This article is written by Khyati Basant, from Symbiosis Law School, NOIDA. This article contains a brief description of the pre-trial procedures and its rights.

Introduction

Under-trial inmates make up a large 67.6 percent portion of the jail population in India. As many as 3927 undertrials had spent more than 5 years in jail in 2016 and expected their trial to be concluded. Such high figures also result in high vacancy rates of 113.7 per cent, which in turn are related to under-standard living conditions in the prisons. About 2.8 lakh Indians are kept in jail during their trials or pending court, without being accused of the offence. Most face trial for years, even for longer than their full legal term. Throughout the Indian jails, these inmates that are classified as ‘undertrials’ compensate for two out of three offenders – a rate much greater than most countries across the world. India has Asia’s third-highest sub trial community.

In the pre-trial conference, parties to the case and their attorneys have a pre-trial consultation until the jury starts in the presence of a defendant, or a prosecutor or a judicial officer who has less authority than a defendant. The government has been proposing proposals to reduce pretrial incarceration levels from time to time, but a little drastic reform has been seen. The Supreme Court has also given regular guidelines for the release of under-trials and the liberal usage of bail laws, but this has not contributed to any improvement in a large number of under-trials in prison.

In India, the pre-trial hearing mechanism is not specifically recognized as a defining characteristic of the judicial method, while both the Code of Civil Procedure and the Code of Criminal Procedure include some clauses that may be utilized for this reason. Under the light of the constitution, people imprisoned as undertrials under jails are considered innocent. The outcome of pre-trial detention is alarming. Offenders who are deemed innocent remain subject to jail life’s psychological and physical deprivations, typically with more onerous terms than those levied on convicted offenders. The imprisoned convict loses his work and is prohibited from adding to his prosecution. As significant as that, the strain of the incarceration also falls heavy on his family’s innocent members.

In the Fourteenth Report, the Law Commission dismissed the request for pretrial conferences. It observed that conditions are not yet ready for the implementation of such an invention in our region. Despite this, the government is seeking to speed up the disposition of proceedings by implementing the mechanism of ‘pre-trial trials’ on the UK and US sides.

Trials are delayed by calling new witnesses even towards the end of the proceedings or even when they are carried in the higher courts. They are delayed due to the absence of pre-trials in India. There is an option of plea bargaining in criminal cases where the accused when accepting his fault may escape with less punishment. The law ministry is thus forming papers to file pre-trials conferences in India. There will be a separate court to hear the parties and they may discuss the time frame for conclusion and documents that they want to be discussed.

Lakhs and lakhs of the convicted languish for days in prison, for months and years, either because of unable to apply for bail or because of indiscriminate refusal of bail by the courts or because the accused failed to supply securities and sureties. The simple jurisprudence should point out considered innocent until the guilt has been confirmed. This concept is completely buried by the courts and the police service.

What is a pre-trial

A hearing conducted before a jury by a judge, an arbitrator, etc., to clarify the legal and factual problems and to stipulate such matters between the parties to speed up the court’s justice and the costs. Pre-trial proceedings are critical components of the justice process because at this point the vast majority of all criminal cases are resolved informally and never come before the courts. These include pre-arrest investigation, conviction, detention, court decision, initial appearance before a municipal judge, preliminary or grand jury hearing, evidence or indictment arraignment, and motions for pre-trial proceedings. 

Usually, after the preliminary hearing and before a criminal case goes to trial, the prosecutor and the defence team appears before a criminal court judge and makes pre-trial motions, arguments about some evidence to be kept out of the trial, that some persons must or cannot testify, or that the case should be dismissed entirely. The term ‘trial’ has not been defined under the code of criminal procedures. The judicial tribunal determines and examines the case. It is a court proceeding that ends with conviction or acquittal but not discharges.

Steps in pre-trial

In India, all criminal cases consist of pre-trial and post-trial stages. To a pre-trial case, the offence must be classified as either cognizable or non-cognizable defined as cognizable crime and non-cognizable crimes, respectively.

Cognizable crime means a crime that can be charged without a warrant by a police officer. In the event of cognizable offences, the Police Officer is obliged to file an FIR (First Information Report) under Section 154 of the CrPC immediately and may undertake investigations and acts such as arrest etc. In general, cognizable crimes are extremely severe in nature or situations where immediate action by the police is required.

Cognizable offences can be either bailable or non-bailable as described in Section 2(a) of CrPC. Non-cognizable crime is a crime in respect of which a police officer has no right to arrest without warrant. While FIR does not need to be registered for non-cognizable offences, the same must be entered in a separate register held for that purpose. In these cases, a police officer may initiate an investigation after obtaining permission from the competent court according to Section 155 of CrPC.

The police collect evidence, arrest and produce the accused before the Judge and secure police detention or judicial remand orders. If the police consider that no prima facie case is made out of the final report, the investigation shall be terminated and filled in before the tribunal. If the investigative agency thinks a case is made prima facie, it will prepare a charge sheet which is filed before trial. The Magistrate must pass final orders reporting and charging boards. The case will be depending on the Magistrate’s order either to be dropped or put up for prosecution and trial.

FIR registration-FIR is the first record of details submitted in compliance with Section 154 of the Code of Criminal Procedure. The FIR is just the specific details that should be made available to police when there is a cognizable crime. FIR is the first stage from which birth is taken from a criminal case.

Document their statements, gather relevant items, carry out searches and arrests, apprehend the suspects, document their statements and confessions, organize parades for test identification, obtain technical reports and opinions from experts and compile a case log of all of them for each case investigated. Therefore, these conflicting principles need to be fine-tuned, and there are serious concerns about the possibility of breaching the different freedoms open to citizens in the hands of police investigators.

A criminal case consists of several stages, ranging from initial conviction to sentencing and eventual appeal. The following is a summary of what to expect in a criminal prosecution during the pre-trial process.

Arrest

Usually, criminal action starts with an arrest by a police officer. A police officer may arrest a person if (1) the officer sees a person committing a crime; (2) the officer has reason to believe that that person has committed a crime, or (3) the officer makes the arrest under a valid arrest warrant. Following the arrest, the suspect is booked by police. When the police completes the booking process, the suspect is held under detention. Where the suspect has committed a minor offence, the police may issue a summons to the suspect with instructions to appear in court later. A person is taken into custody by police and is no longer free to leave or move around. Physical protection is not appropriate, such as handcuffs: all that is required is the exercise of police authority over an individual.

Booking 

Typically, an individual is taken to the police station after being detained, and “booked” or entered into the police system. This process may involve collecting personal data, taking fingerprints and confiscating personal property. The person is usually put in a holding cell of some kind after reservation.

Bail  

Where bail is given to a suspect in police custody, the suspect may pay the bail sum in return for a release. Release on bail is based upon the suspect’s commitment to appear in all court proceedings scheduled. Bail can be issued to a suspect immediately after the booking or at a subsequent bail review hearing. Alternatively, a defendant can be released on his “own acknowledgement.” A defendant released on his acceptance need not post bail but must agree to appear at all scheduled court hearings in writing. Release of acknowledgement is given after the court recognizes the seriousness of the crime and the criminal record of the defendant, danger to the community and family and job relations. In certain cases, the person is not allowed to post bail immediately after the arrest and must either wait until a bail hearing is held or for arraignment. If this is the case, a judge can determine whether the person should be released on bail and may set the bail amount.

Arraignment  

The defendant makes his first arraignment appearance in court. The judge reads the charges filed against the defendant in the indictment during the arraignment and the defendant decides to plead “guilty,” “not guilty” or “no contest” to those charges. The judge will also review the bail and set dates for future proceedings on the defendant. The arraignment is the first criminal case to be brought before a court. Future hearings can be scheduled, for example, the preliminary hearing and the trial. The prosecutor provides all documents related to the case, such as the police report, to the defendant and his or her lawyers. If the crime with which the person is charged can result in a prison sentence, the defendant is entitled to an attorney, even if they can not afford one. If they can not afford a lawyer but wish to have one, then at this point the judge will appoint a lawyer to represent the defendant.

Plea Bargain 

At this point, many criminal cases are concluded. The defendant agrees to plead guilty, at times to a lesser charge than the one for which they were originally arrested, or at times to a lesser punishment than they might receive if found guilty in a trial. When a defendant is charged with multiple crimes, he or she may sometimes plead guilty to one of the crimes, and the prosecutor may decide to drop the other charges. Plea bargains can either be agreed where the prosecution and defence both agree on the punishment, or ungreased, where each side suggests a punishment to the judge, and the judge chooses whatever he or she sees fit. In some states, an agreed plea is considered to be “defence limited,” which means that if the judge wants some degree of penalty that is more extreme than the defendant proposes, the defendant will withdraw their plea of guilty and proceed to court. 

Preliminary hearing 

If no plea deal is reached following arraignment, a preliminary hearing is held. At this point, the judge listens to the testimony of the prosecutor and determines if there is ample proof to charge the crime against the defendant. Preliminary hearing roles differ from state to state. A preliminary hearing, or preliminary review, is an adversarial process where witnesses are challenged by lawyers and both parties present claims. Instead, the judge makes the final determination of probable origin.

If the investigating officer considers a case fit for prosecution then he must file a charging sheet in the case. Is the indictment sheet the summary of how an offence was committed? What was the position of each person involved in the crime and the parts in which all suspects had been charged by the investigating officer? The charge sheet also includes the names of the person being questioned but who may not be charged for lack of proof in the investigating agency ‘s view. Filing the charge sheet usually means that the investigation in the case is over, and now the court needs to consider the facts the prosecuting agency needs to be obtained. It should be remembered that if any new details come to light during the case, the agency can file additional charging sheets.

Pre-trial rights 

The Code of Criminal Procedure 1973 was revised in 2010, and Sections 41A, 41B, 41C and 41D added restrictions on arbitrary and unreasonable arrests as well as prohibiting police from abusing the process and torturing opportunities for the arrests. Section 41A warrants the issuance of notifications by police until the arrest of offences punishable by imprisonment of fewer than 7 years; Section 41B warrants the police to send memos of arrest for judicial review at the output. Section 41C CrPC mandates the formation of police control rooms in each district and that the names and addresses of the detained persons and the names and identities of the arresting police officers be posted on their notice boards, and Section 41D gives the detained person the statutory right to an attorney at the time of questioning following detention, If applied in the true spirit, these provisions provide strong protections against illegal and unreasonable arrests, which also require checks against the risk of torture, forced confessions and excessive pre-trial detention.

Knowledge of the accusation 

Accordingly, the Code specifies in plain words in Sections 228, 240, 246, 251 that when an accused person is brought before the court for trial, he shall be told of the facts of the crime of which he is accused. The court is expected to formulate a specific complaint in writing in case of serious crimes, and then read and describe the complaint to the accused person. Just a jury requires a fair opportunity for the accused person to defend himself. Yet the opportunity would have no value unless the convicted person is told of the accusation against him. Section 211, CRPC provides the right to provide clear and detailed charges.

Legal assistance 

In India, the right to counsel is recognized as a constitutional right of an accused person according to Article 22(1), which provides, inter alia, that no person shall be denied the right to consult and be defended by a lawyer of his choosing. This legislative mandate is expressed in Parts 303 and 304 of the Code. Article 39-A was also introduced into the Constitution according to Amendment No 42, 1976, which mandates the State to enact sufficient legislation to encourage and provide free legal aid. Legal Services Authorities Act, 1987 passed to meet this Parliament. Section 12 of the Act provides legal services for the persons listed therein. That precious right must not be denied to a person accused of serious charges. At the last point, the appellant was denied legal aid/counsel which led to a denial of effective and meaningful assistance. Hence the conviction and punishment of the appellant are revoked. Section 304 does not grant the accused the right to have a leader of his choosing at state costs for his defence. Yet if, then, he objects to his appointed lawyer, he has to be left to defend himself at his own cost. In Arunachal Pradesh’s Suk Das and Ors v Union Territory, the court upheld the need for legal aid and held that “free state-cost legal     assistance is a fundamental right of an individual accused of an offence that may jeopardize his or her life or personal freedom. The exercise of this fundamental right is not conditional on the accused applying for free legal assistance to allow the trial to continue legally without proper legal counsel being given to him if he does not apply for free legal assistance. In Khatri v. State of Bihar, the court held that the accused was entitled to free legal assistance not only at the trial stage but also when they were first brought before the Magistrate, and even when they were remanded.

Speedy trials 

Section 309(1) provides that the proceedings shall be conducted as quickly as possible in each inquiry or trial and, in particular, when the examination of the witnesses has begun, the same shall be continued on a day-to-day basis until all the witnesses present have been examined, unless the Court finds that postponement beyond the next day is necessary for reasons to be recognized. In Hussainara Khatoon v. the State of Bihar, the Supreme Court ruled that speedy trial is an important element of a ‘reasonable just and equitable process guaranteed by Article 21 and that it is the constitutional duty of the State to create such a process as it would ensure speedy trial for the accused. Through alleging financial or administrative inadequacy, the State can not escape its constitutional duty. The accused was tried in Ranjan Dwivedi vs C.B.I Tr. Director-General for murdering Shri. L.N. Mishra, the then minister of the Union Railways. The case has been on hold for the past 37 years. The petitioners submitted Writ Petitions asking for quashing the charges and trial. Yet it was held that the jury cannot be terminated simply on the grounds of delay without taking into account the reasons for that, and the petition was thereafter denied. Speedy hearings are important to gain public trust in the judiciary. Delayed justice results in unfair violence. The principle of a speedy trial is an integral part of constitutional Article 21. The right to a speedy trial starts with the real restriction imposed by arrest and consequent incarceration, and continues at all stages, including the stage of investigation, inquiry, jury, appeal and revision. 

Right to Bail 

Under Section 436, the accused may demand bail as a matter of right in cases which have been identified in the First Schedule to the Code as bailable offences. A bail order extends his freedom of movement to the accused on condition that he continues to be taking his case. Bail is freedom from detention, and more precisely the freedom from police custody. Without more warning, bail may be issued if the crime is bailable. But bail after arrest under Section 389(1) is not a matter of right whether the crime is bailable or not. Where no charge-sheet is filed because the case might be within the expiry of 60/90 days; the person in custody has the option to be released on bail. In non-bailable offences, if a charge sheet is not filed within sixty days, the Magistrate has the right to release on bail without warning to the other party. The granting of bail to women, sick and elderly people are given priority subject to the nature of the offence.

Right against self-incrimination  

Clause (3) of Article 20 provides: ‘No person accused of any offence shall be compelled to be a witness against himself.’ This clause is based on the maximum Nemo tenetur prodere accussare seipsum, which means that ‘no person shall be compelled to indict himself. In Dinesh Dalmia v. Madras State, the court held that testimonial compulsion does not amount to the scientific tests reported by the investigation. Consequently, the appeal was denied. In Selvi v. The State of Karnataka, the Apex Court drew the following conclusions: In the Indian sense, collecting and maintaining DNA samples that are in the form of physical evidence continues to face constitutional hurdles. The forced subjection of a person to narco-analysis, polygraph and brain fingerprinting tests leads to forcible interference with the mental functions of the individual and thereby infringes the right to privacy as well as Article 20(3). A person performing the technique of narco-analysis is expected to talk in a drug-induced state and during an ordinary interrogation, there is no reason why such an act should be viewed differently from verbal responses. The Supreme Court held in State of Bombay vs. Kathi Kalu that “being a witness” is not equal to “providing evidence.” Self-incrimination may involve the transmitting of information based on the personal knowledge of the individual supplying the information and can not include simply the technical method of generating records in court which may shed light on some of the points in the dispute but which do not include any of the accused’s claims based on his personal information. Compulsion means duress which includes a person’s wife, parent or child being assaulted, abused, or imprisoned. Thus where the accused confesses without any incitement, threat or promise under Article 20(3) does not apply.

Restriction on double jeopardy 

Section 300 of the Code specifies that persons once convicted or acquitted shall not be charged for the same crime or any other crime on the same basis. In case the prosecutions for which the accused is being charged are distinct and different from the crime for which the accused has already been prosecuted and convicted, the claim of double jeopardy shall not apply. The Supreme Court, in Kolla Veera Raghav Rao vs Gorantla Venkateswara Rao differentiated between Section 300(1) of Cr.P.C And the Constitution, Article 20(2). While Article 20(2) of the Constitution states only that ‘no one shall be charged and imprisoned more than once for the same offence,’ Section 300(1) of the Cr.P.C. It states that no one can be charged and convicted of the same crime or even of another crime except on the same evidence. Therefore Section 300(1) of Cr. P.C. will prohibit the second prosecution. The accused was tried in Leo Roy Frey v. Superintendent, District Prison, and sentenced under the Sea Customs Act, 1878. Later, under Section 120 of the Indian Penal Code, 1860, he was tried for conspiring to commit the act for which he had already been convicted under the Sea Customs Act, 1878. It was held that Article 20(2) did not preclude the second prosecution, because it was not for the same crime. Committing an offence and conspiracy to commit the crime are deemed to be two distinct offences. The principle of double risk is based on the philosophy of ‘previously acquitted’ and ‘previously convicted,’ which means that whether a person is charged and acquitted or convicted of an offence he cannot be prosecuted again for the same crime or any other crime on the same evidence. This clause embodies the common law rule of nemo debet bis vexari, meaning that no person should be placed in danger twice for the same offences.

Conclusion 

Judges’ most obvious obligation is to preside over trials or hearings, and to listen as attorneys defend their clients. Judges rule on the admissibility of proof and testimonial processes and can be called upon to resolve disputes between competing attorneys. They must ensure that rules and regulations are followed, and judges interpret the law to decide how the trial will proceed if specific situations occur under which standard procedures have not been defined. Judges often hold pretrial hearings on cases. They listen to the charges and decide whether the evidence presented is worthy of a jury. In criminal cases, judges may decide that people accused of crimes are to be held in jail pending trial, or they may set conditions for release. 

Judges and magistrates occasionally impose restrictions on the parties in civil cases, until a trial is held. Criminal procedure law regulates how suspected offenders are apprehended, charged, and tried; penalties are imposed on convicted offenders, and methods of challenging the lawfulness of conviction are entered after judgment. In this field, litigation often deals with conflicts of fundamental importance to the allocation of power between the state and its citizens. Even a single day in jail destroys the accused’s mindset. He is separated from the family of which he is the breadwinner, therefore, the whole family gets deprived of their daily bread. The stigma associated with the arrest and the subsequent remand humiliates the defendant. The unreasonable and fanciful applications of laws does curtail the freedom and liberty of these people.

Reference

• https://shodhganga.inflibnet.ac.in/bitstream/10603/8115/9/09_chapter%202.pdf
• https://www.legalmatch.com/law-library/article/pre-trial-stages-of-a-criminal-case.html
• https://timesofindia.indiatimes.com/india/Pre-trial-conference-in-the-works-to-avoid-lengthy-litigation/articleshow/22273309.cms
• https://studentscholarships.org/salary/492/judges_magistrate_judges_and_magistrates.php
• https://shodhganga.inflibnet.ac.in/bitstream/10603/209003/8/08_chapter%202.pdf
• https://www.lawctopus.com/academike/concept-fair-trial/
• https://timesofindia.indiatimes.com/blogs/lawtics/know-your-rights-criminal-trials-in-india-part-1/

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