Unit 2 Comparative Criminal Procedure (CH-1 TO 4)

CHAPTER 1

The Bharatiya Nyaya Sanhita (BNSS), 2023, brings reforms in the trial process while
codifying specific provisions to replace the Indian Penal Code (IPC). The accompanying
procedural changes also revise certain aspects of the Code of Criminal Procedure (CrPC),
1973, emphasizing efficiency, victim rights, and time-bound justice. Below is a detailed
discussion with references to relevant sections under BNSS, 2023.

Trial Process in India under BNSS, 2023

1. Pre-Trial Stage

1. Filing of FIR:

o FIR registration is mandatory under Section 154 of the CrPC (unaltered in

BNSS, 2023).

o FIR can be registered online or manually. BNSS provisions enhance digitization

for faster case initiation.

2. Investigation:

o Under Section 157 of the CrPC, the police investigate the offense.

o The investigating officer must complete investigations within specified

timeframes to avoid unnecessary delays.

3. Victim Rights:

o Victims are entitled to updates about the investigation's progress (BNSS,

Section 317).

o Provisions under Section 357A of CrPC (continuing under BNSS) ensure victim
compensation and participation in proceedings.
2. Trial Process under BNSS

The trial stages remain broadly aligned with CrPC provisions but with enhanced timelines
and accountability under the BNSS framework.

1. Categorization of Trials:

o Summons Cases (Section 2(w) of CrPC): Minor offenses with simplified

procedures.

o Warrant Cases (Section 2(x) of CrPC): Serious offenses requiring detailed

trials.

o Sessions Cases (BNSS, Section 302 onwards): Heinous crimes punishable by

death or life imprisonment.

2. Framing of Charges:

o Under Section 240 (warrant cases) or Section 228 (sessions cases) of CrPC,
the judge frames charges. BNSS emphasizes adherence to strict timelines for
this stage.

3. Presentation of Evidence:

o Prosecution Evidence: Evidence is presented under Section 231 of CrPC,

including examination and cross-examination of witnesses.

o Defense Evidence: The accused presents their side under Section 233 of
CrPC.

4. Cross-Examination:

o Both parties have rights to cross-examine witnesses under Section 138 of the
Indian Evidence Act, ensuring fairness.

5. Final Arguments and Verdict:

o Under Section 314 of CrPC, parties present final arguments.

o Judgments are delivered based on the evaluation of evidence (Section 353 of

CrPC).

3. Sentencing and Victim Rights

1. Sentencing:

o Sentencing under BNSS (e.g., Section 51-72) emphasizes proportional

punishment and reformative justice principles.

2. Victim Participation:
 o Victims can appeal in case of acquittal or inadequate sentencing
under Section 372 of CrPC, with strengthened safeguards in BNSS.

Key Features and Reforms under BNSS, 2023

1. Time-Bound Trials:

o BNSS introduces mandatory timelines for different trial stages, unlike the
CrPC, which lacks specific deadlines.

2. Use of Technology:

o Digital FIR filing, virtual hearings, and e-evidence submission are promoted to
enhance efficiency.

3. Victim-Centric Justice:

o Victims are entitled to receive case updates, participate in hearings, and

access compensation.

4. Penalties for Misuse:

o BNSS includes provisions to penalize frivolous complaints, ensuring

accountability.

Comparison: Trial Process under BNSS, 2023 and CrPC, 1973

Aspect BNSS, 2023 CrPC, 1973

Introduces strict deadlines for

Timelines for Lacks specific deadlines, leading
completing investigations and trials,
Trials to delays in the justice process.
ensuring efficiency.

Relies on manual processes for

Promotes digitized and transparent FIR
Filing of FIR FIR registration; online options
registration.
are limited.

Strengthens victim rights with mandatory

Victim rights are acknowledged
Victim Rights case updates, compensation, and
but not actively prioritized.
participation in trials.

No strict timelines for framing

Framing of Ensures framing of charges within
charges, often leading to
Charges specific timeframes.
procedural delays.

Sentencing Proportional sentencing with reformative Sentencing under CrPC focuses

Aspect BNSS, 2023 CrPC, 1973

and deterrence-based approaches. more on punitive measures.

Introduces anonymity and protection Lacks robust witness protection

Witness
measures for witnesses in sensitive mechanisms; intimidation is
Protection
cases. common.

Strong emphasis on virtual courts, digital Limited integration of

Technology Use evidence, and case management technology; largely manual trial
systems. processes.

Misuse of Legal Penalizes frivolous complaints to prevent Limited provisions to address

Provisions obstruction of justice. misuse of legal mechanisms.

The trial process under BNSS, 2023, marks a paradigm shift in India's criminal justice
framework, focusing on time efficiency, victim empowerment, and accountability. The
process begins with the filing of FIRs, which can now be done online, enhancing accessibility
and transparency. Investigations under the BNSS must adhere to strict deadlines, with courts
supervising the prosecution's progress to prevent delays. Victims are actively involved,
receiving updates on the case and participating in hearings.

The trial is categorized into summons cases, warrant cases, and sessions cases based on the
offense's gravity, ensuring tailored procedural rigor. Judges are mandated to frame charges
within specific time limits, and trials proceed systematically with the presentation of
evidence, cross-examination, and final arguments. Sentencing under BNSS emphasizes
proportionality, focusing on deterrence and reformative justice.

Notably, BNSS incorporates technology to modernize trials through virtual hearings and
digitized evidence submission, addressing inefficiencies prevalent under CrPC. Enhanced
victim rights and witness protection mechanisms ensure greater fairness. The BNSS also
introduces penalties for frivolous complaints to deter misuse of the legal system, making it a
transformative step towards a more equitable and efficient criminal justice system.

CHAPTER 2

System of Courts, Trial Process, and Jury System in the UK

The legal system in the United Kingdom is based on common law principles and consists of
distinct judicial systems for England and Wales, Scotland, and Northern Ireland, each with
unique structures. Below are the key components of the court and trial processes, as well as
the role of the jury system.
1. System of Courts in the UK

 Magistrates’ Courts: Handle minor criminal cases, including summary offenses, and
serve as the starting point for most criminal cases. Cases in these courts are heard by
magistrates (lay or district judges).

 Crown Courts: Deal with indictable offenses such as murder, rape, or robbery. They
also hear appeals from Magistrates’ Courts. Cases are heard by a judge and, for
serious offenses, a jury.

 Court of Appeal: Handles appeals from Crown Courts. It is divided into the Criminal
and Civil Divisions.

 Supreme Court: The highest court in the UK, dealing with points of law of general
public importance.

2. Trial Process in the UK

 Initial Hearing: Minor cases are decided in the Magistrates’ Courts. For serious
offenses, the case is transferred to the Crown Court after an initial hearing.

 Preliminary Hearing: Also known as the "committal proceeding," it ensures sufficient

evidence exists to proceed to trial.

 Plea and Directions Hearing (PDH): The accused enters a plea of guilty or not guilty. If
guilty, sentencing follows; if not guilty, a trial date is set.

 Trial: Conducted before a jury for indictable offenses in the Crown Court. The
prosecution and defense present evidence, and the judge ensures fairness in
proceedings.

 Role of the Jury: Juries in the UK play a critical role in deciding the guilt of the
accused in serious cases. Composed of 12 members, jurors deliberate based on
evidence presented in court.

Jury System in the UK

The jury system is a cornerstone of criminal justice in the UK, particularly for indictable
offenses.

 Selection Process: Jurors are randomly selected from the electoral roll and must be
between 18 and 75 years old.

 Role in Trials: Jurors assess the evidence presented and deliver a verdict based on
facts. The judge provides legal guidance but does not influence the jury's decision.

 Strengths and Criticism: While the jury system is lauded for democratic participation,
it is often criticized for potential biases and lack of legal expertise among jurors.
Preliminary Hearing, Grand Jury, Arraignment, and Trial Process in the US

The United States follows a federal legal system, with separate federal and state courts. The
trial process is governed by the U.S. Constitution, particularly the Fourth, Fifth, Sixth, and
Fourteenth Amendments, which ensure fairness and due process.

1. Preliminary Hearing

The preliminary hearing is conducted to determine whether sufficient evidence exists to

prosecute the accused. This stage ensures the prosecution's case is not frivolous.

 In federal cases, the magistrate judge oversees this stage.

 The defendant may cross-examine witnesses and present evidence, although this is
rare.

2. Grand Jury

Grand juries play a significant role in federal cases and some state cases.

 Purpose: To determine if probable cause exists to issue an indictment.

 Composition: Consists of 16-23 jurors who review evidence presented by the

prosecution. The defendant and their attorney are not present.

 If the grand jury finds sufficient evidence, it issues an indictment; otherwise, charges
may be dismissed.

3. Arraignment

The arraignment marks the official start of criminal proceedings:

 The accused is formally charged and informed of their rights.

 They enter a plea of guilty, not guilty, or no contest.

 Bail may be granted or denied based on the severity of the offense and flight risk.

4. Trial Process in the US

 Jury Selection: A jury is selected through voir dire, where attorneys question
potential jurors to ensure impartiality.

 Opening Statements: Both prosecution and defense outline their case to the jury.

 Presentation of Evidence: The prosecution bears the burden of proof and presents
evidence first, followed by the defense.

 Cross-Examination: Both sides cross-examine witnesses to challenge credibility and

testimony.
  Closing Arguments: Each side summarizes their case and argues why the jury should
decide in their favor.

 Jury Deliberation and Verdict: The jury deliberates in private and must reach a
unanimous verdict in criminal cases. A "hung jury" may result in a mistrial.

 Sentencing: If the defendant is found guilty, sentencing follows based on federal or

state guidelines.

Comparison: Trial Processes in UK and US

Aspect UK US

Used for indictable offenses in Crown Grand juries decide on indictments;

Role of Jury Courts. Jurors focus only on trial juries determine guilt in both
determining guilt. federal and state cases.

Conducted in serious cases to Conducted to assess probable cause;

Preliminary
establish if sufficient evidence exists grand juries may replace this in
Hearing
to proceed. federal cases.

Arraignment is a distinct stage where

Accused enters a plea during the Plea
Arraignment the accused is formally charged and
and Directions Hearing (PDH).
enters a plea.

Focuses on oral arguments, evidence Similar structure but greater reliance

Trial Process presentation, and cross-examination, on constitutional safeguards like
with judge supervision. Miranda rights.

Delivered by the jury (unanimous or Requires a unanimous jury decision

Verdict
majority based). in criminal cases.

Constitutional protections under the

Legal Rights of Rights ensured by Human Rights Act,
Fourth, Fifth, Sixth, and Fourteenth
Accused 1998, and common law precedents.
Amendments.

These systems reflect the distinct approaches of common law jurisdictions, with both
prioritizing procedural fairness, jury involvement, and safeguarding the rights of the accused.

CHAPTER 3

Fair Trial
A fair trial is a cornerstone of justice systems, ensuring that accused individuals are treated
impartially and that legal proceedings are conducted with fairness, transparency, and
adherence to established legal norms. The concept of a fair trial is deeply rooted in
constitutional principles, international law, and human rights frameworks.

Fair Trial: Concept under the Constitution of India

The Constitution of India guarantees a fair trial as a fundamental right under various
provisions:

Key Provisions

1. Article 21 (Right to Life and Personal Liberty):

o A fair trial is intrinsic to the right to life and liberty.

o It ensures that no person is deprived of life or personal liberty except through

a procedure established by law, which must be fair, just, and reasonable.

2. Article 14 (Equality Before the Law):

o Ensures equality before the law and equal protection of the law.

o Prohibits discrimination in legal proceedings.

3. Article 20:

o Protection against ex-post-facto laws: No person can be convicted for an act

that was not an offense at the time it was committed.

o Double jeopardy protection: No person can be tried and punished for the
same offense twice.

o Protection against self-incrimination: No person accused of a crime can be

compelled to testify against themselves.

4. Article 22 (Protection in Case of Arrest):

o Ensures rights like being informed of grounds of arrest and the right to legal
representation.

o Preventive detention cases have specific safeguards.

Principles of Fair Trial under Indian Law

1. Presumption of Innocence:

o Every accused is presumed innocent until proven guilty.

o The burden of proof lies on the prosecution.

 2. Impartial Judiciary:

o Judges must act independently, free from bias or influence.

3. Open Trial:

o Trials must be conducted in public unless exceptions like national security or

privacy require in-camera proceedings.

4. Right to Legal Representation:

o The accused has the right to be defended by a legal practitioner of their

choice (Section 303, CrPC).

5. Right to a Speedy Trial:

o Justice delayed is justice denied. This principle is upheld in Hussainara

Khatoon v. State of Bihar.

6. Cross-Examination and Evidence:

o Accused have the right to cross-examine witnesses and challenge evidence

presented against them (Sections 138 and 273 of CrPC).

7. Reasoned Judgment:

o Courts are required to deliver judgments with reasons, ensuring

accountability and transparency.

Fair Trial Principles under the Constitution of the USA

The United States Constitution guarantees a fair trial under multiple amendments, which
form the Bill of Rights:

Key Provisions

1. Fourth Amendment:

o Protects against unreasonable searches and seizures.

o Ensures warrants are issued based on probable cause.

2. Fifth Amendment:

o Protects against self-incrimination and double jeopardy.

o Ensures due process of law.

 3. Sixth Amendment:

o Guarantees the right to a speedy and public trial.

o Ensures impartial jury trials in criminal cases.

o Provides the right to be informed of charges and confront witnesses.

o Affirms the right to legal counsel.

4. Fourteenth Amendment:

o Extends due process and equal protection to all individuals, including state
actions.

Principles of Fair Trial in the USA

1. Presumption of Innocence:

o Similar to India, the accused is presumed innocent until proven guilty.

2. Right to Counsel:

o As established in Gideon v. Wainwright (1963), defendants have a right to free

legal counsel if they cannot afford one.

3. Impartial Jury:

o The jury must be free from biases and represent a cross-section of society.

4. Speedy Trial:

o Prevents undue delays in delivering justice.

5. Right to Confrontation:

o Defendants can cross-examine witnesses presented against them.

6. Protection against Self-Incrimination:

o Ensures that defendants cannot be forced to testify against themselves during

the trial process.

Pre-Trial Motions

Pre-trial motions are critical procedural tools used by defense attorneys and prosecutors to
shape the course of a trial. They are often aimed at resolving specific legal issues before the
trial begins.

Types of Pre-Trial Motions

1. Motion to Dismiss:
 o Filed by the defense to dismiss the case on procedural or substantive
grounds, such as lack of evidence or jurisdictional issues.

2. Motion to Suppress Evidence:

o Seeks to exclude evidence obtained unlawfully, such as through violations of

the Fourth Amendment in the USA or Section 166A of the Indian Penal Code.

3. Motion for Change of Venue:

o Requests a trial be moved to a different location to ensure an impartial jury or

due to public influence.

4. Motion for Discovery:

o Seeks disclosure of evidence from the opposing party.

o In India, Sections 91 and 207 of CrPC govern evidence disclosure.

5. Motion in Limine:

o Aims to prevent certain prejudicial evidence from being presented during the
trial.

6. Motion to Strike:

o Requests that certain irrelevant or prejudicial statements or evidence be

removed from the court record.

7. Bail Applications:

o Filed under Section 437 or 438 of CrPC in India and before pre-trial hearings
in the USA.

Significance of Pre-Trial Motions

 Efficient Trial Process: Resolves procedural and evidentiary issues beforehand.

 Focus on Substantive Issues: Eliminates distractions, allowing trials to focus on the

core facts of the case.

 Preservation of Rights: Ensures adherence to constitutional safeguards, particularly in

cases involving search and seizure or self-incrimination.

Conclusion

The concept of a fair trial, rooted in both the Constitution of India and the United States
Constitution, emphasizes justice through impartiality, transparency, and procedural
safeguards. While both systems uphold core principles like presumption of innocence and
the right to legal counsel, they differ in implementation based on distinct legal traditions.
Pre-trial motions in both systems serve as essential mechanisms for ensuring a fair and just
trial, preventing unnecessary delays, and protecting the rights of the accused.

CHAPTER 4

Trial Process in India under the BNSS, 2023

The BNSS 2023 (Bharatiya Nyayik Sudhar Samiti Bill, 2023) is a proposed legal reform aiming
to address systemic issues in the Indian justice system. While the bill is still in discussion, it
focuses on improving the trial process, reducing delays, enhancing access to justice, and
improving efficiency in the judicial system. The core framework for criminal trials in India
remains governed by the Indian Penal Code (IPC), Criminal Procedure Code (CrPC), and
other related statutes.

Key Stages of Trial Process in India

1. Investigation

o Role of Police: After the commission of an offense, police initiate an

investigation. The police may arrest the accused, collect evidence, and submit
a charge sheet.

o Role of Prosecution: The Public Prosecutor handles the case on behalf of the
state. The prosecutor is responsible for presenting evidence, questioning
witnesses, and ensuring that the case is tried fairly.

2. Pre-Trial Procedures

o Filing of Charge Sheet: The prosecutor files a charge sheet based on the
investigation.

o Court’s Role: A magistrate examines the charge sheet and decides whether a
prima facie case exists. If so, a formal charge is framed against the accused.

3. Trial Process

o Sessions Court: Serious criminal offenses are tried in a Sessions Court, and
less severe offenses in a Magistrate's Court.

o Court Proceedings:

 Examination of Prosecution’s Witnesses: The prosecution presents its

witnesses and evidence.

 Cross-Examination: The defense cross-examines the prosecution’s

witnesses.
  Defendant’s Statement: The accused is given an opportunity to
present their case.

 Final Arguments: Both sides present their closing arguments.

4. Judgment

o After hearing arguments, the judge delivers the verdict, either acquitting or
convicting the accused. The punishment (if convicted) is also pronounced.

Role of BNSS, 2023 (Hypothetical Reforms)

 Time-bound Trials: The BNSS bill emphasizes reducing delays and fast-tracking cases,
with a focus on time-bound judgments.

 Technology Integration: Introduces virtual hearings, digitization of records, and AI-

powered case management.

 Access to Justice: It aims to provide more accessible legal aid and support for
disadvantaged groups.

 Specialized Courts: It suggests creating more specialized courts, such as fast-track

courts for sexual offenses or corruption cases.

2. Trial Process in the UK: System of Courts, Jury System

The UK follows a common law system, where judicial decisions set precedents for future
cases. The system places a strong emphasis on fairness, transparency, and public
participation in the justice process. The trial process in the UK is distinct, particularly in
terms of its court system and jury system.

System of Courts in the UK

1. Magistrates' Court:

o Jurisdiction: Handles summary offenses (minor crimes like traffic offenses).

o Role: A magistrate (a layperson or legally qualified judge) decides on guilt and

penalty.

2. Crown Court:

o Jurisdiction: Deals with serious criminal offenses like murder, rape, and
robbery.

o Role: A judge presides over the case, and a jury is used to determine guilt.

3. Court of Appeal:
 o Jurisdiction: Hears appeals from lower courts (Magistrates' and Crown
courts).

o Role: Reviews legal and procedural aspects of the trial to ensure justice.

4. Supreme Court:

o Jurisdiction: Highest court of appeal, which hears significant constitutional

and legal cases.

Trial Process in the UK

1. Preliminary Hearing

o Held in the Magistrates’ Court where the charge is read, and a preliminary
decision is made whether the case is too serious for this court (leading to
referral to the Crown Court).

2. Court Hearing

o Crown Court Trial: Involves the jury system where 12 jurors decide on the
guilt of the accused. The judge oversees legal procedures and sentencing.

o Role of Jury: The jury listens to evidence, deliberates, and provides a verdict.
They are instructed by the judge on points of law but decide on facts.

3. Closing Arguments

o Both defense and prosecution summarize the evidence. Closing speeches

help the jury understand the case before deliberations.

4. Verdict and Sentencing

o Guilty or Not Guilty: The jury’s verdict determines the outcome of the case.

o Sentencing: If the defendant is found guilty, the judge sentences the offender
based on the crime's severity.

Key Features

 Jury Trials: Unique to the UK’s Crown Court, the jury system ensures that criminal
cases are decided by a group of peers.

 No Double Jeopardy: An individual cannot be tried twice for the same offense after a
verdict of acquittal.

3. Trial Process in the USA: Preliminary Hearing, Grand Jury, Arraignment, and Trial
In the United States, the trial process can vary by jurisdiction (state or federal), but several
common elements define criminal trials, such as preliminary hearings, grand jury
proceedings, and arraignments.

Preliminary Hearing

 Definition: A proceeding where a judge determines whether there is enough

probable cause for a case to move forward to trial.

 Process:

o The prosecution presents evidence.

o The defense can cross-examine witnesses.

o The judge decides whether the case should proceed to trial or be dismissed
due to insufficient evidence.

Grand Jury

 Definition: A group of citizens who review evidence to determine whether charges

should be brought against the accused.

 Role:

o The prosecution presents evidence to the grand jury in secret.

o The grand jury issues an indictment if they believe there is enough evidence
to charge the defendant.

o Not all cases use a grand jury (in some states, a preliminary hearing is used
instead).

Arraignment

 Definition: The formal reading of criminal charges to the accused and a plea entered.

 Process:

o The defendant is informed of the charges.

o The accused can plead guilty, not guilty, or no contest.

o Bail may be set, and a trial date is scheduled.

Trial Process

1. Jury Selection

o Voir Dire: Jurors are selected and questioned by both the prosecution and
defense to ensure impartiality.
 o Jury Size: In federal criminal cases, a jury typically consists of 12 people. In
state trials, it can range from 6-12 jurors.

2. Opening Statements

o Prosecution and Defense: Each side provides an opening statement outlining

the case’s facts and arguments.

3. Presentation of Evidence

o Prosecution's Case: The prosecution presents evidence and witnesses to

prove the defendant’s guilt.

o Defense's Case: The defense can present evidence to rebut the charges or
provide an alibi.

4. Closing Arguments

o Both sides summarize the case and argue for a specific verdict based on the
evidence.

5. Jury Deliberation and Verdict

o After hearing all evidence, the jury deliberates to decide whether the
defendant is guilty or not guilty.

o In some cases, a hung jury may occur, requiring a retrial.

6. Sentencing

o If the defendant is convicted, the judge determines the sentence, which can
include prison time, fines, probation, or other penalties.

Key Features

 Right to a Speedy Trial: The Sixth Amendment guarantees the right to a speedy and
public trial.

 Plea Bargaining: A significant number of criminal cases in the USA are resolved via
plea bargaining before reaching trial.

 Double Jeopardy: A person cannot be tried twice for the same offense if acquitted.

Conclusion

The trial procedures in India, the UK, and the USA reflect their distinct legal traditions.

 India’s trial process focuses on procedural fairness and the need for reforms to
ensure time-bound justice.
  The UK’s jury system emphasizes the role of the public in determining guilt in serious
criminal cases.

 The USA uses a mix of preliminary hearings, grand juries, and jury trials, with a focus
on ensuring due process and the protection of the accused's rights.

Each country’s system faces its own challenges and opportunities for reform, aimed at
improving fairness, reducing delays, and ensuring that justice is served effectively.