The Criminal Justice System: Its Four Parts

Section 176 is the power to investigate. If from information received an officer in charge of a police station has reason to suspect a cognizable offence, they may investigate without the order of a Magistrate. Sub-section (3) adds a requirement that matters a great deal in this paper: where an offence is punishable with seven years or more, the officer shall cause the forensic expert to visit the crime scene, collect forensic evidence, and videograph the process.

Read the words that follow, because students miss them. The duty operates from such date as may be notified within a period of five years by the State Government. It is therefore not in force everywhere, and where forensic facility is not available the State Government is to notify the use of another State's facility. A student who writes that every serious crime scene in India now gets a forensic visit has misread the sub-section.

Section 193 is the report on completion of investigation, the document usually called the charge-sheet. It is what turns an investigation into a prosecution, and if it is not filed the case simply stops.

What all of this assumes. Read those four sections together and you can see the assumption built into them: that there is one offence, that somebody wants it registered, and that the police station is willing. Every one of those assumptions fails in a riot, and Modules II, III and IV are largely the study of what follows.

Part two: the prosecution

Once the report under section 193 is filed, the case belongs to the Public Prosecutor, who is appointed by the State Government. The prosecutor is not the victim's lawyer. The prosecutor represents the State, and in a case of collective violence the State is frequently the institution whose failure is being examined.

This is a structural point and not an accusation. A Public Prosecutor appointed by a State Government cannot be an independent check on that Government's police, and no statute pretends otherwise. It is why victims of collective violence so often apply for a transfer of the trial, for a special prosecutor, or for an investigation by an agency other than the local police. Those three applications recur throughout this book.

Part three: the courts

The court tries the accused, decides guilt, and sentences. For most offences that is a Magistrate or a Sessions Judge under the ordinary law. For the offences in this paper it is very often a Special Court: the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 has its own, the Protection of Children from Sexual Offences Act 2012 has its own, and the special security statutes have theirs.

A court can only work on what reaches it. It cannot investigate, it cannot compel the prosecution to lead evidence it has not gathered, and in an adversarial system it cannot supply the case the prosecutor did not make. That limit is worth stating early, because a good deal of the criticism directed at courts in this paper is really criticism of the two stages before them.

Part four: the correctional machinery

Prisons, probation and after-care. This paper touches it at two points: custodial violence, which is Module III, and caste inside the prison, which is Module IV. The Penology paper in this same group takes it properly.

A worked example: what the relay looks like

Take a concrete case. On a night in a village, a crowd of about sixty from one community burns eleven houses belonging to another. One man dies. Follow it through the four parts.

1. Registration. Four survivors reach the police station at two in the morning. Under section 173 the officer must reduce their information to writing. If instead he records one omnibus complaint naming "unknown persons", the eleven separate offences become one weak case, and no later stage can undo it.
2. Investigation. Under section 176(3), because the offence carries more than seven years, a forensic team is to visit the scene, in a State that has notified the date. If the team arrives four days later, after the debris has been cleared, the physical evidence is gone.
3. The report. Under section 193 the officer files a charge-sheet against twelve named persons out of sixty. The other forty-eight are not before any court and never will be.
4. Prosecution. The Public Prosecutor is appointed by the State whose administration is being blamed for the delay. Witnesses are examined eighteen months later. Six of the eleven families have moved away.
5. Trial. The Sessions Judge has, in front of him, twelve accused, four witnesses who still live in the village, and no forensic evidence. He acquits.

Nothing in that sequence requires anybody to be corrupt. Each step is a small, ordinary institutional failure, and the four parts are joined in series, so the failures multiply rather than average out. That is the mechanism this whole paper studies.

What it does NOT mean

The criminal justice system is not the same thing as the criminal law. The criminal law is the body of rules that says what is an offence. The system is the machinery that applies them. A country can have excellent criminal law and a criminal justice system that delivers nothing, and a great deal of this paper is about exactly that gap.

It is not only the courts. Students routinely write "the criminal justice system failed" when they mean "the judgment was wrong". In most of the episodes in this book the judgment was the only part that worked as designed, on the material it was given.

And it is not a system in the engineering sense. Nobody designed the four parts to work together. They were built at different times by different statutes, and there is no institution whose job is the performance of the whole.

Quick revision

• Four parts: police, prosecution, courts, correctional machinery.
• Police powers now come from the Bharatiya Nagarik Suraksha Sanhita 2023, in force from 1 July 2024.
• Section 173: registration of information in a cognizable case; electronic information allowed, to be signed within three days; preliminary enquiry within fourteen days for offences of three to seven years, with the permission of an officer not below Deputy Superintendent of Police; refusal to register goes to the Superintendent and then to the Magistrate.
• Section 174: non-cognizable information, referred to the Magistrate.
• Section 176: power to investigate; sub-section (3) requires a forensic visit for offences of seven years or more, from a date the State Government notifies within five years.
• Section 193: the report on completion of investigation.
• The parts work in series, so failures multiply.
• The Public Prosecutor is appointed by the State, which is often the institution being examined.

Test yourself

1. Name the four parts of the criminal justice system and the one thing each does. Police, who investigate; prosecution, who conduct the case for the State; courts, who try and sentence; correctional machinery, which executes the sentence.

2. Which provision requires a forensic expert to visit the scene, and when? Section 176(3) of the Bharatiya Nagarik Suraksha Sanhita 2023, where the offence is punishable with seven years or more. The duty runs from a date the State Government notifies, within five years, so it is not yet universal.

3. Why is a Public Prosecutor a structural problem in a case of collective violence? Because the prosecutor is appointed by the State Government and represents the State, and in collective violence the State's own machinery is frequently what is being examined. The prosecutor cannot be an independent check on the police who report to the same government.

4. A defence counsel says "the courts have failed the victims of communal violence." What is the more precise statement? That in most such cases the investigation failed, and the court acquitted on the material it was given. A court in an adversarial system cannot supply evidence the prosecution did not gather, so criticism directed at the trial is usually criticism of the two stages before it.