FAIR TRIAL:

The principle of Fair Trial is deep rooted in Article 21 of the Indian Constitution, which declares that no person shall be deprived of his “life” or “Personal liberty” except according to the procedure established by law. The golden principles of fair trial is:-

1) PRESUMPTION OF INNOCENCE:

The cordinal principles of Criminal jurisprudence is presumption of 27 innocence of the accused. The burden of proving the guilt of the accused beyond all reasonable doubt is upon the prosecution and unless it relieves itself of that burden, the court cannot record finding of the guilt of the accused. This presumption is seen to flow from the Latin Legal Principle i.e. incumbit probation qui dicit, non qui negat, means the burden of proof rests on who asserts, not on who denies. It is basic right of the accused person and human right as laid down in Narendra Singh v. State of Madhya Pradesh, Reported in 2004 Crl.L.J. 2842 and State of U.P. v. Naresh and others, Reported in 2001 (4) SCC 324, wherein the Supreme Court observed that

“Every accused is presumed to be innocent unless his guilt is proved. The presumption of innocence is a human right subject to the statutory exceptions. The said principles form the basis of criminal jurisprudence in India.” And another decision in Baijnath and others v. State of Madhya Pradesh, Reported in 2016 Law Suit (SC) 1089, a Two Judge Bench of the Supreme Court held that One of the essential ingredients of dowry death under Section 304 -B of the Indian Penal Code is that the accused must have subjected the woman to cruelty in connection with the demand for dowry soon before her death and that this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the court will presume that the accused has committed the offence of dowry death 28 under Section 113-B of the Indian Evidence Act.

If an innocent person is convicted the consequences are so serious that its reverberation are felt throughout the civilian society. It is only to ensure that the court does not wrongly convict an innocent person an accused is presumed to be innocent until proven guilty. At no stage of the trial of a case an accused, the accused is called upon to disprove his innocence.

2) PROHIBITION AGAINST SELF INCRIMINATION:-

The accused has right to remain silent. Article 20 (3) of Indian Constitution provides that no person accused of any offence shall be compelled to be a witness against himself. To attract the protection of Article 20 (3) it must be shown that the accused was compelled to make the statement likely to be incriminative of himself. Compulsion means duress which includes threatening, beating or imprisoning of the wife, parent or child of a person. Thus where the accused makes a confession without any inducement, threat or promise Article 20(3) does not apply. As per Section 316 of Criminal Procedure Code no influence, by means of any promise or threat or otherwise, shall be used to an accused person to induce him to disclose or withhold any matter with in his knowledge. In the case of Selvi v. State of Karnataka, (AIR 2010 SC 1974), the Apex Court held that “Narcoanalysis, Polygraphy and Brain Finger Printing (BEAP) tests are testimonial compulsions and are prohibited by 29 Article 20(3) of the Constitution. It was further held that Lie Detector Tests can be done only with the consent of the accused in the presence of his Lawyer and Judicial Magistrate should record the consent of the accused.

3) PROTECTION AGAINST EXPOST FACTO LAW:-

An ex post facto law is a law which imposes penalties retrospectively, i.e., on acts already done and increases the penalty for such acts. Article 20(1) of Indian Constitution imposes a limitation on the law-making power of Legislature. Ordinarily, a Legislature can make prospective as well as retrospective laws, but clause (1) of Article 20 Prohibits the Legislature to make retrospective Criminal laws.

4) PROTECTION AGAINST DOUBLE JEOPARDY:-

The Maxim “Autrefois Acquit and Autrefois Convict“: states that if a person is tried and acquitted or convicted of an offence he cannot be tried again for the same offence or on the same facts for any other offence. Article 20(2) of out Constitution says that “no person shall be prosecuted and punished for the same offence more than once”. This clause empodies the common law rule of “nemo debt vis vexari” which means that no man should be put twice in peril for the same offence. If he is prosecuted again for the same offence for which he has already been prosecuted he can take complete defence of his former acquittal or conviction. Section 300(1) of Criminal Procedure Code also prohibits double jeopardy. 30 In the case of Kola Veera Raghav Rao v. Gorantla Venkateshwara Rao, (2011 (2) SCC 703) the Hon’ble Supreme Court observed that “the language used in Section 300 (1) of Criminal Procedure Code is different from the language used in Article 20 (2) of the constitution. The former is wider than the later. Article 20 (2) of the Constitution states that “no one can be prosecuted and punished for the same offence more than once”. Section 300 (1) of Criminal Procedure Code states that “A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence, for which a different charge from the one made against him might have been made under Sub-Section (1) of Section 221, or for which he might have been convicted under sub-section (2) thereof”.

5) SPEEDY TRIAL:

Section 309(1) Criminal Procedure Code provides “in every inquiry of trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded”. In Hussainara Khatoon (No.1) v. Home Secretary, State of Bihar, Reported in AIR 1979 SC 1360, a petition for a writ of habeas corpus was 31 filed by number of under trial prisoners who were in Jails in the State of Bihar for years awaiting their trial. The Supreme Court held that “right to a speedy trial” a fundamental right is implicit in the guarantee of life and personally liberty enshrined in Article 21 of the Constitution. Speedy trial is the essence of criminal justice. In Mangal Singh and Another v. Kishan Singh and others, Reported in AIR 2009 SC 1535, it is observed:-

“Any inordinate delay in conclusion of a criminal trial undoubtedly has highly deleterious effect on the society generally and particularly on the two sides of the case. But it will be a grave mistake to assume that delay in trial does not cause acute suffering and anguish to the victim of the offence. In many cases the victim may suffer even more than the accused. There is, therefore no reason to give all the benefits on account of the delay in trial to the accused and to completely deny all justice to the victim of the offence.”

6. ACCUSED CAN ENGAGE COUNSEL OF HIS CHOICE:

Section 303 of Criminal Procedure Code provides that “Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code may of right be defended by a pleader of his choice”.

7. VICTIM CAN ENGAGE COUNSEL OF HIS CHOICE:

Proviso Section 24(8) of Criminal Procedure Code states that the court may permit the victim to engage an advocate of his choice to assist the 32 prosecution. Section 301 of Criminal Procedure Code provides that in any Court, any private person can engage a counsel of his choice and make such counsel to assist the public prosecutor and such a pleader can submit written arguments with the permission of the court, after evidence is closed in the case. In the case of Lokesh Singh v. the State of U.P. in Criminal Miscellaneous case No.3769/2013, dated 26.8.2013, the Allahabad High Court held that “after insertion of proviso to Section 24(8) Criminal Procedure Code if the court permits the victim to engage an advocate of choice, the court thereafter cannot deprive the advocate to address the court in addition to his right to file the written argument as contained in Section 301 Criminal Procedure Code after close of evidence”. Section 302 Criminal Procedure Code allows the victim to conduct prosecution personally or by a pleader before any Magistrate with the permission of the court.

8) RIGHT TO FREE LEGAL AID:

Article 39A of Indian Constitution directs the State to ensure that the operation of the legal system promote justice, on a basis of equal opportunities and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that make opportunities for securing justice are not denied to any citizen by of reason of economic or other disabilities. Section 304 of Criminal Procedure Code provides that “where in a trial before Court of Session, the accused is not represented by a pleader, and where it appears to the court that the accused has not sufficient means to engage a pleader, the court shall assign a pleader for his defence at the expense of the State”. In the case of Mohd. Hussain @ Julfikar Ali v. the State of (Govt. of NCT) Delhi, in Crl.Appeal No.1091/2006, dated 11.1.2012, the Hon’ble Supreme Court observed-

“the right of a person charged with crime to have the services of a lawyer is fundamental and essential to fair trail. The right to be defended by a legal practitioner, flowing from Article 22(1) of the Constitution has further been fortified by the introduction of the Directive Principles of State Policy embodied in Article 39A of the Constitution by the 42nd Amendment Act of 1976 and enactment of Sub Section 1 of Section 304 of the Code of Criminal Procedure.

Legal assistance to a poor person facing trial whose life and personal liberty is in jeopardy is mandated not only by the Constitution and the Code of Criminal Procedure but also by International Covenants’ and Human Rights Declarations. If an accused too poor to afford a lawyer is to go through the trial without legal assistance, such a trial cannot be regarded as reasonable, fair and just”.

9. PROSECUTION CAN EXAMINE WITNESSES:-

Sections 231, 242, 254 of Criminal Procedure Code offered opportunity to the prosecution to examine its witnesses and put forth oral and documentary evidence.

10. RIGHT OF THE ACCUSED TO PRODUCE EVIDENCE AND TO SUBMIT ARGUMENTS:

Sections 233, 247, 254(2) Criminal Procedure Code guarantees the accused to produce evidence in his defence. Section 314 Criminal Procedure Code provides that any party to a proceeding make oral arguments and can submit written arguments in support of his case. Section 315 of Criminal Procedure Code provides that any person accused of an offence before a criminal court shall be a competent witness for the offence and may give evidence on oath in disproof of the charges made against him.

11. RIGHT TO OPEN TRIAL:

Section 327 Criminal Procedure Code provides that the place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open court, to which the public generally may have access. Section 273 Criminal Procedure Code provides that evidence to be taken in the presence of the accused. In the case of Naresh Sridhar Mirajkar v. State of Mharashtra, (AIR 1967 SC 1) the apex court observed that the right to open trial must not be 35 denied except in exceptional circumstances.

12. HEARING OF THE ACCUSED: (AUDI ALTERAM PARTEM):

Fair trial requires that the accused person is given adequate opportunity to defend himself. But this opportunity will have no meaning if the accused person is not informed of the accusation against him. The code therefore provides in Section 228, 239, 251 in plain words that when an accused person is brought before the court for trial, the particulars of the offence of which he is accused shall be stated to him. So that accused can prepare his defence for facing the trial. Section 313 of Criminal Procedure Code also provides that incriminating circumstances that the are appearing against the accused should be explained to the accused.

13. TRIAL BEFORE INDEPENDENT, IMPARTIAL AND COMPETENT JUDGES:

Article 50 of Constitution ensures that the State shall take steps to separate the judiciary for the executives in the public services of the State. Section 479 of Criminal Procedure Code no Judge or Magistrate shall try or commit for any trial any case to or in which he is a party or personally interested, and no judge or Magistrate shall hear, an appeal from any judgment or order passed or made by himself. The Hon’ble Apex court in Devender Pal Singh v. State of NCT of Delhi and another, (2002 (5) SCC 234) observed as follows:

“Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law.”

In Viscount Simon in Stirland v. Director of Public Prosecutor, Reported in 1944 (2) ALL ER 13 Court held as follows:

“A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape….. Both are public duties ….”

In the case of Zahira Habibullah Sheikh and another v. State of Gujarat and others, Reported in 2006 (3) SCC 374, the Hon’ble Apex court observed that If a criminal court is to be an effective instrument in dispensing justice, the presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that he occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators. 37 However, in the case of Sister Mina Lalitha Baruwa v. State of Orissa and others in Criminal Appeal No.2044/2013, dated 5.12.2013. The Hon’be Apex Court held that “a Criminal Court, while trying an offence, acts in the interest of the society and in public interest. As has been held by this Court in Zahira Habibullah H. Sheikh (supra), a Criminal Court cannot remain a silent spectator. It has got a participatory role to play and having been invested with enormous powers under Section 311 of Criminal Procedure Code, as well as Section 161 of the Evidence Act.”

Recently the Hon’ble High Court of Delhi by its order, dated 9.1.2017 observed that dishonest recording of Court proceedings does injustice”. “It is human beings who are put to trial, and they deserved to be treated as human beings with the same dignity as any other person, the court said. A judge who does not honestly and fairly record the proceedings does the greatest injustice to the parties, the Delhi High Court has observed. Transferring the case to another court, Justice Sanghi said the Special Judge, in his haste to conclude the trial, had conducted the proceedings unfairly and his approach in the case, and the orders passed by him, disqualify him from the proceeding any further in the matter. “I may only remind the learned Special Judge of the Off quoted phrase that “Justice should not only be done, but also be seen to be done”, the court said. 38

14. RIGHT TO A REASONED JUDGMENT AND AVAILABILITY OF JUDGMENT:-

A reasoned Judgment given in public, increases confidence in the Judiciary. The Justification for the reasoning in the Judgment must be based on the law and cannot appear to be attributed to personal opinions, prejudices or the socialization of Judge. Section 353 and 354 of Code together deal with the substantive and procedural requirements that a Judge must ensure are followed. Section 363 of the Code confirms the accused’s right to a copy of his judgment where he is sentenced to imprisonment; the court must immediately furnish a copy of the judgment to him free of cost. Article 21 is violated if the court fails to provide the accused with a copy of Judgment in tie to file an appeal Section 354(1)(b) mandates that Judgments must be reasoned.

15) COMPENSATION TO VICTIMS AND PERSONS GROUNDLESSLY ARRESTED:

If the victims of a crime are ignored it does not result in a Fair Trial. Section 357 and 357-A of Criminal Procedure Code provides scheme of compensation to victims of an offence. Similarly if a person causes a police officer unnecessarily arrest another simply acquit him does not result in Fair Trial. Section 358 of Criminal Procedure Code enables the Magistrate to award compensation to such groundlessly arrested person payable by the person who is responsible for such 39 arrest.

IV) CONCLUSION:

In India everyone shall be entitled to a fair trial by an Impartial Court established by Law. The salient requirement of Fair Trial is one without undue delay. The right to a speedy Trial according to Article 21 of the Constitution provides all the stages such as Investigation, Enquiry, trial, Appeal, Revision & re-trial. In criminal proceedings a conviction in a case cannot be based on testimony of witnesses whose examination-in-chief. In Manu Sharma v. State of NCT of Delhi cited in 2010 (6) SCC 1. A reasoned Judgement diminished the chances of Appeal & reduces the courts overload in State of Rajasthan v. Balchand cited in AIR 1997 SC 2447 the basic rule perhaps be tersely put as Bail not Jail, except where there are circumstances, suggestive of Fleeing from justice or thwarting the course of Justice or creating other troubles in shape of offences are intimidating, witnesses and Likely the Petitioner who seeks enlargement on Bail from the Court.

Discussion over the Legality of Intervention by a third party in a Criminal Proceedings has drastically changed over a time. That traditionally No Stranger has a right to intervene in the criminal proceedings in “Thakur Ram v. State of Bihar” cited in AIR 1966 SC 911 : 1966 SCR (2) 740 the Apex court had held that “the state will take all necessary steps on behalf of the aggrieved party in criminal matters by making the state the custodian of the social interests of the community at large, the court ruled out the locus standi of any private party that tries to intervene”.

2. “Locus Standi” refers to the Legal capacity of a person to take a stand before the court, it is the right of a party or a person to prove before the court its stand due to its connection to and harm from the law or action challenged to support that party’s participation in the case. The existence of Locus standi is necessary for any legal process of approaching the courts i.e., filing a suit or an action before the court, if the person lacks “Standi” to appear in the case the court may reject their arguments without going into the facts, merits of the case.

3.The intervention of third parties clearly cited in “Rajubhai Dhamirbhai Baria v. State of Gujarat” cited in 2004 CriLJ 771 : (2004) 1 GLR 404. It iterated the settled position of third parties having no locus standi for intervention in the criminal Proceedings. The Code of Criminal Procedure also makes it clear that Strangers have no right to appear before the court.

4. Subsequently the judgment given in “Subramanian Swamy v. Raju” cited in (2014) 8 SCC 390 stands on the same principle but recognizes the limited rights of third parties in certain exceptional situations.

5.The contention of the people who support the right of the third parties to intervene in the criminal proceedings that one of the fundamental principles of the criminal justice system is that wrong done to anyone is a wrong done to society. So, any person on behalf of society must have a right to seek justice.

6. In Criminal Proceedings, the State prosecutes the offender and the de-facto complainant or the victim does not have much role in the prosecution of the offender. However, this view has ironically changed after the Code of Criminal Procedure amendment Act 2008(5 of 2009), wherein certain amendments were made in the Cr.P.C to facilitate the participation of victim in criminal prosecution of an offender.

7. That according to Section 2(wa) definition of ‘victim’ has been added quoted herein below: 2(wa) “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 and the expression “victim” includes his or her guardian or legal heir;

8. It is pertinent to mention that in Sub Section 8 of Section 24 of Cr.P.C a proviso has been added whereby court was authorized to permit the victim to engage an Advocate of his choice to assist the prosecution. The relevant provision of Section 24(1) and 24(8) are,

a) Section 24 relates to Public Prosecutors which states as infra:

(1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.

(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor.

[Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.]

Further the victim is also given right to prefer an appeal under Section 372 Cr.P.C.

b) Section 372 relates to No appeal to lie unless otherwise provided

No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force.

Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.

9. From the above it is clear that legislature made certain amendments vide Act No. 5 of 2009 in Cr.P.C. by adding definition of victim and giving rights to victim to engage counsel of his choice during prosecution of accused under section 24 and also giving right to file an appeal under section 372.

10. The Hon’ble High Court at Allahabad in Lokesh Singh v. State of Uttar Pradesh, reported in 2013 (83) ACC 379, observed that the objective to be achieved by the aforesaid amendment as per proviso added in Section 24(8) of Cr.P.C seems to extend help the victims and to give more active role in dispensation of the criminal justice and to provide active participation of the victim in the justice delivery system keeping in view the concept of fair trial enshrined under article 21 of the Constitution of India.

11. Section 301 Cr.P.C provides that the Public Prosecutor or Assistant Public Prosecutor in-charge of a case may appear without any written authority before any court in which that particular case is under inquiry, trial or appeal. Sub-section 2 provides that if any private person instruct a pleader to prosecute any person in any court, the Public Prosecutor in charge of the case shall conduct the prosecution and pleader so instructed shall act therein under the direction of Public Prosecutor and may with the permission of the court submit written arguments after the evidence is closed in the case. Section 301 Cr.P.C. has not been amended vide Act No. 5 of 2008.

a. Proviso added to section 24(8) Cr.P.C, provides that victim defined in Section 2(wa) may be permitted to engage an advocate of his choice to assist the prosecution under this sub-section. Sub-section 8 provides appointment of Special Public Prosecutor, different from Public Prosecutor appointed under Section 7 of Sub-section 24 of Cr.P.C. The basic distinction drawn in the statute by introducing the proviso that if the victim defined under Section 2(wa) Cr.P.C, is permitted to engage a lawyer he will acquire status of Special Public Prosecutor subject to riders imposed under the proviso.

b. In proviso added to Section 24(8) Cr.P.C, the words used are “assist the prosecution” and not to ‘assist the public Prosecutor’ as mentioned in Section 301 Cr.P.C. There is difference in the scheme of two sections. From 6 perusal of Subsection 2 of section 301 Cr.P.C. made it clear that if in any case private person instructs a pleader to prosecute any person in any court even though the Public Prosecutor in charge of case shall conduct the prosecution and the pleader instructed shall act therein under the directions of the Public Prosecutor. Up to this stage no permission of court is needed for appointment of pleader by a private person. The permission is only required to the pleader if he wants to file written argument in the case. However after insertion of proviso to Section 24(8) Cr.P.C. the court can permit a victims advocate to assist the prosecution. The status and position of Advocate engaged by the victim would be changed because in that situation the court at the very inception may permit the Advocate of the choice of the victim to participate in the proceeding and to assist the prosecution and not to the public prosecutor. Prosecution includes investigation, enquiry, trial and appeal within the meaning of Section 24 Cr.P.C. Section 301 Cr.P.C. deals with only inquiry, trial or appeal. Inquiry has been defined in Section 2(g) Cr.P.C., means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court. As such inquiry is different from investigation as defined in Section 2(h) Cr.P.C.

12. In view of the aforesaid definition the ‘end’ for which a plan or project is carried out is called prosecution. In respect of proviso to Section 24(8) Cr.P.C. prosecution in respect of an offence begin with putting the law into motion by any aggrieved party or sufferer of crime. The ‘end’ in a prosecution within the meaning of proviso to Sub Section 8 of Section 24 Cr.P.C. would be adjudication of guilt of an offender who is charged with commission of an offence in accordance with procedure established by law in a court constituted under this code. So the prosecution starts with giving information of commission of crime and continued during investigation or inquiry, trial of offender and if any appeal is filed finally end by an order passed in appeal.

13. The whole scheme if taken into consideration for prosecution and trial of an accused the dominant role is played by the public prosecutor but by insertion of proviso to Section 24(8) Cr.P.C. the Court is now authorized to permit the victim to engage a lawyer of his choice to assist the prosecution. The prosecution of an offender is virtually carried out in the court of law constituted under some statute presided over by a judge and not by any party to the proceedings. The public prosecutors, the advocate of the accused or 9 special counsel appointed by the aggrieved person or the Advocate engaged by a victim, all are officers of the court. They all assist the court to arrive at truth during prosecution of an accused. Therefore in Section 24 or in section 301, phrase ‘with the permission of court’ is used. So, once the permission is accorded to the advocate of the victim to assist the prosecution his assistance could not be restricted to the terminology of Section 301, i.e. only to assist the prosecutor. The court in view of the same can permit to advance the oral argument too to the advocate engaged by the victim apart from submission of the written argument. The importance of oral argument cannot be outweighed by saying that right to written argument has been given in Section 301 Cr.P.C.

14. Section 301 Cr.P.C. explicates and envisages that

301. Appearance by Public Prosecutors.

(1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal.

(2) If in any such case, any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case.

15. Section 301 Cr.P.C. does not say that oral argument cannot be permitted to an advocate engage by the victim. It only prohibits that if a private party engaged a pleader he can assist the public prosecutor and court may permit him to file the written argument. There is difference between the pleader and advocate. Advocate is treated to be officer of the court and supposed to assist the court in arriving at the truth, so, right to address the court to an Advocate cannot be curtailed while representing his client in the light of provisions of Advocates Act.

16. In view of the Judgement delivered by Hon’ble Apex Court in Poonam v. Sumit Tiwari, reported in AIR 2010 SC 1385, discussed the importance of assistance of a lawyer in the light of Section 35 of Advocates Act and observed that in absence of proper assistance to Court by the lawyer, there is no obligation on the part of the Court to decide the case, for the simple reason that unless the lawyer renders the proper assistance to the Court, the Court is not able to decide the case properly. It is not for the Court itself to decide the controversy. The counsel cannot just raise the issues in his petition and leave it to the Court to give its decision on those points after going through the record and determining the correctness thereof. It is not for the Court itself to find out what the points 10 for determination can be and then proceed to give a decision on those points. In case counsel for the party is not able to render any assistance, the Court may decline to entertain the petition. Moreover if the petition is decided in such cases the judgment given may be violative of principles of natural justice as the opposite counsel would not “have a fair opportunity to answer the line of reasoning adopted” in this behalf.

17. Having regard to the above discussion, it is vivid & pellucid that under Cr.P.C it is possible to allow third-party intervention in criminal proceedings. The only problem that arises is with respect to a trial before a Court of Session. Section 302 speaks about trial before a Magistrate. This has to be read with Section 225 Cr.P.C which states that, in every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor. In my opinion, it makes sense to permit third party intervention in criminal cases.

Conclusion:

In the recent years United kingdom Courts have begun allowing third parties intervention that mostly consist of public bodies NGO’s etc Unlike in constitutional matters, interventions by a private party are only allowed when it has been established that the decisions of the court hearing the case will have much greater implications in the society or a section of society. Even an example where the London recognized the interveners’ contribution was the 2013 case of Hughes cousins-chang was arrested and held overnight with no access to reach his parents or an adult. Despite being a seventeen years old, he was treated an adult. The Haward League on panel reform and Coram Children’s legal center was granted a permission to intervene to make legal arguments on the rights of the young people in the criminal justice.

Hence from the above discussions with respect to the Intervention of third parties in criminal Proceedings is extended but under different circumstances though it is the rare situation as the state considers itself well equipped and motivated to meet the ends of justice conclusively it could be said that the intervention of third parties are envisages under CrPC not as the Legal right but rather as a safeguard embedded to ensure complete justice.

INTRODUCTION:

I. Article 22(2) of the Constitution of India:

That according to Article 22(2) of the Constitution of India that any person arrested & detained in Custody must be produced before the nearest Magistrate within 24 hrs without the authority of Magistrate similarly Sec 57 of CrPC 1973 explicates & envisages that every person who is arrested & detained in Police Custody shall be produced nearest Magistrate within 24 hrs of the arrest excluding the time necessary for the journey from the Place of Arrest excluding the time necessary for the Journey from the Place of Arrest to the court of the Magistrate and no such person shall be detained in the custody beyond the said period without the order of the Magistrate these two provisions are very essential and glaringly contemplates the intention of the Law in this regard.

The word “Remand” generally means to return or to send back but in the Legal world, it has two different meanings firstly it means to send the accused back in the custody at the competent authority & Secondly it means to send back the cases from Appellate court to Lower Court.

The Police cannot detains any person in its custody for more than 24 hrs according to Sec 57 of CrPC it specifically prohibits officials from detaining the arrested person for more than 24 hrs in Police Custody it was held in the case of “R.K. Naba Chandra Singh v. Manipur Administration” Cited in 1964 CriLJ 307 by the Hon’ble High Court that if the Police Officer considers that the Investigation cannot be completed within 24 hrs then it is his duty to produce the Accused the forthwith before the Magistrate.

1. Physical production of the accused for Judicial remand:- No Magistrate shall authorise detention in any custody under section 167 Cr.P.C. unless the accused is produced before him. If any question arises whether the accused person was produced before the magistrate, the production of the accused person may be proved by his signature on the order authorising detention. However, the Supreme Court has relaxed this rule on certain conditions and has laid down that in cases where accused cannot be produced in person due to sickness or if he is wanted in cases in two different courts in different districts on the same day, the remand may be granted in absence of the accused. This is an exception to the general rule provided under Section 167(2)(b) of Cr.P.C. [Raj Narain v. Superintendent of jail, AIR 1971 SC 178 : 1970 (2) SCC 750 : 1971 Cr.L.J. 244 : 1970 SCC (Cr.) 543].

2. Detention without Judicial remand order from Magistrate – effect of :- In the first place in a few cases the accused persons do not appear to her their arrest as required by Article 22 of the Constitution. The court does not wish to express any definite opinion in regard to this irregularity which prima facie appears to have occurred in a few cases, but the judges would strongly urge upon the state and its police authorities to see that this constitutional and 47 legal requirement to produce an arrested person before a judicial magistrate within 24 hours of the arrest must be scrupulously observed. It is also clear from the particulars furnished to the court from the record of the judicial magistrates that ;in some case particulars furnished to the court from the record of the judicial magistrates that in some cases particularly the accused persons were not produced before the judicial magistrates subsequent to their first production, any they continued to remain in jail without any remand orders being passed by the judicial magistrates. This was plainly contrary to law. It is difficult to detain these accused persons in jail without any remand orders. The Apex Court hope and trust that the state government will inquire as to why this irregularity was allowed to be perpetrated and will see to it that in future no such violations of the law are permitted to be committed by the administrators of the law. [Khatri v. State of Bihar, 1981 Cr.L.J. 470 (SC) : 1981 (1) SCC 627 : AIR 1981 SC 928 : 1981 SCC (Cr.) 228].

3. Period of remand of accused to Judicial Remand – criteria for computation:- The magistrate under Section 167(2) can authorise the detention of the accused in Judicial Remand as he thinks fit but it should not exceed 15 days as a whole at the first instance. It is held by the Supreme Court that the Remand after the expiry of the first 15 days can only be judicial custody during the rest of the period of 90 days or 60 days and that police custody if found necessary can be ordered only for first period of 15 days. The total period of remand of 90 days or 60 days will begin to run from the date of order of remand by the magistrate. Accordingly, the period of detention should be computed from the date of order of remand. Section 167(2A) lays down that if an arrested person is produced before the executive magistrate for remand, the same magistrate may authorise detention of the accused in custody not exceeding 7 days. The judicial magistrate, who is competent to make further order or detention will take into consideration the period of further order of detention ordered by executive magistrate for the purpose of computing the total period of detention. On combined reading of Section 167(2) and (2A) it emerges that the judicial magistrate to whom the executive magistrate has forwarded the arrested accused can order detention in such custody namely police or judicial under Section 167(2) for the rest of the first 15 days after deducting the period of detention ordered by the executive magistrate. The detention thereafter could only be in judicial Remand. Likewise, the remand under Section 309 of Cr.P.C. can only be to judicial custody. 48 In one occurrence it may so happen that the accused might have committed several offences and the police may arrest him in connection with one or two offences on the basis of available information and obtain police custody. If during investigation, his complicity in more serious offences during the same occurrence is disclosed that does not authorise the police to ask for police custody for a further period after the expiry of the first 15 days. This limitation shall not apply to different occurrence in which complicity of the arrested accused is disclosed. It is held by the Hon’ble Supreme Court that re-arrest or second arrest and seeking police custody after the expiry of period of first fifteen days should be with regard to the investigation of a different case other than the specific one in respect of which the accused is already in custody. Central Bureau of Investigation, Special Investigation Cell, New Delhi v. Anupam J. Kulkarni, AIR 1992 SC 1768.

4. Computation of period of remand of the accused wanted in several case – The best example for the computation of the Remand is the case pertains to Dinesh Dalmia. The brief facts of the case are that A First Information Report was lodged against Dinesh Dalmia in Calcutta. He was arrested in New Delhi by C.B.I. in connection with another case. On transit remand, the accused Dinesh Dalmia was produced before the Additional Chief Metropolitan Magistrate, Chennai. The officer investigating the criminal case at Calcutta prayed for issuance of production warrant against the accused Dinesh Dalmia before the Chief Metropolitan Magistrate, Calcutta, who allowed the prayer and directed that the accused would be produced before him on or before 22-02-2006. The Additional Chief Metropolitan Magistrate, Chennai observed that the prayer of investigating officer of Calcutta would be considered after expiry of the period of C.B.I. custody. That on 27-02-2006 when the accused Dinesh Dalmia was in the custody of C.B.I. at Chennai, he voluntarily surrendered before the court of Metropolitan Magistrate at Chennai in connection with the criminal case started in Calcutta. That the surrender of the accused Dinesh Dalmia was accepted by the Magistrate at Chennai and remanded him to judicial custody till 13-03-2006. That on 11-03-2006 the accused Dinesh Dalmia Was handed over to Calcutta Police and on 13-03-2006 he was produced at the court of Chief Metropolitan Magistrate, Calcutta. The Investigation Officer prayed for police remand of the accused Dinesh Dalmia for fifteen days for the purpose of investigation. The accused Dinesh Dalmia moved an application for bail and contended that the period of police remand for first fifteen days of the total period of remand expired as he surrendered before the Court of Magistrate to Chennai in connection with this case on 27-02-2006. The Chief Metropolitan Magistrate, Calcutta took the view that the custody of the accused could not be considered unless and until he was physically produced before the court and since it was 49 done on 13-03-2006 on the strength of production warrant issued by him, the period of police remand was to be considered from the date of his physical production on 13-03-2006. the accused Dinesh Dalmia approached the High Court challenging the order passed by the Chief Metropolitan Magistrate, Calcutta. The High Court at Calcutta did not approve the view taken by the Chief Metropolitan Magistrate, Calcutta and held that the detention of the accused should be counted with effect from 27-02-2006 when the accused surrendered before the Court of Metropolitan Magistrate at Chennai. On appeal, the State of West Bengal challenged the order of the High Court. The crucial question which arose for consideration before the Supreme Court was whether the detention period should be counted from 13-03-2006 when the police took the accused in custody or from 27-02-2006 when the accused surrendered before the Metropolitan Magistrate at Chennai. By allowing the appeal and by setting aside the order of the High Court, it is held by the Supreme Court that the whole purpose of Section 167 of Cr.P.C. is that the accused should not be detained for more than twenty four hours and subject to fifteen days police remand the custody can further be extended up to total period of sixty days or ninety days as the case may be. According to Supreme Court, the police custody means the police custody in a particular case for investigation and not judicial custody in another case. In the case, at hand the accused was not arrested by the police, nor was he in police custody before 13-03-2006. the accused was very well aware that there were two cases registered against him in Calcutta for which he was required by the police and as such he voluntarily surrendered before the Metropolitan Magistrate, Chennai on 27-02-2006 when he was already in custody of C.B.I. in connection with another case. This voluntary surrender of the accused cannot be conceived to be detention under a case registered at Calcutta. Such notional surrender cannot be treated as police custody for computation of the required period. The period of detention before the Magistrate cannot be treated as device to avoid physical custody of the police and claim the benefit of proviso to sub-section (2) of Section 167 of Cr.P.C. The condition is that the accused must be in the custody of the police and the so-called deemed surrender in another criminal case cannot be taken as starting point for computation of fifteen days’ police remand or ninety days’ or sixty days’ of judicial remand as the case may be. Thus, the police custody of the accused Dinesh Dalmia was treated by the Supreme Court with effect from his physical production before the court of Chief Metropolitan Magistrate, Calcutta on 13- 03-2006 and not from the date of surrender before the Court of Metropolitan Magistrate at Chennai on 27-02-2006 while he was in the custody of C.B.I. in connection with another case. State of West Bengal v. Dinesh Dalmia AIR 2007 SC 1801.

5. Duty of police towards accused during police custody:- Where there was death of a person in police custody and it is established from the evidence of other witnesses, who were also beaten up and injured by police that the deceased became unconscious on receipt of injuries inflicted by police and died subsequently, and irresistible inference can be drawn that the police personnel, who caused his death, must also caused the disappearance of the body. It may be a legitimate right of any police officer to interrogate or arrest any suspect, on some credible material but such an arrest must be in accordance with the law and the interrogation does not mean inflicting injuries. Torturing a person and using third degree methods are of medieval in nature and they are barbaric and contrary to law. If the police officers who have to provide security and protection to the citizens indulge in such methods, they are creating a sense of insecurity in the minds of the citizens. It is more heinous than game keeper becoming a poacher. The conviction of the police personnel was upheld by the Supreme Court in the Landmark Judgement cited in Bhagwan Singh v. State of Punjab, AIR 1992 SC 1689.

6. Detention in custody of a person arrested under special Acts:- The code of criminal procedure gives power of arrest not only to a police officer and a magistrate, but also under certain circumstances to private persons. When an accused person appears before a magistrate or surrenders voluntarily, the magistrate is empowered to take that accused person into custody and deal with him according to law. To put it differently, taking of the person into judicial custody is followed after the arrest of the person concerned by the magistrate on his appearance or surrender. To invoke Section 167(1), it is not an indispensable prerequisite condition that in all circumstances the arrest should have been only by a police officer and none else and there must necessarily be records of entries of a case diary. The magistrate will take a person into his custody on his being satisfied to three preliminary conditions namely- (I) That the arresting officer is legally competent to make the arrest. (ii) That the particulars of the offence or the accusation for which the person is arrested do exist and are well founded. (iii) That the provisions of the special act in regard to the arrest of the persons and the production of the arrestee serve the purpose of Section 167(1) of the Code. A magistrate before whom a person arrested by the competent authority under the Foreign Exchange Regulation Act, 1973 or the Customs Act 1962 is protected, can authorise detention in exercise of power under Section 167 of Cr.P.C. Directorate of Enforcement v. Deepak Mohajan, AIR 1994 SSC 1775.

7. Police remand under POTA – Guidelines of the Apex Court– Let’s take the inhuman, draconian Godhra Incident. On 27-02-2002 some persons died at Godhra in the state of Gujarat and several others were injured when a train was brutally attacked and set ablaze. Initially the case was registered on the allegation of commission of offences punishable under various provisions of Indian Penal Code. Subsequently, an application was filed by the prosecution for addition of offences punishable under Sections 3(1)(a), (b) and 3(2) of POTA. The accused Maulavi Hussein Haji Abraham Umarji was arrested in connection with this case on 06-02-2003 and remanded to police custody till 11-02-2003 and again police custody was extended till 13- 02-2003. When the application for further extending the police remand was rejected, a criminal revision was filed before the Sessions judge. The Special Court was constituted under section 23 of POTA on 06-03-2003. The sanction order required under Section 50 of POTA was passed. Without pressing for revision application pending before the Sessions Court, the prosecution filed an application before the Special judge for police remand in terms of Section 49(2)(b) of POTA on 24-04-2003 and the same was allowed. The legality of the order of the Special Judge was challenged before the High Court by filing appeal under Section 34(1) of POTA and subsequently the order of the High Court was challenged by filing appeal before the Supreme Court. By dismissing the appeal it is held by the Supreme Court that a statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. In the instant case, the proviso inserted by section 49(2)(b) of POTA is in relation to the proviso to section 167(2) of Cr.P.C. and not in respect of section 167(2) itself. As section 49(2)(b) of POTA can be resorted to without any reference to the provisions of Section 167(2) of Cr.P.C. [Maulavi Hussein Haji Abraham Umarji v. State of Gujarat 2004 SCC (Cri) 1815].

Latest and Important judgments on the Police Custody and Judicial 56 Custody:-

1. In Dinubhai Boghabhai Solanki v. State Of Gujarat & Ors, Criminal Appeal No. 492 of 2014(Arising out of SLP (Crl.) No. 8406 of 2012) Date of judgment on 25 February, 2014, it was observed that the courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. As it is settled Principle that each case will have its own facts & merits. It was further observed that the judgments of courts are not to be construed as statutes and the observations must be read in the context in which they appear to have been stated. The Court went on to say that circumstantial applicability, one additional or different fact may make a world of difference between conclusions in two cases.” See. Bharat Petroleum Corporation v. N.R. Vairamani And Anr.

2. Sundeep Kumar Bafna v. State Of Maharashtra & Anr, Criminal Appeal No. 689 of 2014 [Arising out of SLP (Crl.) No.1348 of 2014, Dt. 27 March, 2014 where in it was observed that as follows: “we are unable to agree that anticipatory bail should be refused if a legitimate case for the remand of the offender to the police custody under Section 167(2) of Cr.P.C of the Code is made out by the investigating agency.” See. Gurbaksh Singh Sibbia Etc v. State Of Punjab, AIR 1980 SC 1632..

3. As was observed in Dr. K.S. Rao v. State of Hydrabad, AIR 1957 AP 416, in remanding the accused to police custody the Magistrate ought to follow the provisions of section 167 of the Code and should give proper reasons for handing over the accused to the police custody.

4. Important rulings as to the subject matter of `police custody and judicial custody’ – State Rep by Inspector of Police and Ors v. NMT Joy Immaculate 2004 5 SCALE 330, CBI SIT New Delhi v. Anupam J. Kulkarni AIR 1992 SC 1768, Mithabhai Pashabhai Patel & Ors. v. St of Gujarat CDJ 2009 SC 1014.

5. Chaganti Satynarayana and Ors. v. State of Andhra Pradesh, [1986] 3 S.C.C. 14. As was held in 1981 CriLJ 1773 (1776 – Para 9), Perusal of the case diary is a must before remand of any kind – be judicial or police custody. It is a dereliction of duty if the Magistrate did not ask for and peruse the case diary before he authorizes any custody.

6. A remand to Police custody should not be given unless the officer making the Application is able to show definite and satisfactory grounds. Remand order should not be passed mechanically without proper application of 57 mind. State of UP v. Ramsagar Yadav, (1985) 1 Crimes 344.

7. S.167(2) only prescribes the maximum period of 15 days, but that does not authorize the Magistrate automatically to remand the accused for the period. At every stage when the Police seeks a remand, the Police must satisfy the Magistrate that there is sufficient evidence against the accused and further evidence might be obtained; and it is only when the Magistrate is satisfied, after looking into the case diary, that he should direct a remand. AIR 1956 Orissa 129. To authorize remand to Police custody is a very serious and sensitive judicial function of utmost responsibility.

8. The scheme of the section after the amendment of the year 1978 is intended to protect the accused from unscrupulous police officers. Great care has now been taken to see that the accused persons are not unnecessarily remanded. The object of the section is to see that the person arrested by the Police are brought before the Magistrate with the least possible delay so that the Magistrate could decide whether the person produced should further be kept in Police custody and also to allow said accused to make such representation as he wish to make, 1980 CriLJ 1195.

9. The Magistrate should not authorize detention of an accused to any custody mechanically in routine. If the Law Officers charged with the obligation to protect the liberty of the person, are mindless of the constitutional mandate and the dictates of the Code, how can freedom survive for the ordinary citizen. See. Mantoo Majumdar v. State of Bihar, AIR 1980 SC 847.

10. It was held in Kana v. St of Rajasthan, 1980 CriLJ 344, Magistrate must give reasons for authorizing detention of accused to custody. Such orders cannot be passed as a matter of course.

11. Order of Remand is a judicial order to be passed on application of mind to the contents of the Remand report submitted by the investigating officer. It is not a empty formality or a routine course to extend remand time and again as and when sought by the police. The order therefore should contain the reason to extend remand further. See. 2003 CriLJ 701 at page 702.

12. As has been observed in Muthoora v. Heera, AIR 1951 MB 70 : 17 WR 55, if the evidence is not forthcoming, the Magistrate must not remand the prisoner in the hope that fresh evidence may turn up.

13. See Arnesh Kumar v. State of Bihar, JT 2014 (7) SC 527, Joginder Kumar v. State Of Uttar Pradesh, 1994 (4) SCC 260 : AIR 1994 SC 1349, a critical and detailed observation of the Hon’ble Supreme Court in respect of unabated practice of mechanical arrests.

14. The Hon’ble Supreme Court in the case of Sanjay Chandra v. CBI (2012) 1 SCC 40 (Popularly known as 2G scam case), where in it was extensively discussed with the issue of granting or refusing the grant of Bail.

15. As was pointed out in Kalyan Chandra Sarkar v. Rajesh Ranjan, AIR 2004 SC 1866, while a vague allegation that the accused may temper with the evidence or witnesses may not be a ground to refuse a bail, if the accused is of such a character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or temper with the evidence, then bail may be refused.

In D.K. Basu v. State of West Bengal

This case gave a landmark judgement where guidelines regarding the arrest of a person for prescribed otherwise more offences were committed in the name of doing justice. It prevents any infringement with the rights of an individual during detention of administration of a criminal system existing in our country i.e., India needed an effective mechanism.

Conclusion

The Landmark Judgment In D.K. Basu v. State of West Bengal, AIR 1997 SC 610, the Hon’ble Supreme Court has given certain guidelines-

1) That Policemen must wear visible and legible identification when arresting a person and when carrying out interrogation. Names and Particulars of police personnel handling interrogation must be recorded in the register;

2) It is the right of every person detained or questioned by Police to know the grounds for detention or questioning;

3) The Person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or detention;

4) A person arrested must be produced before a Judicial Magistrate/ Judge within 24 hours of his/her arrest;

5) A person arrested should be medically examined at the time of arrest and major & minor injuries on arrested person be recorded in Inspection Memo duly signed by both Police officer carrying out the arrest and the person arrested and the copy of this memo be provided to the person arrested;

6) Any person arrested must be medically examined by a doctor from an independent and approved panel of doctors, every 48 hours during detention;

7) Arrest or Search of women should only take place in presence of Women Police Officers and it should not take place in night. And women should be detained separately from men;

8) While an accused is in Police custody, his lawyer should be permitted to visit him;

9) Information of the arrest of accused person should be given to the district Control Room and the State Police Headquarters. 20. Recent judgments in Rajesh Sharma v. Uttara Pradesh, Criminal Appeal No. 1265 of 2017 [Arising out of Special Leave Petition (Crl.) No.2013 of 2017] which was pronounced in July 27, 2017 and Maharashtra -based NGO Nyayadhar’s cases are also relevant to understand the issue of restoration of immediate arrest in matrimonial cases.

“Liberty of a person is foremost important & paramount; Personal Liberty is the paramount essential to human dignity and human happiness the Constitution of India protects the Life and Liberty of an individual. The personal Liberty of a person not merely the right to the continuance of a person’s animal existence.

• It is the duty of the courts to uphold the dignity of personal liberty.

• It is the duty of the court to see whether individual crosses the Lakshman Rekha i.e., carved out by law is dealt with appropriate as cited by the Hon’ble Supreme court of India in Dharmendra Kirthlal v. State of U.P. in AIR 2013 SC 2369 ii) Vikas v. State of Rajasthan (2014) 3 SCC 321.

• At this juncture it is stated that Hon’ble Supreme Court has categorically stated that Article 21 and Article 19 i.e. personal life & liberty and rights of Freedom of a citizen are the heart and soul of the constitution.

• “Article 50” glaringly states about separation of judiciary from executive. Hence Dr.B.R.Ambedkar describes the same as Conscience of the Constitution.

• The Hon’ble Supreme Court by going a further mile considered the vital & pivotal importance of Separation of Judiciary from Executive and Legislature also cited in Madras Bar Association v. Union of India & another in (2015) 8 SCC 583.

• That When a person is arrested and detained by the police immediately within 24 hours as per Article 22(2) of Constitution of India and also U/sec 56 & 57 Cr.PC is suppose to be produced before the nearest Magistrate. On being produced the learned magistrate U/Sec 167 Cr.PC has to remand in judicial custody either for 7 days (Executive Magistrate) for 15 days before the Judicial Magistrate at this juncture it is to be noted that in Arnesh Kumar v. State of Bihar reported in the 2014(8) SCC 273 wherein an Accused may be released under 41A Cr.PC if the alleged offence is upto 7 years or below 7 years.

• That the domain of the bail now came into the picture. The Cr.PC deals with Sec. 436, 437, 438, 439.

Wherein 436 deals with bail for Bailable offences by a Magistrate.

Wherein 437 deals with bail for Non-Bailable offences by the Magistrate of I Class.

Wherein 438 deals with Anticipatory bail for cognizable offence by Sessions Court and High Court.

Wherein 439 deals with bail by Hon’ble High Court and Sessions Court respectively.

• That it is Painfully stated that now a days in practice it is came into lime light that the accused are sent to Jail under 167 Cr.PC for 15 days by the learned Magistrate in a routine manner whereas it is specifically directed in Arnesh Kumar v. State of Bihar by the Hon’ble Supreme Court of India that it is the duty of the learned magistrate that when an accused is produced before the learned Magistrate then he has to be satisfied that condition precedent for arrest U/Sec 41 A Cr.PC. has been complied thereafter only, the learned Magistrate has to authorize detention of the accused; even before the same the learned magistrate has to satisfy himself whether penal section and the given facts could lead the detention of the accused or not

• That in P. Chidambaram v. Directorate of enforcement Reported in 2020(1) LRC 368 (SC) Hon’ble Supreme Court has categorically said that triple test is to be taken into consideration in granting the Regular Bail.

Whether there is an apprehension of fleeing from Justice.

Whether there is any threat to prosecution witness.

Whether there is any threat of tamper & hamper with the prosecution evidences.

• That similarly the Hon’ble Supreme Court lead by Hon’ble Three Judges Bench headed by Hon’ble CJI has categorically stated in case of Siddaram Satlingappa Mhetre v. State of Maharastra and others reported in 2011(1) SCC 694 while dealing with the Anticipatory bail. The Hon’ble Supreme Court has observed the following guidelines.

The Anticipatory Bail:

(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

(iii) The possibility of the applicant to flee from justice;

(iv) The possibility of the accused’s likelihood to repeat similar or the other offences.

(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.

(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.

(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to prevention of harassment, humiliation and unjustified detention of the accused;

(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.

• That our holy constitution glaringly states that under any circumstances a Citizen’s person liberty is not be suppressed that’s why Article 21 plays a vital and pivotal role in the detention of the accused even there are certain conditions to be followed under PD Act, NDPS Act and other specialization Acts therefore a pre trail long detention must be always not suggestible to secure the complete justice. The circumstances of each an individual case pertains to Arrest and detention satisfies the triple test in regular bail and Anticipatory Bail; that under the guise of Investigation keeping the accused in Jail for 60 days or 90 days or 180 days is to be reconsidered and redefined in light of the Judgement delivered by the Hon’ble Supreme Court of India in Chandran Ratnaswamy v. K.C. Palavisani in AIR 2013 SC 1952.

• That after the conviction however the accused is to be Jailed to serve the sentence as a prisoner; before the same during the trail or pre trial as a under trail person a long term detention is neither required nor needed. Thus it could be reiterated that Article 21 shall be given the top priority in protecting the person’s life and liberty; as the Hon’ble Supreme Court has categorically stated that if a person is detained in Judicial Custody then his, his family’s reputation name, fame impact on children, in society will play a major role, therefore the courts do have a heavy responsibility to pass appropriate orders either under 167 Cr.PC. or in bailment in the backdrop of Article 21.

Q.1 WHAT IS JUDICIARY?

Judiciary, branch of government whose task is the authoritative adjudication of controversies over the application of laws in specific situations. Conflicts brought before the judiciary are embodied in cases involving litigants, who may be individuals, groups, legal entities (e.g., corporations), or governments and their agencies.

The judiciary is the branch of government which administers justice according to law. The term is used to refer broadly to the courts, the judges, magistrates, adjudicators and other support personnel who run the system. The courts apply the law, and settle disputes and punish law- breakers according to the law. Our judicial system is a key aspect of our democratic way of life. It upholds peace, order and good government.

Citizens look to the judiciary to uphold their rights and governments look to the courts to interpret laws. The judiciary must act without fear of powerful interests, and without favouring individual parties. A court’s ability to deliver justice depends on its power to enforce its rulings. Only a court of appeal can overturn the ruling of a lower court.

The Judiciary is the third organ of the government. It has the responsibility to apply the laws to specific cases and settle all disputes. The real `meaning of law’ is what the judges decide during the course of giving their judgments in various cases. From the citizen’s point of view, Judiciary is the most important organ of the government because it acts as their protector against the possible excesses of legislative and executive organs. Role of Judiciary as the guardian-protector of the constitution and the fundamental rights of the people makes it more respectable than other two organs.

Functions of Judiciary and Its Importance:

1. To Give Justice to the people:

The first and foremost function of the judiciary is to give justice to the people, whenever they may approach it. It awards punishment to those who after trial are found guilty of violating the laws of the state or the rights of the people.

The aggrieved citizens can go to the courts for seeking redress and compensation. They can do so either when they fear any harm to their rights or after they have suffered any loss. The judiciary fixes the quantity and quality of punishment to be given to the criminals. It decides all cases involving grant of compensations to the citizens.

2. Interpretation and Application of Laws:

One of the major functions of the judiciary is to interpret and apply laws to specific cases. In the course of deciding the disputes that come before it, the judges interpret and apply laws. Every law needs a proper interpretation for getting applied to every specific case. This function is performed by the judges. The law means what the judges interpret it to mean.

3. Role in Law-making:

The judiciary also plays a role in law-making. The decisions given by the courts really determine the meaning, nature and scope of the laws passed by the legislature. The interpretation of laws by the judiciary amounts to law-making as it is these interpretations which really define the laws.

Moreover, `the judgments delivered by the higher courts, which are the Courts of Records, are binding upon lower courts. The latter can decide the cases before them on the basis of the decisions made by the higher courts. Judicial decisions constitute a source of law.

4. Equity Legislation:

Where a law is silent or ambiguous, or appears to be inconsistent with some other law of the land, the judges depend upon their sense of justice, fairness, impartiality, honesty and wisdom for deciding the cases. Such decisions always involve law-making. It is usually termed as equity legislation.

5. Protection of Rights:

The judiciary has the supreme responsibility to safeguard the rights of the people. A citizen has the right to seek the protection of the judiciary in case his rights are violated or threatened to be violated by the government or by private organisations or fellow citizens. In all such cases, it becomes the responsibility of the judiciary to protect his rights of the people.

6. Guardian of the Constitution:

The judiciary acts as the guardian of the Constitution. The Constitution is the supreme law of the land and it is the responsibility of the judiciary to interpret and protect it. For this purpose the judiciary can conduct judicial review over any law for determining as to whether or not it is in accordance with the letter and spirit of the constitution. In case any law is found ultra vires (unconstitutional), it is rejected by the judiciary and it becomes invalid for future. This power of the court is called the power of judicial review.

7. Power to get its Decisions and Judgments enforced:

The judiciary has the power not only to deliver judgments and decide disputes, but also to get these enforced. It can direct the executive to carry out its decisions. It can summon any person and directly know the truth from him.

In case any person is held:

(i) Guilty of not following any decision of the court, or

(ii) Of acting against the direction of the court, or

(iii) Misleading the court, or

(iv) Of not appearing before the court in a case being heard by it, the Court has the power to punish the person for the contempt of court.

8. Special Role in a Federation:

In a federal system, the judiciary has to perform an additionally important role as the guardian of the constitution and the arbiter of disputes between the centre and states. It acts as an independent and impartial umpire between the central government and state governments as well as among the states. All legal centre-state disputes are settled by the judiciary.

9. Running of the Judicial Administration:

The judiciary is not a department of the government. It is independent of both the legislature and the executive. It is a separate and independent organ with its own organisation and officials. It has the power to decide the nature of judicial organisation in the state. It frames and enforces its own rules.

These govern the recruitment and working of the magistrates and other persons working in the courts. It makes and enforces rules for the orderly and efficient conduct of judicial administration.

10. Advisory Functions:

Very often the courts are given the responsibility to give advisory opinions to the rulers on any legal matter. For example, the President of India the power to refer to the Supreme Court any question of law or fact which is of public importance.

11. To Conduct Judicial Inquiries:

Judges are very often called upon to head Enquiry Commissions constituted to enquire into some serious incidents resulting from the alleged errors or omissions on the part of government or some public servants. Commissions of enquiry headed by a single judge are also sometimes constituted for investigating important and complicated issues and problems.

12. Miscellaneous Functions:

Besides the above major functions, the judiciary also performs several other functions. Some such functions are the appointment of certain local officials of the court, choosing of clerical and other employees. Cases relating to grant of licenses, patents, and copy rights, the appointment of guardians and trustees, the admission of wills, to appoint trustees to look after the property of the minors, to settle the issues of successions of property and rights, issue of administrating the estates of deceased persons, the appointment of receivers, naturalization of aliens, marriage and divorce cases, election petitions and the like.

Through all these functions, the Judiciary plays an important role in each state. It also plays a role in the evolution of Constitution through the exercise of its right to interpret and safeguard it against all legislative and executive excesses.

Importance of Independent Judiciary:

In the life of the citizens of a state, Judiciary is a source of confidence and fearlessness. The common man depends upon judiciary for getting justice. Without a security of rights and freedom guaranteed by the judiciary, they cannot really hope to carry out their jobs and enjoy their living. They are more dependent upon judiciary than the legislature and the executive. Without judicial protection, their lives can become miserable. From citizens point of view Judiciary is the most important organ of the government.

Garner highlights this view when he observes, “A society without legislature is conceivable, and indeed, legislative organs did not make their appearance in the state until modern times, but a civilised state without a judicial organ and machinery is hardly conceivable.”

Judiciary enjoys a big importance in the eyes of the people because it acts as:

(1) The dispenser of Justice.

(2) Protector of the rights of the people.

(3) Guardian protector of the Constitution of the State.

(4) Arbiter of center-state disputes.

(5) Safeguard against Legislative and executive excesses.

(6) Check against arbitrary exercise of powers by the power-holders.

(7) Guardian of Rule of Law and Justice.

An independent judiciary is always considered to be the most essential part of every democratic government worth its name. A government without judiciary is almost inconceivable. A government without independent judiciary is always held to be an authoritarian government.

Independence of Judiciary: An Essential Quality:

The chief quality which helps the judiciary to faithfully administer justice and to perform its functions efficiently is judicial independence. It is only when the judiciary works independently without any interference of the other two organs of the government that it can carry out its high responsibilities.

“The independence of judiciary,” writes Dr. P. Sharan, “is a corner stone of every democratic government and upon it is built the structure of civil liberty.” Judiciary can perform its functions only when it is free to administer justice according to law. Without being well-organised and independent it can never serve its purpose. Therefore, Judiciary must be organised in such a way as can enable the judges to give their judgments without any fear or favour.

Dr. B.R. Ambedkar describes Article 50 as conscience of Constitution. As per Article 50 enshrined as

Article 50 in the Constitution Of India 1949

50. Separation of judiciary from executive The State shall take steps to separate the judiciary from the executive in the public services of the State-

Organisation of Judiciary must be based on the following features:

(1) Appointment of only highly qualified and experienced judges.

(2) The Judiciary must have prevented the executive and legislature from committing excesses.

(3) The ability of the judiciary to maintain and independently run the judicial administration.

(4) The Judiciary must be made the guardian protector of the Constitution,

(5) The Judiciary must ensure full, fair and less- expensive opportunities to the people for defending their rights and getting justice.

(6) The method of appointment of judges must be fair, systematic, effective and transparent.

(7) Method of removal of judges should be difficult and no single should have the power to remove the judges.

(8) Judges must be paid high salaries, necessary allowances, good service conditions, and appropriate retirement benefits.

Furthermore as it is well said by the Hon’ble Supreme Court reported in AIR 1987 SC 1353 as It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

By incorporating all these features in the judicial system, a well organised and independent judiciary can be secured.

That’s why it is well noted the courts as

“The courts are last cathedral to the dying Man.”

Q 2. WHAT IS JUDICIOUS CONSCIENCE?

That ‘Judicious Conscience’ word has often been using by the Judges. When the matters is deeply related with the law and more particularly with the legal principles, which can affect the conscience of a person having knowledge or understanding of the principles of law, it become ‘Judicious Conscience’.

Law and conscience will of course often be perfectly consonant. Most of the time, this should be fairly unremarkable, and thus it will not be mentioned in the mine run of opinions. In those situations where no judge on the panel disagrees on any material matter in the case, so that only a majority opinion will be published, there is often little to be gained by adding considerations of conscience or morality to support what is already established law. It does happen, though, most commonly in instances in which the opinion underscores the judicial obligation of faithful adherence to precedent as a matter of institutional conscience. Other common circumstances for references to conscience as further support for an otherwise already legally tenable position include matters implicating issues of judicial resources and burdens on the courts other players in the justice system, issues of substantive or procedural fairness, and others still.

Such positions do not only appear in unanimous majority opinions, but also in dissents in those cases in which at least one judge believes that he is correct both on the law and on the morality, but is compelled to write in a dissenting opinion due to a difference of legal interpretation between the dissenter and others on the court. It is the expressions of the consonance of law and conscience that appear in the concurring and dissenting opinions, though, that turn out to be more worthy of note for the purposes of this discussion. Where the consonance appears in a majority opinion, it simply has that much less force or weight, in the light of the clarity of the established law. However, this article does not limit its discussion to cases in which conscience differs from law. Any resort or reference to conscience is ripe for discussion in the effort to develop a fuller and clearer understanding of what judicial conscience is and how it fits into the shape of the judicial role.

While there is perhaps an interesting academic question about the propriety of judicial reference to conscience in further support of an uncontroverted legal interpretation, the more difficult question is what ought to happen when a judge’s considerations of conscience are in conflict with established law, or at any rate with the interpretation of the law accepted by a majority of the relevant panel. Any judge who feels faced with a serious dissonance between law and conscience has an array of options at least apparently open to him. To state them roughly and in relatively short order, a judge could: (1) keep silent about the conflict and simply follow the law; (2) follow the law

When judges use words and phrases like “in good conscience” or “unconscionable,” they do so in many contexts and with a broad range of ideas apparently in mind. Though some scholarship in this area tends to be focused specifically on the role or expression of a judge’s religious faith, it can be hard to distinguish – and it is probably pointless to try to divine any distinction, for purposes of this paper – between religiously- based convictions and any other personal commitments that underlie actual judicial usage of the word `conscience.’ It is difficult to pin down a particular consensus definition of conscience or the unconscionable, either in the actual usage by judges or in the legal academic literature that has built up around this concept. Much might be included, but some usages are clearly of more import than others for this topic. Black’s Law Dictionary defines conscience as “1. The moral sense of right or wrong; esp., a moral sense applied to one’s own judgment and actions. 2. In law, the moral rule that requires justice and honest dealings between people.” This underscores the overlap and thus the lack of specific distinction, among the terms `conscience,’ `morality’ and `justice.

These terms must, to a certain extent, be left a bit muddy, because one must take them as the courts use them. Judges are not necessarily philosophers or linguists, and they are not typically concerned with precision about distinctions among these particular terms. Furthermore, to get too technical about the verbal or semantic distinctions here might even encourage an unwarranted and unhelpful formalism by judges.

Examination of the variety of uses of these terms by judges does however reveal some broad categories of apparent meaning. Sometimes it is a matter of a judge’s core personal conviction about right and wrong; sometimes it is a matter of responsibility for the integrity of the institution (for the proper role of the court, for its reputation, or for proper use of its resources, for example); sometimes it is an attempt to speak for something like a `common conscience’ or a common public notion of justice or other values; sometimes it is simply a matter of personal honesty about a particular view of the facts or the law in a given case. Very often, phrases like “in good conscience” or “unconscionable” or other variants on these, come up in cases having to do in one way or another with liberty interests, and of those very often the cases are before the court on appeals of denials of habeas petitions. These are decisions in which a panel’s collective decision may effectively be the end of the road on life and death issues. Another common context for these expressions of conscience is in dissents from denials of petitions for rehearing en banc – again, an end of the road determination, which may introduce frustration about the full court not taking up a matter a judge. Believes to be a moral imperative for further attention. Although judges certainly do use other related terms such as morality, injustice, and unfairness as well in these kinds of scenarios, this article limits the discussion to those specifically using `conscience’ and its cognates, in an attempt to get a clearer picture of what judges themselves see as the proper role for their conscientious commitments in their decision making and what that may reveal to help us better understand the larger shape of the judicial role.

THE SIGNIFICANCE OF SECTION 482

SEC 482 CR.P.C READS AS FOLLOWS:

“Saving of inherent power of High Court- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

WHY THE NEED FOR SECTION 482 CR.P.C.?

The powers of the High Court U/s 482 Cr.P.C are partly administrative and partly judicial. The section was added by the Code of Criminal Procedure (Amendment) Act of 1923, as the High Courts were unable to render complete justice even if in a given case the illegality was palpable and apparent. The Hon’ble Supreme Court in State of Karnataka v. Muniswami- AIR 1977 SC 1489, held that the section envisages 3 circumstances in which the inherent jurisdiction may be exercised, namely, “to give effect to an order under CrPC, to prevent abuse of the process of the court, and to secure the ends of justice“.

The Hon’ble Allahabad High Court went on to state that, “The section is a sort of reminder to the High Courts that they are not merely courts in law, but also courts of justice and possess inherent powers to remove injustice“. The inherent power of the High Court is an inalienable attribute of the position it holds with respect to the courts subordinate to it. They are necessarily judicial when they are exercisable with respect to a judicial order and for securing the ends of justice. The jurisdiction under section 482 is discretionary, therefore, the high court may refuse to exercise the discretion if a party has not approached it with clean hands.

WHAT ARE THE REAL POWERS OF THE HIGH COURT U/S 482 CR.P.C?

Inherent powers u/s 482 of Cr.P.C. include powers to quash FIR, investigation or any criminal proceedings pending before the Sessions Courts or any Courts subordinate to it and are of wide magnitude and ramification. Such powers can be exercised to secure ends of justice, prevent abuse of the process of any court and to make such orders as may be necessary to give effect to any order under this Code, depending upon the facts of a given case. Court can always take note of any miscarriage of justice and prevent the same by exercising its powers u/s 482 of Cr.P.C. These powers are neither limited nor curtailed by any other provisions of the Code. However, such inherent powers are to be exercised sparingly and with caution.

It is well settled that the inherent powers under section 482 can be exercised only when no other remedy is available to the litigant and NOT where a specific remedy is provided by the statute. If an effective alternative remedy is available, the High Court will not exercise its powers under this section, especially when the applicant may not have availed of that remedy.

Rules governing the petitions which pray for quashing of criminal proceedings

Section 482 of CrPC, which deals with the power of the court to quash criminal proceedings, hasn’t given the details of that what exactly constitutes the inherent power of the court. In that sense, the Code is very vague as it doesn’t lay out the grounds on which the foundations of the inherent power of court lay. Furthermore, there has been consistent inconsistency in the judgments of the Supreme Court of India with regard to the application of Section 482 of CrPC.

Consequently, the application of Section 482 of CrPC is a very agitated issue in litigation along with being a strongly debated concept in the legal academic circles. Nevertheless, there are some cases which have got wide acceptance in the legal fraternity and hence, are used as the minor guiding principles (landmark cases being the major ones) governing the cases of quashing of criminal proceedings. Some of these cases are:

1. Prashant Bharti v. State of NCT of Delhi (2013) 9 SCC 293

In order to determine the veracity of a prayer for quashing the criminal proceedings raised by an accused under Section 482 of the CrPC, the following questions were raised before the High Court. The court held that if the answer to all the following questions was in affirmative, then the Court should quash the proceedings by exercising its power under Section 482 of CrPC;

1. Whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?

2. Whether the material relied upon by the accused is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?

3. Whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?

4. Whether proceeding with the trial would result in an abuse of process of the court and hence, would not serve the ends of justice?

2. Parbatbhai Ahir v. State of Gujarat (4 October 2017)

In this case, the Supreme Court referred to various precedents and summarised the following principles to govern the power of High Court under Section 482 of CrPC;

1. Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court.

2. The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non- compoundable.

3. Informing an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power.

4. While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised;

4.1. To secure the ends of justice.

4.2. To prevent abuse of the process of any court.

5. The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated.

6. In the exercise of the power under section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed, even though the victim or the family of the victim, have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences.

7. As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned.

8. Criminal cases involving offences which arise from a commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute.

9. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice

10. There is yet an exception to the principle set out in propositions (viii) and above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.”

3. QUASHING OF CRIMINAL PROCEEDINGS IN MATRIMONIAL CASES (CASES FILED UNDER SECTION 498A)

The purpose of drafting Section 498A was to help the hapless women who were the worst victims and were harmed at the hands of their husbands. In the present times, there have been several instances where the section is misused. The situation became so severe that various non- government organizations (NGOs) came up for the purpose of advocating the repeal of Section 498.

The Supreme Court of India has, many a time, held that the proceedings being pursued under Section 498 – A of IPC ought to be quashed if the chances of conviction are very bleak or the case has been filed with ulterior motives. This is so because there are various cases where the purpose of the litigation is the ulterior motive of settling personal scores.

The following cases discuss quashing of proceedings in such matters;

1. The Supreme Court of India observed in the case of Sushil Kumar Sharma v. Union of India (19 July 2005),

“…The object of the provision is the prevention of the dowry menace. But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bona fide and have filed the cases with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery…”

1. In B.S. Joshi v. State of Haryana 2003 (4) SCC 675 the Supreme Court justified the exercise of powers under Section 482 CrPC to quash the proceedings in matrimonial cases to secure the ends of justice in view of the special facts and circumstances of the case even where the offences alleged are non-compoundable.

2. The judgment in B.S. Joshi v. State of Haryana was used by the Delhi High Court to quash criminal proceedings which had been initiated under Section 498 – A of the Indian Penal Code in the case of Girish Pandey v. State (20 October 2016).

3. Furthermore, it was held in the case of Geeta Mehrotra v. State of Uttar Pradesh (17 October 2012) by the Supreme Court that making general allegations against husband without any conclusive proof is ground enough to quash criminal proceedings instituted under Section 498- A of IPC.

The landmark Judgments in Quashing the Criminal cases delivered by the Hon’ble Supreme Court of India are:

(1) Janki Bai v. The state of Madhya Pradesh

(2) Rajave Textiles Private Ltd., v. Sourabh Biotech

(3) Raghavendra Sharma v. MPM KVV Construction Ltd., and also Hon’ble Telangana High Court is

(4) Sri Kota Reddy Veerappa Reddy v. State of Telangana.

4. TEST TO CHECK WHETHER HIGH COURT CAN INTERFERE OR NOT

Ordinarily, a High Court will not interfere at an interlocutory stage of criminal proceeding in a subordinate court but HC is under an obligation to interfere if there is harassment of any person (Indian citizen) by illegal prosecution. It would also do so when there are any exceptional or extraordinary reasons for doing so. The Supreme Court, in Madhu Limaye v. Maharashtra, has said, “Nothing in the Code, not even Section 397 can affect the amplitude of the inherent power preserved in Section 482. Where the impugned interlocutory order clearly brings about a situation which is an abuse of the process of the court then for the purpose of securing the ends of justice, interference by the High Court is absolutely necessary and nothing contained in Section 397 (2) can limit or affect the exercise of the inherent power of the High Court”.

The SC, further, in Madhu Limaye v. Maharashtra, has held that the following principles would govern the exercise of inherent jurisdiction of the HC:

1. Power is not to be resorted to, if there is specific provision in code for redress of grievances of aggrieved party.

2. It should be exercised sparingly to prevent abuse of process of any Court or otherwise to secure ends of justice.

3. It should not be exercised against the express bar of the law engrafted in any other provision of the code.

It can never be laid down more particularly or precisely when the High Court can and cannot use its powers, but attempts have been made on that behalf in several of the decisions of Supreme Court.

In the landmark case State of Haryana v. Bhajan Lal (1992 Supp.(1) SCC 335), a two-judge bench of the Supreme Court of India considered in detail, the provisions of section 482 and the power of the High Court to quash criminal proceedings or FIR. The Supreme Court summarized the legal position by laying the following guidelines to be followed by High Courts in exercise of their inherent powers to quash a criminal complaint:

1. Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

2. Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

3. Where the allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

4. Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which, no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or, where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

LIMITATION ON SECTION 482 OF CR.P.C

Even though the inherent jurisdiction of the High Court under Section 482 is very wide, it has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised exdebito justitiae to do real and substantial justice for the administration of which alone, courts exist. This view has been taken by the Hon’ble SC in many of its judgments including the recent Monica Kumar v. State of Uttar Pradesh.

In a proceeding under section 482, the High Court will not enter into any finding of facts, particularly when the matter has been concluded by concurrent finding of facts of two courts below.

In State of Bihar and another v. K.J.D. Singh, the Hon’ble Supreme Court had a question whether the Criminal Proceedings can be quashed even before the Commencement of the Trial. The Supreme Court went ahead and held that “The inherent power under Section 482 has to be exercised for the ends of the justice and should not be arbitrarily exercised to cut short the normal process of a criminal trial. After a review of catena of authorities, Pendian, J. in Janta Dal v. H.S. Chowdhary (supra) has deprecated the practice of staying criminal trials and police investigations except in exceptional cases and the present case is certainly not one of these exceptional cases.“

In R.P. Kapoor v. State of Punjab, Hon’ble Supreme court went on to limit the powers of the Hon’ble High Court within the ambit of the Cr.P.C. It was held, “Inherent power of the High Court cannot be invoked in regard to matters which are directly covered by specific provisions in the Cr.P.C.”.

It is well settled that the inherent powers under section 482 can be exercised only when no other remedy is available to the litigant and NOT where a specific remedy is provided by the statute. If an effective alternative remedy is available, the High Court will not exercise its powers under this section, specially when the applicant may not have availed of that remedy.

CONCLUSION

Section 482 Cr.P.C has a very wide scope and is an essential part of statue to meet the end of justice where injustice can take place but at the same time the said Power is too wide and hence, it is important for the courts to use it wisely and according to the guidelines laid down by High Courts and Supreme Court time to time. Section 482, in its current form has seen several changes with the changing times and needs of the hour and by the Guidelines framed by the Supreme Court in several of its judgments. The Courts are constrained to do so as the said Section which gives wide powers to the High Court, was highly abused by the Law Practitioners. Section 482 of Cr.P.C has made its space in Cr.P.C in order to enable the High Courts to provide proper justice and at the same time to curb filing of fictitious complaints just to avenge personal grudges.

Q. 5 JUSTICE, PRACTICE, PROFESSION

In the most common terms, justice is an ideal representing something that is just and right. It basically means being just, impartial, fair and right. … On the other hand, modern jurisprudence says justice means the implementation of concepts like equality and liberty.

For example, the natural law school of jurisprudence believes that justice means the implementation of religious laws. On the other hand, modern jurisprudence says justice means the implementation of concepts like equality and liberty. However, in both these examples, justice just means enforcement of what the law perceives to be right.

In the modern context, justice basically means the recognition and implementation of laws made by legislatures. Furthermore, in the modern context, unlike ancient states, this function lies largely on judicial organs.

According to Salmond, laws are the bodies of principles that tribunals recognize and apply while administering justice. Even Roscoe Pound defines laws to mean principles that public tribunals recognize and enforce.

Therefore, justice generally means the recognition, application and enforcement of laws by courts. This is different from the understanding of justice in the ancient period when it was given a religious and moralistic meaning.

KINDS OF JUSTICE

The concept of justice and its administration can be of the following types:

1) Public justice and Private justice

Public justice is basically that kind of justice which the state administers through its tribunals and courts. It explains the relationship between courts and citizens of a state. Courts usually enforce laws that the states make under public justice.

On the other hand, private justice regulates the legal relationship between individuals. It is limited to people enforcing concepts of justice amongst each other without approaching courts.

For example, let’s imagine that A and B entered into a business transaction in which A paid money to B as promised. B, instead of selling goods to A for the money, refused to fulfill his obligation. If A and B decide to settle their dispute through means of arbitration or negotiation, it is private justice. However, if A approaches a court and sues B, we refer to that as public justice.

2) Civil justice and Criminal justice

In terms of the subject matters of justice, we can categorize it as civil and criminal. Civil justice generally refers to private wrongs that affect specific people or entities.

For example, breach of a contract between two parties will affect only one of them. Trespassing of property is another example. The remedy of such civil wrongs is generally to approach civil courts.

Criminal justice, on the other hand, affects society in general even if specific people are victims. For example, the murder affects specific victims only but the law treats it as a crime against society.

Another feature of criminal justice is that it relates to laws made by a legislature. Only acts that are defined as crimes can be the subject matter of criminal justice.

In respect of Legal Profession is concerned it is well noted by the legal laurets that legal profession is a Nobel Profession.

The statement, “A lawyer is and must ever be the high priest at the shrine of justice”, a religious metaphor, reflects the view of the lawyer’s special role on the administration of justice as contemplated by the American Bar Association in the first national code of legal ethics in the USA. The religious metaphor was developed in the context of viewing Courts as the `shrines of justice’, and lawyers as the ministers of the “courts of justice robed in the priestly garments of truth, honor and integrity”. Even in a secular context, the statement still captures the essence of the role of an advocate in the mechanism of administration of justice in the society.

At the outset, it is necessary to appreciate the role an advocate plays in the society. The development of lawyers as a class of professionals can be attributed to the need for trained persons who can form the competent interface to facilitate the interaction between the lay persons and the judiciary. This involves providing legal advice in matters of rights, liberties or property of the client within the framework of legislative and legal rights, and representing the client in the event of a dispute before an adjudicatory body. In fact, if law is viewed as a `public good’ which is frequently technical and not self-executing, meaningful access to law requires the assistance of a lawyer. Particularly, in most jurisdictions, the members of the legal profession are conferred the status of privileged members of the community, and occupies an exclusive domain with the privilege of pleading and acting on behalf of suitors being restricted only to enrolled advocates and attorneys. This monopolistic character of the legal profession entails certain high traditions which its members are expected to upkeep and uphold.

Therefore, the lawyer plays an indispensible role in the mechanism of administration of justice.

However, the lawyer has a particularly onerous and multi-dimensional role to fulfill. As expressed by Mathew, J., “A Counsel has a tripartite relationship: one with the public, another with the court, and the third with his client. That is a unique feature. Other professions or callings may include one or two of these relationships but no other has the triple duty.”The satisfaction of the obligations and expectations arising out of these three relationships are frequently difficult to reconcile. The role of the advocate in these three capacities requires a closer scrutiny.

The lawyer, as a professional, to some extent, acts on behalf of the client, and representing the client. This is particularly relevant in an adversarial system of adjudication followed by common law countries which is characterized by a neutral adjudicating authority, which, on the basis of the arguments and evidence placed before it, arrives at a conclusion. The role of an advocate in an adversarial system, therefore, is to represent the case of the client before the adjudicating authority.

As a professional, the functional role of an advocate, in essence, is comparable to that of a legal technician. An advocate is specially trained in the technical profession of `law’, and with his grasp over the subject matter; professional function consists largely of providing counsel for clients about how to escape or mitigate the incidence of the law’s obligations, availing of the loopholes and the ambiguities of law. An advocate is essentially an adviser to his client. The contractual arrangement creates an obligation on the part of the advocate to offer sound legal service, and place before the court all that can fairly and reasonably be submitted on behalf of his client. The oft-quoted comment of Lord Reid in the celebrated case of Rondel v. Worley succinctly conveys the essence of the duty of an advocate towards his client: “Every counsel has the duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client’s case”. More importantly, he should not let his personal opinion, or considerations of unpleasant consequences or reactions that he may expect to face in the performance of his duty towards his client affect the quality of services he provides to the client.

At the same time, it would be erroneous to view an advocate as merely a professional – that would lead to the risk of degenerating the legal profession into a trade or mere sordid pursuit for livelihood and accumulation of wealth, with professionals indulging in “briefs merchandise”.

It must be clarified that an advocate is obligated to act so as to protect and uphold the interest of his client by all fair and honorable means. As has been frequently emphasized, he also acts in the capacity of an officer of the Court. The role of advocates as officers of the Court is to assist the Court in the administration of justice. Lawyers collect materials relating to a case and thereby assist the Court in arriving at a correct judgment. Furthermore, being a responsible officer of the court and an important adjunct of the administration of justice, the lawyer also owes a duty to the court as well as the opposite side. The Bar and the Bench constitutes the two wheels of the carriage of justice. The success of the judicial process often depends on the services of the legal profession. The function of both the Bar and the Bench in an adversarial system of dispute resolution are clearly made out, and the need for a dynamic relationship of co-operation between the two is acute. Advocates, as members of the Bar and officers of the Court, have the responsibility of `keeping the stream of justice pure and unsullied’ so also to enable it to administer justice fairly and to the satisfaction of all concerned. This involves two aspects – firstly, to uphold the dignity of the judicial office and maintain a respectful attitude towards the Court, and secondly, to ensure that under no circumstance, any illegal or improper means is used to mislead the Court.

CONCLUSION

The public impact of the legal profession can be gauged by the observation by the Supreme Court in All India Judges Association v. Union of India, wherein it was expressed that the administration of justice and the part to be played by the advocates in the system must be looked into from the point of view of litigant public and the right to life and liberty guaranteed under Article 21 and right to grant legal aid as contemplated under Article 39A of the Constitution. The aspect of the advocate as a public servant is closely tied to the fact key role he plays in the developmental and dispute-processing activities and, above all, “in the building up of a just society and constitutional order.”[13] Being the custodian of the monopolistic power statutorily granted by the nation, the lawyer is obligated to rise to the expectations of him in being a member of the society worthy of confidence of the community in him as a vehicle of social justice.

Viewed in this context, it can be said that the lawyer is indeed the channel through which the general public can access the law, and avail of the protection of the law, in the shrine of justice.