CATEGORIES OF CRIMINAL PROCEDURE Mian Ali Haider

L.L.B., L.L.M (

Cum Laude

) U.K.

INQUIRY

    Inquiry is defined in section 4 (k) of Cr.P.C.

Inquiry": "Inquiry" includes every inquiry other that a trial conducted under this Code by a Magistrate or Court.

As distinguished from trial May be in respect of a matter;  Which is an offence, e.g. under Section 159 Cr.P.C; – 159. Power to hold

investigation

or

preliminary inquiry

: Such Magistrate, on receiving such report may direct an investigation or, if he thinks fit at once proceed, or depute any Magistrate subordinate to him to proceed, to hold a preliminary inquiry into, or otherwise to dispose of, the case in manner provided in this Code   Which is not an offence– e.g.

under Sections 107, 108, 109, 111, 133, 145, 174 and 176 Cr.P.C;

INQUIRY

 Under Section 145 and orders under it are subject to decree or order of civil Court – 145. Procedure where dispute concerning land, etc., is likely to cause breach of peace: – (4) Inquiry as to possession  Under Section 174 may result in inquest by Magistrate – 174. Police to inquire to report in suicide, etc.:  Under Section 176 when a person dies while in the custody of police – 176. Inquiry by Magistrate into cause of death:

PROSECUTION

 The role of the prosecution and his relations with public and court;   The United States Supreme Court has explored and explained the role of a prosecutor in several cases indicating that: “

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent

. They must be dedicated to making the criminal trial a procedure for the

ascertainment of the true facts surrounding the commission of the crime

. To this extent,

our so-called adversary system is not adversary at all; nor should it be

. But defense counsel has no comparable obligation to ascertain and present the truth.”  United States v. Wade, 388 U.S. 218, 256 (1967) (Justice White, concurring and dissenting).

PROSECUTION

  Berger v. United States, 295 US 78, 88-89 (1935) “The (prosecutor) is the

party representative not of an ordinary

to a controversy, but of a

sovereignty whose obligation to govern impartially

is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is

not that it shall win a case

, but that

justice shall be done

. As such, he is in a peculiar and very definite sense the

servant of the law

, the twofold aim of which is that guilt

shall not escape or innocence suffer

. He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”

PROSECUTION

 Recent 2006 Provincial legislations prosecuting service in each Province; establishing criminal  Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act 2006  Discretion to Prosecute  U.S. Practise (Baltimore) – “vertical prosecution”, meaning that a prosecutor is involved from the moment of the incident until the close of the case. We are available to detectives if there are witnesses who need to be interviewed or legal questions about how to proceed. The prosecutor is able to make suggestions regarding avenues for investigation as each twist in the case occurs. The prosecutor determines what charges to file in the case, what the sentencing range should be (based on a set of State guidelines), whether a plea offer should be extended and under what terms. The prosecutor also has to explain all of this to the victim’s family.

TRIAL

 The system of judicial procedure is, generally speaking, adversarial, Criminal law is an aspect of public law, and the parties are the state, as the representative of society, on the one side and the person accused, on the other  Trial Meaning, Object & Fairness  Courts which may try offences;  Classes of courts under Cr.P.C Section 6  Their subordination, Section 17, Cr.P.C  Their powers – Sections 31, 32 read with Section 30 and Section 35 Cr.P.C

 Kinds of Trial  Summary Trial  Regular Trial

TRIAL

SUMMARY TRIAL  Under Chapter XXII Cr.P.C

 Their object  A summary trial is a trial which could be undertaken with some degree of expedition and informality without departing from the principles of justice.

 The purpose of summary procedures for minor offences is to ensure that such offences are tried as soon as reasonably possible after their alleged commission so that the recollection of witnesses may still be reasonably clear, that the attendance of witnesses and presentation of evidence may be procured and presented without great difficulty or complexity, and that there should be minimal delay in the disposal of the work load of minor offences

TRIAL

 REGULAR TRIAL  Determination of place of trial Cr.P.C, chapter XV sub chapter A, Section 177-189; Section 4 PPC and Section 531 Cr.P.C

 Cognizance of offence - Cr.P.C Chapter XV, sub chapter B, Sections 190-199B;  Cognizance of offence triable by Magistrate  Cognizance of offence triable by Court of Sessions  Right to Counsel  Article 10 of the Constitution  Section 340 Cr.P.C

 Chapter 24-C High Court Rules and Orders

TRIAL

    COMMENCEMENT OF TRIAL Open Court – Section 352, Cr.P.C

Speedy trial and adjournments – Section 344 Cr.P.C

CHARGE – What is a charge, form and language etc. of charge – Sections 221 to 240 Cr.P.C

  Chittarajan – AIR 1963 SC 1696 M.Younas Habib Vs. State – PLD 2006 SC 155 – Illegality and irregularity – in charge; effect, Sections 225,, 535, 537 Cr.P.C

 M. Younas Habib Vs. State – PLD 2006 SC 155 – When the charge is admitted – Section 243 and 265 Cr.P.C plea of double jeopardy goes to jurisdiction and charge is the stage to raise it – Article 13 of the Constitution; – Section 403 Cr.P.C and Section 26 of the General Clauses Act  Akhtar Ali – PLD 1963 Lah. 390 – Trial before Magistrate – chapter XX Cr.P.C

– Trials before High Court and Court of Session – Chapter XXII-A Cr.P.C – General provision as to trials inquiries – Chapter XXIV Cr.P.C

TRIAL

 Double Jeopardy  Section 403 Cr.P.C Article 13 of the Constitution;  The principle – no one shall be twice put in jeopardy for the same offence  Procedure where there is a Challan and a private complaint for the same offence  Section 233, 239 read with 540 Cr.P.C. to understand the concept.

– Seprate or joint trials – Two versions of case – Two set of totally different accused put forwarded by complainant – In private complaint and state in police Challan case

TRIAL

 Lord S.A. Rehman., Lord Cornelius CJ., Lord Fazle Akbar., Lord Hamood ur Rehman (Majority View)  Private complaint to be taken first  Prosecution witness listed in Challan Case to be examined, as “ court witness” u/s 54-A Cr.P.C.

 Police Challan case to be taken up only “if private complaint results in acquittal”  In case of conviction in private complaint the challan case to be withdrawn by public prosecutor u/s 494 Cr.P.C.

TRIAL

 As Per Lord Kaikaus;  Difficulties to be encountered recommended in majority judgment in adopting procedure  Majority judgment does not solve the difficulty in legal manner – Principle of “consolidation” of proceedings in civil matters – At the same time S. 151 CPC authorizes the court to adopt a procedure not prohibited by CPC – Consolidation of criminal proceedings not open to objection – No express prohibtion in Cr. P.C. against joint trials in cases other than those permitted by code – Difficulties following from S.270 , that all trials before court of sessions are to be conducted by Public prosecutor.

– So he can lay both versions before court – No bar to joint committal of both sets of accused

READING MATERIAL

 Muhammad Bashir vs. SHO – PLD 2007 SC 539  Manzoor Elahi – PLD 1975 SC 66  Khawaja Nazir Ahmed – AIR 1945 PC 18;  Shehnaz Begum – PLD 1971 SC 677  Malik Shaukat Ali Dogar – PLD 1994 SC 281  Brig Imtiaz Ahmed – 1994 SCMR 2142