GENERAL PROVISIONS RELATING TO INQUIRY AND TRIAL

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This article is written by Amrita Parida of 5^th Semester of University Law College, Utkal University, an intern under Legal Vidhiya

ABSTRACT

The observant principle of jus naturale which is fundamental and substantial to the administration of a fair and conscionable justice system requires that no man shall be entitled to be one’s own judge and that the end of an impartial justice can only be met after giving a fair privilege to the other person of being heard without prejudice or partiality. The provision pertaining to trial and inquiry is quite broad in nature and is integrated within chapter XXIV of India’s Criminal Procedure law from sections 300 to 327. These provisions are of significant nature with respect to the above mentioned principle of Jus natural considering the scope of this chapter of the 1973 Code not only corroborate but as well complements the foundational precepts of the said principle. The paper concerns with a brief assessment of lesser discussed provisions relating to inquiry and trial as is delineated in chapter XXIV of CrPC 1973.

Keywords: Trial, Inquiry, Cr.P.C, Indian Constitution, Criminal Procedure,

INTRODUCTION

Both, inquiry and trial being conducted by the court of law is of judicial nature and hence both are judicial proceeding presided by the prescribed judicial magistrate or judge. As defined under Section 2 (g) of the present criminal code, ‘Inquiry’ can be concluded of being any judicial proceeding that is conducted by a magistrate or court of law and such an inquiry does not include a trial. There is no express definition concerning ‘trial’ in the present Criminal Code of 1973, however, it is well defined in the 1872 Code to be a type of proceeding undertaken by any court of law following the framing of charges and as well includes punishment of accused within its purview. The said definition of 1872 Code has been long discontinued since 1882 Code. However, after analysing various cases we may arrive at the consensus that ‘trial is a judicial proceeding before the Court which ends in conviction or acquittal’[1]. On one hand, inquiry may take place after the Magistrate has taken due cognizance following the filing of a chargesheet. On the other hand, Trial takes place following the framing of charges whereby the accused is called by the court and trial includes the determination of the substantial question of punishment of the accused person. In other words, the Proceedings leading up to the framing of charge is ‘inquiry’ and bears all the incidents of an inquiry whereas proceedings after the framing of charge is ‘trial’ containing insignia of a trial[2].

Points of Distinction between Inquiry and Trial

Inquiry and Trial related Provisions

Bar on trial for second time on same stated facts:

S. 300 denote the principle that a person should not be disturbed twice for the same issue. Further, it as well embodies the principle that a person who has been formerly either convicted or acquitted for committing an offence should not be again put through peril for the offence on same facts. This is well integrated in the Art. 20(2) as well which prohibits any possibility of double Jeopardy. Moreover, even well revered notion of res judicata provides impetus to the binding of the verdict of acquittal upon the parties and it cannot be a subject of dispute in any following proceeding, though the option of appeal against verdict is available to the parties.

Section 300 vis-à-vis Article 20(2) and issue-estoppel vis-à-vis double jeopardy:

S. 300 and Art.20(2) encompasses within its scope the fundamental principal that no person should be put through the same peril two fold time for committing the same offence. However, the point of distinction between the two is that Art.20(2) fundamentally concerns only with the fact that a person who has been already awarded a jail time for an offence cannot be subjected to the same punishment once again for the very same offence. Hence, under Art.20(2) a verdict of acquittal can set no bar to the accused being put through trial once again for the very same offence contested to be committed by him. The finding in favour of the accused that has been reached upon the trial of the offence on previous occasion will only function as estoppel against the prosecution instead of making the trial for the second time or the conviction for another offence to be completely barred.

The following illustration is illustrates the Sec.300 in brief.

A is the servant of B. Upon finding a piece of jewellery missing B assumes A of committing theft and files a complaint against him. After ascertainment of allegations brought up by A, charges are framed against B and he is tried. Following the trial, he was acquitted of the offence of theft.

As per section 300, A cannot be charged on the grounds of the same fact as long as the verdict of acquittal is operational.

However, if charges are brought for a different offence against A on the second trial, then such trial is not hindered by Section 300.

Right to be represented by Lawyer

Since an act of criminal culpability is a nature of wrong that is against the security and tranquillity of the society, the State being the ultimate representative of society takes upon itself to seek appropriate punishment to the culpable person who has been alleged to have committed a case of crime.

In furtherance to this, Public Prosecutor is supposed to step in and represent the cause of the State in High Court and the Assistant Public Prosecutor is supposed to be the State representative in Court of the Magistrate. In both the cases, neither type of such appointed Prosecutor requires any vakalatnama to plead before any Hon’ble Court.

The Public Prosecutor also have the option to seek to any necessary assistance of the counsel employed by a private individual, but the counsel so engaged, is permitted only to act under the given directions of the public prosecution.

Incase, of unavailability of a public prosecutor the inquiring magistrate is empowered to allow the matter of Prosecution to be presented by any person who is neither the investigating officer of the case nor the police officer holding any rank lower to the rank of an Inspector. (S. 302)

The accused is entitled by virtue of section 303 to be defended against the Prosecution by any legal representative of his discretion. The right pertaining to consultation with a lawyer commences right from the arrest itself. This particular right of engaging a defence council is provided in view of the constitutionally mandated right envisioned under Art.22(1). When an indigent person is unable to bring in a counsel for the purpose of his defence then it becomes a necessary duty of state to ensure that the much needed legal aid and services is available by virtue of Art.39-A even when the state has no obligation with respect to appointment of the counsel for the reason of defending the defenceless accused. Further, in when a case triable in nature in Sessions Court, then the accused by reason of his indigence has the right to free legal assistance provided by the State at State’s own expense.

Tendering of Pardon

By reason of S.306, a person who is alleged to be involved in the commission of any offence, be it directly or indirectly, can be tendered pardon with the object that such tendering would persuade the person so tendered with pardon to disclose the relevant information or evidence that are in his knowledge with regards to offence and other alleged offenders. Such tendering can categorically be only done by CJM, or a MM, or a JMFC. When, S.306 is read along with Sec.307 then it becomes imperatively evident of Magistrate being bound by virtue of his duty to grant the pardon tender even when a case is triable by either special Judge or by Session Court. Since such power is of substantial nature it cannot be exercised without the concerned reason being duly recorded. Further, tendering of such pardon to the approver could be not just during the period of trial but as well during the period preceding the trial as can be inferred from S.307. The vested under S.307 extends even to Session Court and Special Judge. The revisional court is empowered with the jurisdiction to consider upon question pertaining to the legality of any pardon order tendered by a court.

Effect of Tendered Pardon:

The person who is so tendered-

is to be protected from the very moment of acceptance of pardon against the following:
prosecution for committing the alleged offence
Prosecution for another offence in connection with the same issue for which he seems not to be innocent of.
The person who is so tendered discontinues being in the trial of the co-accused.
Additionally, the approver is treated as a witness.

Consequence of non-compliance of pardon conditions:

As is laid in S.308, when the approver is in defiance with the conditions on which basis of which pardon is granted, he is subjected to trial. Any concealment or fabrication of fact or evidence by the approver by his willingness is sufficient of ground for the approver to be tried with respect to the offence for which he was so pardoned. It is the Public Prosecutor who is to certify the approver of defying the conditions and hence, a certificate is an important prerequisite. Furthermore, the scope of S. 308 prevails upto the extent of only those cases in which pardon is explicitly accepted by the approver and he has been thoroughly examined as a competent witness.

Examining of the Accused:

A direct dialogue is intended to be established between the Court of law and the accused through the conduction of examination of accused. The Section concerning it is S.313 and this section based on the ethos of natural justice, whereby a person should be held guilty without having a chance of rightfully heard of. The S.313 manifestly intends to put forth an opportunity before the accused to explain the events that surfaced to be against him in the evidence. The court is bound by virtue of the duty reposed in it by law to put the accused through fair questioning. Such examination by the court do not amount to cross-examination but rather a direct dialogue to ensure that the accused to imparted with a sound opportunity of being heard. The court may exercise its power to examine at point of inquiry and as well as trial without any prior notice.

The result of such an examination could either end up being advantageous to the accused or detrimental to his interests. Hence, such examination cannot be dismissed as mere formality. Though the court is bound to put forth relevant questions which is substantial to interest of fair trial, the accused is not bound to be answerable to all or any of it. Since he is not bound to be answerable, he is neither administered any oath preceding his examination nor liable to any kind of punishment.

The constitutionality of this section does not extend towards conversion of the accused into a witness.

Accused as Witness:

S. 315 provides that when a case brought under S,98 or 107-110 then even an accused may act as a competent witness. For the purpose of defence, an accused may provide evidence, acting as a witness, after taking oath to disproof the standing of the prosecution. The accused being a witness on its own accord is as well subjected to cross-examination and the evidence drawn with in such an examination can be employed his any of his co-accused.

However, an accused is not under possible obligation to make an admission which may be detrimental his benefit. Under S.316, he can neither be induced not be influenced to reveal anything that maybe within his knowledge except when he is subjected to S. 306 and 307.

Accused and Criminal Proceeding:

The court is conferred with right to mete out with the attendance of the accused and advance further ahead with inquiry or with trial in the absence of him under S. 317. This an exception to the accepted general rule of any inquiry/trial to be mandatory conducted in presence of accused. Further, when an accused due to the reason of his impairment or lack of sound understanding and comprehension of language, but not by reason unsoundness of mind, is unable to understand the nature of the proceeding then the court trying the case is required to pass on the proceeding to the High Court if the trial ends in conviction of the accused (S.318). It is then upto the High Court to pass a reasonable sentence after a thorough evaluation of the circumstances of the case. The High Court may as well provide required directions to the concerned trial court for ensuring a just trial. The object of S.318 lies within the view that High Court would hold a reasonable stand point that could ensure a fair trial to the accused. By virtue of S. 319, a court may proceed against such person who was seemingly involved in the offence but are neither shown or mentioned of as accused. A warrant or summon is issued against such person incase of their non-attendance but in case of their attendance, they may be detained with the object of trial or inquiry with respect of the offence.

The list of offences as mentioned in the table of S. 320 can be compounded by the parties of the case. Such compounding to referred to be a particular kind of arrangement where the both parties of the case come in terms with each other and resolves their differences and comes to a compromise. The court is under no obligation to put forth any term of compromise as it is of sole prerogative of the parties. The court can only decide upon the merits of the case.

CONCLUSION

The procedural law concerning criminal justice aims at securing the objectives of criminal law of a country. This specific aim can only be achieved expeditiously if a profound integration and understanding of standing of law regarding inquiry and trial can be well-elaborated and established. The Indian law put forth a well-designed set of general laws pertaining specifically to inquiry and trial. Though the ornately woven set of laws specify the possible routes that may be taken by both accused and the person aggrieved in course of seeking valid justice but the complexities in various stages involving inquiry and trial may make attainment of justice unfeasible to some. Hence, judicious amendment aiming towards simplification of laws concerned with various stages of inquiry and trial would not only result in improved accessibility of justice but as well led to increased confidence of people in justice system.

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