Chapter: 2 Courts and Legal Procedures न्यायालय व न्यायालयीन कार्यपद्धती

Some important terms commonly used in legal procedure are as follows:

1. Court: A governmental body that settles legal disputes by interpreting and applying the law to specific cases.

2. Crime: means a social harm which has been defined and made punishable by law.

3. Cognisable Offences: It is an offence where a police officer can arrest a person without a warrant from the magistrate, e.g. rape, murder, grievous (Serious) hurt, etc.

4. Complaint: means the allegation made orally or in writing to a magistrate with a view to his taking action against some person, whether known or unknown, who has committed an offence.

5. Warrant: Is a document, issued by the court, based on which the police officer can arrest a person.

6. Affidavit: means a written declaration under oath.

7. Document: means any matter expressed or described upon any substance by means of letters, marks etc. which may be used as evidence for the matter.

8. Evidence:  means all legal matter (documents, oral, circumstantial) which can help to prove or disprove any matter of facts which is submitted to judicial investigation.

9. Deposition: means a statement on oath made by a witness in a judicial proceeding. It is taken down in writing and signed by the witness and magistrate.

10. Exhibit: means and includes any document or object produced for inspection of the court, or shown to witness while giving evidence, or referred to in a deposition.

11.  Witness: Is defined as a person who gives sworn testimony in the court.

12.  Summons case: Refers to offences, punishable with imprisonment up to two years.

13.  Warrant case: Refers to offences, punishable with imprisonment beyond two years.

14.  IPC-Indian Penal Code: It prescribes the punishments for different criminal offences.

15.  Cr.P.C.-Criminal Procedure Code: It prescribes the procedure of investigation and trial of criminal offences.

16.  C.P.C.-Civil Procedure Code: It prescribes the procedure to dispose of civil disputes between two individuals or parties.

17.  I.E.A. - Indian Evidence Act: It prescribes the procedure for collection, preservation and use of different evidences in court of Law.

18.  INQUEST: Inquest means Investigation / enquiry / examination to ascertain matter of fact. In forensic work Inquest generally means an enquiry into the cause of death.

COURTS IN INDIA

There are two types of courts in India: (1) civil and (2) criminal.

The courts in India are of four types:

1. The Supreme Court/ सर्वोच्च न्यायालय: It is located in New Delhi, and is the highest judicial tribunal in India.  It can pass any sentence authorised by the law and supervises all the courts in India. The law declared by it is binding on all courts in India.

2. The High Court/ उच्च न्यायालय:  It is highest tribunal of state and is located in the state capital. It can try any offence and pass any sentence authorised by the law.

3. The Sessions Court/ जिल्हा न्यायालय - सत्र न्यायालय: It is located at district headquarters, and can pass any sentence authorised by the law but the death sentence passed by it must be confirmed by the High court.

      4.    The Magistrate Courts: The magistrate courts are of following types:

(a) Chief Judicial Magistrate / Chief Metropolitan Magistrate (In metropolitan area) can pass imprisonment for up to 7 years, and can also impose fine without limit. He can order solitary confinement - एकान्त कारावास as well.

            (b) First Class Magistrate or Metropolitan Magistrate can pass a maximum of 3 years sentence, fine up to Rs. 10000/- and can also order solitary confinement.

(c) Second Class Magistrate can sentence up to one year and fine up to Rs. 5000/- Also, he can order solitary confinement.

The sentences (punishment) authorised by law are/ कायदा मान्य शिक्षा: (a) death, (b) imprisonment for life, (c) rigorous imprisonment - सश्रम कारावास, and/or solitary confinement, (d) simple imprisonment, (e) forfeiture of property, (f) fine, and (g) detention for treatment, training and rehabilitation of young offenders under the age of 16 years.

Powers of different courts/ विविध न्यायालयांचे अधिकार

No.	Court	Death	sentence	Imprisonment Fine
1.	Magistrate Court
a)	Second Class Magistrate	No	One year	Rs. 5000/-
b)	First Class Magistrate	No	Three years	Rs 10000/-
c)	Chief Judicial Magistrate	No	Seven years	No limit
2.	Sessions Court	Yes(but to be confirmed by High Court)	Life sentence	No limit
3.	High Court	Yes	Life sentence	No limit
4.	Supreme Court	Yes	Life sentence	No limit

Important information of terms used in court:

1. Subpoena or Summons/ हुकूम / आदेश : (Sub means under, poena means penalty)

It is a written document issued by the court commanding the attendance of the witness to appear in the court under penalty threat on a specified day, time and place for giving evidence. It may also ask him to produce any document, case records or any other articles as required by the court. The witness can be excused from attending the court only if he has some valid and urgent reasons e.g. genuine emergency service for which no other doctor is available, doctor is ill etc.

Nonfulfillment of summon may render a person to pay damages in a civil case, or pay fine or sustain imprisonment in criminal cases.

Preference: If two or more summons is received for same time and date -

a) Criminal case is preferred over civil

b) If both cases are criminal or civil - higher court is preferred.

c) If both cases are criminal or civil and from courts of same status - earlier summons is preferred.

The other court is informed accordingly.

2. Conduct Money/ यात्रा धन:

Conduct Money refers to the travelling and daily expenses to reach court. In civil cases, it is paid by the party who has called him to give evidence. If the fee is not paid or if doctor feels that fees are insufficient, he can ignore the summons.

Doctor can bring it to the notice of the court which will decide whether it is reasonable or not. If the court feels it is insufficient, it may direct the party who has called the doctor to give evidence or to pay more. In criminal cases, no fee is paid at the time of serving summons. However, usually the court gives travelling charges and daily expenses after the doctor has deposed in the court.

3. Perjury/ शपथ भंग:

Perjury means wilful utterance of falsehood by a witness under oath. He is liable to be prosecuted for the same.

WITNESS/ साक्षीदार:

Three types:

1. Common witness - सामान्य साक्षीदार

2. Expert witness - विशेष साक्षीदार

3. Hostile witness - विपरीत साक्षीदार

Common Witness: Also called Ordinary witness or Simple witness.

Any person can explain the evidence about the facts actually what he saw or heard. He provides first-hand knowledge. He cannot express his or others opinion in this matter.

Expert Witness or Skilled witness:

He is the person who has been trained or is skilled in a technical or scientific subject and is capable to give opinion from the facts observed by him as a doctor, fingerprint expert etc. Expert witness can volunteer a statement that is he can voluntarily of his own make a statement in the court even if not asked.

Hostile witness or Adverse witness or Unfavourable witness:

Hostile witness is one who speaks contrary to what he has stated earlier or against the interest of the party who has cited him as a witness.

CONDUCT AND DUTIES OF A DOCTOR IN THE WITNESS BOX:

1. Doctor must attend court in time and produce all the essential documents. His dress should be consistent with his dignity as a doctor (wear apron). He should address the judge as “Sir” or “Your Honour.”

2. Doctor should be well prepared with the details of the case, speak properly (avoid long discussions) and distinctly with confidence. Doctor should express an opinion from his knowledge and experience.

3. Doctor should use simple language, avoid overstatement, should not drop important mark while reporting the records. The doctor should be calm and polite to give his opinion and should not lose his temper.

4. Text books of repute can be offered in evidence. Before answering, Doctor should read out the complete passage, as the lawyer might have read only the statements that favour him.

5. Doctor must answer all questions regarding the case. In India, professional secrecy is not recognised by a court of criminal law.

6. Doctor should not leave the court till permission is granted.

7. Doctor should not discuss the case with anyone else in the court before his evidence is taken.

COURT PROCEDURE/ न्यायालयीन कार्यपद्धती:

The evidence of the witness is recorded as follows:

1. Oath - शपथ

2. Examination-in-chief - मुख्य तपासणी

3. Cross-examination - उलट तपासणी

4. Re-examination - फेर तपासणी

5. Questions put by the judge - न्यायाधीश प्रश्न

Oath:

Before starting the procedure, witness has to take an oath. The format is: “I swear by God that I shall speak truth, the whole truth and nothing else but truth.” If the witness is an atheist, he has to make solemn affirmation instead of swearing by God. The form in which oath is administrated depends on the religion of the witness. A Hindu holds Gita, Christian holds Bible in his hand, Muslim holds Quran and he is then sworn.

Examination-in-Chief:

The first examination is done by the side who has called him. In this examination, no leading questions can be asked. A leading question is defined as the question, which suggests some answer, e.g. “whether on the day of murder you were wearing a red shirt or not?” The purpose of the examination-in-chief is to place on record, all the information the witness has about the case. In case of medical witness it is the public prosecutor who examines him first. Questions may be put by the judge to clear any doubtful points.

Cross-examination:

It is considered to be the most reliable procedure of testing the value of evidence and is held by the lawyer of opposite party. The witness may be asked any question including the leading question. There is no time limit fixed for cross examination. However, the court reserves its right to disallow any question it deems unnecessary or insulting to the witness.

Re-examination:

After cross-examination, the witness may be re-examined by the lawyer, who has first conducted examination in-chief, with the aim to explain or to clear up any doubts that may have arisen during cross examination. But the witness should not introduce any new fact without the consent of the judge or the opposing counsel, and the opposing side has the right of cross-examination on the new point.

Question put by the judge or court:

At any stage during the recording of evidence, the judge may ask questions to clear his doubts.

Medical Evidence - वैद्यकिय पुरावा:

When the evidence refers to medical science, it is known as Medical Evidence.

It is of three types:

1. Written or documentary evidence - लेखी पुरावा - Includes Medical Certificate, Medico legal Reports, Dying declaration and Dying deposition.

2. Oral evidence - मौखीक पुरावा - Includes Direct and Indirect.

3. Circumstantial - परिस्थितीजन्य पुरावा

Medical Certificate - वैद्यकिय प्रमाणपत्र : Signed by a registered medical practitioner is accepted by the court, it states to sickness, mental illness, birth, vaccination, death etc. In the ill health certificate the doctor should mention the exact nature of the illness, and take the signature or thumb impression of the patient. It is compulsory for a medical practitioner who has attended the last illness of the deceased person to issue a death certificate. The medical practitioner can’t charge any fees for issuing a death certificate.

Medico-legal Reports -न्यायवैद्यकिय / चिकित्साविधिक प्रतीवेदन : These documents are prepared by the doctor on the request of police or investigating agencies in criminal cases e.g. injury report, age certificate, certificate of mental illness, certificate in connection with sexual offences, post-mortem report etc.

Cloths, weapon etc. sent for examination should be described in detail after examination and should be handed over after it is properly sealed.

The opinion should be based on facts observed and should be stated briefly and clearly, avoiding exaggerations and technical terms as possible. The report should be prepared at the time of examination or immediately afterwards and a copy of the report should be preserved.

Dying Declaration - मृत्युकालीन घोषणा: It is a statement, written or oral, of a person who is dying as a result of some unlawful act, relating to facts of cause of his death or any of the circumstances resulting in death. Ideally it should be recorded by executive or honorary magistrate. Doctor has to certify that the patient to be compos mentis.( i.e. he is conscious and his mental condition is normal.) If there is an emergency, the doctor himself should record the statement.

The statement can be recorded by police or any other person. The statement should be noted down in the man’s own words without any alteration. If the person is able to give only partial statement, and then he becomes unconscious, only the partial statement should be recorded. When the declaration is concluded, doctor should certify that the said declaration was made while the declarant was compos mentis and that the declaration was read over to him and he accepted it as being correctly recorded. No leading questions are allowed.

Writing statement is allowed when person is unable to speak.

If the declarant survives, the declaration is not admitted and the person is called to provide oral evidence.

In case of dowry death it is essential that it should be recorded by the magistrate only. During recording no relative or police officer is allowed to be present, since they may influence the patient.

Dying Deposition - मृत्युकालीन अभिसाक्ष: Is a statement of a person on oath before a magistrate, in the presence of the accused and his lawyer who has the opportunity of cross-examining him. The doctor should first certify that the person is compos mentis. It has greater value as compared to dying declaration. The dying deposition retains its full legal value even if the victim survives.

Differences between dying declaration and dying deposition

No		Dying declaration	Dying deposition
1	Recorded by	Anyone	Only magistrate
2	Oath	Not necessary	Necessary
3	Presence of the accused	Not essential	Accused/lawyer is allowed
4	Cross-examination	Not allowed	Allowed
5	Value	Less value as compared to dying deposition	More value as compared to dying declaration
6	Witness	Two disinterested witness	No witness required

Oral Evidence - मौखीक साक्ष:

It refers to the evidence given orally under oath, in the court of law.

It is of two types.

1. Direct: The witness giving evidence has direct knowledge of the facts stated i.e. he has himself seen, heard or perceived the event.

2. Indirect: (Hearsay) means the evidence of which the witness has indirect knowledge i.e. he has known the details from the others. Cross examination is not permitted.

Oral evidence is much more important than documentary evidence as it allows cross-examination. Documentary evidence is accepted by the court only on oral evidence by the person concerned. The following are the exceptions:

1. Dying declaration

2. Expert opinion expressed in an article may be proved in court by producing such document, if the author is dead or cannot be found.

3. Evidence of doctor recorded in a lower court is admissible in a higher court.

4. Evidence given by a witness in a previous judicial proceeding, is admissible in subsequent judicial proceedings when the witness is dead or is incapable of giving evidence.

5. Reports of certain government scientific experts like: Chemical Examiner, Chief Inspector of Explosives, Director, Fingerprint bureau, Haffkine Institute, Mumbai, Central Forensic Science Laboratories etc.

The court has power to summon and examine these experts.

6. Records: Routine entries, operative notes, discharge summaries are admissible without oral evidence. But the cause of disease/death is not accepted without oral statement.

Inquest - तपास - समीक्षा: Inquest is conducted where there is doubt regarding cause of death. An inquest generally means an enquiry into the cause of death which is apparently not due to natural cause.

Examples of unnatural deaths: Suicide, homicide, infanticide, death within 24 hours of admission to hospital, dowry death, death due to vehicle accident - machinery accidents, industrial accidents, death due to burns - bomb explosion, poisoning, hanging, strangulation, suffocation, drowning, starvation, fall from height, medical negligence, anaesthesia, death on operation table, post-operative death, death in mental hospital, death in police custody or in jail, death during police interrogation, death due to police firing etc.

There are four types of inquests:

1. Police Inquest - पोलिस तपास

2. Coroner Inquest - कोरोनरचा तपास

3. Magistrate Inquest - मॅजिस्ट्रेटचा तपास

4. Medical Examiner system (In America)

Police Inquest:

It is held all over India and conducted by competent and authorised police officials (Not below rank of head constable). The inquest is held under Section 174 of Cr. P.C. The police officer who conducts this is called an Investigating Officer. The police officer can receive information from public informers, hospitals, and various agencies. On receipt of information about the crime, it is noted in a daily diary register. This entry is commonly called a Daily diary (DD) entry. Once the DD entry is made, an investigating Officer is deputed on the scene of crime to conduct inquest. If a person is injured or needs medical assistance, he can swift to the hospital. If the victim is dead, the Investigating Officer seals the scene of crime and if needed, sends requisition for a photographer, fingerprint experts, etc. to collect evidence. He prepares a detailed report called panchnama in presence of two or more public witnesses (panchas / panch witnesses / panchayatdars)) who had some knowledge of the crime, then signed by him and the panchas. This panchnama is called inquest papers. In case the dead is female, there should be additional female panch.

In case where no foul play is suspected, the dead body is ordered for disposal. In case where foul play is suspected due to presence of injuries or some evidence of poison or any doubt, then he can forwards the dead body to the medico-legal expert for a post-mortem examination. On reaching the police station, a first information report (FIR) is lodged by him under relevant sections of the Indian Penal Code and investigation into the circumstances of the crime begins.

Coroner’s Inquest:

Previously, it was held in Mumbai and Kolkata under Coroner Act of 1871. It was first abolished in Calcutta, later in Mumbai. It is of historical value in India but coroner’s inquest is still common in many parts of the world.

Magistrate Inquests:

It is considered to be superior to police inquest. It is held under Section 176 Cr. P.C. and is conducted by an executive magistrate like Sub divisional or District magistrate. It is held in following cases:

1. Death in Jail

2. Death in police custody

3. Death due to police firing

4. Dowry deaths - Death of a married female less than 30 years of age or death within 7 years of marriage.

5. Admission of mentally ill person in a psychiatric hospital under certain provisions of the mental health act 1987

6. Any case where the government orders that inquest needs to be conducted by a magistrate.

Magistrate can order exhumation.

In any case of death, magistrate can hold inquest even if the police has already made the inquest.

Medical Examiner System:

This system is common in the United States of America, Canada and Japan where a forensic pathologist is appointed as a medical examiner. He conducts the post-mortem and usually visits the scene of crime. Being a doctor, he is able to easily correlate injuries with circumstances. He submits his report to the district attorney for further action. This system is considered superior to a police inquest.

DIFFICULTIES IN DETECTION OF CRIME IN INDIA:

Commonly faced difficulties in detecting crime in India are as follows:

1. The Delay in Information: Police is unable to act on time as information regarding crime reaches the police quite late due to lack of communication facilities like telephones etc., especially in villages or remote areas.

2. Decomposition: As police reaches late, the signs of decomposition may have already set in and vital evidence may be lost.

3. Lack of Medical Knowledge: Majority of police officers have no perfect medical knowledge, Hence they have difficulties in correlating injuries with circumstances.

4. Rapid Disposal of Dead Bodies: If the body is burned before arrival of police, vital evidence may be lost. Even in cases of burial, rapid decomposition may cause loss of evidence as the permission for exhumation may take some time.