Brief Note on Indian Judicial System

A BRIEF NOTE ON INDIAN JUDICIAL SYSTEM

History 1. The Indian Judicial System has been adopted from the British pattern. 2. In olden days disputes arising between the citizens (people) in the British Society, whether of civil or criminal nature used to be decided in the churches by the Pastor or Pope. This system may be called the Ecclesiastical (religious) Courts. Volunteers, social workers, village leaders were available to explain the details of these disputes ie complaints or allegations of the concerned persons ie the complainants, so also the explanations or the versions of the opposite party in their defence, to the presiding person ie Pastor or Pope. These volunteers did not accept any money or fees for this service from the concerned persons. In course of time the number of such disputes increased and the volunteers become so many that at times it became difficult to identify these volunteers from the gathering around, for taking help in these Ecclesiastical Courts. Then arose a necessity to identify and distinguish these volunteers from amongst the gathering or the crowd. Since Pastors and Popes were in white robes (gowns), it was decided that the volunteers should wear Back Gowns. These black gowns had only one pocket on the top of the backside, just below the neck. If any person (individual) wished to pay something to the volunteer, he used to put the same in that pocket. Thus the origin of the black dress for the advocates. 3. The advocates are today known as officials of the court and they are bound to help the court to conduct the proceedings smoothly while helping their clients in conducting their cases. Meaning of few Important Judicial Terms 4. Bench. The seat where Judges sit in court and justice is administered. It can be composed as follows: -

(a) Full Bench- All judges. (b) Divisional Bench- More than one judge. (c) Single Bench- One Judge.

5. Bar. It can mean any of the following: -

(a) The whole body of barristers or lawyers qualified to practice in any court jurisdiction.

2

(b) The profession of barristers or lawyers.

6. Writ. It is a legal order issued by the Supreme Court or High Court to enforce obedience to the order. 7. Caveat. A legal warning issued by a Supreme Court or High Court to a judicial officer to suspend proceeding until other party is heard ie hearing of the other party. 8. Caveat Emptor. Let the buyer beware. Without a warranty, the buyer takes the risk of quality upon himself. 9. Review. In civil cases if District/Sub Judge/Munsiff/Civil or Revenue Judge dismisses a case, then the plaintiff/petitioner can file Review Petition before the same judge to review his own judgement in case of any factual error in interpretation of law or fact 10. Revision. In civil/revenue cases where there is no provision for appeal, the plaintiff/petitioner files Revision Petition before the next higher court in case of error in interpreting facts or law. 11. Bail. When the police arrest the accused and if the police has power to grant bail in bailable cases he is granted bail. Otherwise, police forwards the accused to the Court and the Court either grants bail or sends the accused to jail custody. Bail is a bond executed by the accused to present himself before the court or before the police for facilitating the smooth completion of the investigation by the police or trial by the Court. Apprehending arrest if a person surrenders before the court, he may be granted bail or sent to jail. Like preferring appeal in higher courts, for bail also, a person can move the next higher court. 12. Witnesses. The witnesses who depose evidence in favour of the prosecution are known as Prosecution Witness. Sometime these witnesses change their version and depose against the prosecution, they are then declared as Hostile Witness by the public prosecutor. The witnesses who depose evidence in favour of the accused person are known as Defence Witness. Whenever there is examination of a witness, either for the Prosecution or for the Defence, the other party has the right for cross-examination of the same witness. 13. Sub Judice. A case under the process of trial and the final judgement is yet to be delivered.

Courts in India 14. The Supreme Court of India. There is one Supreme Court in the country known as the Supreme Court of India. It is located at the National Capital, New Delhi. It is presided over by The Chief Justice of India. There are number of other

A Brief Note on Indian Judicial System

3

Justice forming the Supreme Court Bench. The Full Bench is presided over by the

Chief Justice himself. Smaller Benches are formed by one member or by more than one member, by the order of the Chief Justice. 15. The High Court (of States). There are High Courts for the States. Each State has one High Court located at the State Capital. However, there are some exceptions. In UP the High Court is located at Allahabad with a Bench at Lucknow. In Odisha, the High Court is located at Cuttack but there is no Bench at the State Capital, Bhubaneswar. These Courts are presided over by The Chief Justice of the Respective High Court. High Court Benches are formed with one member Justice or more than one member Justice or Full Bench ie Single, Divisional or Full Bench. 16. District Courts or the District Judge Court.

(a) In every District of a State, there is one District Judge Court, presided over by the District Judge. The District Judge is also designated as The District & Session Judge as he can try both civil and criminal cases of heinous nature. So also at the State High Court and the Supreme Court level, both civil and criminal cases are tried. There are also-

(i) Additional District Judges. (ii) Sub Judges. (iii) Munsiff.


4

(iv) Chief Judicial Magistrate. (v) Sub Divisional Magistrate and (vi) Magistrates.

(b) In addition to these, there are also Executive Magistrates to look after Revenue and Law and Order matters. (c) Court Proceedings at District Level. There are two types of cases: -

(i) Civil Cases. All matters, which are related to the State (Government), or its citizens & civilized society relating to courtesy, politeness, private and personal rights etc and not criminal in nature are civil cases. (ii) Criminal Cases. Crime is an act that is forbidden by law, such as the right to ones property, life person, moral etc and the person committing the same ie crime is liable for punishment.

(d) Courts in the District. There are two types of Courts at the District ie Civil Courts & Criminal Courts.

(i) Civil Courts.

(aa) The Sub Judge Court. This is presided over by a Sub Judge for the trial of the civil cases only according to the valuation of the case in terms of money. (ab) The Munsiff Courts. This court is subordinate to the Sub judge Court. It is presided over by a Munsiff for trial of civil cases only. There may be more than one Munsiff Court.

(ii) Criminal Courts. (aa) Court of the Chief Judicial Magistrate (CJM). This is presided over by a senior Magistrate of the status of an Additional District Judge, popularly know as CJM Court. (ab) Court of the Sub Divisional Magistrate (SDJM). This is presided over by the Sub Divisional Magistrate of the status of a Sub Judge. (ac) Court of the Judicial Magistrate. There may be more than one Court at the District, presided over by a Magistrate. He is junior to the SDJM. They are known as Judicial Magistrate First Class (JMFC). The power of Magistrate ie First Class, Second Class, Third Class is decided by the term (quantum) of punishment ie jail term, fine etc he is empowered to award.


5

(e) Sub Divisional HQ. At the Sub Divisional HQ of the District, there are Courts of The Sub Judge, Munsiff and Magistrate. (f) Tehsil HQ. At the Tehsil HQ, there is a Court of Magistrate. At some Tehsil HQ, Court of a Munsiff is also located.

Jurisdiction of Courts 17. Civil cases are tried by Munsiffs, Sub Judges, District Judges, High Court and The Supreme Court. Each court has its own jurisdiction. A case dismissed by the Munsiff Court can prefer an appeal before the Sub Judge Court. Also, appeal of dismissed cases can be progressed from Sub Judge Court to District Judge Court and then to High Court Bench to High Court Full Bench to Supreme Court Bench and finally the Supreme Court Full Bench. 18. Besides the above procedure, Sub-Judge Courts, District Judge Courts, State High Courts and the Supreme Court of India have their own inherent jurisdictions to try cases and a person can go straight to those courts and file cases directly. 19. In the Honourable High Court there are number of Judges who are known and addressed as Justice. Suppose a case is dismissed in a High Court before a Bench. Then an appeal can be preferred before The Full Bench of the same High Court. In a Bench, there may be one or more than one Justice. 20. Similar procedure as mentioned above is adopted in the Supreme Court of India. 21. Summary of Jurisdiction.

(a) Supreme Court of India- (i) Appeal from the State High Courts. (ii) Appeal from own Bench. (iii) Direct cases-own inherent jurisdiction.

(b) High Courts of State- (i) Appeal from the District Courts. (ii) Appeal from own Bench. (iii) Direct cases- Own inherent jurisdiction.

Basis of Trial of Court Cases 22. All the civil cases are tried following the “Civil Procedure Code” (CPC) while the criminal cases by the Criminal Procedure Code (CrPC). Punishment etc are


6

awarded on the strength of Indian Penal Code (IPC) and evidence is admitted according to the Indian Evidence Act.

Trial of Civil Cases 23. In the civil cases, the complainant is known as Plaintiff and the complaint is known as Plaint. The procedure adopted in civil case is that the Plaintiff files the Plaint before the Munsiff who send notice to the other party who is known as Respondent/Defendant. After receipt of court notice, the defendant appears before the court through an advocate and files his reply known as Written Statement (WS). Both the parties are represented in the court by Advocates. The Plaintiff is examined first. These days instead of this examination, affidavit is filed. Both parties are examined and cross-examined by the other party, witnesses examined & cross-examined, documents filed in support of evidence and marked as Exhibits. In criminal cases, charges are framed against the accused, which are to be proved against him while in civil cases issues are framed for settlement. The case ends in dismissal or award of Decree. In case of a decree, the plaintiff has to take further steps for execution of the decree, for example recovery of money, property, restoration of rights etc.

Trial of Criminal Cases 24. There are two channels to file a criminal case-

(a) Lodge a FIR (First Information Report) with police at the police station.

(b) File a complaint directly before the Magistrate, at the Sub Division before the Sub Divisional Magistrate who may assign the case to other junior First Class Magistrates. The person who files the case is known as the Complainant while against whom it is filed is known as the Accused.

25. In case of FIR, the police will accept the complaint and treat it as FIR if it is a cognizable case where the police can arrest a person without an arrest warrant from the Magistrate. These cases are specified in the CrPC. In those cases that the complaint does not reveal cognizable case the police simply makes an entry in the General Diary maintained at the police station know as Station General Diary and advise the person to go to court, while taking preventive actions if required particularly relating to law and order. 26. After the FIR is registered, the police investigate the case, arrest the accused if required, examine witnesses, seize properties, weapon etc, collect evidence and give Final Form to the case. The case either ends in filing a Charge Sheet before the SDJM. Normally the charge sheet should be filed within 60 days or a Final Report mentioning Case True, No Clue or Mistake of Law or Mistake of Facts. In case of charge sheet if the police have earlier arrested the accused person, he is


7

forwarded to the SDJM/Magistrate within 12 hours of his arrest for Judicial Custody. As long as he remains with the police, it is known as Police Custody. When the accused is forwarded to the Magistrate, he either grants bail or sends him for Jail Custody. Such accused persons are known as Under Trial Prisoners and the police bring them to court on dates of hearing. In case of Final Report case (ie case true no clue) the SDJM/Magistrate finally closes the case after calling for any objection, if any from the person who has filed the FIR. In the case of Charge Sheet, the SDJM/Magistrate registers the case for trial, and then either he tries the case in his own court or assigns it to some other Magistrate for trial and disposal. 27. In a complaint case when the SDJM/Magistrate takes cognizance of the case, he tries or assigns the case to others for trial and disposal. The case ends in dismissal or conviction. When convicted the accused is sent to the jail or granted bail & time for filing appeal. 28. Trial.

(a) In our country the person who commits the crime (a criminal) is considered innocent and the other party, complainant & in police case (FIR case). The State ie the Government has to prove that he is guilty and not innocent and is liable to get punishments for the offence committed. Therefore, these cases become State versus Accused (an individual). Both the parties are represented by advocates before the Trial Court. The Advocate who represents the Government (State) is known as Public Prosecutor while the advocate who represents the accused person is known as Defence Lawyer. The Public Prosecutor tries to prove the charges against the accused by examining all the prosecution witness, placing all material evidence and cross-examining the Defence witnesses to bring out all contradictions, while the Defence Lawyer tries to prove that the accused is innocent and examines Defence witnesses, cross examine all prosecution witnesses to disprove the prosecution story. The Judge/Magistrate conducting the trial weighs the evidence of both the parties and pronounces his judgement either convicting or acquitting the accused person.

(b) After examination and cross-examination of all Prosecution and Defence Witnesses, the Public Prosecutor will argue to establish the prosecution story. The Defence lawyer will also argue to demolish the prosecution story and to prove the accused is innocent. After hearing arguments from both parties, the judges will Reserve Judgement meaning that he would indicate the final judgement date. Once the judgement is delivered, the Prosecution & Defence will argue over the Sentence to be handed to the accused. Thereafter only will the judge deliver the final judgement.


8

Legal Fees 29. In case of poverty if a party is unable to engage an advocate, Free Legal Aid Cell is available with the District Judge to provide such facilities. In these civil cases when the Government (State) is a party, the Government Pleaders are available to represent the State or the Government. 30. Sometimes, the accused person is unable to engage a lawyer for his defence. In such a case, the Government engages a Defence Lawyer and pays the fees etc. This is for giving a fair trial and justice to the accused person. This is a requirement of the civilized society.

Sensitive Cases 31. Sensitive cases are tried In Camera ie in the Chamber of the Judge/Magistrate/Judicial Officer and only the parties and the advocate concerned remain present.

Appointment of Judges 32. The Magistrates, Munsiffs are appointed by the State Government by conducting Judicial Service Examinations and interviews. The Sub Judge, SDJM, CJM, District Judge positions are attained by merit, seniority & promotion. Sometimes the District Judges are appointed directly by holding examinations etc for candidates from the Bar in consultation with the High Court and State Law Department. They retire from service like any other State Government official. 33. The High Court Judges are appointed by the State Government in consultation with the Chief Justice of the State High Court. From the Bar one can also be appointed directly as High Court Judge. The Chief Justice of High Court is appointed in consultation of the Chief Justice of the Supreme Court of India. The High Court Judges retire at the age of 62 years. The District Judges are also appointed as High Court Judges in the course of their elevation on merit. 34. The Supreme Court Judges are appointed by the Central Government in consultation with the Chief Justice of the Supreme Court of India. The State High Court Judges are also elevated and appointed as judges of the Supreme Court. There can also be appointments direct from Bar based on many factors. The Supreme Court judges retire at 65 years of age. 35. Government Pleaders (GPs) are appointed by the State Government for civil cases on contract basis. So also Public Prosecutors (PPs) and Assistant Public Prosecutors (APPs) who are appointed for criminal cases by the State Government in consultation with the District Judge, District Collector and law department of the concerned State Government. Similarly, the appointment of Advocate General at High Court and Attorney General/Solicitor General at the Supreme Court are appointed. With fall of the Government of the day, these appointments are also vacated.


Documents

Brief Note on Indian Judicial System