This article is written by M.S.Sri Sai Kamalini, a fourth-year student currently pursuing B.A.LLB (Hons) in School of law, SASTRA. This is an exhaustive article which deals with the various provisions related to functionaries under the Code of Criminal Procedure, 1973.
There are various functionaries under the Code of Criminal Procedure,1973 who help to regulate the various provisions of the code. The functionaries are essential for the proper functioning of the code. The various functionaries mentioned under the code are the Police, Public Prosecutors, Assistant Public Prosecutors, Additional Prosecutors, Prison authorities and the Defence counsel. The powers and functions of the functionaries are clearly mentioned in the code.
The Police Officer is an important authority who is the backbone of criminal law in India. They are responsible for maintaining the law and order of the country. They are also responsible for the enforcement of various laws and orders. The police officers have various powers and functions that help to prevent various crimes happening in our country. There is no definition of the term “Police” in the Code of Criminal Procedure but the term is defined in the Police Act of 1861. According to the Police Act, 1861 all the persons who are enrolled under the Act are known as the Police.
The Police Act, 1861
The Police Act, 1861 is a comprehensive code that deals with the appointment, dismissal, and functions of the police officers. The main aim of the Police Act is to reorganize the police forces whenever necessary and to make the police forces more effective. The Police Act contains 47 sections which deal with the various aspects of the police force. The Police Act of 1861 is a legislation that was brought by the British officers after the First war of independence. There are various states like Kerala, Maharashtra, Gujarat, and Delhi that have formulated a separate Police Act for their states but they are very similar to the Police Act, 1861.
Organisation of the police
Section 2 of the Police Act, 1861 deals with the constitution of the Police force. The State Government is responsible for establishing a Police force in that State. According to this Section, the entire Police establishment under the State Government is deemed to be a single Police force. The State Government can decide the number of officers to be appointed and it varies from time to time. Section 3 provides that the superintendence of the Police and that has to be exercised by the State Government. The Inspector-General of Police is responsible for the administration of the Police department. The hierarchy to be followed while exercising power is Deputy Inspectors-General, Assistant Inspectors- General, Superintendents, etc. According to Section 5, the State Government may impose any restrictions on the powers of the Inspector-General of the Police.
Section 7 of the Police Act deals with the appointment and dismissal of the inferior officers. This Section provides powers to the Inspector-General, Deputy Inspectors-General, Assistant Inspector-General and District Superintendents of Police to dismiss, suspend or reduce any police officer of the subordinate ranks. This action is taken when the officers are negligent in discharging their duties. There is a certificate provided to the Police Officers after their appointment according to Section 8 which allows him to exercise powers provided by the Act. Section 17 of the Act deals with the appointment of Special police officers. Special Police Officers are appointed in a situation when there is a riot or disturbance of peace in any form and the Police Officer normally appointed cannot handle the situation. The Special Police Officers are appointed by the Inspector General in charge after providing a proper application to the Magistrate. The powers of Special Police Officers are the same as the normal Police Officers. According to Section 20, the Police Officers can exercise only the authority provided in the Act and cannot exercise any other power exceeding this Act.
Functions of the police
Section 23 of the Police Act, 1861 deals with the functions of the Police Officer. According to this Section, it is the duty of every Police Officer,
- To collect and communicate intelligence.
- To prevent the commission of offences and public nuisance.
- To figure out and bring offenders.
- To promptly obey and execute all orders executed to him by any competent authority.
- To arrest all persons if any crime is committed and whom he is legally authorized to arrest.
- To enter and inspect any drinking or gambling house or other places without a warrant to solve loose or disorderly characters.
Section 25 provides that it is the duty of every Police Officer to take charge of unclaimed property. The Police Officer has to pay a penalty for neglecting his duty. The Magistrate might even punish Police Officers with imprisonment if it is necessary.
Other Police Acts
The Police Act is the main legislation which regulates the Police forces in India. The various provisions in Indian Penal Code, 1860 and the Criminal Procedure Code are also responsible for regulating various functions of the Police. There are also certain provision like Section 26 and Section 27 in the Indian Evidence Act, 1872 which provides power to the Police to record confessional statements. There are also different regulations and manuals, for example, the manuals in Tamil Nadu which regulates the various functions and duties of Police.
Importance of Police under the Code
The Police are provided with lots of duties and powers under the Code of Criminal Procedure, 1973. Section 151 of the Code provides power to arrest a person without any warrant and orders from Magistrate to prevent the commission of any cognizable offences. The person arrested cannot be detained in custody for a period not exceeding more than 24 hours from his arrest. This period can also be extended if it is required by the various provisions of this Act or other laws in force. According to Section 154, the Police Officers have the power to record every information provided orally if it relates to the commission of a cognizable offence. This Section also says that certain complaints can be recorded only by the women Police Officers if a complaint is given under the various provisions of the Indian Penal Code which relates to the offences against women, Section 156 of the Code provides power to the Magistrate to investigate any cognizable offence within their jurisdiction without the order of any Magistrate.
Section 24 of the Code of Criminal Procedure deals with the Public Prosecutor. The main function of the office of Public Prosecutor is to administer justice and to secure the public purpose entrusted with him. The Public Prosecutor is an important officer of the State Government and is appointed according to the provisions of this code. The Public Prosecutor is an independent statutory authority and is not a part of any investigating agency.
It is mandatory to appoint a Public Prosecutor in all the cases when the prosecution is against the State. The Court cannot provide any reasons like shortage of funds to appoint a Public Prosecutor. The Advocate-General cannot become a Public Prosecutor unless he is appointed under Section 24. The relationship between the Public Prosecutor and the Government is that of a counsel and a client. The Public Prosecutor shall never be partial to either the accused or prosecution.
There are various classes of Public Prosecutor like,
- Public Prosecutors appointed by the State Government and the Central Government;
- Additional Public Prosecutors appointed by the State Government;
- Special Public Prosecutors appointed by the Central Government;
- Special Public Prosecutors appointed by the State Government.
Public Prosecutors and additional public prosecutors for High Court
Section 24(1) of the Code of Criminal Procedure provides powers to the Central Government or State Government to appoint a Public Prosecutor for every High Court. They can also appoint one or more Additional Public Prosecutors. The appropriate Government can appoint the Public Prosecutors after consultation with the High Court. The eligibility of the person to be appointed as a Public Prosecutor is that he should be practising as an Advocate for not less than seven years.
Public Prosecutors and Additional Public Prosecutors for districts
Section 24 provides various rules regarding the appointment of Public Prosecutors and Additional Public Prosecutors for districts. The Central Government can appoint one or more Public Prosecutors for conducting cases in any district or local area. The State Government can also appoint one or more Additional Public Prosecutors for the district. The Public Prosecutor or Additional Public Prosecutor appointed for a district can also be appointed for another district in certain cases. The District Magistrate will prepare a panel of names of persons who are eligible to be appointed as a Public Prosecutor or Additional Public Prosecutor. This list is prepared after consulting the Sessions Judge. The State Government cannot appoint any other person as the Public Prosecutor or Additional Public Prosecutor other than the persons provided in the panel of names.
Assistant public prosecutors
Section 25 of the Code of Criminal Procedure deals with the appointment of Assistant Public Prosecutors. The State Government has to appoint one or more Assistant Public Prosecutors for conducting prosecutions in different districts. The Assistant Public Prosecutors have no right to practise as advocates or defend the accused in criminal cases. Their only work is to conduct prosecutions on behalf of the State. A police officer who is not below the rank of Inspector and who has not taken part in the investigation of offence can also be appointed as Assistant Public Prosecutor when there is no availability. The Assistant Public Prosecutors are full-time Government servants.
In the case of Kannappan v. Abbas, the Madras High Court held that the permission granted by a Magistrate permitting the accused to appear for the accused was without jurisdiction. The Public Prosecutor is not competent to act as a defence counsel even in a private criminal complaint against police officers.
Role of the Prosecutors
The Public Prosecutors are appointed to conduct any prosecution, appeal or any other proceedings on behalf of the Central Government or State Government. The Public Prosecutor is bound to satisfy himself that there is a justification to seek an order of remand to judicial custody and to assist the Court, for example in a case, the Assistant Public Prosecutor conducted a case under the Prevention of Food Adulteration Act, the trial was impaired as the Assistant Public Prosecutor has no authority to conduct those cases.
The Courts are another important functionary under the Code of Criminal Procedure. There are various classes of Criminal Court like,
- Courts of Session;
- Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrates;
- Judicial Magistrates of the second class; and
- Executive Magistrates.
The Code of Criminal Procedure has clearly differentiated the various functions of the court and has dedicated various powers to various classes of Courts in Chapter three of the Code of Criminal Procedure. Section 26 of this code mentions that the High Court, the Court of Session or any other Court as specified in the First Schedule of the Code of Criminal Procedure is eligible to try offences provided under the Indian Penal Code. Section 28, Section 29 and Section 30 deals with the various kinds of sentences that can be passed by different Courts which helps the procedure of trial and also the powers between the Courts get distributed properly. The Courts govern the entire process of trial and acts as a regulating authority.
The Defence Counsel
Every person arrested by the police has a right to defend himself with the help of a counsel. In the case of State of Madhya Pradesh v.Shobharam, it was provided that any law that takes away the right to defend is against the rights guaranteed in the constitution. This provision should be construed in relation to Article 22 of the Constitution which provides the right to free legal aid to the accused. The arrest leads to restriction of personal liberty and thus the right to defend himself by the counsel of his choice is a compulsory right. Section 303 of the Criminal Procedure Code provides this right to appoint a defence counsel of their choice. This provision must be construed liberally in favour of the accused along with the other provisions and orders issued by the High Courts. A defence counsel should be provided to the accused even in cases of committing capital offences where they have no right to defend themselves. The right guaranteed under this Section is indispensable as it guarantees a fair trial. When the accused is not represented by counsel, it is the duty of the court to put appropriate questions to the witnesses in cross-examinations in order to find out the truth. The court also has the duty to examine the evidence.
The Prison authorities are not directly governed by the Code of Criminal Procedure even though they are involved in the various stages of the proceedings. The Prisoners Act, 1900 is an important act which governs the various duties of prison authorities. According to Section 3 of the Prisoners Act, the officer in charge has the duty to detain persons who are convicted until the person is removed in due course of law. Section 4 of the Prisoners Act gives the officers to return the order, writ or warrant to the court after the discharge of persons who committed the crime. The State Government has powers to appoint prison authorities. The prison personnel are appointed for the management of correctional services like providing recreational services and securing the safety of inmates.
The functionaries under the Code of Criminal Procedure are very essential for the enforcement of various provisions of this Code. Each functionary has a different duty which together regulates various provisions of this code. The public should be aware of the various functions performed by these functionaries in order to approach them when there is an issue. The Public should support these functionaries in every way possible to help them perform their duties. Thus these authorities form an important part of the criminal proceedings.
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