Substantive and procedural law

SUBSTANTIVE AND PROCEDURAL LAW

» Substantive Law

is defined as written or statutory law that creates, defines and regulates the rights, duties, liabilities, and obligations of citizens in a country. It is the law that defines the legal relationship between citizens or between citizens and the state. For example, the Substantive Law of crime will list out the elements that constitute murder. Likewise, the Substantive Law of torts will stipulate a person’s rights and/or duties in relation to some particular instance such as negligence. Further, it will indicate what type of punishment should be imposed or what type of compensation should be claimed.

» Procedural Law

is defined as the body of law that prescribes the steps to be taken in enforcing legal rights or the method by which Substantive Law is administered. In other words, it is the mechanism or vehicle through which the rights and duties found in Substantive Law are enforced. This body of law encompasses the rules that govern court trials and lawsuits, both civil and criminal. In other words, it defines how a court should hear and determine civil or criminal cases and how such actions must be instituted. Procedural Law is in place to ensure that there is due process and fundamental justice. This means that all persons involved in a legal action or trial are treated fairly and equally at all times. The process adopted to file an action in court, the time limit for applications to court, the arrest and detainment of criminal suspects, and other such procedural aspects are all governed by Procedural Law.

The procedure of initiating proceeding/prosecution for a criminal offence is provided in Criminal Procedure Code (CrPC). CrPC provides the manner and place, where investigation inquiry and trial of an offence shall take place. The object of the Criminal Procedure Code is to provide a mechanism for the investigation and trial of offenders. It lays down the rules for conduct of investigation into offences by the police proceedings in court against any person who has committed an offence under any Criminal law, whether it is IPC or a Crime classified under any other law

CLASSIFICATION OF OFFENCES

Depending on the nature and gravity of an offence's the CrPC classifies them under the following heads:

» Bailable and non-bailable offences:

In certain minor offences, it is the right of the accused to obtain bail while the trial is pending. These are bailable offences and bail may be granted either by police officer or court. On the other hand there are more serious offences bail can be granted only on the court's discretion and not as a right of the accused. These are non-bailable offences and may be granted only by the court.

» Cognizable and non-cognizable offences:

Cognizable offences are so serious that any police officer can investigate and arrest an accused person without obtaining a warrant from a court. In non cognizable offences, the police must obtain order of a magistrate before investigating and warrant for arresting the accused.

» Compoundable and non-compoundable offences:

Where the offences are essentially of private nature and relatively not quite serious, the Code considers it expedient to recognize some of them as Compoundable offences and some others as compoundable only with the permission of the court. The compoundable offences are mostly non-cognizable. Under certain circumstances it may be advisable to allow the compounding of offences and to drop the criminal proceedings if there is a settlement between the accused person and the victim of the crime. Sometimes, the Public Prosecutor or the complainant may consider it expedient to withdraw from the prosecution; and the court may allow such withdrawal and put an end to the criminal proceeding. Under certain circumstances, the Magistrate himself may consider it desirable to stop the proceedings, and the Code, subject to certain safeguards, allow it to be done. The CrPC lists various offences under the Indian Penal Code which are compoundable. Of these 21 offences may be compounded by the specified aggrieved party (victim) without the permission of the court and 36 can be compounded only after securing the permission of the court. The offences where proceedings may not be dropped or withdrawn even after settlement between accused and victim are non-compoundable offences.

STAGES IN THE PROSECUTION OF AN OFFENCE

1. Registration of FIR:
Every offence must be reported to police. The offence may be cognizable and non-cognizable. FIR is lodged by police and investigation is started by police in case the offence is cognizable. In other cases the police records non-cognizable report and directs the complainant to Magistrate. A magistrate has the right to inquire into the complaint before commencement of trial.

2. Commencement of investigation and collection of evidence by investigating agency:
During this time, at any stage decided by investigating agency, accused persons can be arrested if credible information against him is received or there is reason to believe that he might have committed the offence. Only police or investigation officer of a case has the power to investigate the offence, Magistrate has the jurisdiction to inquire an offence.

3. Arrest:
In case police officer decides to arrest a person, he is produced before Magistrate (within 24 hours), wherein he may be remanded to police custody for further investigation / interrogation; or remanded to judicial custody.

4. Bail hearing before appropriate court –
If the offence is bailable, police officer or court has to grant bail if accused is ready to furnish surety. But in case of non-bailable offences, court may in its discretion grant bail to accused.

5. Police Report / Chargesheet:
If the offence is bailable, police officer or court has to grant bail if accused is ready to furnish surety. But in case of non-bailable offences, court may in its discretion grant bail to accused.

6. Cognizance:
The Magistrate if he finds that prima facie, an offence has been committed by the accused, takes cognizance of the case and frame the charges. or if from the police report, it is clear that no offence is made out, he may discharge the accused. Alternatively, he may also direct the police to further investigate the case.

7. Commitment to Trial:
If accused pleads not guilty commencement of trial begins and examination / cross-examination of witnesses and other evidence takes place. Statement of Accused may also be taken. The accused is also given the opportunity to defend himself and produce his evidence. Trial of an offence: Trial is the judicial adjudication of a person's guilt or innocence. Criminal trials are of two kinds Warrant case and Summons Case. A warrant case relates to offences punishable with death or imprisonment for a term greater than two years. A summons case means a case relating to an offence that is not a warrant case, i.e. cases relating to offences punishable with imprisonment of less than two years.

8. Final Arguments:
If accused pleads not guilty commencement of trial begins and examination / cross-examination of witnesses and other evidence takes place. Statement of Accused may also be taken. The accused is also given the opportunity to defend himself and produce his evidence. Trial of an offence: Trial is the judicial adjudication of a person's guilt or innocence. Criminal trials are of two kinds Warrant case and Summons Case. A warrant case relates to offences punishable with death or imprisonment for a term greater than two years. A summons case means a case relating to an offence that is not a warrant case, i.e. cases relating to offences punishable with imprisonment of less than two years.

9. Judgment and sentence by the Court:
The accused is either acquitted or convicted. If accused is convicted, arguments of public prosecutor and defence counsel on sentence are heard by Court and appropriate sentence is passed. A party to the trial has the right to appeal before appellate court.

PLEA BARGAINING :

Plea Bargaining’ can be defined as satisfactory disposition of a case through pre-trial participation amongst the accused, public prosecutor, victim and complainant during which the accused agrees to plead guilty in exchange for certain concessions by the prosecution, Plea Bargaining’ is applicable in respect of those offences for which punishment is up to a period of 7 years. Moreover it does not apply to cases where the offence committed is a socio-economic offence or where the offence is committed is committed against a woman or a child below the age of 14 years. Also once the court passes an order in the case of ‘Plea Bargaining’ no appeal shall lie to any court against that order.

INHERENT POWER OF HIGH COURT :

High Courts have unlimited and inherent powers to give effect to orders given under criminal procedure code, or to prevent abuse of the process of any Court or to secure ends of justice. For example a fake or completely false FIR may be quashed by the High Court under this power so as to prevent abuse of process of law.