COMPARATIVE STUDY OF INVESTIGATION PROCEDURE OF CRIMINAL CASES IN INDIA AND AUSTRALIA

This article has been written by the following authors

• Ridhima Raj,4th year BBA LLB. Student of UPES.

• Sankalp Yadav,4th year BBA LLB, UPES

INTRODUCTION

In Australia, there have been two distinct criminal cultures for a century. While some of them opted to use the Criminal Court system, others continued to use common law. Because of this, according to Heritage Trust, both of them have a background in criminal law as well as a variety of other criminal laws. Tasmania’s western areas are governed by the Code together with the aforementioned states. The jurisdiction of the court extended to the Northern Territory. In addition, the so-called “common-law states” of Victoria, New South Wales, South Australia, and more significantly the Australian Capital Territory have their own legal systems that are founded on both the common law and the law of legislation. This distinction has existed since the creation of the federal government thanks to the Samuel Griffith code, which became operative in Queensland in 1901. The same legislation was approved by Western Australia in 1902, and it was then passed once more with some changes in 1913. Tasmania passed its statute in 1924. To be clear, there is a false dichotomy between the two courts’ reservations and their preeminent authorities.

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The federal government passed the statute addressing every aspect of criminal procedure necessary in a court of law in 1914. Section 3BA of the Crimes Act of 1914 deals with both the application of the Crimes Act and the Criminal Code.

There are a total of sections 5 in Part 1AA of the Crimes Act of 1914, which deals with searches, information collecting, arrests, and related powers. Each category is further subdivided.

• Part 1AA, Division 1, is concerned with the preliminaries for which:

1. 3C focuses on the interpretation.
2. 3CAA deals with financial data.
3. 3CA is the type that deals with all judicial obligations as well as magisterial tasks.
4. 3D, which focuses on the application’s component
5. Division 2, which addresses search warrants,
6. Division 3 delays including stops and searches of vehicles
7. Division 3A addresses power in respect to terrorism offenses and terrorist acts.
8. Definitions are covered in subdivision 3A.
9.  Division 3B discusses power.
10. The subject of Subdivision 3C is designated security zones.
11.  Section 3CA of the Act deals with reporting on the use of authority granted by it.
12. The sunset provision is covered by Subdivision D.
13. Division 3B is concerned with airports. Division 3B, which manages airports, has stringent requirements for identifying information and the capacity to “go on.”

Division 4 manages the arrest and associated issues.

1. 4A focuses on figuring out a person’s age.
2. 4B deals with the ability to obtain papers and information.
3. 4C deals with sharing, returning items seized, and producing papers.
4. Finally, division 5, which is under General Part 1AAA of the Crimes Act 1914, deals with 9 divisions under delayed notifications search warrants.

There are a total of 11 subdivisions under Part 1AAB Monitoring of Compliance with Control Orders, etc., which deal with the officer, inspection, and monitoring warrants. Part IAA—Search, information gathering, arrest and related powers

Division 1 – Preliminary is concerned with the interpretation portion and provides a few definitions. A few definitions will be discussed throughout the paper’s pertinent sections.

1. Constable aiding in the execution of the warrant: This term in this act denotes either (a) a constable who is assisting in the execution of the warrant or (b) a person who is not a constable but has been granted authorization to do so by the proper executing officer.
2. In connection to a warrant, the phrase “executing officer” refers to any of the following people: Those present for the warrant’s execution are either
   • (a) the constable designated by the issuing officer in the warrant as being in charge of carrying out the warrant; Division 1 – Preliminary is concerned with the interpretation portion and provides a few definitions. There will be some definitions that are dis
   • Another officer whose name the officer so mentioned has put in the warrant; or (c) Another officer whose name the officer last named in the warrant has written in the warrant.
3. A quick hand-over-outer-clothes examination of a person. A glance at everything the individual is wearing or carrying that they have conveniently and voluntarily removed from their person.
4. Issuing officer: A magistrate, justice of the peace, or other court official of a State or Territory who is empowered to issue such warrants with reference to a warrant to search a location, a person, or a warrant for arrest under this Act.
5. Ordinary search: Under this definition, a search of items in the possession and an examination of items are considered ordinary searches.
6. Police station, which may be the main office of the Australian Federal Police or a state or territory police station.
7. Items that could be seized include anything that poses a serious risk of harm or that, if used, could cause a person to flee from custody.
8. Strip search: The term “search” refers to an inspection of a person or their property, which may include
   • (a) asking them to remove all of their clothing; and
   • looking at their body (apart from their bodily cavities) and the clothing they were wearing. It might be an Australian Federal Police headquarters or a state or territory police station.

Investigation Process in Criminal Cases

Section- 3CAA

For the purposes of this Part, “account-based data” is information on a particular person if: (a) the electronic service in issue enables users to create accounts, and (b) that person actually interacts with the service using his or her account. Through technologically advanced methods, a user of the electronic service has access to, or is likely to have access to, a portion of the service’s data.

In addition, the deceased person had access to specific data provided by the service prior to their death (if they had the right tools), held an account with the electronic service prior to their death, and used an account with the electronic service prior to their death.

For the purposes of this Part, “account-based data” is information on a particular person if: (a) the electronic service in issue enables users to create accounts, and (b) that person actually interacts with the service using his or her account. Through technologically advanced methods, a user of the electronic service has access to, or is likely to have access to, a portion of the service’s data.

In addition, the deceased person had access to specific data provided by the service prior to their death (if they had the right tools), held an account with the electronic service prior to their death, and used an account with the electronic service prior to their death.

Section- 3CA – Nature of function of magistrate

A magistrate acting in their own capacity and not as a court or a member of a court may issue an order under section 3ZI, 3ZJ, 3ZK, 3ZN, or 3ZQZB. A magistrate’s order issued under section 3ZI, 3ZJ, 3ZK, 3ZN, or 3ZQZB has the following effects without restricting the applicability of paragraph:

1. When performing a task connected with issuing an order under section 3ZI, 3ZJ, 3ZK, 3ZN, or 3ZQZB, a magistrate is accorded the same protection and immunity as if they were performing the same function on behalf of, or as a member of, a court.
2.  The Governor-General may decide to have all or some of the people who hold the temporary office of magistrate in a State or Territory issue orders under Sections 3ZI, 3ZJ, 3ZK, N, and 3ZQZB by coming to an agreement with the governor of a State, the chief minister of the Australian Capital Territory, or the administrator of the Northern Territory.

Divisions 2. Search warrants

Conditions for Issuing Search Warrants under Section 3E

• If the issuing officer has reasonable cause (based on information provided under oath or affirmation) to think that any evidence is present or will be present within the next 72 hours, a warrant may be issued to search a property.
• If an officer is convinced by information provided under oath or affirmation that there are good grounds to believe the subject has any evidence in his or her possession or will within the next 72 hours, the officer may issue a regular search warrant or a frisk search warrant.
• The supporting documentation must outline why the applicant thinks using weapons will be essential to execute the warrant.

DIVISION 3 –searching and stopping

If a constable has reasonable suspicion that a thing relevant to an indictable offence is in or on a conveyance, it is necessary to use a power under subsection to prevent the thing from being hidden, lost, or destroyed. It is also necessary to use the power without a search warrant because the situation is serious and urgent.

Division 4-Arrest

A police officer may ask a person to identify themselves by giving either their name or their address if they have reason to believe that person can tell them something about an indictable crime that has been or may have been committed.

The provision of a name or address that is false in a material particular, or the refusal or failure to comply with a constable’s request, is prohibited if the constable:

1. requests something from the person;
2. informs the person of the reason for the request; and
3. complies with the person’s request for something under that subsection.

Arrest without warrant

 A constable may detain a person without a warrant if the constable has reasonable grounds that

• (a) the person has committed or is committing an offence and that
• (b) a summons process against the person would fail to achieve one or more of the following purposes. requiring the criminal to appear in court to answer for their actions either preventing new criminal behavior or maintaining current illegal activity preventing the fabrication of evidence connected to the crime, protecting the person’s safety and well-being, preventing interference with or harassment of the individual, preventing any evidence of the crime from being concealed, lost, or destroyed, a potential witness in court proceedings over the crime; being able to learn about charges before being arrested,

 (1) Whoever is making the arrest must inform the suspect of the precise crime for which they are being detained at the time of the arrest. As long as the other person is made aware of the core of the offence, it is not necessary to employ precise or technical language.

The arrest of another person is exempt from subsection (1) if that person should, under the circumstances, be aware of the offence for which they are being detained or if their behavior makes it impractical for the person making the arrest to inform them of the crime. the charge.

• (a) the individual should reasonably know the nature of the crime for which they are being detained; or
• (b) it would be impractical for the person making the arrest to inform the other person of the offence for which he or she is being detained because of the other person’s behavior, then the arrest is not subject to subsection (1).

In basic terms, the following describes what is covered in Part IAAB, which is concerned with ensuring that control orders are followed.

The constable may enter and search the property with the approval of the person occupying it or in accordance with a monitoring warrant if a control order is in effect against a person and that person has a specific relation to the property in question.

The constable may stop the person and perform a routine search or frisk if one of the following is true the person being searched consents to the search or the search is carried out in accordance with a monitoring warrant.

 INDIA

INTRODUCTION

The FIR is submitted as the first step in the investigation of an incident when a crime occurs in society. In India, criminal cases are investigated in accordance with the Code of Criminal Procedure, 1973. In Section 2(h) of this Code, the term “investigation” refers to any steps taken by a police officer to obtain proof of a crime.

Any investigation begins by determining if the crimes are cognizable or not, and then it continues forward in accordance with the type of crime. Sections 156–173 contain the methods and steps for carrying out the investigation. The ability of the police to investigate a crime is mentioned in Section 156 of the CrPC. The following steps are usually included in the investigation

1. FIR filing
2. looking into the place
3. gathering data and questioning pertinent individuals
4. locating the suspect
5. completing the charge sheet
6. if proven innocent, acquittal
7. If convicted, punishment is meted out
8. The CrPC outlines the essential steps in an investigation. If the crime committed is not a recognized offense, there are also a number of additional phases to the investigating process. To properly understand the investigative process, we must first understand the numerous crimes. We will next carefully review the earlier stages of inquiry.
9. There are mainly two categories of offenses in India: those that are cognizable and those that are not.  This classification is made based on the severity of the offense.
10. The police may detain a suspect for cognizable offenses even in the absence of a valid arrest warrant. These are the most serious charges, with a maximum term of three years in prison plus a fine or both. This covers criminal acts like rape, homicide, and dowry. It is defined under Section 2(c) of the Criminal Procedure Code. On the other hand, non-cognizable offenses are less serious in nature and are punishable by a sentence of fewer than three years in prison, with or without a fine. In some circumstances, an arrest warrant is required in order to make an arrest. Slander, violence, and assault fall under this category. The Criminal Procedure Code defines it in Section 2(i).

A case is treated as one involving a cognizable crime if it involves both cognizable and non-cognizable offenses.

According to Section 156 of the Code of Criminal Procedure, 1973, the police officer has the power to look into a crime that is cognizable. This provision gives the police officer the freedom to launch the case investigation whether or not the magistrate gives the go-ahead.

They are allowed to investigate situations like this that fall under the jurisdiction of their police station. Before the investigation may start, the police station officer in charge must submit the written FIR for all offences that are subject to prosecution and obtain the petitioner’s signature. A magistrate may also oversee the investigation in accordance with the power afforded to him by section 190 of the CrPC.

First information report (FIR)

This is the most important and initial stage of the research. It is the victim’s responsibility to notify the nearest police station of any crime that has occurred, whether verbally or in writing. If the victim gives the police information verbally, they must write it down and get the victim’s signature.

The police must record verbally given information in writing and obtain the victim’s signature. The police would then file a First Information Report (FIR) based on the details the victim provided. The victim will also receive a free copy of the FIR. The preliminary inquiry procedure is described in Section 157 of the CrPC. Accordingly, the person in charge of the police station is authorized to look into the case after learning about the crime and to give the Magistrate the findings of their inquiry.

The police must go to the crime scene in order to gather evidence and, if necessary, make an arrest. They may also decline to conduct an inquiry on the grounds that the case involves any non-cognizable offenses, which cannot be looked into without the Magistrate’s approval. If the investigating officer finds no justifiable grounds for conducting an investigation, he is free to inform the magistrate of this and is not obligated to do so.

Sending magistrate reports

As the investigation moves on, the magistrate gets a variety of reports. This is to update him on the status of the investigation. A “police report” outlining the reasons for the suspicion that a crime has been committed must be given to the magistrate in accordance with Section 157 of the Criminal Procedure Code. letting the magistrate know that the police are investigating this particular incident. Since the magistrate cannot stop the investigation once it has started, the sending of the police report is practically only a formality. At the conclusion of the investigation, he also receives a “final report” in accordance with Section 173.

The magistrate’s directive to investigate

The Magistrate is empowered by Section 159 of the Cr.P.C. to conduct an investigation or to convene a preliminary inquiry into a case after receiving the report produced in line with Section 157. Any statements or admissions made by anyone during the investigation, before the inquiry or trial begins, may be recorded by the Magistrate under Section 164. For the purposes of this clause, it makes no difference whether a Magistrate has jurisdiction over the situation. The Magistrate is required to inform the defendant that making a confession is optional and that it could be used against him in court. If a person is unwilling to confess, the magistrate cannot force them to do so. The admission can only be made voluntarily.

Recording of Statement

Section 164 Cr. P.C. itself contemplates that statement which is either written by the witness himself or reduced to writing by someone else and so, the statement recorded under section 164 of the Code is previous statement of the witness. This section speaks of “ In his confession or statement”.

Acceptability of Evidence

Confessions made under Section 164 may be used as evidence against the confessor. Before rendering a decision, the court must review all of the available information. The entire confession should be given to the court so that it can decide whether or not it is helpful.

Searching of property or any place important in investigation

Section 165 of the CrPC grants the police the authority to search any location or piece of property. Any location or piece of property that has any connection to the case may be searched by the investigating police officer or a subordinate officer acting under his direction. Police need a search warrant from the magistrate before they can conduct a search. The Magistrate may request authorization to search a location in writing from the local authorities if the property or place to be searched is located outside of India.

Along with the items they are looking for, the police officers must provide a valid justification for the search in writing.

Section 167 gives the Magistrate specific authority over the process in cases where the investigation cannot be finished in a day. This clause aims to shield the accused from police abuse and give the magistrate the authority to decide whether to continue custody, help with the investigation, and prevent incarceration without charge or trial. It is a well-established fact that an accused or arrested person cannot be detained for longer than twenty-four hours without first appearing before the magistrate. In each of the following cases, Section 167 is applied:

when a police officer apprehends and holds a criminal without a warrant.

The inquiry takes longer than a day to complete. The person in charge of a police station or an investigating officer who is not a sub-inspector presents the accused to the magistrate.

The accused may be detained in custody for up to 15 days at the discretion of the judicial magistrate to whom he is transferred. The accused will be sent to the magistrate who has jurisdiction if the current magistrate feels that the accused should not be detained any longer and does not have the authority to try the case.

The Magistrate may detain the accused if he has good reason to think that doing so is necessary. In any event, the magistrate is not permitted to order incarceration for longer than:

For severe offenses carrying a sentence of more than one year in jail, A person may be detained for up to 90 days in response to major offenses carrying a sentence of more than ten years in jail, life in prison, or the death penalty.

The maximum period of detention for less serious offenses carrying a sentence of fewer than ten years in jail is sixty days.

If the bail is provided, the person can be released from custody after serving the necessary amount of time.

These represent the entire process from the start to the finish of the investigation; however, there are a few more last tasks that need to be completed. If not enough evidence is uncovered to support the arrest, the police may release the subject when he provides security, albeit he will still need to appear in person before the magistrate if necessary. Transferring the case to the magistrate once all pertinent facts and evidence have been gathered.

The police must provide the court with a “challan” or “charge sheet” at the conclusion of the investigation, which must include all pertinent material. The trial then starts when the suspected parties are accused of the crime. This clause is stated in Section 173 of the CrPC, which requires police personnel to prepare a charge sheet containing all pertinent investigation-related documentation before the court.

BAIL

When the court has not yet made a decision in a criminal case, bail allows the accused individual to be temporarily released from custody. The security provided to ensure the accused’s release is known as bail.

If an individual, who is not charged with an offence for which bail is not required, is arrested or detained without a warrant by a police officer in charge of a police station, or if they appear in court and agree to post bail at any time while under the officer’s custody or during the court proceedings, they will be released on bail; provided, however, that the police officer or court may, if it deems fit, there are additional clauses that address bail as well.

In cases of non-bailable offences, Section 437 of the CRPC 1973 provides bail; nonetheless, the magistrate retains the power to grant bail. If the accused violates the terms of the bail, the magistrate has the authority to revoke the bail if it has been granted.

Section 438 of the CRPC 1973 governs anticipatory bail, granting the court of session the authority to grant anticipatory bail. In this case, the bail applicant must provide a valid rationale for why he should be granted bail prior to being arrested. Prior to his or her arrest, the judge may grant bail if they are satisfied.

The following are the ways that bail legislation in India and the UK differs

English law has different rules about collateral. The procedures and rules pertaining to bail law are governed by the UK Bail Act 1976. Reducing the number of people serving sentences in places of deprivation of liberty is the primary goal of the law or legislation. The law also includes procedures that help the accused get legal representation. Bail is acknowledged by the act as a general right. The Supreme Court of India ruled that, in spite of multiple revisions, the original British colonial statute on bail, known as the CrPC, must exist. According to the Supreme Court, “jail is the exception, bail is the rule.” In contrast to India, the US and UK have simpler procedures for handling bail applications. The main piece of Indian law pertaining to bail is the CrPC, yet it is not a definition of bail. The Supreme Court advises that after taking into account every facet of a criminal trial, the Indian government may design a bail statute akin to that of the United Kingdom.

CONCLUSION

There are numerous differences and parallels between the provisions of the CRPC 1973 and the Australian CRIMES Act 1914. It is challenging to deal with and comprehend the Crimes Act of 1914 since it is not comprehensive and the code is not integrated.

until dealing with repeat offenders, a judge may declare an individual to be a repeat offender and issue an order requiring the individual to be incarcerated until their sentence expires. Offenders with at least two prior convictions for indictable offenses are subject to this. It states that they have to abide by the advice of the lawyer. Act also does not now take into consideration two distinct scenarios: one in which the offender is permanent of unsound mind or suffering from a long-standing but curable mental illness, and the other in which the offender has suffered a temporary unsoundness of mind at the time of committing the offense. In the latter scenario, a person who was of sound mind at trial may be exonerated if it is shown that they were unfit at the time of the crime. Although the defendant may be of sound mind at the time of acquittal, the court is nevertheless required to order that they be held in strict custody under section These provisions should distinguish between the two classes of cases mentioned above in addition to mandating a periodic review of the circumstances surrounding an individual held in strict custody and providing an appeal right against any decisions made periodically regarding the individual’s continued detention. Please replace the General’s pleasure with a different process that does not entail vice-regal discretions in order to prevent concerns regarding the constitutionality of attaching constraints. The primary piece of law controlling the procedural administration of criminal law is the Crime Prevention and Criminal Code (CRPC). It also contains additional provisions, including Section 133’s ban on annoyance, which aren’t strictly procedural in nature. (Pages 125–128). There are 2 schedules, 56 forms, and 37 chapters among the 484 elements that make up the Code. An investigation takes a lot of time to complete, but it is vital to make sure that everything is done correctly and that all pertinent information is considered. In a nutshell, the investigation begins with the filing of the First Information Report (FIR). investigating the crime site if required, notifying the witnesses and suspects of the suspect’s arrest, having observers record admissions and declarations, examining any area or property, maintaining the case diary, and bringing the charge sheet to court. And after that, the trial starts. The police are required to maintain a case journal during the investigation so that the magistrate can view the date, time, and place associated with each phase of the process.