This article is written by Tarun Dogne from SVKM’s Narsee Monjee Institute of Management Studies School of Law, Bangalore. This article deals with various important aspects of a magistrate in a criminal investigation.
Table of Contents
Introduction
The criminal justice system plays one of the important roles in maintaining law and order in society. There are mainly three elements of the criminal justice system in India that are investigation, inquiry, and trial. The procedure which is followed in the investigation, inquiry, and trial is laid down in The Criminal Procedure Code, 1973. In India, there are mainly two statutes that deal with the criminal law that is the Criminal procedure code, 1973 and Indian Penal code, 1860.
The first step of any criminal case is the investigation. An investigation is defined under Section 2(h)of the Code of Criminal procedure, 1973. An investigation is the primary function of the concern for every criminal case. It helps the judiciary to arrive at a conclusion by providing relevant information and evidence to the court. Executives are mainly responsible for the investigation and judiciary are entrusted with the responsibility of inquiry and trial.
The magistrate’s main objective is to ensure the due process of law in every stage of the investigation. It is important because the proceedings of a criminal case can be hampered, it depends on the manner in which the investigation was done. Sometimes because of the lack of evidence, investigation officers use methods in order to extract the information which is not permitted by the law. The conclusion of the court mainly depends on the evidence and information collected in the process of investigation. During the whole process, the Magistrate ensures the check and balance of the criminal justice system.
Classification of Magistrate
In India, criminal justice is administered through magistrate courts and sessions courts. Under Section 6 of the Code of Criminal Procedure of 1973, there are mainly four classes of criminal courts that are the court of session, judicial magistrate of the first-class, judicial magistrate of the second class, and executive magistrates. The court of session is established for every session division by the state government. The judge who presides every session court is appointed by the high court. When there is no additional or assistant session judge, in that case, the chief judicial magistrate may entertain any urgent application which comes before the court. The court of session has the power to give capital punishment under Section 366 of the code of criminal procedure.
Under Section 11 of CrPc, after the consultation with the high court, the state government established the courts of the judicial magistrate of the first class and second class in every district excluding a metropolitan area. Courts of a judicial magistrate of the second class are at the lowest level of the criminal courts and judicial magistrate of the first class are at the second-lowest of the criminal courts in India. The judicial magistrate is subordinate to the chief judicial magistrate and is under the general control of the session’s judge. Under Section 29 of CrPc, the court of a magistrate of the first class may give imprisonment for up to three years, or fine up to ten thousand rupees or both. The court of a magistrate of the second class may give imprisonment up to one year or fine up to five thousand rupees or both.
Under Section 12 of CrPc, the judicial magistrate of the first class shall be appointed by the high court to be the chief judicial magistrate in every district. A chief judicial magistrate may give any sentence other than life imprisonment or imprisonment for up to seven years. Every other judicial magistrate shall be subordinate to the chief judicial magistrate. In Kerala, the court of the magistrate of the first class and magistrate of the second class have been unified.
Under Section 16 of CrPc, the court of metropolitan magistrates was established by the state government and under Section 17 of this code, the court of chief metropolitan and the additional chief metropolitan magistrate was created. Any town may be declared as a metropolitan area in which the population is more than one million. The metropolitan magistrate is subordinate to the chief metropolitan magistrate and general control under the sessions judge. As per Section 29 of CrPc, the chief metropolitan magistrate has the same powers as of chief judicial magistrate and metropolitan magistrate have the same powers as of the magistrate of the first class.
Under Section 20, executive magistrates may be appointed by the state government as many people as it thinks fit and one of them shall be appointed as district magistrate and under Section 22, the executive magistrate may exercise a power which is invested to him under the code of criminal procedure. The jurisdiction of such a magistrate shall extend throughout the district. As per Section 21 of the CrPc, the executive magistrate may be appointed as the special executive magistrate by the state government in a particular area for a particular function.
The Role of Magistrate in Investigation
Stage I: Soon after the registration of FIR
Criminal justice administration is started soon after the recording of information about the offence. If given orally to the officer, it shall be converted into writing by the officer as per Section 154 of Crpc. Under Section 156 of CrPc, a police officer may investigate any cognizable cases without the order of a magistrate. If the officer in charge has any reason to suspect the commission of an offence, they may investigate. After this officer in charge shall be sent the same report to a magistrate. It was mandated under Section 157 that a copy of FIR was sent to the magistrate as soon as possible.
Delhi high court rules (vol III, chapter II, part A, rule 4) laid down that, in case of a heinous case like murder, FIR should be sent to the magistrate immediately in his court during court hours and at his residence thereafter, after this magistrate require to make a note regarding date/time and place of receipt on the report which was received by him.
Stage II: In cases where the arrest is affected by the Investigating Officer, on his production before the court and while deciding the question of the validity of arrest and need for remand
Personal liberty is a fundamental right under Article 21 of the constitution, and sometimes arrest may violate the constitutional rights of a person. A due process of arrest should be non- arbitrary, just and reasonable and every arrest should be made on justifiable reasons. Magistrate examined the reason for the arrest which was recorded by the police officer. After examining the reasons for arrest, the next step is to identify whether the grounds are available for the detention of the accused, for bail, or for discharge. Detention of a person can have serious consequences on the constitutional level as well as at the social level. It may affect personal liberty and freedom of citizens.
Under Section 167 of CrPc, the magistrate can authorize detention after examining that the arrest is made in accordance with the law and a person’s constitutional rights were given to him or not. If the arrest is not in accordance with Section 41 of the CrPc, then the magistrate can not authorize detention. In the case of Arnesh Kumar v. The State of Bihar Supreme Court held that, before authorization of detention, a magistrate will record its own satisfaction, may, in brief, it is important that the magistrate mentioned its own satisfaction on its order. It can not be based on the ipse dixit of the police. If the magistrate finds that the arrest made by the police officer is not justifiable then the magistrate can disallow police custody and release the person on bail or under the special order under Section 59 of CrPc.
The magistrate has to ensure and record the imperative need for police custody at the time of giving police remand the need to uncover the weapon of offence, the arrests of co-accused by the disclosures, and the investigation of a larger conspiracy are an important consideration. However, mere verification in the information provided by the accused does not constitute grounds for police custody. And also remand can not be taken merely to prepare a “pointing-out” memo and this must be ensured by the magistrate.
There is one more thing in which a magistrate should deal with the seriousness that is confession. Every case in which the accused has allegedly confessed in front of police. The magistrate must stop him from giving confession before the court. This will check the police officer and encourage them to find ways that are more legitimate. Also under Section 167 of CrPc, the magistrate is required to send a copy of the order for police custody to the chief judicial magistrate/chief metropolitan magistrate of the area before giving police custody.
Special precautions in case of juvenile
Juveniles should be treated with the best interests of the child and their welfare. Juvenile Justice Board deals with the accused under the age of 18 years and Juveniles can not be exposed to the ordinary criminal law process. If the accused by the physical appearance looks below 18 to the magistrate, the court shall transfer the child to an observation home and if during the inquiry conducted by police court and then accused turns out to be a Juvenile then the child will immediately transfer to the observation home the same day. Under the Delhi Juvenile justice act rules, documents required for age inquiry are mentioned.
In the case of a juvenile, sometimes officers deliberately state the age of juveniles above 18 years for the purpose of escaping the special provision of the Juvenile Justice Act. To overcome this problem Delhi high court held that, if the accused is within the age limit of 18 to 21 years, the investigation officer has to mandatorily collect proof of age and prepare an age memo and the court can also conduct an inquiry regarding age if the accused pleads.
Stage III- Magisterial interventions while deciding applications for the recording of the statement(s) u/s 164 of the Cr.P.C, test identification parades, applications seeking conduct of narco-analysis, taking of handwriting/signature specimen, etc.
One of the important parts of the investigation is the recording of the statement. Section 164 of the CrPc allows the recording of the testimony of a witness during investigation before the magistrate. Section 164 also permits the recording of statements of both witnesses and confessions by the magistrate and statement of witnesses is recorded on oath. Section 157 of the evidence act allows the statement recorded under section 164 of CrPc can be used for corroboration of the witness testimony at trial.
In the case of a test identification parade, the magistrate must ensure that the accused is produced before him in a covered face and all the identity must not be disclosed to the witness. Before the conduct of the test identification parade, the consent of the accused is necessary after consultation with his lawyer. The magistrate must also ensure that the photograph of the accused has not been shown to the witness before the test identification parade because it may influence the result of the test information parade. In cases of handwriting/signature specimen or conduct of narco-analyzing is obtained for the investigation, the magistrate should ensure the law. Representation and informed consent of the accused.
Stage IV: Monitoring of investigation.
Supreme court in the case of Sakiri Vasu v. State of U.P held that Section 156 of Crpc empowers a magistrate to check on the police while performing duties if the magistrate is not satisfied with the investigation, he can also issue a direction to reinvestigation and he also has the power to monitor the same. Court also held that under Section 156 the power to order a further investigation of the magistrate is an independent power and does not affect the powers of the investigation officer. It was held in the case of State of Bihar v. A.C. Saldana that the magistrate has the power to order re-opening of the investigation even after the police submits the final report. For the purpose of protecting the integrity of prosecution, it is important to monitor the investigation by the magistrates.
Stage V: Further investigation, post-filing of police report u/s 173 of the Cr.P.C
The result which is obtained after the investigation conducted by the police, the court is not bound to accept that conclusion. In the case of Gangadhar Janardan Mhatre v. State of Maharashtra supreme court held that cases in which police investigation concluded that there is no case against the accused, the informant is entitled to notice and an opportunity to be heard before the court at the time of consideration of the report.
Under Section 173 of CrPc, the option of ordering a further investigation by a magistrate is available but this section does not lay down the ground on which the power is exercised by the magistrate. In the case of Kashmeri Devi v. Delhi administration, the Supreme court held that further investigation can be ordered when the magistrate is of the opinion that police action is not neutral or they provide a shield to the culprits.
In Vinay Tyagi v. Irshad Ali court laid down some other considerations for further investigation. It was also held that the result obtained from the further investigation is called a “supplementary report” and can supplement the primary police report and results from the earlier investigation can not be completely neglected. The magistrate has no power to order a further investigation by a different agency from the one who investigates first. Only the high court has the power to do so and this happens in very rare and important cases.
Magistrate and Witness Protection
In criminal justice administration witnesses turning hostile and disappearing is the obstacle in delivering justice. In 2018, Parliament drafted the Witness Protection Scheme for the different types of protection. Protection of witnesses is measured on the basis of the threat level perception, in this scheme, there are three categories for this purpose. This scheme also provides protection of identity, change of identity, relocation of witnesses, and witness protection fund. Magistrate plays a key role in the investigation and encounters the witnesses in various stages of the investigation. In a case where a magistrate has reason to believe that a threat to the witness exists, a magistrate may refer the case to the competent authority for consideration.
Conclusion
In the criminal procedure code vested ample powers in the hand of the magistrate to check the arbitrary steps taken by the authority. For the purpose of protecting the constitutional rights of a person, the magistrate uses a provision in order to uphold the constitutional value and the rule of law. In order to have a fair trial, it is crucial to follow strict procedural safeguards invested in the constitution. It is very important to maintain the balance of power between police and magistrates or between the executive and judiciary. For this purpose section like 156 present in the criminal procedure code, it empowers the police officers to investigate the case without taking authorization from the magistrate and at the same time it also empowers the magistrate to check the investigation and if magistrate can not be satisfied by the conclusion of investigation then he may order further investigation. At the end of the day, the constitutional rights of citizens should be protected and everyone involved in the process should work with good intentions and uphold the value of the constitution.
References
- The Criminal Procedure Code, 1973
- http://cbseacademic.nic.in/web_material/doc/Legal_Studies/XI_U4_Legal_Studies.pdf
- https://bprd.nic.in/WriteReadData/userfiles/file/201608020459199930125Report.pdf
- http://legislative.gov.in/sites/default/files/A1969-19.pdf
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
