The Four Agencies
Chapter Sixteen
Syllabus topic 2, "Administration of Criminal Justice - Meaning, Necessity and Growth"
Pages 51 to 53 of 711
In one line
Criminal justice is administered by four agencies, the police, the prosecution, the courts and the correctional system, and the system is only as strong as the weakest handover between them.
In the wording a student can write in an exam: the machinery of criminal justice comprises four agencies with distinct functions, namely the police, which detects, investigates, arrests and reports; the prosecution, which independently assesses the material and conducts the case in court; the judiciary, which frames the charge, tries the accused, decides guilt and passes sentence; and the correctional system, which executes the sentence and is charged with reintegration; and each agency depends on the product of the one before it, so a failure at any stage cannot be repaired by the agencies that follow.
The police
What they do. Receive information, investigate, arrest, seize, examine witnesses, and file the report on which the whole case rests.
The powers that matter. Section 35 of the Bharatiya Nagarik Suraksha Sanhita sets out when a police officer may arrest without a warrant, which includes on credible information that a person has committed a cognizable offence, and requires the officer to record his reasons where the offence is punishable with imprisonment of less than seven years. Section 43 governs how an arrest is made, permitting the officer to touch or confine the body of the person unless there is a submission to custody, and limiting the force that may be used. Section 193 requires the report at the end.
The criticism. Three, and all three are documented in official reports. Investigation is not separated from law and order duties, so the same constable who investigates a murder also manages a procession. Scientific aids are used late and rarely. And custodial abuse is a persistent problem, which is why the constitutional protections in Module III's topic 10 are directed almost entirely at this stage.
Why it matters most. Because the trial cannot manufacture evidence. Almost every Indian acquittal in a contested case is traceable to the quality of the investigation.
The prosecution
What it does. A Public Prosecutor or Assistant Public Prosecutor conducts the case for the State. He is not the complainant's advocate and not the investigating officer's advocate.
The duty that defines the office. A prosecutor's duty is to place the whole of the material before the court, including material that helps the accused, and to assist the court in reaching the truth rather than to secure a conviction. That duty is what distinguishes a prosecutor from a party's lawyer.
The criticism. Independence. The prosecutor is often appointed on political recommendation and is not institutionally separate from the police, so the independent second look that the office exists to provide is frequently not taken.
The Four Agencies
The courts
What they do. Take cognizance, discharge or frame a charge, try the case, decide guilt, sentence, and hear appeals and revisions.
The structure. Courts of Session and Additional and Assistant Sessions Judges; Chief Judicial Magistrates and Judicial Magistrates of the first and second class; and above them the High Court and the Supreme Court. Special courts sit under a great many special laws.
The duty that defines the function. Impartiality, and its institutional guarantee, the separation of the judiciary from the executive, which the Constitution directs the State to secure.
The criticism. Delay, in a class of its own. Cases pending for a decade are ordinary, and delay defeats every function of the system at once: evidence decays, witnesses turn, under-trials remain in custody, and the acquitted have already been punished.
The correctional system
What it does. Executes the sentence: prisons, and the machinery of probation, parole, remission and release.
What it is for. Not storage. The reformative theory in Module III's topic 9 supplies the aim, which is to return the person to society better able to live in it, and the Supreme Court has said repeatedly that a prisoner does not lose his fundamental rights at the gate.
The criticism. Overcrowding, and its principal cause, which is not the number of convicts but the number of under-trials. A prison population made up mostly of unconvicted persons is a failure of the courts and the police showing up in the correctional system's statistics.
The four agencies, in a table
| Agency | Function | What it hands on | Its characteristic failure |
|---|---|---|---|
| Police | Investigate, arrest, report | The charge-sheet and the evidence | Poor investigation, custodial abuse |
| Prosecution | Independent assessment, conduct of the case | The case as presented | Lack of independence |
| Courts | Charge, trial, verdict, sentence | The judgment and the sentence | Delay |
| Correctional system | Execution of the sentence, reintegration | The released person | Overcrowding, mostly by under-trials |
Worked example
A murder is investigated badly: the scene is not preserved, the recovery is not properly witnessed, and the only eye-witness is examined a month late.
Can the prosecutor repair it? No. He can present what exists and no more, and if he is doing his duty he will tell the court frankly what the weaknesses are.
Can the court repair it? No. It can summon a witness of its own motion and can direct further investigation at the right stage, but it cannot create a scene that was not preserved.
Where does the failure surface? As an acquittal, years later, described in the newspapers as a failure of the court.
And what does that show about the agencies? That they are sequential and not parallel. Each works on what the previous one produced, and a defect introduced early is not curable late. That single proposition is what an answer on this topic is really being asked for.
The Four Agencies
What it does NOT mean
It does not mean the agencies are independent of each other. They are functionally separate and operationally dependent, which is a different thing.
It does not mean the police decide guilt. They form an opinion and report it; the opinion binds nobody.
And it does not mean the correctional system begins after everything else. It holds under-trials throughout, which is why it is affected by delay more than by sentencing.
Quick revision
- Four agencies: police, prosecution, courts, correctional system.
- Section 35: arrest without warrant, with reasons recorded for offences punishable with less than seven years. Section 43: how an arrest is made and the limits on force. Section 193: the report at the end of the investigation.
- The prosecutor's duty is to place the whole of the material before the court, including what helps the accused.
- Characteristic failures: investigation quality and custodial abuse; want of prosecutorial independence; delay; overcrowding driven by under-trials.
- The agencies are sequential: a defect introduced early cannot be repaired late.
Test yourself
1. Name the four agencies and one function of each. The police investigate and report; the prosecution independently assesses the material and conducts the case; the courts frame the charge, try, decide and sentence; the correctional system executes the sentence and works towards reintegration.
2. What distinguishes a public prosecutor from a party's advocate? His duty is to place the whole of the material before the court, including material favourable to the accused, and to assist the court in reaching the truth rather than to secure a conviction.
3. Why is the quality of investigation the most important single variable? Because the agencies are sequential. Evidence not gathered at the scene cannot be produced at the trial, and no later agency can repair the defect.
4. What does a prison population composed mostly of under-trials indicate? Not a failure of the correctional system but of the courts and the police, since it measures delay and the use of custody before conviction.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.