This article is written by Shivangi Tiwari, a second-year student pursuing B.A. LL.B. from Hidayatullah National Law University, Raipur. This is an exhaustive article dealing with Courts and Parties in CrPC.
The criminal justice system is the arrangement of federal, state, public and local agencies that deals with the menace created by crime in the society. The function of these agencies is to process the suspects, defendants, and convicts. Each agency is independent of the other agencies. In a country with a federal system of the Government, the structure of these agencies is usually determined by the three organs of the Government which are federal, executive and judiciary. The five important components of any judicial system are as follows:
- Law enforcement;
- Defense attorneys;
- Courts; and
Courts in the country are primary institutions of the justice system in a country. The persons accused of committing a crime are brought before the Court in order to determine their criminal responsibilities and liabilities. The main task of the Courts is to determine the truth and uphold the principles of justice in society. Prosecutors, judges and defence attorneys are the main actors in the Courts.
Parties to a suit in the legal sense is a collection of people who represent a particular claim which they make in the Court of law. In criminal cases, the parties to the suit occupy an important position as they are entitled by the statutes to claim damages or support the indictment of the Court and the party who bring any claim in a Court of law in order to obtain relief by the Court in criminal case is known as public prosecutor or aggrieved party and the party against whom the claim has been brought in the Court and who has to defend himself in the Court is known as accused person.
The main objective of Courts is to determine the duty and liability of the accused against whom the investing agencies like state police and central investing agencies. The Courts are an important component of the judicial system. In India, there is a four-tier Court structure. At the bottom of the hierarchy is the Court of Judicial magistrate. It has the statutory competency to try the offences which are punishable for a term less than or equal to three years. The Court of Chief Judicial Magistrate comes above it and it has the competence to try the cases for which the punishment is of a period less than seven years. Above both of the afore-mentioned Courts is the Court of District and Sessions Judge, it can try the offences involving punishment of the term more than seven years. The High Courts are the highest judicial authority in any state. High Courts have appellate jurisdiction by virtue of which the High Court can entertain the appeals against the judgement of conviction and acquittal passed by the Courts subordinate to it can be reversed. The High Courts are also the Courts of record. Therefore, all the decisions passed by the High Courts are binding on the Courts subordinate to it.
The topmost position in the hierarchy of the Courts is obtained by the Supreme Court. The Supreme Court also has the appellate jurisdiction over the matters related criminal, civil, Constitutional and others over which the decision has been passed by the High Courts. The Supreme Court is the Highest Court of appeal as all the judgements passed by it are binding on the other Courts in the country.
Courts to be independent and impartial
The framers of the Constitution strived to ensure that the judicial wing of the country remains independent and impartial and to achieve the same various provisions were incorporated in the Constitution. The Constitution of India guarantees the independence of the judiciary by different provisions relating to the same. For example,
- Article 124(2) and Article 127 of the Constitution mandates that the judges shall be appointed by the President in consultation with the judicial authorities. Similarly, the removal of judges is also a difficult process as a judge can be impeached by the President only after the address for the removal of the judge is made by both the houses of Parliament on the grounds of proved misbehaviour and incapacity.
- According to Article 125 and Article 221, the privileges, rights and allowances of the judges can not be reduced or altered during their tenure to their disadvantage. The Supreme Court and High Courts can appoint the staff and frame the rules applicable to the Courts.
- Article 146 and Article 229 ensures the Courts in the country remains impartial by providing that the Supreme Court judges who have retired from the term of their office are debarred from pleading in any Court of law or in front of any judicial authority in the territory of India.
- Article 121 and Article 221 guarantees the judiciary its independence by making the conduct of the judges in the discharge of their duties to be undebatable in any of the houses of the Parliament.
There are certain provisions in the Constitution which inhibit the independence of the judiciary, for example, the Constitution under Article 124(2) provides that the appointment of the judges other than the Chief Justice of India shall be by the President of India in consultation with the Chief Justice of India and such other judges as he may deem fit. However, in reality, the President holds only the nominal powers in the appointment of the other judges as he acts on the aid and advice of the Council of Ministers. So, there is always the possibility that the ministers may bring in politics in the appointment procedure.
Article 222 of the Indian Constitution provides for the transfer of judges of High Courts from one High Court to another. But, there is a possibility of abuse of power by the Government. The first instance of abuse of power was witnessed for the first time during the times of emergency, where the Government prepared a list of 56 judges who shall be transferred from one High Court without their prior consent. Aggrieved by such transfer of judges which was uncalled for one of the judges from the High Court of Gujarat Justice S.H. Seth filed PIL in the Supreme Court of India against the Union of India and the then Chief Justice of India Justice A.N. Ray. The Supreme Court in this case by majority held that the prior permission of the judges for their transfer was not mandatory. This case is popularly known as the Sankal Chand’s case.
Separation of power
The Doctrine of separation of power in its modern sense was first formulated by the French writer Montesquieu. The doctrine aims at the division and separate allocation of powers between the three wings of the Government, which are the legislature, executive and judiciary. In India, the separation of power is the basic structure of the Constitution. However, in India, the doctrine is not followed in its strict sense as it is followed in the United States because, in India, the separation of function and not that of powers is followed. The Constitution-makers diligently separated the functions of the legislature, executive and judiciary. The various Articles of the Constitution emphasizing on the separation of powers are as follows:
- Article 50 under Part 4 of DPSP of the Constitution provides that the state should strive to separate the judiciary from the executive;
- Article 121 and Article 221 prohibits the legislature from discussing the conduct of the judges in any of the house except in the matter of impeachment;
- Article 122 and Article 212 prohibits the Courts from inquiring into the validity of the proceeding in the legislature;
- Article 361 grants the President and governors of the state immunity from judicial proceedings.
The reasons for the non-incorporation of Articles relating to the separation of powers in the Constitution are as follows:
- The conception of the thought of insertion of provisions relating to the separation of power was at the time when the Constitution of India was all ready to see the light of the day. Therefore, the framers of the Constitution thought that adding the provisions of separation of powers at that time was very late as it would result in the change of the basic structure of the Constitution;
- The framers of the Constitution adopted the British Parliamentary system of Government and therefore they felt it better to abstain from adopting the complete separation of power as it is present in the American Constitution.
Open Court is a routine function of the Court. Generally, the public is allowed to watch the proceedings which take place in the Court. The advantage of the open court is that it brings transparency in the administration of justice. As the people at large are able to witness the process of administration of justice and that invokes responsibility and caution in the minds of those who are under the obligation to administer justice to the aggrieved party.
The in-camera proceedings concept is an exception to open court concept as the public is exempted from watching the proceedings of the Court in the cases where it is not practical to allow people other than the parties to accommodate the courtroom. Even the advocates of the parties are not allowed to remain present in the court during the proceedings. The matrimonial disputes and the rape cases are the examples of such proceedings as in these cases it is desirable to maintain the secrecy with respect to the identity of the victim.
Transfer of case to secure impartial trial
Section 526 of the Criminal Procedure Code confers the power on the High Courts to transfer cases from any Court subordinate to it or to any other subordinate Court on any of the grounds mentioned therein. The power to transfer the cases is with respect to all the classes of cases. A District Magistrate, under Section 528(2) of the Criminal Procedure Code also has a similar power to transfer any case from any subordinate Magistrate and try the case himself or refer it for the trial to any other subordinate Magistrate for trial. Section 528(5) of the Criminal Procedure Code mandates that when a Magistrate making such transfer of case has to mention in writing the reason for such transfer.
The provision for transfer of cases from one Court to another ensures the protection of the two basic principles of natural justice which are Audi Alteram partem and Nemo judex in causa sua as the principle of transfer of cases is generally observed in the cases where the accused expresses following apprehensions:
- The judge or the Magistrate has the personal interest involved in the case;
- The judge or the Magistrate in any ways is connected to the party either through blood or fiduciary relationship and it is highly likely that he would act impartially;
- The Judge or Magistrate has in the case expressed his preconceived notion on the enquiry of the trial and enquiry of the trial;
- The conduct and behaviour of the judge are such that he can not be expected to hear the case and pass judgement in a fair and disinterested manner.
Therefore, the provisions relating to the transfer of cases to ensure that the trial is conducted in a fair and impartial manner.
Courts to be competent
The competence of a Court is the legal ability of the Court to exercise jurisdiction over cases involving the persons or things(property) on which it possesses the legal competency. Courts competency is referred to as its jurisdiction. Jurisdiction can also be defined as the authority which the Court has to hear and determine the case. The authority of the Court or its jurisdiction is determined Constitutionally. Examples of judicial jurisdiction are as follows:
- Appellate jurisdiction is the one in which the superior court has the power to correct and amend the legal errors committed by the subordinate Courts while passing the judgements in the cases where a miscarriage of justice has taken place.
- Concurrent Jurisdiction is the one which confers jurisdiction to two or more Courts over the same matter and in the same area and so the party bringing the suit is at liberty to bring the suit in either of the Courts which is more convenient to approach.
- Original Jurisdiction is the one in which the Court holds the authority to hear the case in the first instance.
Hierarchy of Courts and their powers
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Article 124(1) of the Indian Constitution provides for the establishment of an integrated judicial system with the Supreme Court at its apex. Initially, the Supreme Court of India comprised of Chief Justice and seven other judges. Presently there are in total thirty-one judges consisting of a Chief Justice and thirty other judges. Article 127(1) of the Constitution contains the provisions relating to the appointment of ad hoc judges who shall be the judges of the High Courts by the Chief Justice of India in the Supreme Court for a particular matter after due consultation with the Chief Justice of the concerned High Court. Ad hoc judges are the judges who are temporarily appointed by the Court only for a particular matter. The ad hoc judges enjoy the same power and privileges which are guaranteed to a Supreme Court judge till the time they are appointed for the particular matter.
The Chief Justice of India is appointed by the President in consultation with such judges of Supreme Court and the High Court as he deems fit. The other judges of the Supreme Court are appointed by the President in consultation with the Chief Justice of India and the other judges of Supreme Court. The Supreme Court is called the Court of records because the judgments and decisions passed by it has evidentiary value by being binding upon the subordinate Courts.
The Constitution of India confers following powers to the Supreme Court
The Articles under the Indian Constitution which confer certain powers on the Supreme Court of India are mentioned below:
- Article 129 empowers the Supreme Court of India to punish anyone for its contempt;
- Article 32 and Article 136 of the Constitution of India confers the power of Judicial Review to the Supreme Court of India;
- According to Article 127, the Chief Justice, in consultation with the Chief Justice of the concerned High Court can appoint any judge from the High Court of any state as ad hoc judge;
- As per Article 134, the Supreme Court of India can withdraw any case from any of the High Courts in the Indian territory;
- Article 137 of the Constitution confers the revisory jurisdiction upon the Supreme Court which empowers it to review the judgements of the subordinate Courts.
The establishment of the High Courts is provided under Article 214 of the Constitution of India, which provides that there shall be High Court in every state. The High Court in every state consists of Chief Justice and other judges. The Chief Justice of the High Courts is appointed by the President of India in consultation with the Chief Justice of India. While the other judges of the High Court are appointed by the President in consultation with the governor of the state, Chief Justice of India and the Chief Justice of the concerned High Court. The Constitution of India contains the following provisions in relation to the High Courts in the state:
- Article 226 of the Constitution of India confers the writ jurisdiction upon the High Courts of the state and the writ jurisdiction with the High Courts is wider than that of the Supreme Court of India;
- All the cases related to marriage, divorce or election can be directly brought before the High Courts;
- The High Courts have the power to revisory jurisdiction with respect to the judgement passed by the Courts subordinate to it;
- The High Courts have the power to punish anyone for its contempt;
- The Constitution of India confers original, appellate, supervisory and administrative jurisdiction;
- The High Court is the Court of records for the Courts subordinate to it as its decisions are binding upon the subordinate Courts and no subordinate Court can challenge the decision of the High Courts.
District Court and additional District Court
In every state, the state Government has established District Courts keeping in view the increasing number of cases which are present in the society and the population of the district. The district Courts ensure the administration of justice at the district level and are presided over by the district judge. The High Court of the state in which the district court is situated has the administrative and judicial control over the working of the District Court. The judges of the District Court are appointed by the President in consultation with the governor and the Chief Justice of the High Court of that state. The eligibility for the consideration of a person to become a judge of the district court is to be an advocate with at least seven years of practice. The different powers which the district Court has are as follows:
- The District Courts have the authority to hear and decide criminal and civil cases;
- The district judge has the authority to pass the judgements involving capital punishment to an accused who has been found guilty by the Court.
Court of civil judge (Senior Division)
The mean position in the hierarchy of the Court is occupied by the Court of civil judges or the senior division. Civil judge possesses the authority to try civil cases of any value without any pecuniary limit. There are many other additional Courts of Additional Civil Judge. The additional Courts of Additional Civil Judge possess the same jurisdiction as is possessed by the senior division or the Court of civil judge.
Court of civil judge(Junior Division)
The lowest place in the hierarchy of the Courts is occupied by the Court of civil judge of the junior division. These Courts have the authority to impose any sentence in accordance with the law in force. These Courts even have the authority to impose capital punishment. The civil judge in the junior division has the authority to extend its jurisdiction in all original suits and proceedings.
Courts of small causes for metropolitan cities
The Court of small causes for metropolitan cities was established under the Presidency Small Cause Courts Act, 1882. The Presidency Small Cause Courts Act, 1882 empowers the State Government to establish a Court of small causes anywhere in the state. These Courts have the authority to decide civil cases with a small value.
Munsiff Court or Court of sub judge III class
In any district, the lowest Court of appeal for appeal is the Munsiff Court. Its authority to try cases is limited to the certain pecuniary limit. Munsiff Magistrate or Judicial Collector preside these Courts. The Munsiff Magistrate or Judicial Collector also has the duty to keep a charge on all the tax collectors of the state. The territorial jurisdiction of these Courts is determined by the respective State Government.
Criminal wrong is considered to be wrong against society and not just against an individual. Criminal Courts deal with cases involving crime. The Supreme Court, through its appellate jurisdiction, has the authority to withdraw the cases involving the criminal matters before the High Courts of the state and transfer it to themselves. Section 6 of the Code of Criminal Procedure, 1973 provides the hierarchy of the criminal Courts in India. The hierarchy of the criminal Courts according to the Code are as follows:
- Sessions Court;
- Judicial magistrate of first-class;
- Judicial Magistrate of second class;
- Executive magistrate.
Section 9 of the Code of Criminal Procedure, 1973 empowers the Government of each state to establish a Session Court in every Sessions division. The Sessions Judge is the presiding officer of the Sessions Court and he is appointed by the High Court of the state where the Sessions Court is located. A Sessions Court mainly deals with cases involving theft, murder, dacoity, etc. Sessions Court can pass a judgement providing the death sentence to any accused found guilty by the Court. The Court can also impose fines on any person for a criminal offence committed by him. The Sessions Court is the lowest court of the appeal of the criminal cases in the hierarchy of criminal courts.
Subordinate Judge Class I
Section 11 of the Code of Criminal Procedure empowers the State Government to establish any number of Courts Judicial Magistrate of first-class in the district after consultation with the High Court of the respective state.
Section 15 of the Code of Criminal Procedure states that the Chief Judicial Magistrate is subordinate to the Chief Judicial Magistrate and is therefore under the control of the Sessions judge. According to Section 29 of the Code of Criminal Procedure, judicial magistrate of the first class can impose a fine of value not more than ten thousand rupees and can pass a sentence of imprisonment of not more than three years.
Subordinate Judge Class II
Section 11 of the Code of Criminal Procedure empowers the State Government to establish any number of Courts of Judicial Magistrate of second-class in the district after consultation with the High Court of the respective state.
A Judicial Magistrate of second-class, under Section 29(3) of the Code of Criminal Procedure can impose a fine of not more than five thousand rupees or can pass a sentence of imprisonment of not more than one year.
Public prosecutors are appointed in almost all the common law country and are entrusted with the duty to uphold the principle of natural justice of Audi alteram partem according to which no party should be condemned unheard. The prosecutors act as the agents of the attorney general and represent the interest of the general public in criminal cases.
Section 2(u) of the Code of criminal procedure defines the meaning of the term prosecutor. According to the Section, a public prosecutor is a person who is appointed under Section 24 of the and the term also includes within its ambit the people who act under the control and direction of the public prosecutor.
In India, the public prosecutors being an officer of the Court act under the directions of the Court and assist the Government in the criminal matters as they are considered to be wrong against the state and not against any individual. The sole person of the public prosecutor is not to secure the conviction of the person by hook or crook.
The rationale behind the incorporation of the provision relating to the appointment of a public prosecutor is to secure justice to the affected party and to punish a person who has committed a crime because the crime committed by him is not against any individual but against the entire society. The public prosecutor has to abide by the following basic principles enumerated in the Constitution:
- An accused person should be presumed to be innocent until and unless he is declared guilty beyond a reasonable doubt;
- Article 21 provides the Right to life and personal liberty which can not be taken away from any person except in accordance with the procedure established by law;
- Article 14 guarantees to individual equality before the law and equal protection of the law;
- Article 20(1) guarantees protection against ex post facto law;
- Article 20(2) guarantees protection against double jeopardy;
- Article 20(3) guarantees protection against self-incrimination.
Appearance by Prosecutors
Section 301 of the Code of Criminal Procedure contains provisions about the appearance of the public prosecutor. According to the Section, the public prosecutor can appear and plead without any written submission before any Court in which inquiry, trial or appeal of any case is being heard by the competent authority. If in any suit a private person instructs a pleader to prosecute any person in any case. Then the prosecutor has to conduct the prosecution and the pleader is bound to act in accordance with the directions of the public prosecutor.
Others not to conduct prosecution without permission
The question of whether a complainant or any other person can participate in the conduct of the trial, in addition to the Public Prosecutor, and assist the Court in a case of magistrate trial has been answered by Section 302 of Code Criminal Procedure of the Hon’ble Supreme Court of India by its two judgements in M/s. J.K. International vs. State, Govt of NCT of Delhi and Ors. and Dhariwal Industries Ltd. vs. Kishore Wadhwani and Ors.
According to Section 302 of the Code Criminal Procedure provides that any person including the complainant may with the permission of the magistrate can take part in the proceedings. However, the police inspector who has taken part in the investigation of the offence cannot be permitted to take part in the prosecution. The person permitted by the prosecutor to take part in the prosecution can do so personally or through any pleader.
In M/s. J.K. International vs. State, Govt of NCT of Delhi and Ors., the Court held that the scope of allowance of the private parties to attend the proceeding of the Court is greater than the provisions contained in Section 302 of Code Criminal Procedure and if any party requesting to the Court, the allowance to take part in the proceedings has to satisfy the Court that such allowance would be in favour of administration of justice.
The judgment of the Court in Dhariwal Industries Ltd. vs. Kishore Wadhwani and Ors. makes it clear that under Section 302 of Code Criminal Procedure, the complainant can be allowed to take part in the proceedings at the time of initial framing of the charges.
The Accused Person
An accused is a party in a criminal proceeding and is the person against whom criminal proceedings have been instituted. The Code of Criminal Procedure refers to the accused by different names based on the ongoing stage of the trial. The different names by which an accused is referred to in criminal proceedings are as follows:
- Suspect: The word ‘suspect’ is used to refer to a person whose acts have been apprehended to be against the provisions of the Code. However, no criminal proceedings are initiated against the person whose acts are apprehended.
- Accused: The word ‘accused’ is used to denote a person against whom the criminal proceedings are initiated.
- Defendant: When the Court orders the initiation of the main trial the accused person is referred to as the defendant.
- Convict: When the Court passes a final condemning order or judgement against the accused then the accused is referred to as convict signifying his guilt to be proved in the trial which has been instituted against him.
Obligations upon the accused
An accused is bound by the following obligations:
- To make an appearance in a Court of law when called by the Court of law;
- To help in the process of investigation by allowing the investing agencies personal search;
- To allow the investigating agencies to make a house search or search the personal premises;
- To submit the items which are important to carry on the proceedings;
- To allow the doctors appointed by the state on orders of the Court to carry on the mental state;
- To allow the biological test of blood or any other biological material which can act as a catalyser in the investigation.
The accused person is also given certain rights and privileges which are:
- The Right to be a part of the criminal prosecution in a lawful manner which is conducted in accordance with the provisions mentioned under the Code of Criminal Procedure;
- Right to be informed of all the legal procedures and defences which are available in his favour;
- Right to choose a legal practitioner of his choice;
- Right to file an appeal in the Higher Court and exhausts the legal remedies available for him;
- Right to propose evidence which may help him in the case.
Accused of unsound mind
Section 84 of Indian Penal Code and Section 328 to Section 338 of the Code of Criminal Procedure under Chapter 35 of the Code contains provisions regarding the plea of insanity and persons with unsound mind respectively. The commission of any crime requires the presence of two elements by the person who is accused of commission of the offence and the two elements are actus reus and mens rea. The general perception is that a person of unsound mind lacks the mens rea essential for the commission of the crime and therefore can not be held liable for the commission of any crime. The provisions exempting the people of unsound mind from liability is a humane approach to deal with the people with unsound mind who accused who are accused of commission of an offence and so in order to preserve the interest of such people who do not have the capacity to give effect to any crime due to lack of mental capacity the provision.
The general provision guiding the magistrate to proceed with any case involving an unsound mind in Section 328 of the Code of Criminal Procedure, 1973. The provisions relating to the cases involving an accused of unsound mind and the guidelines for the Magistrate to deal with such cases are as follows:
- When the Magistrate while carrying on the inquiry in the case has a general reason to believe that the person against whom the inquiry is conducted is of unsound mind and the accused person because of the same reason is not in a position to defend himself, then he shall confirm the same by ordering a medical examination to be conducted to check the mental state of the accused;
- Once a medical practitioner examines and declare the person to be of unsound mind then the accused person should be examined by a psychiatrist or a psychologist to check whether the accused is of unsound mind or he is mentally retarded;
- While the above-mentioned inquiry is going on, the magistrate may deal with the accused in accordance with the provision of Section 330(m) of the Code of Criminal Procedure, 1973;
- If after the inquiry it turns out that the accused is of unsound mind then it is the duty of the Magistrate to ascertain whether the accused can defend the case;
- If the accused can not defend the case, then the Magistrate has to hear the prosecution and also examine the records and hear the advocate representing the accused. If the Magistrate finds out that no prima facie case could be made out against the accused he shall discharge the accused person;
- If the Magistrate finds out that there is a prima facie case, then he shall postpone the proceedings till such a time as he deems fit to be sufficient to cure the unsoundness or insanity of mind of the accused which shall be determined in accordance with the provisions of the Code;
- If after the inquiry the medical practitioners come up with the finding that the accused is mentally retarded. Then the Magistrate shall order the closure of the case and the discharge of the accused who is mentally retarded. In such a case the magistrate shall deal with the accused in accordance with the provisions contained under Section 330 of the Code of Criminal Procedure.
Resumption of enquiry or trial
Section 331 of the Code of Criminal Procedure provides that when the magistrate discovers that the person who was declared to be of unsound mind has recovered from his unsoundness. Then the trial which was suspended due to the reason of his unsoundness shall be resumed. Section 332 of Code of Criminal Procedure that if the Court is satisfied that the person because of whose unsoundness of mind the proceedings were suspended and were resumed under Section 331. Then according to Section 333 of the Code after the resumption of the proceeding if the Court finds out that the person appears to be of sound mind and there is a sufficient reason to believe that the act done by the accused could not have been done by a person of unsound mind. Then the Court shall proceed with the case itself or transfer the same to the Sessions judge if the laws in force require so.
The Court in Ambujam v. state of Kerala held that the provisions exempting the liability of the accused who is of unsound mind are a humane step to protect the interest of the people of unsound mind who lack the mental capacity to commit a crime.
More than one accused at one trial
The concept of joint liability is recognized under both civil and criminal law. In criminal cases, the concept of joint liability is given under Section 34 of the Indian Penal Code. The Section provides that if two or more people in furtherance of common intention to commit an act which constitutes a crime then, each of them will be punished as if the act is done by each of the persons alone. The key elements of Section 34 are as follows:
- Several persons commit a crime;
- The crime is committed in furtherance of a common intention;
- Each person should have participated in the commission of the crime.
Section 120(A) of the Indian Penal Code also contains the provisions regarding joint liability. The Section provides that where two or more people agree to commit an illegal act or an act which otherwise is legal but if done illegally becomes illegal. Such an agreement shall be designated as a criminal conspiracy. However, in order to declare an act as a criminal conspiracy, it is essential that there should be some act committed in furtherance of the agreement.
In Chottu v. State of Maharashtra, there were four defendants who were accused of assaulting the deceased. However, the Court released the fourth accused as not being guilty because the witnesses in the case furnished that the fourth person was only standing with knife in the place where the crime took place and the Court decided in favour of the fourth person because he was not acting in furtherance of the common intention to commit crime.
Right to be defended by a lawyer
Article 22(1) of the Constitution makes the Right to consult and be defended by a legal practitioner of his own choice as a fundamental Right. The rationale behind such right is that the general public is not usually aware of rights and privileges which are guaranteed to him by the law of the land and therefore it becomes imperative to provide him with such legal aid which would help him to prove his innocence in the Court of law.
The Court in Hussainara Khatoon v. Home Secretary, State of Bihar, the right Constitutional remedy is a fundamental right guaranteed to every citizen who is an accused and it cannot be denied to him even if the accused fails to apply for legal aid.
Section 303 of the Code of Criminal Procedure also contains the provisions related to the right to legal aid with an accused. The Section provides that any person who is accused of committing a crime or any person against whom criminal proceedings are instituted in from of the criminal Court shall have the right to engage any legal practitioner of his choice to plead before the Court in his favour.
In Moti bai v. State, the Court held that Right to be defended by the lawyer of ones choice begins from the moment of the arrest of the accused that is from the pre-trial stage.
Legal Aid at State expense
Section 304(1) of the Code of Criminal Procedure contains legal provisions with respect to the right of legal aid to an accused at the expenses of the state in certain cases. The Section provides that where an accused who is appearing before the Court of Session satisfies the Court that because of his indigence or any other reason he is unable to appoint any legal practitioner of his choice. Then the Court may appoint any pleader for such an accused person at the expenses of the state.
Section 304(2) of the Code of Criminal Procedure provides that the High Courts with the approval of the State Government are competent to make rules relating to the mode of selection of the pleader and the fees and allowances to be provided to the pleader who is appointed for the fulfilment of Section 304(1) of the Code of Criminal Procedure.
It is evident from the Article that judiciary in India is the most important organ for maintaining public peace and order by providing justice to each and every person who knocks on the doors of the Court. The Constitution has always played a crucial role in strengthening the judicial institutions of the country. The establishment of the four-tier judicial system was a well-planned effort by the framers of the Constitution to maintain the administration of justice in a diverse country like India with a huge population by providing the aggrieved party opportunities to resolve their grievances whenever they feel that they have not been meted out with justice.
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