Introduction to Criminal Procedure and Its Functionaries

Introduction

Criminal procedure is the legal process through which criminal offences are investigated, prosecuted, tried, and decided in India. It provides the framework for implementing substantive criminal law while protecting the rights of accused persons and ensuring a fair trial.

This topic explains the meaning and purpose of criminal procedure and the roles of key functionaries in the criminal justice system, including the police, public prosecutors, criminal courts, and defence counsel.

Meaning and Definition of Criminal Procedure

Criminal law has two main branches: substantive criminal law and procedural criminal law.

• Substantive criminal law: Defines criminal offences and prescribes the punishments that may be imposed for them.
• Procedural criminal law: Establishes the legal process through which offences are investigated, prosecuted, tried, and punished in accordance with the law.

The two branches are closely connected. Substantive law identifies what conduct is an offence, while procedural law explains how the criminal justice system deals with that offence. Without a proper procedure, the rules defining offences and punishments could not be effectively enforced.

The main objective of criminal procedure is to ensure a full and fair trial in accordance with the principles of natural justice (basic principles of fairness). It must provide a lawful process for investigating offences, presenting evidence, determining guilt, and protecting the legal rights of the accused.

Legal Framework in India

The Code of Criminal Procedure, 1973 (CrPC), was the principal legislation governing criminal procedure in India. It was replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which came into force on 1 July 2024.

The BNSS now provides the principal statutory framework for criminal procedure, subject to applicable transitional provisions. The CrPC provisions discussed in the source material are relevant when studying the earlier framework and must be read in their historical context.

Functionaries Under Criminal Procedure Law

Functionaries are the persons and authorities responsible for carrying out different stages of the criminal justice process. Each has a distinct role, and their functions must be performed according to law.

The principal functionaries discussed in this topic are the police, public prosecutors, criminal courts, and defence counsel.

The Police

The police play an important role in maintaining public order and enforcing criminal law. Their functions include preventing crime, investigating suspected offences, collecting evidence, and taking other lawful steps required during criminal proceedings.

The police must exercise their powers according to the applicable law. Their role in investigating an offence is distinct from the role of the public prosecutor, who conducts the prosecution before the court.

The source material refers to the Police Act, 1861, as legislation defining the term "police." The powers and duties of police officers must be understood with reference to the applicable central and state laws.

Public Prosecutors

A Public Prosecutor represents the State in criminal proceedings. Under the earlier CrPC framework, Section 24 dealt with the appointment of Public Prosecutors and Additional Public Prosecutors, while Section 25 dealt with Assistant Public Prosecutors.

The main function of a Public Prosecutor is to conduct criminal proceedings on behalf of the State and assist the court in the administration of justice. A prosecutor is not simply an advocate seeking a conviction at any cost. The prosecutor must act fairly and must not deliberately conceal relevant material or act with bias against the accused.

The Public Prosecutor is institutionally distinct from the investigating police agency. Although the prosecution may rely on evidence collected during a police investigation, the prosecutor has an independent duty to assist the court fairly.

Types of Public Prosecutors

Public Prosecutors and Additional Public Prosecutors for High Courts

Under Section 24(1) of the CrPC, the Central Government or State Government could appoint a Public Prosecutor for a High Court and one or more Additional Public Prosecutors after consultation with the High Court.

The source material states that a person appointed to such a position was required to have at least seven years of practice as an advocate. The applicable statutory provisions must be consulted when determining the requirements for a current appointment.

Public Prosecutors and Additional Public Prosecutors for districts

Under Section 24 of the CrPC, Public Prosecutors and Additional Public Prosecutors could be appointed to conduct criminal cases in districts. The appointment process included the preparation of a panel of eligible persons by the District Magistrate in consultation with the Sessions Judge.

The Central Government could also appoint Public Prosecutors to conduct cases in a district or local area. An appointed prosecutor could, where legally permitted, be assigned responsibilities in more than one district.

Assistant Public Prosecutors

Section 25 of the CrPC dealt with the appointment of Assistant Public Prosecutors to conduct prosecutions before Magistrates. State Governments were required to appoint one or more Assistant Public Prosecutors for this purpose.

Their principal responsibility was to conduct prosecutions on behalf of the State. They were not appointed to act as defence counsel for accused persons in the same proceedings.

Special Public Prosecutors

The CrPC also provided for the appointment of Special Public Prosecutors by the Central or State Government for particular cases or classes of cases, subject to the statutory requirements.

Role and Duties of the Prosecutor

The principal duties of a Public Prosecutor include:

• Conducting prosecutions, appeals, and other criminal proceedings on behalf of the appropriate government.
• Presenting relevant evidence and legal arguments before the court.
• Assisting the court in reaching a lawful decision.
• Acting fairly and avoiding personal bias against the accused.
• Considering whether the legal grounds for seeking remand or continued custody are properly supported.
• Respecting the rights of the accused and the requirements of a fair trial.

The prosecution's duty is to assist in the administration of justice, not merely to secure a conviction.

Criminal Courts

Criminal courts supervise the judicial stages of criminal proceedings. They determine legal issues, assess evidence, protect procedural rights, and decide whether the prosecution has proved the accused's guilt according to the required standard of proof.

Under the CrPC framework, the principal classes of criminal courts included:

• Courts of Session.
• Judicial Magistrates of the first class.
• Metropolitan Magistrates in metropolitan areas under the former framework.
• Judicial Magistrates of the second class.
• Executive Magistrates, who exercise the specific powers assigned to them by law.

The BNSS has changed aspects of the earlier framework, including the classification of courts. The list above describes the structure referred to in the source material and should not be treated as a complete statement of the present framework.

Powers and Functions of Criminal Courts

Criminal courts perform different functions according to their jurisdiction (the legal authority to hear and decide a matter).

Their principal functions include:

• Taking up criminal cases in accordance with law.
• Issuing lawful orders and processes when the legal requirements are satisfied.
• Considering applications relating to custody, bail, and other procedural matters within their jurisdiction.
• Conducting trials and evaluating evidence.
• Determining guilt or acquittal.
• Imposing sentences within the limits of their legal powers.

Under the earlier CrPC framework, Sections 26, 28, 29, and 30 dealt with the courts competent to try offences and aspects of their sentencing powers. These provisions must be distinguished from the corresponding provisions of the BNSS when dealing with current criminal proceedings.

Defence Counsel

A defence counsel is a lawyer who represents an accused person in criminal proceedings. The defence counsel protects the accused's legal rights and ensures that the case is dealt with according to law.

The principal functions of defence counsel include:

• Advising the accused about the charges and the available legal options.
• Representing the accused before the court.
• Examining the prosecution's evidence and identifying weaknesses in its case.
• Cross-examining prosecution witnesses (asking questions to test their evidence).
• Presenting the defence case and relevant legal arguments.
• Applying for bail or other appropriate relief where legally justified.
• Ensuring that the accused receives a fair trial and that procedural safeguards are respected.

The right to consult and be defended by a legal practitioner is protected by Article 22(1) of the Constitution of India. Article 39A directs the State to provide free legal aid so that access to justice is not denied because of economic or other disabilities. The applicable criminal procedure law also contains provisions concerning legal assistance.

Distinction Between Substantive and Procedural Criminal Law

Practical Example

Suppose a person's mobile phone is stolen and the incident is reported to the police.

• Substantive criminal law determines which offence may have been committed and the punishment prescribed by law.
• The police receive the information and investigate the suspected offence according to the applicable procedure.
• The Public Prosecutor conducts the prosecution before the court when required.
• The defence counsel represents the accused and challenges the prosecution's evidence where appropriate.
• The criminal court considers the evidence and arguments before deciding whether the charge has been proved.

This example shows how substantive law and procedural law work together, while different functionaries perform separate roles in the criminal justice system.

Summary

• Criminal law consists of substantive law, which defines offences and punishments, and procedural law, which establishes how criminal cases are handled.
• Criminal procedure aims to ensure a lawful process, a fair trial, and protection of the rights of the accused.
• The police investigate offences, while Public Prosecutors conduct prosecutions and assist the court in the administration of justice.
• Criminal courts exercise judicial powers, assess evidence, decide cases, and impose lawful sentences.
• Defence counsel protects the accused's rights and provides legal representation during criminal proceedings.
• The CrPC, 1973, has been replaced by the BNSS, 2023, with effect from 1 July 2024; current legal analysis must use the applicable provisions of the new law and account for transitional rules.