In a Courtroom: Who does What?

A place where Courts of Law are held are more commonly known as the Courtrooms. Provided hereunder are the people one can find in the Courts, and the work they do.

BENCH 

The panel of Judges in a Court is known as the Bench. The Judge in the Court might preside over the proceedings singly or there may be two or more Judges to look into the matters of the day in the particular Court. There are various types of Benches in the Indian Legal System:

a. Single Bench: As the name suggests, Single Bench comprises of a single Judge who sits to hear a matter in the Court.
b. Division Bench: When two judges jointly sit to preside over the proceedings of the Court, it is known as Division Bench.
c. Full Bench: Full Bench comprises of three or more Judges who jointly sit to decide the matters of the Court.
d. Constitution Bench: The Bench which comprises of five or seven Judges who preside over the matters in a court jointly, is known as Constitution Bench.

In the District-level Courts in India, a Judge sits in singly to preside over the matters.

The Judges in High Courts of respective States usually sit in Single or Division Benches to preside over the matters which comes to the Court, depending upon the importance of the cases. The Chief Justices of respective States, however, usually sit in Division Benches to hear the matters placed before them.

In the Hon’ble Supreme Court of India, the Judges sit in Division, Full and Constitution Benches. The Division Benches comprises of two or three Judges. The Vacation Judge in the Supreme Court, however sits singly to hear the matters.

When the Bench comprises of two or more Judges, the majority opinion counts and judgement of a larger Bench is binding on the smaller Benches of the Courts. An interesting trivia to note here is that the largest Bench constituted in the Hon’ble Supreme Court of India has been of thirteen judges in the case of Kesavananda Bharti v. State of Kerala and others [(1973) 4 SCC 225], the case which is more popularly known as “the case which saved the democracy of India”.

COUNSELS
The Counsels are the Advocates which represent the aggrieved, and Opposite Party in the Courtroom.

Counsel for the plaintiff/Complainant/Appellant: Plaintiff is a term used in Civil Courts for the aggrieved party who has filed a case. Complainant is the synonymous term used for aggrieved in the Criminal Courts. A person who files an appeal in the higher Court against a decision of the Lower Court is more often known as an Appellant.

Counsel for the Defendants/Accused/Respondent: In a Civil Court, a Defendant is the person against whom the case has been filed. The Accused is a synonym for Defendant in a Criminal Court. In an Appellant Court, the person who responds to the question of fact/law is then known as respondent.

Therefore, an Appellant can be either Plaintiff/Complainant or even Defendant/Accused, depending on who files the appeal.

In the District Courts, the Counsel for Plaintiff/Complainant stand towards the RIGHT side of the Bench and the Counsel for Defendant/Accused stand towards the LEFT of the Bench.

In High Courts, however, the Counsel for Plaintiff/Complainant in case of Original Jurisdiction of the Court and Counsel for Appellants/Petitioners in Appellant Jurisdiction of the Court stand towards the LEFT of the Bench and similarly, the Counsel for Defendant/Accused in case of Original Jurisdiction of the Court and Counsel for Appellants/Petitioners in Appellant Jurisdiction of the Court stand towards the RIGHT of the Bench.

There are no restrictions in the Hon’ble Supreme Court of India in this regard. The Counsels of the respective parties can stand anywhere in the Courtroom according to their own convenience.

In Criminal Courts throughout India, it is compulsory for the Complainants/Accused to be present in person in the Court during the proceedings. If the Complainant in person is not present in the Court, the Bench has the power of ordering dismissal of the case. If Accused in person is not present in the Court during the proceeding, the Court may order Bailablle/Non-Bailable warrants against him.

In Civil Courts however, the requirement of Plaintiffs/Defendants to be present before the Court in person is dispensed with. The Counsel of Parties can act in the Court on behalf of them.

COURT STAFF
Apart from the Bench and Counsels in a Courtroom, there is also Court Staff which assist in smooth functioning of the Courts.

a. Reader/Court Master: A Reader in a District Court and a Court Master in the High Courts and Supreme Courts of India, is an officer of the Court who occupies the seat just below the Judges’ Dias and assists in the conduct of Court proceedings.
b. Stenographer: A court reporter or court stenographer also called stenotype operator, is a person who transcribes spoken speech by the Bench into written form, to produce official transcripts of court hearings.
c. Ahlmad: Ahlmad or the File-keeper in common parlance is the person responsible for safe-keeping of files of different cases brought before the Hon’ble Court. An Ahlmad Room is a place where all the files of a particular Court are placed collectively.

NAIB COURT
Apart from the Bench, Counsel and the Court staff in a Courtroom, there also exist a few policemen, also called the Naib Court, to keep a record of the detainees and accused brought before the Court. This is to ensure that any order made by the Bench against the accused/detainees are immediately complied with. 

It is interesting to note that Naib Courts are specialities only of the Criminal Courts. Civil Courts cannot order an arrest of a person and therefore, there is no requirement of a Naib Court is those Courts.

Question: What happens if the Bench is on leave?

When the Judge is on a leave, as it happens often, the matters are adjourned for another day in a Civil Court. 

In case of Criminal Courts, and more specifically at District-level, Link Magistrates preside over the Court proceedings. Link Magistrates are the Judges placed at the same designation as the Magistrate in front of whom the case was originally placed. Criminal cases often involve rights as to life and liberty (art. 21 of Constitution of India) of an accused and therefore the Court does not stop functioning and the matters listed in the Court are automatically transferred to the Link Magistrates, who then decide the matters on behalf of the original Magistrate.

In High Courts and Supreme Court of India, the concept of linking of courts exist, but that is subject to application made by the parties on the basis of importance and the emergency of the case. The Courts can then operate at any time of the day to ensure justice is expediently imparted to the parties concerned. The case of Yakub Abdul Memon v. State of Maharashtra and Ors [W.P. (CRL.) No. 135 of 2015] is a classic example of Courts working even at midnight for ensuring justice to the parties.


SOURCES:

www.delhihighcourt.nic.in
www.indiankanoon.org

Criminal Procedure Summed Up

The Code of Criminal Procedure, 1973 (the Code), as the name suggests is the law relating to criminal procedure and is applicable to all criminal proceedings in India (except in the States of Jammu and Kashmir, Nagaland and Tribal Areas of Assam). The Code, which first came into being in 1898, was completely revamped in 1973 to simplify procedures and speed up trials as far as possible.

Provided hereunder is an attempt to summarize the vast Code and to provide an outline for procedural formalities in criminal offences.

HIERARCHY OF COURTS:

The Indian Judiciary is active at three distinct levels, a hierarchy of which, in descending order, is provided hereunder: 

1. Supreme Court of India
2. High Courts of concerned states
3. District Courts:

• Civil District Court (civil matters)/Court of Sessions (criminal matters) 
• Chief Metropolitan Courts 
• Court of Metropolitan Magistrate – I (the Magistrate) 
• Court of Metropolitan Magistrate - II 

SOME DEFINITONS:

1. Bailable Offence: According to Section 2(a) of the Code, an offence which is shown as “bailable” in the First Schedule of the Code or any other law in force is a bailable offence. In common parlance, bailable offence means an offence which is generally not of serious nature, in which bail is granted to the accused as a matter of right.

2. Non-Bailable Offence: Section 2(a) of the Code states that a non-bailable offence is any other offence. The Court or the Police Officer in that cases, can even refuse to grant bail to the accused. These offences are generally of a serious nature.

3. Cognizable Offence: According to Section 2(c) of the Code, an offence under which arrest of the accused can be made without a warrant.

4. Complaint: Section 2(d) of the Code defines a complaint as any allegation made orally or in writing to a MAGISTRATE with a view to his taking an action under this Code that some person has committed an offence and it does not include a Police Report or a First Information Report.

5. Inquiry: Section 2(g) of the Code defines inquiry as any inquiry conducted by a Magistrate or Court other than a trial.

6. Investigation: Section 2(h) the Code states that investigation includes all proceedings made for collection of evidence conducted by a Police Officer or any other person who is not a Magistrate.

7. Non-Cognizable Offence: Section 2(l) of the Code describes a non-cognizable offence as an offence in which a Police Officer has no authority to arrest without warrant.

8. Offence: Any act or omission thereof becomes an offence only when the State provides for it in any Act or Statute. There are two types of offences:

• Offences of personal nature: where the parties to a case remain two individual legal persons and it includes an artificial person. 
• Offences against the State: Offences which are of serious nature, which disturb the public order. The State takes over from the complainant/victim and represents the case on their behalf. 

9. Police Report: According to Section 2(r) of the Code, a report forwarded by a Police Officer to a Magistrate. In common parlance, it is also known as a Challan or a Chargesheet.

10. Public Prosecutor: A person who is the Counsel for the State. The Public Prosecutor can never represent a case on behalf of the accused.

11. Summons Case: Section 2(w) of the Code defines summons case as a case relating to an offence which is not a warrants case.

12. Warrants Case: Section 2(x) of the Code states that a warrants case is a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years.

THE PROCEDURE:

1. Filing of FIR/Complaint

• Initiation of any criminal case begins with filing of an FIR or a Complaint. Sections 154-156 of the Code provides for provisions for filing an FIR with a Police Officer. According to Lalita Kumari v. Govt. of U.P. [2013 (13) SCALE 559], a Police Officer cannot refuse to register a FIR in case the offence is cognizable. Moreover, no preliminary investigation is permitted in such a situation. However, the precedent also provided that in cases of offence against public servants or in relation to medical negligence, corruption, or matrimonial discord a preliminary investigation is must. 
• If a Police Officer refuses to register the FIR, the aggrieved can send such piece of information in writing to the Superintendent of the Police who shall investigate the case himself or order the Police Officer to register an FIR.
• The aggrieved person can also make a complaint to the Magistrate who shall take cognizance of the case by himself or order the Police Officer to investigate the said case.

2. Arrest and Bail

• The arrested person also has rights which are laid down in sections 157, 41A-41D, 46-47, 51-54A, 55A, 56-57 and 60A of the Code.
  
  Provisions of bail are contained in Sections 436-439 of the Code.
• In cases of bailable offence, bail is granted to the accused as a matter of right. Bail in such cases can be granted by both Police Officer and a Magistrate, depending on which stage the case is on. Bail is granted to the accused after he executes a bail bond with surety (guarantee). 
• In case of a non-bailable offence, bail is granted to the accused, either by the Police Officer or by the Magistrate, if he is arrested without a warrant but subject to certain conditions as provided in the Code. 
• If however the offence pertains to an offence against the State, against human body or against property as provided in the Indian Penal Code (IPC), or an offence punishable with imprisonment which may extend to seven years, only the Court has the power to release the accused on bail subject to the conditions prescribed in the Code. 
• Anticipatory Bail: Where a person has a reason to be believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply for bail in the High Court or Court of Sessions for a direction that on his arrest he shall be released on bail on conditions as imposed by the above mentioned Courts. 

3. Pre-Trial Proceedings

• A Magistrate can take cognizance of an offence either on the basis of complaint made to him, FIR or a Police Report or suo moto (upon his own knowledge). 
• Once the Magistrate takes cognizance of the offence, the complainant is examined on oath and substance of such examination is reduced to writing.
• Depending upon the nature of the case, the Magistrate issues a summon or a warrant to the accused, after payment of relevant process fees. The summon or a warrant is accompanied by a copy of the complaint so registered.
• Charge is framed on the accused for the offence committed by him, stating the particulars of the offence he is accused of committing. 

4. Trial: Aquittal or Conviction
A brief outline of a how a case proceeds in a trial is provided hereunder:

• Public Prosecutor/Complainant initiates the trial.
• The accused is produced by way of a summon or a warrant.
• Charge is framed by the Court for the offence committed by the accused.
• If, after production the accused pleads guilty, the Court can pass an order for conviction.
• If the accused does not plead guilty, a date is fixed for examination of witnesses and evidences of the Prosecution.
• The pleaders by due permission of the Court, cross-examines the witnesses. 
• The Counsel for accused then provide their witnesses and evidences.
• After the witnesses are examined, the prosecutor sums up his case by way of arguments to which accused or his pleader is entitled to reply.
• After the arguments, the Court gives a judgement of conviction or acquittal.
• The Code also provides for Summary Trials in Sections 260-265 of the Code, a topic that is vast enough to be covered in subsequent blogs. 

5. Other means of disposal of cases

• Compounding of Offences:
  Compounding of offences means disposing off the case between two parties without any prosecution. Section 320 of the Code calls for compounding of offences. It provides for offences that can be compounded without the permission of the Court, offences which can be compounded only by the permission of the Court and who can compound the said offences. It is to be noted that only those offences mentioned in the Code can be compounded.
• Plea Bargaining:
  Plea Bargaining is one of the means whereby the accused, on conviction can plead for a lesser punishment. The provisions of plea bargaining were added in the Code as a new Chapter XXIA and is applicable in respect of those offences for which punishment is upto a period of seven years. Moreover it does not apply to cases where the offence committed is a socio-economic offence or where the offence committed is committed against a woman or a child below 14 years. Also, once the Court passes an order in this case, no appeal lies to any Court against the order.

6. Inherent powers of High Courts:
Section 482 of the Code provides for inherent powers of the High Court meaning thereby that High Court of the concerned state can be directly approached. The inherent power of High Court may be exercised:

• To give effect to an order under the Court 
• To prevent abuse of the process of Court 
• To secure the ends of justice.

SOURCES:
The Code of Criminal Procedure, 1973
Case Material on Law of Crimes – II, Faculty of Law, University of Delhi

Dishonour of cheques: Section 138, Negotiable Instruments Act, 1881

Finding its place in Chapter XVII of Negotiable Instruments Act, 1881 (the Act), Section 138 pertains to dishonour of cheques for insufficiency, etc. of funds in the account. Dishonour of cheques is said to be an offence of private nature (offence between two parties not involving the State) and according to the said section, a person is deemed to have committed an offence if he has drawn a cheque which has been dishonoured due to lack of funds in the bank account.

ESSENTIALS:

Like every offence, the act of dishonour of cheque also has some essential elements. Provided hereinafter are the essential elements of offence as described u/s 138 of the Act:

1. The cheque is drawn by a person on an account maintained him in person;
2. The cheque is drawn in discharge of a legally enforceable debt or liability;
3. The cheque is presented for payment within the limitation period (3 months from the date of cheque); and
4. The cheque is returned by the Bank for want of funds in the bank account.

OBJECTIVE:
The Supreme Court of India in Electronics Trade & Technology Development Corporation Ltd., Secunderabad v. Indian Technologists & Engineers (Electronics) (P) Ltd. [(1996) 2 SCC 739], held that the object of bringing Section 138 on statute appears to be to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments. Despite civil remedy, Section 138 intended to prevent dishonesty on the part of the drawer of negotiable instrument to draw a cheque without sufficient funds in his account maintained by him in a book and induce the payee or holder in due course to act upon it. It draws presumption that one commits the offence if he issues the cheque dishonestly.

PROCEDURAL ASPECTS:
1. Once the abovementioned conditions with regards to section 138 of the Act are fulfilled, the payee or holder-in due-course, as the case may be, would demand the payment of the said amount within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid.

2. When the drawer of the cheque fails to make payment of the said amount within 15 days of the said notice, such person shall be deemed to have committed an offence and shall, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both.

3. As laid down under section 142 (cognizance of offences) of the Act, no Court shall take cognizance of such offence except on a complaint, in writing, made by the payee or the holder in due course of the cheque, and the limitation period for making the complaint is one month of the date on which the cause of action arises. It is also provided in the said section that the offence is to be originally tried by no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate or a Judicial Magistrate of the First Class. 

With the growing number of cases in the said offence, it was realised by the Courts and Legislature alike that of the Act were found deficient in dealing with dishonour of cheques. Not only the punishment provided in the Act proved to be inadequate, the procedure prescribed for the Courts to deal with such matters was found to be cumbersome. The Courts were unable to dispose of such cases expeditiously in a time bound manner in view of the procedure contained in the Act. The Supreme Court of India, therefore in Indian Bank Association v. Union of India [2014 (5) SCC 590] laid down the guidelines to adopt necessary policy and legislative changes to deal with cases relating to dishonour of cheques so that the same are expeditiously disposed of in accordance with the intent of the Act.
The Act in view of the above was first amended in 1988 and then again in 2002 whereby sections 143-147 were added in the Act. The new provisions were incorporated with a view to encourage the culture of use of cheques and enhancing the credibility of the instrument. The said sections also intended to ease the procedural aspects and to ensure that genuine and honest bank customers are not harassed or put to inconvenience.

4. The offence, by virtue of section 143 (Power of Court to try cases summarily) of the Act, is now tried summarily and in accordance with sections 262-265 (summary trials) of the Criminal Procedure Code, 1973.
The interesting thing to be noted here is that although the Act provides for punishment of imprisonment up to 2 years or fine of amount double than that mentioned on the cheque, the Magistrate can only pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees in the case of any conviction in a summary trial under this section. But if the Magistrate or the parties feel that the offence should not be tried summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code.

5. By virtue of section 145 (Evidence on Affidavit) and 146 (Banks’ slip prima facie evidence of certain facts) of the Act, the evidence for dishonour of cheque can be given on affidavit which can directly be cross-examined by the Counsel of the accused. The Court shall, on production of bank’s slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved.

6. Section 147 of the Act is an overriding section and states that the offence of dishonour of cheque is compoundable offence, irrespective of anything mentioned in the Criminal Procedure Code, 1908.



SOURCES:
The Negotiable Instruments Act, 1881;
www.indiankanoon.org