Hess 306

8/9/2019 Hess 306

1/31

Understanding Our

Criminal Justice

Chapter 6 System

When we see someone violating the law, we immediately think of informing

the police. You might have seen, either in real life or in the movies, policeofficers filing reports and arresting persons. Because of the role played by the

police in arresting persons, we often get confused and think that it is the police

who decide whether a person is guilty or not. This, however, is far from true.

After a person is arrested, it is a court of law that decides whether the accused

person is guilty or not. According to the Constitution, every individual charged

of a crime has to be given a fair trial.

o you know what it means to get a fair trial! "ave you heard of an #$%! &r,do you know who a public prosecutor is! $n this chapter, we use a fictional

case of theft to try and highlight the process as well as the role of different

individuals in the criminal 'ustice system. (ost cases go through a process

that is similar to the one discussed in our fictional case. Therefore,

understanding these processes as well as the role that different persons

should play within the criminal 'ustice system is crucial, so that if ever the

occasion should arise, you are aware of the processes that should be

followed.

8/9/2019 Hess 306

2/31

8/9/2019 Hess 306

3/31

8/9/2019 Hess 306

4/31

)*.+.-

At their apartment in (umbai (rs hinde is getting dressed. he has been

"urry up/ We are

frantically searching for her gold chain for over an hour.

going to be late for

the wedding.

$ am sure it was in

this drawer/ Where

could it be...!

8/9/2019 Hess 306

5/31

$ can0t find my gold chain 1 i t0s not in the drawer/ $ suspect that hanti might have stolen it. he always spends a long time

dusting my room.

(r hinde searches hanti0s trunk and finds an

hanti "embram has been working in the house for

envelope with %s.), in it. "e screams at hanti

Saab, my brother and $ have been

8/9/2019 Hess 306

6/31

saving this money over the last

hanti, have you begun to steal

one year. We want to buy a bull

now! And that too my gold chain.

when we go to our village.

Bring your trunk 1 $ want to search

(adam, $ am innocent.

it. We0ve called the police. o if you

have the chain, return it now.

8/9/2019 Hess 306

7/31

(adam, $ haven0t

stolen

it.

(r hinde has come to the police station.

8/9/2019 Hess 306

8/31

8/9/2019 Hess 306

9/31

8lease don0t let him take me/ $ have not stolen the chain.

This is my hard1earned money9

):.+.-

ushil, hanti0s brother arrives and pleads with

.$. %ao to

release hanti.

he has been arrested for the theft of a gold chain. You

can go to court and get a bail order.

But where will $ get the money to hire a lawyer! and who

will stand as surety for her! You have taken all of our

savings and sealed it9

.$. %ao forcibly keeps ushil in the police station for two days. ushil is abused and beaten by .$. %ao and other

police constables. They try and make him confess that he and his sister hanti head a gang of domestic servants

that have stolen 'ewellery from other homes. There have been other complaints of theft of 'ewellery from hinde0sneighbourhood. As ushil keeps repeating that he is an innocent factory worker, the police let him go after two

days.

;

8/9/2019 Hess 306

10/31

)=.:.-

The police files a chargesheet in the (agistrate0s Court. The court gives a copy of the

chargesheet including statements of witnesses to hanti. hanti tells the court that she has no

lawyer to defend her against this false case of theft.

The (agistrate appoints Advocate >amla %oy as hanti0s defence lawyer at the government0s

e?pense.

According to Article 22 of the Constitution, every person has a Fundamental Right to be

defended by a layer! Article "#A of the Constitution places a duty upon the State to

provide a layer to any citi$en ho is unable to engage one due to poverty or other

disability!

ocial and 8olitical 7ife -*

Advocate >amla %oy meets hanti in the

court

"ere are my case papers. $ have been falsely accused

of stealing my employer0s gold chain.

8/9/2019 Hess 306

11/31

They found %s ), in hanti0s trunk and said

that this was the money she got from stealing the

chain. But that is money that we have been saving

up together.

*.

8/9/2019 Hess 306

12/31

$ had kept my chain in the drawer. hanti stole it. @o

other outsider e?cept hanti goes into my room. (r

hinde searched her trunk in front of me and we

were shocked to find %s ), in an envelope.

hanti got this money from selling my gold chain.

he is a thief.

;.=.+

Advocate %oy e?amines ushil and his employer as

defence witnesses. Through their testimonies, she is

able to show that the %s ), found in hanti0s trunkcould well be the earnings of ushil and hanti.

Chapter -4 5nderstanding &ur Criminal 6ustice ystem

)=..+

As the trial is nearing completion, ushil learns that

$nspector harma has busted a gang of young men

who have been stealing 'ewellery from the hinde0s

neighbourhood. ome of (rs hinde0s son0s friends

are part of this gang. (rs hinde0s chain has been

found on them. ushil tells Advocate %oy about this.

Advocate %oy now calls $nspector harma as a

defence witness.

$nspector harma, can you show and tell us what you0ve found!

"ere is the chain that has been identified by (rs hindeas hers. We busted a gang of boys who had stolen the

chain. These boys have admitted that they stole the

chain.

8/9/2019 Hess 306

13/31

).+.+

The 'udge hears the testimony of all the witnesses.

After the testimony of $nspector harma, Advocate

%oy argues before the 'udge that it has now been

established that hanti is innocent and should be

acuitted.

hanti, you are hereby acuitted of the charge of theft.

The police will hand over to you the

%s ), that they had sealed. $n my written 'udgment, $

have made it a point to highlight .$. %ao0s role in

conducting such a shoddy investigation that made you

spend time in 'ail.

From the above incident, you can see that the four key players in

the criminal justice system are the police, the

Public Prosecutor , the defence lawyer and the judge. You have

seen the roles each of them played in the above case. Now let us try

and understand their roles more generally.

What is the Role of the Police in

Investigating a Crime?

One important function of the police is to investigate any complaint

about the commission of a crime. An investigation includes

recording statements of witnesses and collecting dierent kinds of

evidence. On the basis of the investigation, the police are re!uired

to form an opinion. "f the police think that the evidence points to

the guilt of the accused person, then they #le a chargesheet in the

court. As stated at the beginning of this chapter, it is not the job

8/9/2019 Hess 306

14/31

ocial and 8olitical 7ife +

of the police to decide whether a person is

guilty or innocent, that is for the judge to

decide.

You read in $nit % about the rule of law,which means that everyone is subject to the

law of the land. &his includes the police.

&herefore, police investigations always have

to be conducted in accordance with law and

with full respect for human rights. &he

'upreme (ourt has laid down guidelines

that the police must follow at the time of

arrest, detention and interrogation. &he

police are not allowed to torture or beat orshoot anyone during investigation. &hey

cannot in)ict any form of punishment on a

person even for petty oences.

Article %% of the (onstitution and criminal

law guarantee to every arrested person

the following Fundamental *ights+

&he *ight to be informed at the time of

arrest of the oence for which the person

is being arrested.

&he *ight to be presented before a

magistrate within % hours of arrest.

&he *ight not to be

ill treated ortortured during

arrest or in

custody.

(onfessions made

in police custody

cannot be used as

evidence against

the accused.

A boy under -

years of age and

women cannot be

called to the police

station only for!uestioning.

8/9/2019 Hess 306

15/31

%hy do you thin& there is

a rule that confessions

made during police

custody cannot be used

as evidence against the

accused'

The upreme Court of $ndia has laid down specific reuirements and procedures that the

police and other agencies have to follow for the arrest, detention and interrogation of any

person. These are known as the .>. Basu uidelines and some of these include4

The police officials who carry out the arrest or interrogation should wear clear, accurate

and visible identification and name tags with their designationsD

A memo of arrest should be prepared at the time of arrest and should include the time and

date of arrest. $t should also be attested by at least one witness who could include a family

member of the person arrested. The arrest memo should be counter1signed by the person

arrested.

The person arrested, detained or being interrogated has a right to inform a relative, friend

or well1wisher.

When a friend or relative lives outside the district, the time, place of arrest and venue of

custody must be notified by police within * to ); hours after arrest.

8/9/2019 Hess 306

16/31

8/9/2019 Hess 306

17/31

8/9/2019 Hess 306

18/31

First )nformation Report *F)R+

$t is with the registration of an #$% that the police can begin their investigations into a crime.

The law states that it is compulsory for an officer in charge of a police station to register an

#$% whenever a person gives information about a cogniEable offence. This information can

be given to the police either orally or in writing. The #$% usually mentions the date, time and

place of the offence, details the basic facts of the offence, including a description of the

events. $f known, the identity of the accused persons and witnesses is also mentioned. The

#$% also states the name and address of the complainant. There is a prescribed form in

which the police registers an #$% and it is signed by the complainant. The complainant also

has a legal right to get a free copy of the #$% from the police.

ocial and 8olitical 7ife +;

What is the Role of the Public

Prosecutor?

A criminal oence is regarded as a

public wrong. /hat is meant by this is

that it is considered to have beencommitted not only against the

aected victims

but against

society as awhole. 0o you

remember the

case of the

dowry death of

'udha that we

read about in

the previous

chapter1 &he

case against the

8/9/2019 Hess 306

19/31

accused 2a3man and his family was

presented by the 'tate. &hat is why

the case was called State (Delhi

Administration) vs Laxman Kumar and

Others. 'imilarly the above case canbe called 4'tate vs 'hanti 5embram6

and not 7rs 'hinde vs 'hanti

5embram.

"n court, it is the 8ublic 8rosecutor

who represents the interests of the

'tate. &he role of the 8rosecutor

begins once the police has conducted

the investigation and #led the

chargesheet in the court. 5e9she has

no role to play in the investigation.

&he 8rosecutor must conduct the

prosecution on behalf of the 'tate. As

an oicer of the court, it is his9 her

duty to act impartially and present the

full and material facts, witnesses andevidence before the court to enable

the court to decide the case.

o tell me, (rs hinde, how did

the gold chain go missing!

$ had kept my chain in the

drawer. hanti stole it. @o other

outsider e?cept hanti goes

into my room. (r hinde

searched her trunk in front of

me and we were shocked to

find %s ), in an envelope.

hanti got this money from

selling my gold chain. he is a

thief.

What is the Role of the Judge?

&he judge is like an umpire in a game

and conducts the trial impartially and

in an open court.

&he judge hears all

the witnesses and

any other evidence

presented by the

prosecution andthe defence. &he

8/9/2019 Hess 306

20/31

judge decides whether the accused

person is guilty or innocent on the

basis of the evidence presented and in

accordance with the law. "f the

accused is convicted, then the judgepronounces the sentence. 5e may send

the person to jail or impose a #ne or

both, depending on what the law

prescribes.

What is a Fair Trial?

2et us for a moment imagine what

might have happened if the judge

decided to try 'hanti6s case very

dierently. /hat if the court did not

give a copy of the chargesheet and

%hat did the -udge say in

Shanti.s case after

hearing the testimony of

all the itnesses'


"ere are my case papers. $ have been

falsely accused of stealing my

employer0s gold chain.

8/9/2019 Hess 306

21/31

They found %s), in hanti0s trunk

and said that this was the money she

got from stealing the chain. But that ismoney that we have been saving up

together.

o what you are basically saying is

that you did not see hanti steal the

chain. @or did you recover the chain

on hanti. Also, in the three years that

she has worked for you, nothing has

been stolen from the house. You were

also regularly paying her %s ), as

salary each month.

statements of witnesses to 'hanti1 /hat

if he held the trial in a secret locationwhere neither 'hanti nor 'ushil were

present1 /hat if he did not give

'hanti6s lawyer, Advocate *oy enough

time to !uestion the witnesses of the

prosecution such as 7rs 'hinde and

instead had already decided that 'hanti

was guilty1 "f this had happened, then it

would be a case of an unfair trial. &his

is because for a trial to be fair, severaldierent procedures have to be

observed. Article %- of the (onstitution

that guarantees the *ight to 2ife states

that a person6s life or liberty can be

taken away only by following a

reasonable and just legal procedure. A

fair trial ensures that Article %- of the

(onstitution is upheld. 2et us now

return to 'hanti6s case as described inthe storyboard and identify the essential

elements of a fair trial+

Firstly, 'hanti was given a copy of the

chargesheet and all other evidence that

the prosecution presented against her.

'hanti was charged with the oence of

theft that was de#ned as a crime in thelaw. &he trial was held in an open

court, in public view. 5er brother,

'ushil could attend the court hearings.

&he trial was held in the presence of

the accused. 'hanti was defended by

a lawyer . 'hanti6s lawyer, Advocate *oy

was given an opportunity to cross-

examine all the prosecution

witnesses. Advocate Roy was given

8/9/2019 Hess 306

22/31

an opportunity to

present witnesses

in Shanti’s

defence.

Although the police

#led a case of theft

against 'hanti, the

judge assumed

her to be

innocent. "t was

the responsibility

of the prosecution

to prove beyond

reasonable doubt

that 'hanti was guilty. "n this case the

prosecution failed to do so.

"t is signi#cant that the judge decidedthe matter only on the basis of the

evidence before the court. &he judge

did not jump to the conclusion that

'hanti was the thief just because she

was a poor maidservant. "nstead, the

judge remained impartial and since

the evidence showed that some young

men and not 'hanti was the thief, he

set 'hanti free. "n 'hanti6s case,

justice was #nally done to her because

she was given a fair trial.

ocial and 8olitical 7ife +=

8/9/2019 Hess 306

23/31

&he (onstitution and the law both state that all of the persons

that we have discussed in this chapter should carry out their roles

in a proper manner. /hat this means is that they all need to work

to ensure that every citi:en, irrespective of their class, caste,

gender, religious and ideological backgrounds gets a fair trial

when accused. &he rule of law which says that everyone is e!ual

before the law would not make much sense if every citi:en were

not guaranteed a fair trial by the (onstitution.

All of the processes, written in bold on page +=, are crucial to a fair trial. Write in your own

words what you understand of the following processes based on the above description of

hanti0s case.

a. &pen Court4

(b. Basis of Fvidence4

c. Cross1e?amination of 8rosecution Witnesses4

iscuss in class what might have happened in hanti0s case if the following procedures

had not been observed.

8/9/2019 Hess 306

24/31

$f she were not defended by a lawyer.

$f the court had not assumed her to be innocent.

8/9/2019 Hess 306

25/31


8/9/2019 Hess 306

26/31

8/9/2019 Hess 306

27/31

8ublic 8rosecutor

cross e?amine the witnesses

take photographs of burnt homes

efence 7awyer

record the evidence

arrest the #iesta fans

6udge

writes the 'udgment

argue the case for the victims

decide for how many years the accused will be put in 'ail

e?amine the witnesses in court

pass the 'udgment

8/9/2019 Hess 306

28/31

get the assaulted women medically e?amined

conduct a fair trial

meet the accused persons

1ow ta!e the same situation but as! one student who is a supporter of the Fiesta Club to perform all the

functions listed abo"e$ o you thin! the "ictims would #et (ustice if only one person performed all of the

functions of the criminal (ustice system0 2hy not0

3tate two reasons why you belie"e that different persons need to play different roles as part of the criminal

(ustice system$

ocial and 8olitical 7ife +-

8/9/2019 Hess 306

29/31

/0OSSAR1

conte?t of this chapter this refers to the person who is tried by a court

the conte?t of this chapter this refers to an offence for which the police may arrest

a person without the permission of the court.

Crosse3amine $n the conte?t of this chapter this refers to the uestioning of a

witness who has already been e?amined by the opposing side in order to

determine the veracity of hisGher testimony.

4etention $n the conte?t of this chapter this refers to the act of being kept inillegal custody by the police.

)mpartial The act of being fair or 'ust and not favouring one side over another.

Offence Any act that the law defines as a crime.

5o be charged of a crime This refers to the trial 'udge informing the accused, in

writing, of the offence for which heGshe will face trial.

8/9/2019 Hess 306

30/31

%itness $n the conte?t of this chapter this refers to the person who is called upon in

court to provide a first1hand account of what heGshe has seen, heard or knows.

8/9/2019 Hess 306

31/31


Hess 306

Documents