AUTHOR:

DIVYANI DEEPTI,
Student,
Chanakya National Law University

CO-AUTHOR:

ANJEETA RANI,
Student,
Chanakya National Law University

ABSTRACT

This article analyses the criminal justice system of India, which has been consistent with its laws, provisions and practices since the British era. Even in the 21st century, the criminal justice system has not changed its ways significantly; however, it is a very base of a society. These institutions being the Police, Prosecution, Judges and the Prison have been vested with the duty to maintain law and order. For fulfilling this duty, they have been authorised with powers that are derived from the law of the land. The Criminal Justice system that we follow and are a part of is not pristine; instead, it’s the one that has evolved from the system established by the British to strengthen their colonial game. In India, the Criminal Justice System is based on the adversarial form of adjudication, where the judge plays a neutral role. Our criminal justice system was a gift from our colonial rulers. With the advent of new technologies and scientific advancements, there has been a change in the way of crimes being committed and has also led to new forms of offences such as cybercrimes. These changes and advancements have also been espoused not only by the criminals but by the crime controlling agencies as well. However, despite all its endeavours, our criminal justice system still has flaws. The high pendency of cases, high rate of acquittals, insufficient human resources in the Police agencies and the low judge-population ratio have degraded its efficacy.

KEYWORDS:

Criminal Justice System, investigation, Law Commission, accused punishment.

INTRODUCTION

The criminal justice system, like any system designed by human beings, clearly has its flaws.

– Ben Whishaw

The Criminal Justice System is imbibed in the very core of the foundation of any country. It is one of the essential requirements sought by the public as well as the Government. For the peaceful existence of any society or State, a crime of any nature needs to be eliminated, and it can be done by a well-established system governed by rules which are directed by governmental and non-governmental institutions and duly followed by the people. Such a system or set of legal rules comprising of governmental institutions and agencies, aimed at the safety of its public and maintaining a harmonious environment in the society is what is termed as ‘criminal justice system’[1]. The criminal justice system is characterised by a collection of legal rules and institutions established under it. These institutions comprise of various public and local agencies but primarily encompass the Police, lawyers, judges and prison. This system is necessary for the maintenance of law and order in society. The term ‘Criminal Justice System’ can be described as a system designed by the Government or the rulers to provide justice to the ones who have faced any wrong or have been a victim of a crime. It is not just limited to providing justice to the victims but also punishing the perpetrator and establishing the rule of law. An ideal criminal justice system is not just concerned with punishing the offender but outreaches till compensating the victim and providing adequate means to the offenders to correct themselves and rehabilitate after being released from the prison[2]. It is crucial to note that the abovementioned institutions and procedures are congruent in different nations which are governed by the rule of law; however, the underlying principles operating such laws may vary from acute to more significant degree.

The Criminal Justice system is based upon two critical principles, namely the Adversarial system and Inquisitorial system. While dealing with the Indian scenario, it is a pre-requisite to understand the Adversarial System as the Criminal Justice System in our country is edification upon this very principle. This system is distinctive of a common-law country or in the British Commonwealth. India is one of the commonwealth nations that inherited the adversarial system of delivering criminal justice. As the name suggests, the system is based on two adversaries or two advocates representing their party’s case before a neutral person acting as the judge. In this system, there is a presumption of innocence of the accused, i.e. he/she is presumed to be innocent until proven guilty. The adversarial system is judge-centric, i.e. the judge presides over the whole trial procedure. It commences from framing of charges, deciding upon material facts and production of relevant evidence and probable witnesses to pronouncing the verdict, be it in favour or against accused. As opposed to the inquisitorial system of justice delivery, the adversarial system does not require or imposes a duty upon the judge to participate in the investigation or act as a guide during the inquiry procedure.[3]

The Criminal justice system for its functioning is dependent on various institutions to achieve its ends. The realm of institutions is as vast as beginning from the reporting of the crime to the punishment of the offender. To understand such machinery in its whole, we need to discuss the institutions as well.

Police: The Police are the very first agency that comes into motion once an offence has been committed. The primary responsibility to protect the life and property of the citizens lies with the Police. To protect these rights of the citizens, the Police have been given certain powers to further their duty without any obstruction. And, for that matter, they have been assigned with the task to investigate the offences. This task is inclusive of a plethora of other duties which are investigating the witnesses, collecting evidence and arresting the delinquent[4]. The central mission of the Police is to reveal the truth behind the crimes to impart justice to the victims as well as the accused and maintain law and order in society. The Supreme Court has rightly pointed out that the duty of the Investigating Officer is not merely to bolster up a prosecution case which may enable the Court to record a conviction but to bring out the real, unvarnished truth[5].

Prosecution: Once the Police investigate the crime and files charge sheet before the Court, the trial begins. Here comes the role of Prosecution. Since it is considered that crime is not committed against an individual but the whole community, therefore, the Prosecutor does not represent the victim or the informant but the State as it is responsible forth welfare of the society. The job of the Prosecutor is not to prove the guilt of the accused but to present the case before the judge with all the relevant facts, witnesses and evidence without any bias and help the judge to decide upon the case[6].

Judges: The most critical role in the Criminal Justice System is that of the judge. The judge has the ultimate authority to acquit or convict the accused. They act as a referee in the Court who has to conduct the trial impartially. While the Prosecution and the defence present their case and argue over facts and laws, the judge hears it, analyses the evidence and the witnesses in the light of facts presented before him/her and decides the guilt or innocence of the accused. If the accused is found to be guilty, then the judge convicts him/her as per the law[7]. The punishment could be in the form of a sentence of imprisonment, penalty or both. Sometimes, in cases of heinous crimes, the judge even has the power to give the death penalty. Therefore, the judge needs to be without any bias and exercise his powers cautiously and judiciously.

Prisons: Prison is the last component unit of our Criminal Justice system. Prisons or Jails are detention centres where under trial offenders as well as convicts of any crime are incarcerated. The purpose for which the offender is imprisoned is that one who commits a crime must suffer for his evil. The under-trial prisoners are detained so that they do not evade or go into hiding or pose any threat to the victim or witnesses or tamper with the evidence. The offenders who have been sentenced to imprisonment for a given term or served with a death penalty are also kept in these prisons until the detention period is over. Prisons are not only for the punishment purpose, but it also provides correctional, reformative as well as rehabilitation facilities to the inmates within its four walls. In India, the administration of prisons is governed by the Prison Act, 1894 and separate jail manuals of each State.[8]

EVOLUTION OF THE CRIMINAL JUSTICE SYSTEM

It is an undisputed fact that the present criminal justice system in India is an evolved effigy of a system that had been concreted by the Britishers. When they acquired the Bengal Province, an urge was felt to establish the judicial system along with the administrative and revenue system. For judicial administration, Adalat systems were set up. The Adalat systems set up in the Presidency towns were called Diwani Adalat, and those outside the Presidency towns were called moffusils. Before the advent of Britishers in India, the administration of criminal justice was governed by the Muslim criminal law, as the Mughals were the ruler of the territory. The Muslim law was not peeved by the Britishers immediately, and the status quo was maintained for several years. However, the Britishers always believed that there were vivid defects in the criminal justice system. They staunchly supported the fact that the Muslim criminal law was not in accord with the British notion of justice, common sense and good governance. The Britishers took charge of the judicial administration in the year 1772 in Bengal and subsequently in other territories. Still, the recasting of criminal law was slow and steady, and Muslim criminal law continued to govern the criminal justice administration for over 100 years. An exciting thing observed by the historians was, although Muslim criminal law was the law that governed the moffusils, the regulations that were introduced by the Britishers, beginning from 1772, swayed the existing law in such manner that it was hardly recognisable when the Indian Penal Code was enacted in the year 1860.[9]

Crimes and punishments were divided under different heads in the traditional Muslim law. The crimes were classified as a crime against God, a crime against sovereignty and crime against a private individual. There were further disparate types of offences under these heads. Drinking intoxicating liquor, adultery, apostasy was encompassed in the first category. The second category included crimes such as theft, highway robbery and robbery with murder. The third category broadly dealt with a crime against the human body, such as murder, maiming, etc.

Similarly, there was a classification of principles to render the punishments. Namely, Kisa, Hadd, Tazeer, which was commutable into Diya. Kisa was based on the principle of retaliation; limb for a limb, life for life. This class of punishment was often given in the cases where wilful killing, maiming and grave wounding took place, in a nutshell, this was a punishment rendered to those who committed a crime under the third category.[10]Kisa gave the right to the victim or his heirs to inflict the injury upon the culprit, in a similar quantum as of his crime. Secondly, in cases where the crimes were committed against God or the nature of which was discerned as immoral by the society was punishable by Hadd. Hadd was unflinching as compared to Tazeer and Kisa. Unlike Kisa, where the quantum to inflict the punishment was based on the victim or his heir, Hadd could not be reduced or decreased. Also, no discretionary power was reposed with the magistrate like it was in the case of Tazeer.[11]It is duly noted that the punishment prescribed under Hadd was often pernicious, but the other facet of this punishment also suggested that it was rarely given. Tazeer was invoked in the cases where the crime was committed against the sovereign; there were several offences upon which Tazeer was inflicted such as sodomy; offences against public life, tranquillity. Being often awarded in a plethora of cases which cannot be punished under Kisa and Hadd was a significant fact about Tazeer. The discretionary power to inflict punishment in Tazeer was bestowed upon the judge. Finally, Diya or Diyut (used interchangeably), meant blood money, was awarded to the victim on a fixed scale. It was awarded to the victims in the cases where they chose to forego their right to inflict punishment upon the culprit under Kisa. All the crimes enrobed under Diya were inflictions to the human body, so it can be implied that the punishment of Diya was an alternative for Kisa.

As discussed above, the Britishers found much pathos in the existing Muslim law. The infirmities often appeared to be irrational to the Britishers. The first and foremost thing, Muslim law was uncertain, meaning there were distinctive interpretations of the laws among the jurists. This was often a leeway for corrupt Kazis to interpret and twist the laws. Another drawback was that there was no distinction between private and public law. Murder under Muslim law was categorised as a personal offence, i.e. offence against an individual. The Britishers viewed it as an offence against the entire society, and the right to punish the culprit in this matter rested with the sovereign. In Muslim law, the underlying principle was to remediate the victim rather than the maintenance of a civilised society.[12] This could be understood by the fact that drunkenness was considered a crime against God, which was punishable by the sovereign and was severe in comparison to murder which could be remitted. In any civilised society, murder is instead a heinous crime when compared to drunkenness. Lastly, the technical defect, which was encountered by the Britishers, was concerning the admission of evidence.

Under the Muslim law, rule of evidence follows as such that the testimony of two non-Muslim men was considered to be equivalent of one Muslim man, identically the testimony of two women were equivalent to that of a man. The admissibility of evidence in all cases was only valid if they were direct, and in a multitude of cases, the evidence was not admissible. Because of such an attitude, the criminal law could not be enforced congruously. From the picture painted above, one can get a vivid countenance of what were the significant loopholes that exited in the administration and made the Britishers so adamant about getting rid of such a system. Hence, the Britishers initiated the process of repealing and amending the Muslim criminal law. It was started by enacting regulations from the time of Lord Cornwallis, and the process kept succeeding without encumbrances until Indian Penal Code was enacted in the year 1860. The code finally displanted whatever was remaining in the traditional Muslim law.

Changes in Criminal Law: 1772

Warren Hastings introduced the judicial plan of 1772; there were no significant changes to be noticed except for one, more severe punishment for dacoity. The regulation pointed out that they disrupted the peace of the land. However, in the subsequent year, i.e. 1773, Hastings submitted his proposals taking in account punishment for murder and suggested the Council that there shall be a transformation of homicide from a purely private matter to public matter. Meaning thereby, the right to punish the offender must not rest with the kin of the deceased; instead, it shall rest with the Government. Warren Hastings vigorously advocated this, but the Council contemplated it as a sensitive matter and reprobated it.

Changes in Criminal Law: 1790-1793:

Lord Cornwallis introduced the first systematic attempt to change Muslim law in 1790. The significant change that took place in criminal law was how the culpable homicide was distinguished from murder. Under the traditional Muslim law, how the murder was committed was a yardstick for differentiation. With the modification in law, the principle of ‘manner’ was replaced by ‘intention’ behind the murder. In the ensuing years, other reforms were introduced; in 1791, the dreadful punishment of limb amputation was abrogated. In 1792, a change was introduced on account of murder which stated, ‘if the heir of the deceased has not attained the age of maturity under Mohammadan Law then the right to Kisa was ceased, and the trial took place as there was no heir.’[13]

Further Reforms: 1797- 1832

In the year 1797, the practice of paying Diya to the victims’ family was replaced by the imposition of fine that was payable to the Government. The year 1803 witnessed a change in the doctrine of Tazeer. The punishment under this principle was rendered upon the culprit based on consideration of evidence against him rather than the heinousness of the crime. The reform in 1803 altered this position to establish a system where the infliction of a punishment without sufficient evidence was barred. Uniform and adequate punishments were offered to the offenders as per specified in the regulation of 1803. In the year 1829, a drastic change was introduced by the Britishers amongst the Hindus, abolition of Sati. The regulation termed it as “gross violation of justice and humanity.”

The alterations and modification stated above are just brevity of the amendments that were introduced by the Britishers before the enactment of the Indian Penal Code in 1860. An all India Legislature was created after 1833, and in the year 1860 Indian Penal Code was drafted and enacted. Fewer changes were made in the criminal law between the years 1833-1860. The modification of the traditional Muslim laws on the ground of barbarity, inconsistency between jurists and inefficiency in establishing tranquillity in society accoutred the way for the Indian Penal Code of 1860.[14]

Since then, the penal laws have grown exponentially to combat the specific needs of the dynamic Indian society and have been ramified accordingly. The prominent laws governing the criminal justice system in India are the Indian Penal Code, 1860 (hereinafter referred to as IPC.), Code of Criminal Procedure, 1973, Indian Evidence Act, 1872. The I.P.C. is the penal law of India that deals with definitions of various crimes and offences and the punishments thereof. It is a substantive law in general; however, it also includes some of the procedural laws[15]. The Code of Criminal Procedure includes all the procedures to be followed when a crime is committed, from the investigation by the Police to the trials by the courts[16]. Then, comes into play the Indian Evidence Act, which dictates the nature of evidence and its admissibility in the courts during the trial[17]. Although I.P.C. is the main penal code that is followed in India, however, there are several other minor laws enacted by the Parliament which deals with certain other offences and also prescribe for their punishment. Some of them are Narcotic Drugs and Psychotropic Substances Act, 1985, Prevention of Corruption Act, 1988, Prevention of Food Adulteration Act, 1954, Dowry Prevention Act, 1961, Protection of Children from Sexual Offences Act, 2012 and others. These criminal laws decide and distribute the kind of work to be performed by different agencies of this system, i.e. Police, lawyers, the courts and prison.

RECOMMENDATIONS BY VARIOUS LAW COMMISSIONS TO REFORM THE SYSTEM

The Law Commission of India was constituted to provide suggestions to the governments in the legal field while drafting, amending or repealing the laws. By far, the Law Commission has submitted as many as 277 reports to the Government of India since 1955. Out of these 277 reports, more than 85 reports directly or indirectly have a bearing on our criminal justice system. It undertakes suo moto or on the reference of the Central Government, studies and research to bring reforms in the justice delivery system to eliminate the lacunas of the system such as delay in disposal of cases, expensive procedures, obsolete laws, etc. Some of the reports of the law commissions that have examined the functioning of the criminal justice system:

Gaps in the substantive and procedural laws:

In 1991, the 141st Law Commission report observed the maladministration in the criminal justice system in circumstances where dismissals were made on the ground of default of appearance. The Commission recommended that the acquittal of the accused on the ground of non-appearance of the complaint should be checked so as uphold the interests of justice. However, no action has been taken on the recommendation of the Commission.[18]

The Commission has also given its reviews for the Indian Penal Code in its 156th report wherein it focussed mainly on nature and extent of punishments. It suggested to bring them in conformity with the modern notions of penology. Certain non-cognisable offences were sought to be made cognisable, and offence of sexual assault was recommended to be brought under the head of outraging the modesty of women in Sec. 354 of I.P.C.

In its 198th report of 2006, the Commission paid its attention to the importance of witnesses in a criminal trial and hence suggested the introduction of witness identification program and witness protection scheme. It emphasised that for a fair trial, not only the accused but the victim and witnesses also need to be protected. [19]

The 233rd report of Law Commission submitted in 2009 suggested amendments in Sec. 249 and 256 of CrPC on the similar lines of its counterpart in Civil Procedure Code which allows the restoration of a suit even when the plaintiff was absent but in criminal cases was dismissed. It also suggested widening the scope of inherent powers under Sec. 478 of CrPC as it is under Sec. 151 of C.P.C. where the power has been vested with all the courts, unlike the Criminal Procedure Code wherein it is available only to the High Courts. [20]

Recommendations for the judicial system:

The 14th report of the First Law Commission of India was submitted in 1958, which for the first time pointed the problem of excessive delays in disposal of cases that also leads to the increased cost of litigation. It made various recommendations for making judicial administration efficient. It proposed that criminal trials should be conducted individually rather than making mass production. However, it is in the benefit that criminal cases of similar nature are tried together to avoid the multiplicity of cases as it has been provided under Sec. 223 of CrPC[21] that talks about the joinder of charges.

In the 221st report of 2009, the Commission showed its concern towards pending arrears in the lower courts. To counter the problem of high pendency in trial courts, the Commission made recommendations to amend Sec. 378, 397 and 401 of CrPC.[22]

In the 58th Law Commission report of 1974, the Committee recommended the establishment of an alternative dispute resolution forum to lessen the burden of cases from the courts.

It was the 124th report of the Law Commission submitted in 1988 that led to the inclusion of Information and Communication Technology in the judiciary for its better performance and transparency. In 2007, based on these recommendations, the Government implemented the computerisation of judiciary at all levels.[23]

Reforms brought up in the CrPC:

In its 41st report, the Committee made large-scale recommendations concerning the flaws in the Code of Criminal Procedure of 1898. It is the recommendations made by the Law Commission in its 14th and 41st report that led to the enactment of the new Code of Criminal Procedure, 1973 that is being followed now[24].

In its 142nd report, the Commission aimed at making the Criminal Justice System speedy, efficient and just. The reformative measures embodied in the Code of Criminal Procedure were given life and suggestions on redefining certain crimes enlisted in the Indian Penal Code were also done. The concept of Plea Bargaining was also brought up by this report only. It insisted that the accused who accept their crimes should be given a lesser sentence which was seen as a reformative action.[25]

The 154th Law Commission report was a significant factor in bringing several notable amendments in the criminal laws, i.e., Code of Criminal Procedure as well as the Indian Penal Code. It recommended a separation of investigating authorities from law and order Police so that there is a lesser possibility of political or other interferences. The Commission made specific recommendations to amend certain provisions of the Criminal Procedure Code such as Sec. 161, 162, 164 and 172 of CrPC under which the statements of witnesses are recorded to ensure speedy trial. The Commission also made recommendations regarding Sec. 437 and 438 of CrPC that were implemented under the 2005 amendment act of Criminal Procedure Code.[26]

IMPEDIMENTS OF THE PRESENT SYSTEM

Administration of criminal justice system is an amalgamation of four different institutions that function by establishing coherence amongst them. These four institutions, namely the Police Forces, Trial Courts, Prosecution and Prison-reform cells, are distinct, but to be operative, they are co-dependent. However, a working system cannot be expected to be free from anomalies, especially when the system’s principle disposition is to maintain law and order in a country with colossus demography. Recent reports and studies unequivocally point at the crisis faced by the Criminal Justice System in India, the Backlog of cases. This acute problem emerges as a bipartite. The former one being the cases for which the trial has not been completed, and the latter one is delayed police investigation. Also, the Criminal Justice System often receives backlashes when it comes to the conviction rate of the accused.[27] To understand this scenario vividly, statistics can provide reliable insight. According to the NCRB (National Crime Report Bureau) data, in the year 2017, the number of F.I.R. lodged were 50, 07,044.[28] In the same year another database, dealing with the number of pending criminal cases in the trial courts was 66, 99, 256.[29] Not does the pending cases are the problem itself but can be only perceived as something consequential. As announced by the law minister of India, the judge population ratio in India is 19.66 per million people as of 2017. The situation of Backlog of cases has another ill effect, addition in the number of under-trial prisoners. Although not all under-trial offenders are prisoners, they are in a considerable number. The prison report of India shows that, in the year 2018, the total number of convicts that occupied the jail was 1,39,488, whereas the number of under-trial prisoners was 3,23,537.[30] The number of F.I.R. lodged is not the pertinent challenge, but the Backlog of cases in the trial courts is the actual disorder. The quantum of F.I.R. that has been launched in a particular year indicates the awareness and inclination of the people to report a crime. However, the role of the criminal justice system does not cease with the reporting of such crimes, but the task is only accomplished when the cases are disposed of.

No wonder such a halt in the system is a matter of grave concern, and to counteract such challenge it is apposite to understand what does the given laws concerning the criminal justice system exhibits. The that comes into the periphery whenever the criminal justice system is talked about, and the discussion about the reforms is to be dispelled, is the Malimath Commission Report of 2003, published in two volumes. This Commission suggested 158 reforms to the central Government that enrobed the entire criminal justice system. Beginning from the very principle on which the foundation to seek justice has been substantiated and entailing it till the training of the professionals. Of course, the Malimath Commission Report cannot be seen as something infallible; however, the task to study the entire justice system and making a panoramic report cannot be just shrugged off. It won’t be possible to cover the entire study and analysis of the report, but some crucial recommendations, their pros and cons must be discussed. In the light of this herculean report, it could be seen that to what extent the criminal laws in India are serving to procure the ends. The committee report suggested in a gist that the present criminal justice system is more inclined towards redeeming the accused rather than delivering justice to the victim.

To understand the criminal justice system in India, the initial step would be to ascertain the underpinning jurisprudence of this system. The system that is followed in India for the dispensation of criminal justice is the adversarial system of common law, the codification of the substantive and the procedural criminal law was evolved and shaped during the British era, so it is not something to wonder that the adversarial system of law has been derived from the British standard law system. The adversarial system has taught in itself few features where the judge has to act as a neutral third party, and it is the Prosecution that has to prove the offence beyond a reasonable doubt. Any doubt lurking in the case may give benefit to the accused. On the contrary, in the inquisitorial system, it is significant to note that the standard of proof acts as a factor for Prosecution and not to prove the offences beyond a reasonable doubt. The parties cross-examine the witnesses to undermine the evidence and more often than not are seen to act redundantly to discover the information from the other side. Also, while acting as a neutral third party, in the adversarial system, the judge by no means shall take part in the investigation of the cases.

In contrast, in the inquisitorial system, the judge many a time acts as judicial Police. However, any system cannot be construed as something free from the infirmities. The nations that follow the inquisitorial systems are France, Germany and Italy. In France, the role of the judicial magistrate and the Prosecutor are interchangeable. This exhibits that there will be a sense of dubiety in the psyche of accused when put to trial.[31]

Now let us take a glance at the position of the procedural laws in India dealing with investigations. Under the CrPC the power to carry out the investigation lies with the police officer; the power has been entrusted upon him under section 156 of the CrPC[32] that talks about the power of the Police to investigate into matters of a cognisable offence without the direction of the magistrate. Every report then prepared shall be forwarded to the magistrate under section 157 of the CrPC. The other facet that plays an integral part in the investigation is summoning and examination of witnesses, the power that has been conferred upon on the Police under section 160[33] and 161[34] of the CrPC, which says that the Police have the power to summon and examine any witness. However, the power to examine the witness that has been given to the magistrate under section 254[35] of the CrPC is only circumscribed to the limits that when an application is to be made by the Prosecution or accused to summon a witness or to produce a document. The law limits the position of the magistrate as such, where he has to maintain the spot of neutrality and attempt shall not be made to seek out the truth. Another facet for the trial is evidence. Section 165[36] of the Indian Evidence Act empowers the magistrate to ask any question to the witnesses. This section also entrusts the magistrate to ask the witness to produce any document, but that too has its limitation as the person is entitled to refuse to answer any question and produce any document under section 121 and 131 of the said acts. In the case of evidence, hearsay evidence comprises a large part of the evidence. Still, they are often determined as the weakest form of evidence on the contrary to the notion of hearsay evidence is not present in inquisitorial systems.

Such anxieties are more often than not expressed by the Supreme Court of India where the accused have managed to escape from the clutches of justice. In the case of Mohan Lal v Union of India[37] where the Prosecution failed to produce the best present evidence, the Supreme Court observed that: “If such situation arises, then what shall be the role of the presiding officer of the Court? Shall he act as a neutral umpire to declare who won at the end of the combat, or is he bestowed upon with the legal duty, independent of the parties? An initiative of his own where he is to participate actively in the proceedings in finding the truth and administer justice. It is unequivocally a settled principle that the Court must discharge statutory functions, both discretionary and obligatory, according to the law when dispensing justice. As the Court must cinch that justice is being done.”

The aggregate result of the abovementioned systems paves the path for the pathos when corroborated with the situations that are present in India. It is frequently noticed that the investigating officers are not given training in interrogation techniques and sophisticated investigation skills—no need to say that this results in delayed Prosecution. The plight, however, does not end here. So far as the Prosecution is concerned, it is often seen that the best available legal talent is not availed. The Prosecution and the investigating officer lacking the co-ordination make thing worse.[38]

The ends that have to be achieved by the Criminal Justice System is to punish the guilty and to protect the innocent, the substantive law adjures the punishment, but that cannot be achieved if the procedural law fails to exhibit efficacious dispositions. 

CONCLUSION

Thus, this article intends to convey that as long as civilisation exists, its discontents will be present. For the maintenance of a peaceful and tranquilised society, a system must be set up. The criminal justice system discharges the said duty. There are various institutions intertwined under this system such as Police, lawyers, courts and prisons for the functioning of this system. How the criminals are dealt with under this system relies on what are underlying principles of the criminal administration, namely the adversarial and the inquisitorial system. The adversarial system is often termed as an accused lenient system whereas the inquisitorial is stricter and inflexible. India follows the principle of the adversarial system in criminal justice. The present-day criminal justice system in India is no doubt a progression of the system, whose foundation was laid by the Britishers. With their advent in India, they not only controlled the administration and the revenue but transfigured the judiciary. According to them, the existing traditional Muslim law was brutal, irrational and was numerous time inconsistent with the practices. The Britishers, beginning from the time of Lord Cornwallis (1790), introduced regulations to amend the traditional Muslim Law and in the year 1860, enacted the Indian Penal Code that superseded the existing Muslim Law. The Britishers were always adamant about building, what according to them was a civilised society. The existing laws then were, however retaliatory and did not serve that purpose. The system that we have hitherto is an aggregate of all that was formed in the pre-independence era and post-independence era. In Post-independence, several recommendation and amendments took place in the criminal justice system. The recommendations made the judiciary more efficient, as the 77th report of law commission suggested that there shall be right to a speedy trial. This can be considered a milestone in reforming the judicial system. However, we shall not forget the fact that society is not static and to meet its requirement; there shall be constant endeavours. The criminal justice system in India, like all other systems of the world, has its flaws. This sometimes leads to denial and miscarriage of justice. The chief impediments that the system exhibits are the delay of the judiciary and some of the existing procedural laws.

On the one hand, where the Backlog of cases is an alarming concern for this country on the other, it can be seen that the procedural law often implores it. The Malimath Commission of 2003, in its report, has vehemently advocated the fact that even a robust substantive law is not effective if the maladies lurk in the procedural laws. It is crucial to take into consideration the account of society we live, to form a criminal justice system that duly serves its purpose of maintaining the rule of law in the society. Like other branches of law, the criminal justice system held at a higher position because it controls the society from a primitive to the elaborate stage and it will only be a utopian society, where the necessity of it will cease to exist.

[1] B. B. Pande, Human Rights and Criminal Justice Administration in India, in Criminal Justice A Human Rights Perspective of Criminal Justice Process in India 106 (Dr. K.I. Vibhute ed., 2004).

[2]Joel Samaha, Criminal Justice 6 (12th ed. 2015).

[3]R.V. Kelkar, Criminal Procedure 336 (K.N.C. Pillai ed., 5th ed. 2015).

[4]Siddique Ahmad, Criminology 302 (5th ed. 2005).

[5]JamunaChaudhari& Ors vs. State of Bihar, AIR 1974 SC 1822.

[6]Law Commission of India, 14th Report on Reform of Judicial Administration 765 (1958).

[7]Charles D. Edelstein & Robert J. Wicks, Introduction to Criminal Justice 9 (1977). 

[8]AmarendraMohanty, Indian Prison System, 3 (1990).

[9]M.P Jain, Outlines of Indian Legal and constitutional history 386(7th ed Justice G.B Patnaik, 2014).

[10]M.P Singh, Outlines of Indian Legal and Constitutional History (8th ed., 2015).

[11]Id.

[12]G.P Tripathi, History of Courts and Legislation 105- 110 (1st ed., 2009).

[13]S.C Tripathi, Indian Legal and Constitutional History 29-31 (3rd ed., 2011).

[14]Supra note 9at 400- 402.

[15] The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860. 

[16] The Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974.

[17] Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872.

[18]Law Commission of India, 141st Report on Need for Amending the Law as regards Power of Courts to Restore Criminal Revisional Applications and Criminal Cases Dismissed for Default in Appearance, Ministry of Home Affair, Government of India (1991).

[19]Law Commission of India, 198th Report on Witness Identity Protection and Witness Protection Programmes, Ministry of Home Affair, Government of India (2006).

[20]Law Commission of India, 233rd Report on Amendment of Code of Criminal Procedure Enabling Restoration of Complaints, Ministry of Home Affair, Government of India(2009).

[21] The Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974, §. 223.

[22]Law Commission of India, 221st Report on Need For Speedy Justice- Some Suggestions, Ministry of Home Affair, Government of India (2009).

[23]Law Commission Of India, 124th Report on The High Court Arrears-A Fresh Look, Ministry of Home Affair, Government of India(1988).

[24]D. P. Sharma, Speedy Justice and Indian Criminal Justice System, I.J.P.A. 3 (1999).

[25]Law Commission of India, 142nd Report on Concessional Treatment for Offenders who on Their initiative choose to Plead Guilty without any Bargaining, Ministry of Home Affair, Government of India(1991).

[26]Law Commission of India, 154th Report on The Code of Criminal Procedure,1973 (Act no. 2 of 1974), Ministry of Home Affair, Government of India (1996)

[27]Faizan Mustafa, A growing blot on the criminal justice system, The Hindu, December 10, 2019, https://www.thehindu.com/opinion/lead/a-growing-blot-on-the-criminal-justice-system/article30259835.ece (last visited May 17, 2020).

[28]Crime in India 2017, 1 National Crime Records Bureau, Ministry of Home Affairs 1, 1, 11 (2017), https://ncrb.gov.in/sites/default/files/Crime%20in%20India%202017%20-%20Volume%201_0.pdf(last visited May 17, 2020).

[29]Welcome to NJDG – National Judicial Data Grid, https://njdg.ecourts.gov.in/njdgnew/index.php (last visited May 17, 2020).

[30]  Prison Statics of India, NATIONAL CRIME RECORD BUREAU, MINISTRY OF HOME AFFAIR, https://ncrb.gov.in/prison-statistics-india (last visited May 17 2020)

[31] Michael Louis Corrado, The future of Adversarial System, 35 N.C. J. Int’l L. and Comm.REG. (2010).

[32]The Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974, §. 156.

[33]Id., §. 160.

[34]Id., §. 161.

[35]Id., §. 254.

[36]Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872, §. 165.

[37] AIR 1991 SC 1346.

[38]Law Commission of India, Committee on Reforms of Criminal Justice System, 1, Ministry of Home Affair, Government of India, 125(2003).

Share on facebook
Facebook
Share on twitter
Twitter
Share on linkedin
LinkedIn
Share on email
Email
Share on whatsapp
WhatsApp