Functionaries under the Code of Criminal Procedure,1973
It is obviously expedient here to clarify the meaning of the term ‘Functionaries’. Firstly, the Oxford Dictionary defines the word as “a person who has official duties, especially in a government or political party”. And, the Collins Dictionary defines the same as “a person acting in an official capacity, as for a government”. Also, the Webster’s Dictionary defines the term as “one who serves in a certain function” or “one holding office in a government or political party”.
Considering the above-mentioned texts,it can be appropriately inferred that a Functionary is a person, a body of persons, or an authority set up by the law to discharge lawful institutional, governmental or political functions.
Now that we understand the term, the Indian Criminal Justice System has various functionaries set up for ensuring the smooth and effective delivery of justice to the victim. There are FIVE functionaries exercising powers and discharging duties under the Code of Criminal Procedure, 1973. They are:
- The Police
- The Prosecutors
- Defense Counsels
- Prison Authorities and Correctional Services Personnel
The proper functioning of these functionaries is essential for serving the object of the code in reality. The Code aptly specifies the powers and functions of these instrumentalities or functionaries in that regard.
The Code of Criminal Procedure, 1973 in India does not constitute the Police Institutions or the post of Police Officers. It presumes the existence thereof and thereby, just entitles them with some functions in order to achieve the objective set forth in the code and also grants the powers to perform the specified functions. Also, the Code doesn’t define the term ‘Police’. It is defined under the Police Act,1861 as all the persons who are enrolled under the Act.1
The Police Act, 1861
The Police Act, 1861 governs the functioning of police and police officers. It provides that the State Government has to regulate and grant enrollment to the police force of its own state.
- Sec-4 of the act provides that the administration of police in every district vests to the District Superintendent of Police under general guidance and direction of the District Magistrate who is usually the collector of the District.
Other Police Acts
- Police Act, 1888 enables the central government to create a Special Police to extend the jurisdiction of any police to that district, embracing parts of 2 or more states and jurisdiction of no state applies to all parts of that district.
- Delhi Special Police Establishment Act, 1946 establishes the Delhi Special Police to investigate and work in accordance with CBI.
Under the CrPC, 1973
- Sec-2(s) of the Code defines a Police Station as any place designated by the State Government to be a Police Station.
- Sec-2(o) of the Code defines an Officer-in-Charge of a Police Station includes any officer present at the Police Station who is next to the officer in charge of the Police Station provided it must be above the post of constable.
The Supreme Court held that the Inspector General (Vigilance) is an officer superior to the officer-in-charge of the Police Station. He can exercise the power of that officer throughout the territory.2
2. PUBLIC PROSECUTORS
Any Crime is a wrong against the whole society, not only against an individual. Thus a Public Prosecutor or an Assistant Public Prosecutor are counsel on behalf of society in such cases.
As per Sec-2(u) of the Code, a Public Prosecutor is “any person appointed under section 24, and includes any person acting under the directions of a Public Prosecutor.
- Appointment of Public Prosecutor are subject to the following conditions:
Sec-24 provides that a Public Prosecutor for a High Court requires at least 7 years of practice.
Sec-24(8) stipulates that a Special Public Prosecutor requires at least 10 years of practice.
Role of Prosecutor
The main objective of a Criminal Trial is to find out the truth about the guilt or innocence of the accused in order to secure justice in the society. Therefore, the role of a Public Prosecutor is not to bring conviction of highest punishment to the accused at any cost. Rather it is primarily to find out the full truth and discover all the evidence and produce it before the Court, whether it be in favor of the complainant or not.
Sec-301 states that the Public Prosecutor has the authority to appear and plead before any court in any case entrusted to him.
Sec-321 establishes that a Public Prosecutor can withdraw from a prosecution against any person with the consent of the Court.
The Hon’ble Supreme Court has held that –
“A Public Prosecutor should be personally indifferent to the result of the case. His duty should consist only in placing all the available evidence irrespective of the fact whether it goes against the accused or helps him, before the court, in order to aid the Court in discovering the truth. In the Machinery of Justice a Public Prosecutor has to play a very responsible role; the impartiality of his conduct is as vital as the impartiality of the court itself.”3
The mechanism of the whole Judicial system of Courts in India is divided into two types on the basis of the nature of the area, i.e., District and Metropolitan Areas.
- The setup of Criminal Courts in District Areas can be classified as 3 tier:
- At the Lower Level of Judiciary, the courts are called Courts of Judicial Magistrate which are of three types –
- Judicial Magistrate of First Class
- Judicial Magistrate of Second Class
- Special Magistrate Court
- At the Middle Level of Judiciary, sessions is the unit and each district may be considered as one sessions or a sessions may consists of two or more district, the Courts at the sessions level includes-
- Court of Sessions
- Additional Courts of Sessions
- Assistant Court of Sessions
- Special Courts
- The Higher Level of Judiciary includes two important courts having criminal jurisdiction, i.e., High Court and the Supreme Court. Though, they are only courts of Appellate Jurisdiction, in Criminal Cases.
The Courts which are at the session’s level are called Metropolitan Courts. They are of two types:
- Metropolitan Sessions Courts
- Metropolitan Magistrate Courts
4. DEFENCE COUNSEL
Section 303 of the Code confers the Right to be represented by a Legal Practitioner of own choice to any accused person. Thus the Advocate who represents the accused and defends him from the conviction to which the accused is charged is known as the Defense Counsel.
Also, even the Constitution of India u/a 39 provides that the accused person has the right to consult and to be defended by a legal practitioner at the cost of the state. In consonance to the Constitutional Provision, the Code provides u/s 304 for Free Legal Aid to the Accused Person.
5. PRISON AUTHORITIES AND CORRECTIONAL SERVICES PERSONNEL
The Code presumes the existence of the Prisons and Prison Authorities. These matters have been left to other special acts. Provisions in the Code empowers Magistrate and judges under certain circumstances to order detention of under trial prisoners in jail during the pendency of the proceedings. It also empowers the courts to impose sentences of imprisonment on convicted persons and to send them to the prison authorities for the execution of such sentences.
1Police Act, Act no. 5 of 1861, §1, (1861)
2 1 SCC 554
31987 SCC (1) 279
Intern at Lawportal,
Email: [email protected]
Author: Shivam Srivastava,
School of Law, IIMT, GGSIPU [IV year]