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Comparative Criminal Procedure

The document outlines the historical evolution and comparative aspects of criminal justice systems, focusing on the Common Law and Civil Law traditions. It discusses the adversarial and inquisitorial models, the hierarchy of criminal courts in India, and the roles of police and prosecutors in various jurisdictions. Additionally, it highlights significant reforms introduced by the Bharatiya Nagrik Suraksha Sanhita, 2023, and compares it with the Criminal Procedure Code, 1973.

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21 views

Comparative Criminal Procedure

The document outlines the historical evolution and comparative aspects of criminal justice systems, focusing on the Common Law and Civil Law traditions. It discusses the adversarial and inquisitorial models, the hierarchy of criminal courts in India, and the roles of police and prosecutors in various jurisdictions. Additionally, it highlights significant reforms introduced by the Bharatiya Nagrik Suraksha Sanhita, 2023, and compares it with the Criminal Procedure Code, 1973.

Uploaded by

shubhamkumar30112000
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Comparative Criminal Procedure

Unit 1 Introduction to criminal justice process

A. Historical Evolution of the Criminal Justice System – Common Law


System vs. Civil Law System

The criminal justice system has evolved through centuries, with two major legal traditions:

1. Common Law System

 Originated in England, now followed in countries like India, the U.S., Canada, and
Australia.
 Based on precedents (stare decisis), meaning past judicial decisions shape future
rulings.
 Judges play a central role in interpreting laws.
 Example: Indian criminal law, including the IPC, CrPC, and Evidence Act, is based
on common law principles.

2. Civil Law System

 Rooted in Roman law, widely followed in Europe, Latin America, and parts of Asia.
 Laws are codified, and judicial precedents have limited influence.
 Judges primarily apply statutes without much discretion.
 Example: France, Germany, and Japan follow the civil law tradition.

B. Adversarial Model vs. Inquisitorial Model

1. Adversarial System (Common Law)

 Used in India, the U.S., the UK, and other common law countries.
 The judge acts as a neutral umpire, while the prosecution and defense argue their
cases.
 The burden of proof lies on the prosecution.
 Accused is presumed innocent until proven guilty.

2. Inquisitorial System (Civil Law)

 Followed in France, Germany, and other civil law countries.


 Judges actively investigate, interrogate, and gather evidence.
 Less reliance on cross-examination; more focus on written records.

C. Hierarchy of Criminal Courts and Their Jurisdiction


The criminal court hierarchy in India is defined under the Criminal Procedure Code,
1973 (CrPC):

1. Supreme Court – Final appellate authority.


2. High Courts – Hears appeals from lower courts.
3. Sessions Court (District Judge) – Deals with serious crimes like murder (offenses
punishable with death or life imprisonment).
4. Chief Judicial Magistrate (CJM) & Additional CJM – Handles offenses
punishable up to 7 years.
5. Judicial Magistrates (First & Second Class) – Handles offenses with punishments
of 3 years or less.
6. Executive Magistrates – Handle preventive measures and minor disputes.

D. Nyay Panchayat in India – Prosecutors in India and Their Counterparts

1. Nyay Panchayats

 Local dispute resolution bodies operating at the village level.


 Handle minor civil and criminal cases.
 Aim for quick and cost-effective justice through conciliation.
 Have no power to impose severe punishments.

2. Prosecutors in India

 Public Prosecutor (PP) – Represents the state in criminal trials.


 Assistant Public Prosecutor (APP) – Handles cases in lower courts.
 Director of Prosecution – Supervises public prosecutors.

3. International Counterparts

 U.S. – District Attorneys (DAs) handle prosecutions.


 UK – Crown Prosecution Service (CPS) leads prosecutions.
 France – Prosecutors play an active role in investigations (Inquisitorial model).

E. Significant Features of Bharatiya Nagrik Suraksha Sanhita (BNSS)

The Bharatiya Nagrik Suraksha Sanhita, 2023 replaces the CrPC, 1973 and introduces
reforms such as:

1. Use of Technology – Digital case filing, electronic summons, video-recorded


statements.
2. Time-bound Investigations – Mandatory completion of probe within 90 days.
3. Stringent Bail Provisions – Stricter norms for habitual offenders.
4. Forensic Evidence – Mandatory for serious crimes (offenses punishable by 7+
years).
5. Community Policing – Enhances local dispute resolution mechanisms.
6. Witness Protection – Strengthened mechanisms to safeguard witnesses.

F. Comparison: Criminal Procedure Code (CrPC, 1973) vs. Bharatiya Nagrik


Suraksha Sanhita (BNSS, 2023)

Aspect CrPC, 1973 BNSS, 2023


No fixed deadline for probe Mandatory 90-day limit for
Investigation
completion. investigation.
Digital records, e-summons, forensic
Technology Use Limited use of digital tools.
reliance.
Bail System Standard bail provisions. Stricter for repeat offenders.
Forensic
Not mandatory. Compulsory for serious crimes.
Evidence
Witness
Limited safeguards. Stronger protection for witnesses.
Protection

Unit 2 Role of police

A. Role of the Police and Its Obligations Under CrPC

The Criminal Procedure Code, 1973 (CrPC) governs the duties and powers of the police in
India.

1. Role of the Police

 Prevention of Crime – Maintain law and order.


 Investigation of Offenses – Gather evidence, question suspects, and file charge
sheets.
 Arrest and Detention – Apprehend suspects as per legal provisions.
 Protection of Rights – Ensure fair treatment of accused individuals.
 Assistance to Courts – Execute warrants and enforce judicial decisions.

2. Obligations Under CrPC

 Section 154 – Duty to register an FIR for cognizable offenses.


 Section 41 – Power to arrest without a warrant in cognizable cases.
 Section 46 – Procedures for making an arrest, including the use of force if necessary.
 Section 160 – Power to summon witnesses during an investigation.
 Section 173 – Duty to complete investigations expeditiously and submit a report.
 Section 144 – Power to issue prohibitory orders in emergencies.

B. Police Powers in England: Stop, Entry, Search, Arrest, and Detention


In England and Wales, police powers are primarily governed by the Police and Criminal
Evidence Act, 1984 (PACE).

1. Power of Stop and Search

 PACE Section 1 – Police can stop and search individuals if they have "reasonable
suspicion" of criminal activity.
 Terrorism Act, 2000 – Allows stop and search without suspicion in certain cases.

2. Power of Entry and Search

 PACE Section 17 – Police can enter premises without a warrant to arrest a suspect
for serious offenses.
 Section 18 & 32 – Search powers following an arrest.
 Search Warrant – Required for non-urgent searches.

3. Power of Arrest

 PACE Section 24 – Allows arrest without a warrant for indictable offenses if


necessary for investigation.
 Reasonable Force – Officers can use proportionate force to make an arrest.

4. Power of Detention

 PACE Section 41 – Allows detention for up to 24 hours, extendable to 96 hours for


serious offenses.
 Magistrate Approval – Needed for longer detentions.

C. Police Powers in the USA: 4th to 14th Amendment

1. The 4th Amendment: Protection Against Unreasonable Searches and Seizures

 Police must have probable cause for searches and arrests.


 Warrants must specify the place to be searched and persons or things to be seized.
 Exceptions: Stop-and-frisk (Terry v. Ohio, 1968), search incident to arrest, and
exigent circumstances.

2. The 5th Amendment: Protection Against Self-Incrimination

 Miranda Rights (Miranda v. Arizona, 1966) – Police must inform suspects of their
right to remain silent and have an attorney.
 Protection Against Double Jeopardy – A person cannot be tried twice for the same
offense.

3. The 6th Amendment: Right to a Speedy and Public Trial

 Right to legal counsel and to confront witnesses.


 Ensures fair trial procedures.
4. The 14th Amendment: Due Process and Equal Protection

 Extends Bill of Rights protections to state-level actions.


 Ensures equal protection under the law for all individuals.

D. Rights of the Accused – Right to Counsel – Role of Prosecutor and Judicial


Officer in Investigation

1. Rights of the Accused

 Presumption of Innocence – Innocent until proven guilty.


 Right to Silence – Cannot be forced to self-incriminate.
 Right to Bail – Accused may seek bail except in serious offenses.
 Right Against Torture – Protection from custodial violence.

2. Right to Counsel

 Article 22(1) of the Indian Constitution – Right to be defended by a legal


practitioner.
 Section 303 of CrPC – Accused has the right to be defended by an advocate.
 Legal Aid (Article 39A) – Provides free legal services to economically weaker
sections.

3. Role of Prosecutor

 Public Prosecutor (PP) represents the state in criminal trials.


 Duty to present facts impartially, ensuring justice rather than conviction.
 Must follow fair trial principles and prevent wrongful prosecution.

4. Role of Judicial Officer

 Magistrates supervise investigations to prevent abuse of power.


 Approve warrants, remands, and bail applications.
 Ensure fair procedures in the judicial process.

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