A Study of Functionaries under the Code of Criminal Procedure, 1973

    “Law” is considered to be an enactment of “rule” by a competent authority that possesses power above the subjects. In order to uphold and execute the rules set by the authority, laws can be classified into: (1) Substantive laws that define the wrongful acts and offences and the sanctions for those acts and (2) Procedural laws that talk about the procedure to implement and make the purpose of the substantive law achieved. The Code of Criminal Procedure(CrPC) is considered to be a Procedural statute, as most of its provisions relates to establishment of the procedural aspects of the laws and determines how the actual practice of law will be done as well as a modus operandi for the administration of criminal justice to run. CrPC as a law was first consolidated in 1882, however, after the recommendation of the 41st Law Commission report[1], changes were made and thus the present statute[2] of 1973 came into force from 1st April, 1974[3].

    Functionary is “a person who has official duties, especially in a government or political party” as defined in Cambridge Dictionary, therefore, functionary under CrPC would mean various instruments that are duty bound and are used for fulfilling the procedural requirements to achieve the purpose of law.

    Functionaries

    There are majorly five functionaries under CrPC that are entrusted to ensure smooth functioning and effective delivery of justice under the Indian Justice Delivery system. These functionaries include:

    1. The Police
    2. The Prosecutors
    3. The Courts
    4. Defense Counsel
    5. Prison authorities

    These functionaries form a very crucial part of the Judicial Delivery System to meet the ends of justice. Their powers, functions and obligations are mentioned under the CrPC which are discussed below.

    The Police

    CrPC does not establish the “Police” or “Police Organisation” and it presupposes that there already exists a body of institution called “Police” and thus, the Code discharges certain powers and duties to them. Establishment of Police is found in another statute as the Police organisation was established under the Police Act, 1861. The Act states that “the police force is an instrument for the prevention and detection of crime”[4]

    In order to maintain law and order of the state the police is empowered with some rights and duties, for instance, “power to arrest, search a place, etc., by members of the police force who are enrolled as police officers”[5].

    Further, the police are bound to register FIR under section 154(1) after getting information about the cognizable offence[6] and investigate further without magistrate’s permission.

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    The Prosecutors

    State is considered to be a party in criminal cases as the crimes happening in the society affects the public at large for which the state was duty bound and is responsible for. Therefore, the state “appoints Public Prosecutors at the State level and District level to conduct appeal or prosecution in the High Court and Subordinate Courts”[7], respectively. State shall also appoint Assistant Public Prosecutors in every district as mentioned in the Code and no police officer can be appointed as  Ass. Public Prosecutor but in certain cases, DM may appoint any other person or a police officer only if he is not a part of investigation in that case and is above the rank of Inspector, as mentioned in relevant provisions of Section 25.[8]

    The Courts

    The territorial demarcation of the country provides us with the division of Courts in the nation that includes the Supreme Court as an apex institution, High Court for each state and various courts including Court of Sessions, and that of Judicial Magistrate 1st class, 2nd class, and executive magistrates at the district levels.

    Moreover, a special need for big metropolis like Mumbai, Delhi, Calcutta etc, separate divisions are made and Metropolitan Magistrate’s Courts functions there.[9]

    Supreme Court and High Courts

    The Constitution of India provides the basis of establishment of the Supreme Court of India through Articles 124-147 and High Courts in various states through Articles 214-231 and stipulates their powers and functions. The CrPC on the other hand provides various other provisions for the functioning of the said institutions with various processes like the provision for appeal to the Supreme Court from High Courts under Sections 374 and 379[10] and the power of the Supreme Court to transfer cases from one High Court to another in consideration of natural justice.[11]

    Lower Courts

    The Court of Sessions is established under Section 9[12] of the Code and further, the Sessions Judge and Assistant Sessions Judge is created within it[13]. It is empowered to try cases mentioned in Schedule 1 of CrPC and it may levy any punishment including the death penalty subject to confirmation by the High Court. It can hear appeals for orders and decisions of the court of judicial magistrates.

    The Court of Judicial Magistrate is established under Section 11 which includes the Court of Chief Judicial Magistrate and Sub Judicial Magistrate that further has divisions of  Courts of Magistrate of first class and second class along with Special JM.[14]

    Further, the Court of Chief Metropolitan Magistrate is also established by the State government for metropolitan cities and this has the same powers as the Judicial Magistrate. Court of Metropolitan Magistrate includes Courts of Additional Chief Judicial Magistrate, Metropolitan Magistrate and Special Metropolitan Magistrate.[15]

    Defense Counsel

    The concept of Natural justice includes the maxim of audi alteram partem which says “to hear the other side”. Now in order to give an equal and fair chance to the accused to prove himself and put his arguments in front of the court, defense lawyers are necessary. 

    The right is conferred to the accused to be defended by defense counsel of his choice under the Code[16]. However, these pleaders are not government employees but are private pleaders.

    However, considering the fact that not everyone can afford the payment of fee of the lawyers, the code under Section 304 provides the provision of free legal aid to the needy from the Court’s assigned pleader which is also emphasised by the Supreme Court in cases like Khatri (2) v. State of Bihar[17]. Moreover, The Constitution of India also provides for and aims at providing a legal system that promotes justice on the basis of equal opportunity to economically or otherwise disabled citizens in the form of state sponsored free legal aid.[18]

    Prison Authorities 

    The prison authorities existence is also presupposed by the Code of Criminal Procedure, 1973 as it does not establish any such authority. The prison authority and related aspects are included in statutes like the Prisons Act,1894, the Prisoners Act, 1900, the Borstal School Acts and the Probation of Offenders Act, 1958. However, the role of prison authorities is vitally important for the procedures for imparting justice especially in relation to the accused’s condition in pre trial, during trial and post trial circumstances. During the investigation process the arrested person is put in police custody but the Magistrates have the powers under Section 167 to shift that person to the jail if there is a danger to the life of the accused in the police custody.[19]

    Conclusion 

    No institution can work without a collective effort of each and every instrument of it working together like nuts and bolts of the bigger machinery with utmost sincerity, unbiasedness and dedication to achieve the true purpose of the said institution.

    The Criminal Justice System in India is one such organisation which ought to run through the collective efforts of every functionary involved in the functioning of the system that are discussed above. The life of the accused and the fate of the victim is dependent on these instruments working for justice without any negative influence through any organisation, person or institution. 

    However, the reality is far from what one can expect, the functionaries of the government imparting justice in the system are now conceived as a big corrupt and an institution for people with muscle and money power. Bribing judges, extra judicial killing and encounters in police and judicial custody of accused’s, corruption in Prosecutors and sky rocketing fee of defense has now resulted in justice being chained by powerful personalities of the society, thereby harassing and making the situation worse for the poor and disadvantaged section.

    Every statute is made keeping in mind the best of the policies that can be put into paper, but the real problem is the implementation of these policies and the deletition of the barriers that break the path of justice. This reality has to change in order to achieve the true purpose of the Criminal Justice System.

    REFERENCES

    [1] Law Commission of India, “41st report on The Code of Criminal Procedure, 1898” (September, 1969).

    [2] The Code of Criminal Procedure, 1973.

    [3] The Gazette of India, THE CODE OF CRIMINAL PROCEDURE ACT, 1973, available at: http://egazette.nic.in/WriteReadData/1974/E-1272-1974-0004-56219.pdf

    [4] The Police Act, 1861 (Act no. 5, Preamble).

    [5] Ratanlal & Dhirajlal, Commentary on the Code of Criminal Procedure 101 (Lexis Nexis, 23rd ed., 2020).

    [6] Lalita Kumari v. State of UP, AIR 2012 SC 1515.

    [7] The Code of Criminal Procedure, 1973, s. 24(1).

    [8] The Code of Criminal Procedure, 1973, s.25.

    [9] The Code of Criminal Procedure, 1973, s.6.

    [10] The Code of Criminal Procedure, 1973, ss. 379, 379.

    [11] The Code of Criminal Procedure, 1973, s. 406.

    [12] The Code of Criminal Procedure, 1973, s. 9.

    [13] The Code of Criminal Procedure, 1973, s.10.

    [14] The Code of Criminal Procedure, 1973, ss. 11, 12, 13.

    [15] The Code of Criminal Procedure, 1973, ss. 16, 17, 18.

    [16] The Code of Criminal Procedure, 1973, s. 303.

    [17] (1981) 1 SCC 627.

    [18] The Constitution of India, 1950, art. 39A.

    [19] The Code of Criminal Procedure, 1973, s.167.


    BY RISHAV KUMAR | NIRMA UNIVERSITY

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