This article is written by Vanya Verma from Alliance University. This is an exhaustive article which deals with Investigation, Inquiry and Trial, Mode of taking and Recording Evidence, Acquittal of the person again for the same offence, Appearance by public prosecutors and Permission to conduct a prosecution.
Table of Contents
Introduction
This article covers Investigation, Inquiry and trial along with the mode of taking and recording evidence, its provisions and cases along with acquittal of the person again for the same offence, appearance by public prosecutors, permission to conduct a prosecution along with their provisions to give a detailed view to the reader.
Investigation, Inquiry and Trial
An investigation is the first step taken by the police officer. in any matter of offence and the culprit thereof. Inquiry includes everything done by a Magistrate, irrespective of whether the case has been challenged or not. A trial is a judicial proceeding that ends either with conviction or acquittal.
Chapter XXIV of The Code of Criminal Procedure, 1973 deals with the general provisions of Inquiries and trials. Inquiries and trials are just two stages out of the various stages that help in deciding the due course of a criminal nature.
Investigation
Investigation has been defined under Section 2(h) of CrPC. Investigation includes all the proceedings under the Code required for the collection of evidence. It is conducted by a Police Officer or by any person other than a magistrate, who has been authorized by the magistrate on this behalf.
Steps of Investigation
- Proceeding to the spot where the offence has been committed.
- Ascertain the facts and circumstances of the case.
- Discovery and arresting the suspected offender.
- Collecting evidence of the offence that may consist of:
- Examination of various persons (including accused) and reduction of his statement into writing, if it is deemed fit by the officer.
- The search and seizure that are considered necessary for investigation and to produce before trial.
Who has the Authority to Investigate?
The police officer or any other person who has been authorized by a Magistrate on his behalf is competent to investigate.
Commencement of Investigation
There are two ways to commence the investigation:
- The police officer in charge has the authority to investigate when the FIR is lodged.
- When the complaint has been made to the Magistrate then any person who has been authorized by the Magistrate can investigate in this regard.
Malafide Investigation
If investigating agencies conduct mala fide investigation, then it is open to correction by invoking the jurisdiction of the High Court.
Gurman Singh v. State of Rajasthan, 1968
In this case, the Investigating Officer and the Station House Officer had received information about a murder from an unknown place. It was held that before the investigation commences a Magistrate should take cognizance of the offence.
State v. Pareshwar Ghasi, 1967
In this case, it was observed by the court that etymologically, the meaning of term investigation is that which includes any process involving sifting of materials or search of any relevant data for the purpose of ascertaining facts in issue in a matter in hand.
Inquiry
An inquiry is done either by a Magistrate or it is done by the Court but not by a police official. Investigation differs from inquiry.
According to Section 2(g) of The Code of Civil Procedure, Inquiry includes every inquiry except for a trial conducted under this Code, that is done either by a Magistrate or by the Court. The inquiry relates to the proceedings that are carried out by the Magistrate before a trial is done.
Inquiry includes all the enquiries that are conducted under this code but it does not include the trials that are conducted by a Magistrate.
Section 159 of CrPC empowers the Magistrate on a receipt of a police report under Section 157 of CrPC, to hold a preliminary enquiry to ascertain whether an offence has been committed. If the offence has been committed then, whether any person should be put upon trial.
Types of Inquiry
- Judicial Inquiry
- Non-Judicial Inquiry/ Administrative Inquiry
- Preliminary Inquiry
- Local Inquiry
- Inquiry into an offence
- Inquiry related to matters other than an offence
Under Section 159 of CrPC, the Magistrate is empowered to hold a preliminary inquiry on receipt of the police report under Section 157 of CrPC, to ascertain whether an offence is committed and if an offence has been committed then whether any person has to be put upon trial.
The cases which are triable by the Session Court, the commencement of their proceedings take place before a Magistrate. The proceedings can be in the nature of an inquiry preparatory to send the accused for trial before the court of Session.
Magistrate also conducts an enquiry in the cases which are triable by himself under Section 302 of CrPC. If a complaint is filed before a Magistrate, the Magistrate examines the witnesses and the complainant on an oath to find out if there is any matter for the investigation that has to be carried out by a criminal court.
If the Magistrate distrusts the statement made by the complainant and the witnesses, the Magistrate may dismiss the complaint.
The result of the investigation or inquiry does not establish sufficient ground to proceed with the case. All these proceedings are done in the nature of the inquiry.
Difference between Investigation and Inquiry
Object: The object of investigation is to collect the evidence related to the case, whereas the object of inquiry is to determine the truth or falsity of certain facts related to the offence, in order to take a further step.
Authority: An investigation is done by a Police Officer or by any person other than a Court or a Magistrate, whereas inquiry must be done by a Magistrate or Court.
Stage: Investigation is the first stage of any case and the Magistrate further proceeds with an inquiry.
Commencement: Investigation commences after the FIR is lodged or a complaint is made before a Magistrate, whereas Inquiry commences after the complaint has been filed to a Magistrate.
Trial
The Code of Criminal Procedure does not define the term trial. A trial is a judicial proceeding that ends in either a conviction or acquittal but does not discharge anyone. It is examination and determination by a judicial tribunal over a cause which has jurisdiction over it.
The trial begins in a warrant case with the framing of the charge when the accused is called to plead thereto. In a summons case, it is not necessary to frame a formal charge, the trial starts as soon as the accused is brought before the magistrate and the particulars of the offence are stated to him. The case which is exclusively triable by a session court, there the trial begins only after committal proceedings done by the Magistrate. Appeal and revision are included in the term trial, they are a continuation of the first trial.
In a criminal trial, the function of the court is to find out whether the person who is produced before the court as accused, is guilty of the offence with which he has been charged. To hold that the accused is guilty of the offence with which he has been charged, the purpose of the court is to scan the material on record to find out whether there is any trustworthy and reliable evidence on the basis of which it is possible to find the conviction of the accused.
There are generally three types of trials:
- Trial by Court of a session.
- Trial by a magistrate (can we summon or warranty case).
- Summary trials.
Mode of taking and Recording Evidence
Section 272 to 283 of CrPC read with rules under Chapter XII of General Rules and Circular Order Volume I, explains the Mode of taking and recording Evidence in criminal cases. The following are the modes of recording evidence:
Section 273– It is mandatory to record all the evidence only in the presence of the accused when his personal attendance has been dispensed, the evidence must be recorded in the presence of a pleader.
Section 274– Magistrate shall record a memorandum of the substance of evidence in the court language and must be signed by the Magistrate.
Section 275(1)– In all the warrant cases, the evidence of each witness shall be in writing by Magistrate or under his direction if the Magistrate is unable to do so due to some physical or other incapacities, under his direction and superintendence, by the officer of the court who is appointed by the Magistrate on his behalf. The evidence under this subsection is to be recorded by audio-video electronic.
Section 275(3)– This section permits the Magistrate to record evidence in question and answer form.
Section 276– In Session Court, the recording should be done in a narrative form. The presiding officer at his discretion can take down any part of the evidence in question and answer format which has to be signed by him
Section 278– When the evidence of a witness is completed, it should be read over to the accused or his pleader. This shouldn’t be done at the end of the day when all the witnesses have been examined. The evidence if needed can be corrected by the accused.
Section 280– The presiding judge or magistrate is empowered to record the remarks.
Marking of Exhibits
Some evidence shall be submitted by the prosecution, this evidence has to be marked with the number in the order in which they are submitted. The documents that are admitted on behalf of defence shall be marked with capital letter alphabets. If in case neither party does not accept the evidence then the evidence shall be marked as Ext C-I, C-II etc.
If more than one number of documents are of similar nature, then the small letter or small number is added in order to distinguish each document in the series. After the evidence is proved and admitted it shall be marked with a Roman number. Example MO-I, MO-II etc. the bench clerk of the court shall prepare the list of articles which shall be signed by the Judge.
Cases
Javer Chand and Ors. V. Pukhraj Surana, 1961
In this case, it was held that the Court does not proceed further whenever an objection is raised in the court without passing any order on such an objection. If there is an objection on the stamp duty of a document, then objection will be decided then and there before proceeding further.
State of Madhya Pradesh v. Budhram, 1995
In this case that accused was convicted for an offence under Section 302 of IPC and was subjected to a death sentence. The conviction was set aside evidence was not recorded in his presence, later the case was remanded back for trial.
Banchhanidhi Singh v. State of Orissa, 1989
This case was reported in 1990 Criminal Law Journal. In this case, the accused was facing trial u/s 379 of IPC. During the time of examination, the lawyer who was representing the accused was not present and the personal attendance of the accused was dispensed with. The entire trial was held to be vitiated by the High Court, as the examination was conducted in gross violation of the mandatory provision of Section 273 of CrPC.
Acquittal of the person again for the same offence
The French terms Autrefois Acquit and Autrefois Convict, meaning “previously acquitted” and “previously convicted” respectively. A plea of autrefois acquit means that a person cannot be tried for an offence for the reason that he has been acquitted previously in the same offence and such a plea combined or taken with a plea of not guilty.
Whereas, a plea of autrefois convict means that a person cannot be tried for an offence for the reason that he has been convicted previously in the same offence and such a plea combined with a plea of not guilty.
Autrefois Acquit and Autrefois Convict are jointly termed as Doctrine of Autrefois Acquit and Autrefois Convict. This doctrine is basically a rule against double jeopardy, which means a person cannot be tried once again for the same offence if he has either been acquitted or convicted in a trial relating to the similar offence.
It is provided under Article 20(2) of The Indian Constitution that “No person shall be prosecuted and punished for the same offence more than once”. The same principle has been provided under Section 300 of The Code of Criminal Procedure, 1973 and in Section 26 of The General Clauses Act, 1897.
Section 300 of CrPC is based upon the maxim “nemo debet bis vexari” which means that a person shall not be brought into danger more than once for the same offence.
Section 300(1) of CrPC
According to Section 300(1), a person should be tried by a Court of competent jurisdiction for an offence. At the same time, a person cannot be tried for an offence for which he has been previously convicted. In Section 300(1) the second trial of the person is barred even if it is the same offence, but then if it is based on same facts for such any other offence for which charge might have been created against him under Section 221(1) or for which the accused might have been convicted under Section 221(2).
Section 221(1) provides that if there is a doubt on the facts of the case, as to what offence has been committed, the accused may be charged with all such offences or any of such offences or he may be given alternative charge of committing any one of such offences.
Section 221(2) provides that if the accused has been charged with one offence, and it appears from the evidence that he has committed a different offence, the offence for which he might have been charged under Section 221(1), he may be convicted of the offence committed by him, though he might not have been charged with that offence.
Following points are covered under Section 300:
- There must be a trial of the accused on the hearing and determination on merits. There is a ban on the subsequent trial under Section 300(1). But there should be a trial of the accused, and he must have been convicted or acquitted on a previous trial. In case, there is no trial then the subsequent trial is not barred for the same offence.
- The charge must be by a Court of competent jurisdiction, if it is not by a court of competent jurisdiction then it is void ab initio and accused if he has been acquitted, he will be tried again for the offence. If it is held by the Court that the first trial was not by a court of competent jurisdiction then it goes for the second trial.
- The person in order to take a plea under this section to bar the second trial for the same offence, he must have either been convicted or acquitted in the first trial. A person who has been discharged can be charged again if some other testimony has been discovered against him.
- If the competent court has passed a judgement either convicting or acquitting an accused, but if an order or judgement is set aside by a Court either on revision or appeal, then such person can be tried again for the same offence, as the previous trial is annulled.
- The acquittal or conviction in the previous case cannot bar the trial of the same person for a different offence.
State of Tamil Nadu v. Nalini, 1999
In this case, there was a criminal trial for offences under The Terrorist and Disruptive Activities (Prevention) (TADA),1985 Act now The Prevention of Terrorism Act, 2002 (POTA), and offences under IPC. The subsequent trial for the offences under TADA was barred as they were based on the same facts and the conviction of the accused was set aside in the subsequent trial.
Section 300(2) of CrPC
Section 300(2) of CrPC contemplates a situation in which a person is charged and tried according to Section 220(1) of CrPC. In such a case, the person who is so charged can be tried again even after the conviction or acquittal order given in the previous case, but there should be a prior consent of the State Government.
Section 220(1) of CrPC provides that if one series of acts connected together to form the same transaction if more than one offence is committed by the same person, he may be charged with and tried at a trial for each such offence.
If a person has been convicted of any offence and for another offence, a separate charge could have been made, but it was not made in the formal trial against the accused, the accused is not liable to be tried again for another offence as a matter of course because this itself might lend to abuse. Thus, due to this reason the later part if this section envisages the provision that there should be prior consent of State Government before going for a second trial. It is required by the State Government to give consent only after due consideration of facts and circumstances of the case with a view of the promotion of justice.
Section 300(3) of CrPC
Section 300(3) provides a situation where a person is convicted of any offence causing such consequences, that the act along with the consequences constitutes a different offence other than the one for which the accused had been convicted. In such situations, if the consequences did not occur or the court is not aware of such consequences at the time when the person was convicted, then afterwards the person may be tried for such an offence.
Section 300(3) only uses the words “a person convicted” and not acquitted. Therefore, the rule does not apply in situations where the person has been acquitted.
Illustration
- S is tried for causing grievous hurt to R, S is convicted for this offence. It is found later that R dies due to the grievous hurt. Here, in this case, S may be tried separately once again for culpable homicide.
- If S is acquitted of causing grievous hurt to R, S cannot be tried once again for culpable homicide under this Section, if later it is found that R dies due to the grievous hurt.
Section 300(4) of CrPC
Section 300(4) provides where a person has been convicted or has been acquitted of any offence constituted under any act, he may be charged with and tried again for the same for an offence based on the same facts notwithstanding his conviction or acquittal, if the Court in which he was previously tried was not competent to try the offence with which he has been subsequently charged.
Illustration
X is tried for robbery by a first-class Judicial Magistrate. Later on, the same facts he is charged with the offence of dacoity. In this case, since a Judicial Magistrate of first class cannot try the subsequent offence of dacoity as it is triable only by a court if it is a Sessions court, hence, the subsequent trial of X irrespective of whether he has been convicted or acquitted, will not get barred.
Section 300(5) of CrPC
Section 300(5) provides a situation where a person who has been discharged under Section 258 of CrPC, he cannot be tried for the same offence once again without the previous consent of the court which gave an order of discharge or any other court which is subordinate of former Court. This provision provides a check against the abuse of power of a fresh prosecution, especially in discharge cases under the said provisions, thus, it treats discharges differently under the other provisions of the law.
This section does not apply to discharge cases which have been instituted on a complaint. Discharge under Section 258 can never be regarded as an acquittal under Section 300(5). It has been provided in the explanation of Section 300 that discharge of an accused or dismissal of a complaint does not refer to acquittal under this section.
Section 300(6) of CrPC
Section 300(6) provides specifically that “nothing in section 300 shall affect the provisions of section 26 of the General Clauses Act, 1897 or of section 188 of this code.” If the accused got acquitted in the first trial on a specific charge for an offence that has been constituted under the same facts under a different enactment.
State of M.P. v. Veereshwar Rao Agnihotry, 1957
In this case, it was held that under Section 409 of IPC there cannot be any prohibition to a trial and a conviction, in a case where the accused had been tried and acquitted of an offence under Section 52 of The Prevention of Corruption Act, 1947 that has been constituted on identical facts.
Appearance by public prosecutors
Section 2(u) of CrPC defines Public Prosecutor. It includes any person acting as per the directions of the Public Prosecutor.
Section 24 of The Code of Criminal Procedure defines Public Prosecutor. A Public Prosecutor is considered as an agent of a State, he represents the interest of the common people in the criminal justice system. They serve the principle of audi alteram partem i.e. no person shall be condemned unheard.
In this case, it was observed by the Court that the Public Prosecutors are ministers of justice whose duty is to assist the judge in the administration of justice.
Directorate of Public Prosecutor supervises as well as scrutinise the functions of various prosecution agencies at Session level and Assistant Session level except for the High Court.
Section 24 of CrPC gives the hierarchy of Public Prosecutor
- Public Prosecutor appointed by the Central Government.
- Public Prosecutor appointed by the State Government.
- Additional Public Prosecutor appointed by the State Government.
- Special Public Prosecutor appointed by the Central Government.
- Special Public Prosecutor appointed by the State Government.
Section 24 talks about the appointment of Public Prosecutor in District Court and the High Court by the State Government and Central Government respectively.
Section 24(3)– The Public Prosecutor needs to be appointed in every district and an Additional Public Prosecutor may be appointed.
Section 24(4)– The District Magistrate in consultation with the Session Judge has to prepare a panel of names that are considered fit for such an appointment.
Section 24(5)– The person can not be appointed as a Public Prosecutor or as an Additional Public Prosecutor in a district by the State Government unless the person’s name appears on the panel that is prepared under subsection 4.
Section 24(6)– Explains a case where a state has a local cadre of the prosecuting officers, if in the cadre there is no such suitable person for an appointment, the appointment must be made from the panel that is prepared under subsection 4.
Section 24(7)– The person can be appointed as a Public Prosecutor only after practising as an Advocate for a minimum 7 years period.
It is stated in Section 25 of CrPC that an Assistant Public Prosecutor in the district is appointed for the purpose of conducting a prosecution in a Magistrate Court. For the purpose of conducting a case, the Court may appoint more than one Assistant Public Prosecutor.
The District Magistrate may appoint any other person in absence of Assistant Public Prosecutor to act as an Assistant Public Prosecutor.
The permission is granted under Section 321 of CrPC to Public Prosecutor or Assistant Public Prosecutor to withdraw from the case or prosecution with the Court permission before the pronouncement of a judgement.
Functions of Public Prosecutor
- Public Prosecutor- supervises the functions of an Additional Public Prosecutor in Session Court and High Court.
- Chief Prosecutor- supervises the functions of an Assistant Public Prosecutor in a Metropolitan Magistrate Court.
- Additional Prosecutor- conducts criminal proceedings in a Session Court.
- Assistant Public Prosecutor- examine the charge sheet that is operated by the agencies and submits acquittal or discharge. They are even responsible for the evaluation of evidence as well as filing of petitions. They even conduct criminal proceedings in Metropolitan Magistrate Court.
- Director of Prosecution- This is the head office, they exercise overall control and supervision of officers of Directorate. They look after the accounts branch.
Role of a Public Prosecutor
The role of a public prosecutor is divided into parts:
- In the investigation process.
- During trial.
Role of a Public Prosecutor during the investigation process
- To obtain an arrest warrant by making an appearance in the Court.
- To obtain a search warrant in order to conduct a search in the specified premises.
- To obtain remand of police custody for the interrogation that includes custodial interrogation of the accused.
- To initiate a proceeding for declaring the non-traceable offender as a proclaimed offender.
- To record in the police report the evidence of the accused with regard to the advisability of the prosecution.
Role of a public prosecutor at the time of trial
- If the accused is proven guilty then the Public Prosecutor and the defence counsel argue further to decide the quantum of the punishment.
- The prosecutors have a responsibility to call upon all the witnesses whose evidence is an essential element in deciding the case. They also have to cross-examine the witness and make sure that no witness is left unexamined and to produce all necessary documents.
Cases
In this case, high political dignitaries were involved. There was a failure in the investigation by the CBI. The Court held that there are no restrictions or limitations in launching prosecutors to initiate the investigation proceedings.
This case is also known as Best Bakery case. In this case, there was a death of fourteen persons in Vadodara due to burning down of a construction. The matter went to the Supreme Court, where the court held that “Public Prosecutors acted more as the defence rather than focusing on presenting the truth before the Court”.
In this case, it was stated by the High Court “the Public Prosecutor acts on the behalf of the state. The Public Prosecutors are ministers of justice who play a pivotal role in the administration of criminal justice”.
In this case, there is a public element attached to the office of the Public Prosecutor. The public prosecutor does not act as a complainant but as a representative if a state. The role of Private Counsel is different from the role of a Public Prosecutor.
In this case, it was held that the duty of the Public Prosecutor is to place all relevant evidence before the Court. Whether the evidence is in favour of or against the accused, it should be left upon the Court to decide.
Permission to conduct a prosecution
Section 302 of CrPC grants permission to the Magistrate who is inquiring into or trying a case may permit the prosecution to be conducted by any person who is not a police officer but should be below a rank of Inspector. But no person other than Advocate-General or a Government Advocate or a Public Prosecutor or Assistant Public Prosecutor shall be entitled to conduct prosecution without such permission.
A police officer cannot be permitted to conduct the prosecution if he took part in the investigation process of the offence with respect to the offence with which the accused is being prosecuted.
A Magistrate has the power to allow any person or a complainant to appear personally or through a pleader, to conduct the prosecution.
Section 302 of CrPC and two Judgements of the Supreme Court of M/s J.K. International vs. State, Govt of NCT of Delhi and Ors. are the answer to the proposition that a trial by a Magistrate, a complainant or any other person in addition to a Public Prosecutor can assist the Court and can also participate in the conduct of a trial. The Supreme Court also adhered to the law of the land binding on all Courts.
M/s J.K. International v. State, Govt of NCT of Delhi, 2001
In this case, the Supreme Court held that the scope of allowing any private person who is intending to participate in the conduct of prosecution is wider under Section 302. If the court thinks that on a request of a party, the cause of justice could be served better if such permission is granted then such permission should generally be granted by the Court.
Dhariwal Industries Ltd v. Kishori Wadhwani and Ors., 2012
In this case, it was held that the scheme under the Code indicates that a person aggrieved of an offence is not altogether wiped out from the trial scenario, merely on the ground that the investigation was Section 225 carried out by police and the charge sheet was laid by them. The fact that the Court had taken cognizance of the offence, even this is not sufficient to debar him from reaching the court to ventilate his grievance.
Even in the Sessions Court where the only authority is the Public Prosecutor, is empowered to conduct prosecution under Section 225 of the Code. A private person aggrieved of an offence who is involved in the case is not debarred altogether from participating in a trial.
The private person who has the permission to conduct prosecution in the Magistrate Court can engage a counsel on his behalf to do the needful.
It is further amplified that if a private person is aggrieved of an offence that has been committed against him or against a person whom he is interested in, he can approach the magistrate and seek permission to conduct the prosecution himself. The Court can accept or reject the request, it is open to the Court decision.
If the Court is of the opinion that the justice can be served better if such permission is granted then generally such permission is granted by the Court. This wider amplitude is limited to Magistrate Courts, as the private person’s right to participate in the Session Court for the conduct of prosecution is restricted as it is subject under the control of the Public Prosecutor.
Conclusion
The article describes investigation, inquiry and trial, provisions related to the mode of taking and recording evidence, the acquittal of the person for the same offence, an appearance by the public prosecutor and permission to conduct a prosecution, their provisions under the Code along with related cases.
References
- https://indiankanoon.org/doc/1238795/
- https://www.mondaq.com/india/Criminal-Law/692100/Prosecution-Of-Criminal-Case-In-Court-By-The-Complainant-Sec-302-Of-CrPC.
- The Code Of Criminal Procedure by Justice YV Chandrachud and VR Manohar- Ratanlal and Dheeraj Lal- 16th edition 2002.
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