Friday, July 2, 2010

Meaning of Criminal Procedure

Definition: A step taken; an act performed; a proceeding; the steps taken in an action or other legal proceeding.
Definition: A mode of conducting legal proceedings.

Criminal procedure puts the burden of proof on the prosecution – that is, it is up to the prosecution to prove that the defendant is guilty beyond any reasonable doubt, as opposed to having the defense prove that s/he is innocent, and any doubt is resolved in favor of the defendant. This provision is known as the presumption of innocence.

The framework of laws and rules that govern the administration of justice in cases involving an individual who has been accused of a crime, beginning with the initial investigation of the crime and concluding either with the unconditional release of the accused by virtue of acquittal (a judgment of not guilty) or by the imposition of a term of punishment pursuant to a conviction for the crime. Criminal law is the branch of substantive law dealing with punishment for offenses against the public and has as its corollary criminal procedure, which indicates how the sanctions of criminal law must be applied.

Criminal procedures are safeguards against the indiscriminate application of criminal laws and the wanton treatment of suspected criminals. Specifically, they are designed to enforce the constitutional rights of criminal suspects and defendants, beginning with initial police contact and continuing through arrest, investigation, trial, sentencing, and appeals.

The main constitutional provisions regarding criminal procedure can be found in the Criminal Procedure Code, 1973 and Article 21 of the Constitution. This covers the right to be free from unreasonable searches and arrests. No person shall be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due procedure established by law.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of legal counsel for his defence.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. According to the Supreme Court, fundamental rights in criminal procedure include freedom from unreasonable searches and seizures, freedom from cruel and unusual punishment, assistance of counsel, protection against self-incrimination, confrontation of opposing witnesses, a speedy trial, compulsory process for obtaining witnesses, and protection against double jeopardy (same cause of action).

Investigation
Criminal prosecutions officially begin with an arrest. However, even before an arrest, the law protects the defendant against unconstitutional police tactics. The Constitution protects persons against unreasonable searches and seizures by police officers. Generally, a search warrant is required before an officer may search a person or place.
Arrest
The general rule is that to make an arrest, the police must obtain an arrest warrant from the Magistrate for a non-cognizable offence. However, if an officer has probable cause to believe that a crime has been committed, and there is no time to obtain a warrant, the officer may make a warrantless arrest. Also, an officer may make a warrantless arrest of persons who commit a crime in the officer's presence.

“the Power of Arrest must be used in the rarest of rare cases and not in a routine manner. A mere allegation of Commission of offence cannot constitute ground for arrest. It would be desirable that a Police Officer making an arrest should also record in the case diary, the reason for making the arrest.” in the historic judgment of Hon SC in D K Basu Vs State of West Bengal.
In the words of Justice MN VENKATACHALLIAH in Joginder Kumar Vs State Of UP – 1994.
“No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person.
Trial
At trial, an accused has a number of constitutional rights, including the right to counsel, the right to a public trial, the right to a fair and impartial trial, the right to confront witnesses in court, the right to compulsory process to obtain witnesses, and the privilege against self-incrimination. Violation of any of these rights may result in the reversal or vacation of a conviction on appeal. A defendant is free to reject counsel and proceed pro se, or by self-representation. However, a judge may disregard the defendant's request and appoint an attorney if the pro se defendant engages in dilatory or disruptive tactics.
Appeal
Contrary to popular belief, the Constitution does not guarantee the right to appeal a criminal conviction. Most criminal offences do provide the right to an appellate review of criminal convictions, to protect against trial court errors. On appeal, the burden is on the defendant to prove that an error occurred in the trial or that the evidence was insufficient to convict.

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