Right to Fair and Effective Investigation in Pre-trial: A Comparative Study of Cambodian and Indian...

RIGHT TO FAIR AND EFFECTIVE INVESTIGATION

IN PRE-TRIAL:

A COMPARATIVE STUDY OF CAMBODIAN AND INDIAN

CRIMINAL JUSTICE SYSTEMS

DISSERTATION SUBMITTED TO UNIVERSITY OF DELHI IN PARTIAL

FULFILLMENT OF THE REQUIREMENT FOR THE AWARD OF

DEGREE OF MASTER OF COMPARATIVE LAWS (M.C.L.)

BY

YOEURNG SOTHEARA

M.C.L.-IVTH TERM (2013-2014)

(TWO-YEAR COURSE)

EXAMINATION ROLL No. 119552

FACULTY OF LAW

UNIVERSITY OF DELHI

DELHI-110007

MAY, 2014

ii

DECLARATION

This Master Dissertation on “Right to Fair and Effective Investigation of Pre-trial: A

Comparative Study of Cambodian and Indian Criminal Justice Systems” embodies the result of

my own original research work pursued under the guidance of my supervisor.

I further declare that neither the work, nor any part thereof, has been published or

submitted to any other University or Institution for the ward of any degree or diploma. My

indebtedness to other work/publications has been duly acknowledged at the relevant places.

YOEURNG SOTHEARA

M.C.L IVth TERM (2013-2014)

DATE: April 30, 2014 (TWO YEAR COURSE)

EXAMINATION ROLL No. 119552

FACULTY OF LAW

UNIVERSITY OF DELHI

iii

PREFACE

The Right to Fair and Effective Investigation in Pre-trial stage refers to various aspects of

criminal procedure designed to safeguard the innocent from the harassment of the state

authorities, both judiciary and executive. Each and every accused person of the offence should be

treated as an innocent person till the guilt is proved by the court. The accused person has rights

to be just, fair, reasonable, and effective before the court in which the court and authorities must

apply the just, reasonable and fair procedures on conducting their investigative task. They must

perform their duties in accordance with procedure established by law. The United Nations

contributed a lot in adopting declarations, conventions, and principles etc. which ensure the

rights to justice in the court of law of the accused person. An accused person (or under-trial

persons) of Cambodia and India have been equipped with the numerous constitutional rights and

statutory rights such as right to protect against arbitrary arrest; right to protection against

unlawful search and seizure; right against self-incrimination; right to legal counsel; right to fair

and public trial and right to expeditions trial…etc. However, the abovementioned rights, as the

two countries have their own criminal justice systems and practice, this makes two countries

differ in its implication of law in accordance to their predecessors. No doubt, some important

constitutional provisions regarding with the rights of the accused to criminal justice before the

law, in many aspects, are similar or even the same.

Cambodian legal infrastructure has gone through many decades of struggle. It has always

changed and modified in accordance with the changing of regimes. In the years before 1970s, it

was in French model but after that when it was under Pro-U.S leadership regime, the system had

modified and transformed to the American system in many aspects. And after the defeat of this

regime, the new regime came to the powers and set up another system in 1975 to 1979. The

regime abolished the judiciary and the legislature. It remained only the executive powers which

had topmost power. It was well known as the evil era ever in the history of Cambodia. After the

victory over the evil regime, again the communist government but with different ideology came

to the powers and the right to liberty of individual even it was better than the former one, but it

remained heavy struggle, bitter and challenged. The cold war was ended in the late of 1980s, and

the collapse of Soviet Unions (USSR) in 1991, again, the transformation of legal system had

been changed and modified. The socialist leadership was unpopular and the democratic

iv

movements became very popular in most sections of Cambodian society. The collapse of Cold

War brought Cambodia to the changing of regime from Socialist (Communist) to Democratic

regime. With first ever international intervention into Cambodian internal affairs of rebuilding

the Khmer society, the Democratic Constitution which recognizes the fundamental rights of the

people has been adopted. It is a liberal and civilized Constitution. It recognizes the universal

declaration of human rights and other international laws of human rights.

With respect to India, the accused has been ensured with the Constitutional right since the

adoption of the Constitution of India, 1949. The Constitution of India specifically guaranteed

certain rights to the accused including right to protect against arbitrary arrest, right against self-

incrimination, and right to legal counsel. Some other rights are remaining ignored and behind the

bar of the right to life and personal liberty.

India was a very lucky country in which from its successful of foreign colonization, the

constitution remains the same as it has been adopted in 1949. There is not regime change after it

gained independence from the British Raj. It was a very lucky country in the impact of Cold War

while many countries of the world were affected and influenced by the Cold War. There were

very small aspects of impact on the Republic. The original form of legal system has remained its

origin and source. However, fundamental rights of the citizens also have been changed modified

in accordance with the political leadership of the country. India was not pure democratic country

since succession from the British Raj. The role of the Supreme Court was very limited and

stayed within an ambit of powers to interpret the law. The Constitutional provisions were

amended according to the political change of the country. But the Supreme Court‟s role has been

changed after the Indira Gandhi stepped down from the power. The Supreme Court, with the

powers conferred by the Constitutional provisions have played absolutely important role in

interpreting the fundamental rights of the citizens by guaranteeing and securing the rigid

structural form of the basic feature of the Constitution. Rights to life and personal liberty in the

Article 21 of the Constitution were liberal and widely interpreted by the Judge of the Supreme

Court and High Courts. The judiciary has played very important role in safeguarding rights of the

citizens as well as the rights of the accused in criminal justice are concerned.

Chapter One deals with the Introduction of the Dissertation, some introductory notes of

the Dissertation.

v

Chapter Two deals briefly of legal system evolution especially the evolutions of the

criminal procedure codes and constitutions of the two countries.

Chapter Three consists criminal investigation in pre-trial stage, which includes the roles

and functions of the Prosecutors, IOs (Investigating Judge, Police) etc. in criminal procedure

codes.

Chapter Four deals with the constitutional rights of the accused to fair and effective

investigation in pre-trial stage as well as the same meaning of constitutional rights of the accused

before the court of law along with comparative and analysis aspects of criminal procedure codes

and international laws and practice.

Chapter Five is the conclusion and suggestions of the Research Dissertation.

Date: April 30, 2014

YOEURNG SOTHEARA

vi

ACKNOWLEDGMENTS

I express my deep sense of indebtedness and heartfelt gratitude to my supervisor, Dr.

Poonam Dass, who has been extremely supportive and paid her efforts during the past four

months. Without her valuable and preciously advice, suggestions and comments, this dissertation

would not have been completed. I owe intellectual debt to her. Her insights and knowledge

improved quality of my research immeasurably and inevitably reflected in this work.

I am grateful to Professor Ashwani Kr. Bansal, Head & Dean, Faculty of the Law,

University of Delhi, for his cooperation and authorized me to work on this topic research. I am

also grateful to the staff members of the Libraries of Faculty of Law, Central University of the

Delhi University.

I would be failing in my duty if I do not acknowledge the Indian Council for Cultural

Relation, ICCR, the Government of the Republic of India who has offered me the scholarship

programme for this course with financial supports for my Post Graduated Degree of Mater of

Comparative Law (M.C.L) here.

I owe sincere and heartfelt gratitude to my beloved engaged woman Chreng

Sopheakneang for her inspiration to pursue my research work, research work efficiencies and for

advice and encouragement rendered to me with love and affection to complete this work in time.

As well, I am deeply indebted to her and family and to my mother and sister and my uncle H.

Excellency, Un Neung and his wife who have always advised and supported me for years.

Last but not the least, I would like to thank my Professors of LL.M/M.C.L, LL.M/M.C.L

Administrator and friends for assisting me by giving research materials to finish this work on

time.

Date: April 30, 2014

YOEURNG SOTHEARA

vii

LIST OF ABBREVIATIONS

A.B.A.J. American Bar Association Journal

AIR All Indian Reporter

CBI Crime Bureau for Investigation

CCPC Cambodian Criminal Procedure Code

CFA Court of First Instance

Col. L. Rev. Columbia Law Review of Comparative Law

CPS Crown Prosecution Service

Cri. L.J Criminal Law Journal

Cr. P.C Criminal Procedure Code (India)

Cri. L. Rev. Criminal Law Review

DUKE. J. COMP. & INTER‟L. L. Duke Journal of Comparative & International Law

ECCC Extraordinary Chambers in the Courts of Cambodia

F.O.L Faculty of Law

FIR First Information Report

GAV Garde à Vue

IJ Investigating Judge

Ind. Bar. Rev Indian Bar Review

IO Investigating Judge

I.L.I Indian Law Institute

J.I.L.I. Journal of Indian Law Institute

Jour of Pol Journal of Politics

JPA Judicial Police Authorities

JPO Judicial Police Officer

Mass. L. Q. Massachusetts Law Quarterly

McGill. L.J McGill Law Journal

N.Y. Uni. L. Rev. New York University Law Review

N.Y.L. SCH. J. INTER‟L. & COMP.L. New York Law School Journal of International &

North. West Univ. L. Rev North Western University Law Review

S.Ac.L.J Singapore Academy of Law Journal

viii

S.Y.B.I.L Singapore Year Book of International Law

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Report

SOC State of Cambodia

SOK State of Kampuchea

U. Chi. Press University of Chicago Press

UNTAC United Nations Transitional Authority in Cambodia

Wash. U. Global Stud. L. REV Washington University of Global Studies Law Review

ix

LIST OF CASES

A

A.R. Antulay v. R.S. Nayak, (1992) 1 SCC 225: AIR 1992 SC 1701.

Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC 117: 1968 Cr. L.J 97.

Ahmad Nabi v. State of U.P., 1987 (1) Crime 85 (All).

Ajaib Singh v. State of Punjab, AIR 1952 Punj. 309 F.B.

Aleque Padamsee v. Union of India, (2007) 6 SCC 171.

Alla China Apparao v. State of A.P., AIR 2002 SC 3648: (200) 8 SCC 440.

Anwar v. State of Jammu and Kashmir, AIR 1971 SC 337.

Arjun Marik v. State of Bihar, 1994 SCC (Cri) 1551 (1561).

Ash Chadha v. Asha Kumari, 2012 Cri. L.J. 773.

Ash Chadha v. Asha Kumari, 2012 Cri. L.J. 773.

Ashok Kumar Todi v. Kishwar Jahan & Ors., AIR 2011 SC 1254.

B

Babubhai Bhimabhai v. State of Gujarat, AIR 2013 SC 3648.

Babubhai Jamnadas Patel v. State of Gujarat, 2010 Cri. L.J. 2249.

B. Ramanjini v. State of Andhra Pradesh, AIR 2000 SC 2023.

Bable Alias Gurdeep Singh v. State of Chhattisgard Tri. P.S.O.P., Kursipur, 2012 Cri. L.J. 3676.

Barker v. Wingo, 407 US 532 (1972). Bharatiban v. N.G. Lokanath, 1998 Cri. L.J. (Kant).

Bhavat Din v. State of U.P., (2003) Cri. L.J. 2281 (All).

CBI Cell-I, New Delhi v. Anupam J. Kulkarni, AIR 1992 SC 1768: (1992) 2 SCC 141: 1992 Cri.

L.J. 2768 (2773).

C

Charan Singh v. State of Haryana, 1994 Cri. L.J. 1003 (H&P).

Chrisie v. Laachinsky, (1947) 1 All E.R. 567.

D

D.G. & I.G. of Police v. Prem Sagar, (1999) 5 SCC 700: 1999 SCC (Cri) 1036.

D.K. Basu v. State of West Bengal, (1997) 6 SCC 642: AIR 1997 SC 610.

Damodar v. State of Rajasthan 2004 (12) SCC 336.

Dayal Signh v. State of Uttaranchal, [2012] 10 S.C.R. 157 (166): 2012 Cri. L.J. 4323.

x

Dharmendra Kirthal v. State of U.P., AIR 2013 SC 2569 (2578).

Dudh Singh v. State of Punjab, (2000) 9 SCC 266 (267).

E

Edwards v. Arizona, 451 US 482 (1981).

Emperor v. Bika Moti, AIR 1938 Sind 113, 114: (1938) 39 Cri. L.J. 681 (FB).

Emperor v. Mohammed Shah, AIR 1946 Lah. 456, 458.

G

G.K. Moopanar v. State, 1990 Cri. L.J. 2685.

Gian Singh v. State (Delhi Admn.), 1981 Cri. L.J. 100.

Gian Singh v. State (Delhi Admn.), 1981 Cri. L.J. 100.

Gimik Piotr v. State of TN., (2010) 1 SCC 609 (19): AIR 2010 SC 924.

Gokaraju Rangaraju v. State of A.P., AIR 1981 SCC (Cri) 652:1981 Cri. L.J. 876.

Gopalanachari v. State of Kerala, 1980 SCC 649

Gopal Das Sindhi v. State of Assam, AIR 1961 SC 986: 1961 (2) Cri. L.J. 39.

H

H.N. Rishbud and Inder Singh v. The State of Delhi [1955] 1 S.C.R. 1150.

H.N. Rishbud v. State of Delhi, AIR 1955 SC 196: 1955 Cri. L.J. 526.

Harinder Pal Singh v. State of Panjab, (2004) Cri. L.J. 2648 (P&H).

Hiralal Rattanlal v. State of U.P, 1973(1) SCC 216.

Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360 : 1979 Cri. L.J. 1036.

I

Indraji Mukherjee v. State of W.B., 1995 Cri. L.J. 3250 (Cal).

Indumate M. v. Navender Muljbai Asra, 1995 Cri. L.J. 918 (Guj).

ICCHU Devi Choraria v. Union of India, 1980 531;

J

Jagdish Ram v. State of Rajasthan, 1989 Cri. L.J. 745 (Raj).

Jahan Singh v. Delhi Administration, (1974) 4 SCC 522: 1974 SCC Cri 558: 1974 Cri. L.J. 802.

Jamuna Singh v. Bhadai Shah, AIR 1964 SC 1541: 1964 (2) Cri. L.J. 468.

Joginder Kumar v. State of U.P, AIR 1994 SC 1349: 1994 Cri. L.J. 1981.

Jon Richard Argersinger v. Raymon Hamlin, 407 U.S 25 (1972).

Jayrajsinh Temu Bha Jadeja v. State of Gujrat, 2004 (2) Crimes 247 (Guj).

xi

K

K. Vijaya Lakshmi v. Govt. of A.P., AIR 2013 SC 3589 (3597).

Karan Singh v. State of Haryana, AIR 2013 SC 2348.

Khatri (II) v. State of Bihar, 1981 SCC (Cri) 228. 233-234: (1981) 1 SCC 627.

King-Emperor v. Khwaja Nazir Ahmad, 1945 Cri. L.J. 413.

Kuldip Singh v. State, 1994 Cri. L.J. 2502 (Del).

L

L.R. Chawla v. Murari, 1976 Cri. L.J. 212 (Del).

Lalita Kumari v. State of Uttar Pradesh (2012) 4 SCC 1.

M

M.C. Abraham v. State of Maharashtra, (2003) 2 SCC 649.

M.P. Sharma v. Satish Chand, AIR 1954 SC 300: 1954 SCR 1077.

M.P. Sharma v. Satish Chandra, AIR 1954 SC 306 & 307.

Madhu Bala v. Suresh Kumar, (1997) 8 SCC 476: 1997 SCC (Cri) 111.

Malicio Fernandes v. Mohan, AIR 1966 Gao 23, 32.

Maneka Gandhi v. Union of India, AIR 1978 SC 597: (1978) 1 SCC 248.

Manu Shamarma v. State (NCT of Delhi), (2010) 6 SCC 1.

Miranda v. Arizona, 384 US 436 (1966).

Mohammad. Suleman v. King Emperor, 30 C.W.N. 985.

Mohd. Ahmed Yasin Mansuri v. State of Maharashtra, 1994 Cri. L.J. 1854 (1859) (Bom-DB).

Mohd. Dastagir v. State of Madras, AIR 1960 SC 756.

Mohm. Hussain v. State (Govt. of NCT), Delhi, 2012 Cri. L.J. 1069 (1070).

Moran v. Burbine, 106 S.C.R. 1142 (1986).

Moti Bai v. State, AIR 1954 Raj 241, 243.

N

Nallasivam v. State T.N., 1995 Cri. L.J. 2754 (Mad).

Nandini Satpathey v. P.L. Dani, AIR 1978 SC 1025: 1978 Cri. L.J. 968: (1978) 2 SCC 424.

Nandini Satpathy v. P.L. Dani, AIR 1978 SC 1025.

Naurata Ram v. State of Haryana, 1995 Cri. L.J. 1568 (P&H).

Noor Mohammed v. Jethanand, AIR 2013 SC 1217.

P

xii

P.C. Kakar v. Director General of Police, 1986 (1) Crimes 620, 625 (AP).

Popular Muthiah v. State, (2006) 7 SCC (Cri) 296.

Prof. K. V. Rajendran v. Superintendent of Police, CBCID South Zone, Chennai & Ors., 2013

Cri. L.J. 4464.

Public Prosecutor, A.P. High Court v. J.C. Narayana Reddy, 1996 Cri. L.J. 462 (464) (AP).

R

R. v. G.D.B., [2000] 1 S.C.R. 520.

R.K. Dalmia v. Delhi Administration, AIR 1962 SC 1821.

R.P. Kapur v. State of Panjab, AIR 1960 SC 866: 1960 Cri. L.J. 1239.

Raghubir Singh v. State of Haryana, AIR 1980 SC 1088.

Raj Rajendra Sardar Maloji Narshing Rao v. Sharan, AIR 1958 All 775, 787.

Rajinder Singh Katoch v. Chandigarh Administration, 2007 (10) SCC 69

Rajinder Singh Katoch, (2011) 4 SCC 266.

Ram Autar v. State of Bihar, 1986 Cri. L.J. 51 (Pat).

Ram Biraji Devi v. Umesh Kumar Singh, (2006) 6 SCC 669.

Ramesh Kumari v. State (NCT of Delhi), (2006) 2 SCC 677.

Ramsinh Bavaji Jadeja v. State of Gujarat 1994 (2) SCC 685.

Randhir Singh v. Sate (Delhi) Admin, (1997) 1 SCC 361.

Ritesh Sinha v. State of U.P., AIR 2013 SC 1132.

Roshan Beevi v. Joint Secretary to the Govt. of Tamil Nadu, 1984 Cr. L.J 134 (Mad.).

Rubabbuddin Sheikh v. State of Gujarat & Ors., (2010) 2 SCC 200: AIR 2010 SC 3175.

S

S.N. v. Bipen Kumar Tiwari, (1970) 1 SCC 653 (Cri) 258: 1970 Cri. L.J. 764.

Sakiri Sasu v. State of U.P., AIR 2008 SC 907.

Selvi v. State of Karnataka, AIR 2010 SC 1974.

Shambhu Dass v. State of Assam, AIR 2010 SC 3300: (2010) 10 SCC 374.

Sher Singh v. State of Punja, AIR 1983 SC 465 : (1983) 2 SCC 344.

Sidhartha Vasht v. State (NCT of Delhi), (2010) 6 SCC 1.

Silk Import and Export Inc. v. Exim Aides Silk Exporter, 1997 Cri. L.J. 4366 (Kant).

State Kerala v. Kolkkacan Moosa Haji, 1994 Cri. L.J. 1288 (Ker).

State of Assam v. Abdul Noor, (1970) 3 SCC 10: 1970 SCC (Cri) 360: 1970 Cri. L.J. 1264.

xiii

State of Bihar v. J.A.C. Saldanha, (1980) 1 SC 554.

State of Bihar v. J.A.C. Saldanha, 1980 SCC (Cri) 272, 286: (1980) 1 SCC 554.

State of Bombay Kathi Kalu Oghad, AIR 1961 SC 1808: (1961) 2 SCR 10.

State Of Gujarat v. Parshottam Narsibhai Chauhan, 1983 Cri. L.J. 1124, (1983) 2 GLR 945.

State of M.P. v. Ramesh C. Sharma, (2006) 1 SCC (Cri) 683.

State of Maharashtra through Deputy Commissioner of Police, Nagpur v. Shashikant S/o.

Ekanth Shinde, 2013 Cri. L.J. (NOC) 568 (Bom).

State of Maharashtra v. Kamal Ahmed Mohammed Vakil Ansari, AIR 2013 SC 1441.

State of U.P. v. Bhagwant Kishore Joshi, AIR 1964 SCC 221: 1964 (2) Cri. L.J. 919.

State of U.P. v. R.K. Srivastava, (1989) 4 SCC 59: 1989 Cri. L.J. 2301.

State of W.B v. S.N. Basak, AIR 1963 SC 447: 1963 (1) Cri. L.J. 341.

State of W.B v. Sampat Lal, 1985 SCC (Cri) 62: AIR 1985 SC 195.

State of W.B v. Swapan Kumar Guha, 1982 SCC (Cri) 283: 1982 Cri. L.J. 819.

State of W.B. v. Sampat Lal, AIR 1985 SC 195.

State of W.B. v. Swapan Kumar Guha, (Supra note 267) (1982) 1 SC 561.

State v. Bhawani Singh, AIR 1968 Del. 208, 211 (F.B.).

State v. Pareswar Ghosi, AIR 1968 SC 24.

State of Haryana v. Bhajan Lal & Others, AIR 1992 SC 604.

Strickland v. Washington, 466 U.S. 668 (1984).

Sunil Batra (II) v. Delhi Administration, AIR 1980 SC 1588.

Suresh Kumar Kupta v. State of Gujarat, 1997 Cri. L.J. 3948 (Guj).

T

Tung Nath Ojha v. Haji Nasiruddin Khan, 1989 Cri. L.J. 1846 (Pat).

T.T. Anthony v. State Kerala, 2001 SC 2637.

U

Udayabhan Shuki v. State of U.P., 1999 Cri. L.J. 274 (ALL).

V

V.K. Sasikala v. State Rep. by Superintendent of Police, AIR 2013 SC 613.

Vinay Tyagi v. Irshad Ali @ Deepak, [2012] 13 S.C.R. 1026.

Z

Zahir Ahmed v. Azam Khan, 1996 Cri. L.J. 290 (Cal).

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TABLE CONTENTS

PAGES

CERTIFICATE i

DECLARATION ii

PREFACE iii

ACKNOWLEDGMENT vi

LIST OF ABBREVIATIONS vii

LIST OF CASES ix

TABLE CONTENTS xiv

CHAPTER ONE

INTRODUCTION

1.1. LITERATURE REVIEW ..............................................................................................9

1.2. DESCRIPTION OF TERMS ..........................................................................................11

1.3. RESEARCH QUESTIONS ............................................................................................14

1.4. OBJECTIVES OF RESEARCH ....................................................................................14

1.5. SCOPE AND LIMITATION OF RESEARCH .............................................................15

1.6. SIGNIFICANCE OF THE STUDY ...............................................................................16

1.7. METHODOLOGY OF RESEARCH .............................................................................16

1.8. CHAPTERIZATION .....................................................................................................18

CHAPTER TWO

HISTORICAL DVELOPMENT OF CAMBODIAN & INDIAN CRIMINAL

PROCEDURE CODES AND THIER LEGAL SYSTEMS

1. Cambodian Legal and Judicial System .....................................................................19

1.1. Overview of ...........................................................................................19

1.2. Cambodian Judiciary (Criminal Courts) ................................................25

(i) The Supreme Court ...................................................................26

xv

(ii) The Appellate Court (the Court of Appeal) ...............................26

(iii) The Courts of First Instance ......................................................27

2. Indian Legal System and Criminal Procedure Codes Evolution .............................28

2.1. Overview of ............................................................................................28

2.2. Indian Judiciary (Criminal Courts) ........................................................31

(i) The Supreme Court ...................................................................32

(ii) High Courts ...............................................................................33

1. Courts of Session .................................................................33

2. Courts of Judicial/Metropolitan Magistrates .......................34

a. Courts of Judicial Magistrates .............................................34

b. Courts of Metropolitan Magistrates ....................................35

3. Executive Magistrates .........................................................36

3. Comparative Analysis ..............................................................................................36

CHAPTER THREE

CRIMINAL INVESTIGATIVE PHASES IN PRE-TRIAL UNDER CRIMINAL

PROCEDURE CODES (CAMBODIA (CCPC 2007 AND INDIA (CRI.P.C 1973)

1. Genesis ......................................................................................................................39

2. Criminal Investigation under Cambodian CCPC 2007 .............................................48

(i) Judicial Police (Police Units) ........................................................................52

(a) Judicial Police Officers (JPOs) ...............................................................53

(b) Judicial Police Agents (JPA) ..................................................................56

(c) State Officials of some Specialized Fields ..............................................56

(ii) Prosecutors (Procureur) ........................................................................ 57

(iii) Investigating Judges (IJ) (juge d’instruction) .............................................63

a) Investigation Conducted or Supervised by IJ .........................................65

1. Interrogation of the Accused Person .......................................................66

2. Interviewing of Civil Party (Deceased Party) ..........................................67

3. Interviewing of Witnesses .......................................................................68

4. Experts‟ Reports ......................................................................................69

xvi

5. Pre-trial Detention ...................................................................................69

b) Deficiency of Investigation .....................................................................73

(iv) The Court Clerk ............................................................................................75

3. Criminal Investigation under Indian Cr.P.C 1973 ....................................................76

a) Investigation Agency ..........................................................................................76

b) The Courts ...........................................................................................................77

c) Prosecution Wing ................................................................................................77

d) Prisons and Correctional Services ......................................................................78

3.1. How/when does an Investigation an offence initiate? ........................................81

3.2. Preliminary Inquiry vs. Registration of FIR ......................................................87

3.3. Procedure for Investigation ................................................................................91

3.4. Procedure when investigation cannot be completed in 24 hours .......................93

3.5. Roles and Powers of the Police in Indian Criminal Justice System ..................94

4. Comparative Analysis ...............................................................................................98

CHAPTER FOUR

CONSTITUTIONAL RIGHTS OF ACCUSED TO FAIR AND EFFECTIVE

INVESTIGATION

i) Right to Protection against Arbitrary Arrest and Detention etc. .........................107

a) Genesis ..........................................................................................................107

b) Meaning of Arrest and Detention ..................................................................108

c) Grounds of Arrests to be Informed ...............................................................109

d) Making Presence of Accused before the Court .............................................109

e) Comparative Analysis ...................................................................................111

ii) Right to Protection against Unlawful Search and Seizure ..................................120

a) Genesis ..........................................................................................................120

b) Requisites for Lawful Search ........................................................................120

c) Evidentiary value of Seized Articles .............................................................123

d) Comparative Analysis ...................................................................................123

iii) Right to Legal Aid Counsel ................................................................................126

xvii

a) Genesis ..........................................................................................................126

b) When the Right to Counsel Begins? .............................................................128

c) Waiver of Right to Counsel ..........................................................................129

d) Engaging of a Lawyer ...................................................................................129

e) Comparative Analysis ...................................................................................130

iv) Right to Protection against Self-incrimination ...................................................134

a) Genesis ..........................................................................................................134

b) Scope of the Right .........................................................................................136

c) Compulsion of Personal Disclosures ............................................................137


v) Right to Speedy Trial ..........................................................................................143

a) Genesis ..........................................................................................................143

b) Reasons for Delay of Trial ............................................................................144

c) Necessity of Speedy Trial .............................................................................145


CHAPTER FIVE

CONCLUSION AND SUGGESTIONS

Conclusion and Suggestions ..........................................................................................151

Bibliography ..................................................................................................................165

1

CHAPTER ONE

INTRODUCTION

The Criminal Justice System evolves in any country in accordance with its own pattern of

life and social, cultural, economic, historical and political conditions. It determines those who

may be found guilty of committing them, sets penalties, and determines how they shall be

enforced. It tells us what our rights and duties are in dealings with other people. It declares what

conduct is criminal and prescribes the punishment to be imposed or sanctioned for such conduct.

To a large degree, it is concerned with the definitions of the various crimes. It states what

conduct is necessary to make out a given criminal offence. To this extend the criminal procedure

law or adjective law sets up the procedures and the process which adopted by the legislature by

which we may enforce the actual criminal law itself. These procedures include the manner in

which an offence or crime is investigated by the Police, Investigating Judge Prosecutor some

other Investigating Officers who are authorized by delegated authorities and statute, the way in

which an individual is arrested, the means by which we bring a case into court and the rules by

which the trial is to be conducted. Thus, the criminal procedure is the machinery of the criminal

law. The law of criminal procedure consists of the rules that government has to follow to detect

and investigate crimes, apprehend suspects, prosecute and convict defendants, and punish

criminals. To protect the rights of the citizens, the State prescribes the rules of conduct, sanctions

for their violation, machinery to enforce sanctions and procedure to protect that machinery. To

this extend, the procedure prescribed by law has to be just, fair, reasonable and non-arbitrary, so

called as fair and just procedure.

The Commonwealth countries have adopted a Criminal Justice system based on

Adversarial Criminal Justice Model. The Inquisitorial system which has been adopted in the

Civil law countries. .The concept of fair trial for Adversarial system and fair investigation for

Inquisitorial system fall within the purview of the criminal justice system of the world‟s major

legal systems in term of searching for the truth. India and Cambodia have been inherited legal

systems by different origins of foreign colonies, while India has inherited the Common Law

System (Adversarial Criminal Justice Model) by the British colony and Cambodia has inherited

the Civil Law System (Inquisitorial Criminal Justice Model) by France. The two systems are

2

different in many aspects. The improvement of the criminal investigation and trial procedures on

professional lines for expeditious dispensation of justice and making the functionaries

accountable are the key features that both systems must take into consideration

To succeed the justice for the concerned parties, the fair and effective investigation in

every moment of investigation has to be done. Not only the fair trial but fair investigation is also

part of constitutional rights guaranteed under articles 20 and 21 of the Constitution of India and

articles 32 and 38 of the Cambodian Constitution. Therefore, investigation must be fair,

transparent and judicious as it is the minimum requirement of rule of law. The jurisprudential

concept of rule of law is the most fundamental element of a democratic society. Therefore, the

Investigating agency cannot be permitted to conduct an investigation in tainted and biased

manner. The interference of court is mandated to avoid failure of justice. In inquisitorial

criminal justice model, the court involves in every stages of criminal proceedings, especially, the

criminal proceeding of investigation in pretrial stage. By contrast, in adversarial criminal justice

model, the court may have limited power to interfere with the investigation proceedings which is

conducted by the police while it is progressing.

It is well settled today in democratic society that the accused has fundamental rights to

criminal justice such as right to protect against unlawful arrest and detention, right to know the

grounds of arrest, right to legal aid in case indigent, right to consult with lawyer, right to speedy

trial and such other rights guaranteed by the constitution, existing laws and also international

laws. The rights relating to the criminal justice have been guaranteed in the Constitution of

Cambodia and India these rights have incorporated into its constitution much earlier than

Cambodia. The Supreme Court of India through their judgements have enhanced the scope of

Constitutional rights with regard to criminal justice whereas the Supreme Court of Cambodia has

yet to go much ahead in respect of providing protection to the rights relating to criminal justice

by pronouncement of its judgments as judges cannot lay down the law in Cambodia but depend

upon the codified law. It is heartening to note that the criminal justice system of India has

witnessed, during the recent decades, an unprecedented awareness regarding the protection of

human rights of individuals and Indian Supreme Court has been playing a very crucial role to

protect and giving safeguards of protecting human rights by exercising its given Constitutional

powers under article 32, and article 226 for High Courts through its interpretation of the

Fundamental Rights embodied in Part III of the Constitution.

3

To protect the rights of the citizens, the State prescribes the rules of conduct, sanctions

for their violation, machinery to enforce sanctions and procedure to protect that machinery. To

this extend, the procedure prescribed by law has to be just, fair, reasonable and non-arbitrary, so

called as fair and just law. It is utter selfishness, greed and intolerance that lead to deprivation of

life, liberty and property of other citizens requiring the State to step in for protection of the

citizens‟ rights. It is the primary function of the State to protect the basic rights to life and liberty

of the citizens. The State has to give protection and safeguarding measures to persons against

lawlessness, disorderly behaviour, violent acts and fraudulent deeds of others. Any deprivation

of a man‟s liberty, the criminal jurisprudence of a just and fair procedure or other words a fair

and effective investigation has to be established.

While determining the right to life and personal liberty which conferred by the Indian

Constitution, the Supreme Court of India in the very landmark case of Maneka Gandhi v. Union

of India1, the procedure of law or the procedure established by law itself has to be fair, just,

reasonable, and not arbitrary, fanciful or oppressive. The term personal liberty has been given

very wide amplitude covering a variety of rights which go to constitution a personal liberty of a

citizen. Its deprivation shall only be as per the relevant procedure prescribed in the relevant law,

but the procedure has to be fair, just and reasonable. The article 21 of the Indian Constitution

provides a very liberal meaning of right to life and personal liberty of a person. A person shall

not be deprived his life and personal liberty except in accordance with the procedure prescribed

by law.2 The right to life and personal liberty is not merely guaranteed for the only of Indian

citizens but for all persons who are living in Indian Territory. The Indian Constitutional rights

relating to criminal justice are not only ensured to the citizens of India, but also ensured to

foreigners. Those rights are included in articles 14, 20, 21, and 22 of the Constitution and these

constitutional rights can be claimed even by foreigners. The provisions cover all people

regardless of race, national, colour, sex, religion, place of birth…etc.3 In Joginder Kumar4 case

the Supreme Court of India held that “… An arrest during the investigation of a cognizable case

may be considered justified in one or other of the following circumstances; (i) the case involves a

grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused

1 AIR 1978 SC 597: (1978) 1 SCC 248, 284. See also Sher Singh v. State of Punjab, AIR 1983 SC 465: (1983) 2 SCC 344. 2 The Constitution of India 1950, Art. 21. 3 Anwar v. State of Jammu and Kashmir, AIR 1971 SC 337. 4 AIR 1994 SC 1349: (1994) SCC (4) 260

4

and bring movements under restraint to infuse confidence among the terror stricken victims, (ii)

accused is likely to abscond and evade the process of law, (iii) the accused is given to violent

behaviour and is likely to commit further offences unless movements are brought under

restraint, and (iv) accused is habitual offender and unless kept in custody he is likely to commit

similar offences again. It would be desirable to insist through departmental instructions that a

police officer making an arrest should also record in the case diary the reasons for making the

arrest, thereby clarifying his conformity to the specified guidelines…”

The well recognised fundamental principles of criminal jurisprudence are presumption of

innocence and right to silence of the accused, burden of proof on the prosecution, and the right to

fair trial. One of the above well recognized fundamental principles, the principle presumption of

innocence is regard the core elements of every criminal justice system of the world. “Everyone

charged with a criminal offence shall have the right to be presumed innocent until proved guilty

according to law”.5 The maxim, Innocent until proven guilty, has had a good run in the twentieth

century. The United Nations incorporated the principle in its Declaration of Human Rights in

1948 under article 11, section one.6 The maxim also found a place in the European Convention

for the Protection of Human Rights in 19537 in article 6, section 2 and was incorporated into the

United Nations International Covenant on Civil and Political Rights as article 14, section 2.8

These international standard principles of international law are the fundamental standards of

criminal justice systems of the world. The States have not only recognized and ratified these but

also have codified these into municipal criminal laws.

While an accused person has been put in police custody, or judicial custody for

investigation, the State is obligatory to ensure that the accused is properly treated and his right to

being human is safeguarded according to the procedure prescribed by law. On the one hand, if

the police officers who did not acted within the procedure prescribed by law and caused damage

to the accused or such arrested person, he shall be sanctioned and will receive punishment by the

law. This fair treatment of law is to ensure the soul of rule of law. In Raghubir Singh v. State of

Haryana9, the Supreme Court of India, Justice Krishna Iyer pronounced that “the State, at the

highest level administrative and political levels, we hope, will organize special strategies to

5 The International Covenant on Civil and Political Rights (ICCPR) 1966, Art. 14. 6 The Universal Declaration of Human Rights 1948, Art. 11. 7 The European Convention for the Protection of Human Rights 1953, Art. 6. 8 Supra note 5. 9 AIR 1980 SC 1088.

5

prevent and punish brutality by police methodology. Otherwise, the credibility of the rule of law

in our Republic vis-à-vis people of the country will deteriorate”. The same as the Indian

Constitution, articles 31 and 32 of the Constitution of Cambodia recognizes and respects human

rights as enshrined in the United Nations Charter, the Universal Declaration of Human rights and

all treaties and conventions related to human rights, women‟s rights and children‟s rights.10

Everyone has the right to life, liberty and security of person.11 Justice Krishna Iyer in the same

year of decision of Raghubir Singh but different case, observed that “today, human rights

jurisprudence in India has a Constitutional status sweep, thanks to article 21, so that this Magna

Carta may well toll the knell of human bondage beyond civilized limits.12

Apart from this, the right to speedy trial is also a part of fundamental right to life and

liberty of the under-trial persons. As in the Supreme Court of India‟s landmark case of

Hussainara Khatoon v. State of Bihar13, Justices Bhagwati and Koshal pronounced that “A

procedure prescribed by law for depriving a person of liberty cannot be “reasonable, fair or

just” unless that procedure ensures a speedy trial for determination of the guilt of such person.

No procedure which does not ensure a reasonably quick trial can be regarded as “reasonable, fair

or just” and it would fall foul of article 21 of the Constitution”. Therefore, be no doubt that

speedy trial and by speedy trial means reasonably expeditious trial, is an integral and essential

part of the fundamental right to life and liberty as enshrined in article 21 of the Indian

Constitution. Right to speedy trial begins with actual restrained on arrest and consequent

incarceration and continues at all stages namely the state of investigation, inquiry, trial, appeal

and revision so that any possible prejudice that may result from impermissible and avoidable

delay from the time of the commission of the offence till it consummates into a finality of the

proceeding can be averted.

The criminal investigation by an investigating officer has to be tested with procedures

established by existing laws. The term right to fair and effective investigation is to ensure the

reliability and fairness of criminal proceedings. This meaning thereby, the investigating officers

including the Police, Investigating Judge, Magistrates, Prosecutor and Experts must exercise

reasonable, professional and ethnical judgment in conducting the search for the truth and finding

10 The Constitution of the Kingdom of Cambodia, 1993, Art. 31. 11 Id. Art. 32. 12 Sunil Batra (II) v. Delhi Administration, AIR 1980 SC 1588. 13 Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360: 1979 Cri. L.J. 1036.

6

justice for the accused person to give satisfaction to the suffered victim of the crime. The Indian

Supreme Court in the case of Dayal Singh14 held that “where the prosecution attempts to

misdirect the trial on the basis of a perfunctory or designedly defective investigation, there the

Court is to be deeply cautious and ensure that despite such an attempt, the determinative process

is not sub-served”. It is the duty of the court to exercise its jurisdiction to ensure just, and fair

investigation if the investigating officers, medical experts have acted in deliberate dereliction of

their duty or conducted the investigation of a case in a most callous and irresponsible manner .15

The investigating officer, as well as the doctor who are dealing with the investigation of a

criminal case, are obliged to act in accordance with the police manual and the known canons of

medical practice, respectively. They are both obliged to be diligent, truthful and fair in their

approach and investigation. A default or breach of duty, intentionally or otherwise, can

sometimes prove fatal to the case of the prosecution. An Investigating Officer is completely

responsible and answerable for the manner and methodology adopted in completing his

investigation. The Court directed the State Government to take disciplinary actions against such

police officer, doctor expert, expert witnesses and even the witnesses cited by the prosecution.16

However, in the latest case of Karan Singh v. State of Haryana17, the Supreme Court held that

“the defect in investigation is not fatal to prosecution case except when defects are so grave that

whole investigation can be dubbed as dishonest or guided investigation”. In regard to the duty of

the Investigating Officers, the Court observed that the Investigating Officers must not indulge in

any of mischief, or cases of harassment either to the complainant or to the accused. His conduct

must be entirely impartial and must dispel any suspicion regarding the genuineness of the

investigation. Ethical conduct on the part of the investigating agency is absolutely essential, and

there must be no scope for any allegation of mala fides or bias.18 Therefore, the investigating

agency must avoid entirely any kind of extraneous influence, and investigation must be carried

out with equal alacrity and fairness irrespective of the status of the accused or the complainant,

as attained investigation definitely leads to the miscarriage of criminal justice, and thus deprives

a man of his fundamental rights guaranteed under article 21 of the Constitution. Thus, every

investigation must be judicious, fair, transparent and expeditious procedures to ensure

14 Dayal Signh v. State of Uttaranchal, [2012] 10 S.C.R. 157 (166): 2012 Cri. L.J. 4323. 15 Id. at 2012 Cri. L.J.4323 (4339). 16 Ibid. 17 Karan Singh v. State of Haryana, AIR 2013 SC 2348. 18 Id. at 2352.

7

compliance with the rules of law, as is required under articles 19, 20, and 21 of the

Constitution.19

In another case connected to this matter, the Supreme of India in the case of Manu

Shamar20 observed that the right to a fair trial is a norm of international human rights law and it‟s

designed to protect individuals from the unlawful and arbitrary curtailment or deprivation of

other basic rights and freedoms or liberty, the most prominent of which are the rights to life and

liberty of the person. The result of justice in conviction of the accused and proofing his innocent

are resulted from the acts of fair and effective investigation and following a just, reasonable and

fair procedure of Law (Act). “An accused is presumed to be innocent till proved guilty, the

alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is

expected to play balanced role in the trial of a crime. The investigation should be judicious, fair,

reasonable, transparent and expeditious to ensure compliance with the basic rule of law”.

In majority of judgments of the Courts, judge will interpret and pronounce the provisions

of the law and deliver judgments depend on the evidences, eyewitnesses, testimony and the fact-

findings which has been conducted by the Investigating Officers those are including the Police,

Prosecutors or Investigating Judge or it may by some other experts. If the evidences or all fact-

findings were not discovered by a just, fair, reasonable and effective and proper manner of

investigation in the case, the innocent accused as well as victims of the crime would heavily

suffer from such defects. Therefore, the Court can pronounce whether a law affecting a person‟s

life, liberty is reasonable or not, and in case it is codified into law, the Court must interpret and

pronounce its judgement in accordance with the rules and procedures prescribed and established

by law.

In this research Dissertation, entitled “Right to Fair and Effective Investigation in Pre-

trial: a Comparative Study of Cambodian and Indian Criminal Justice Systems” the researcher is

discussing and analysing on an area rights of the accused to fair and effective investigation in

pre-trial stage. The research is working out to discover the different concepts in two systems in

particular aspects which include; the fair, just, reasonable and non-arbitrariness of procedures or

rules prescribed by existing laws, and methods to proceed these procedures in effective manner

and methods. This paper also works to make a comparative analysis of the rules, functions and

19 Ibid. 20 Manu Shamar v. State (NCT of Delhi), (2010) 6 SCC 1.

8

power of judicial officers (Magistrate, Investigating Judge, and Prosecutor) and Police (Judicial

Police Officers) and Lawyers and other people involved in field of criminal investigation.

Furthermore, the study also intends to uncover how these judicial officers and investigating

officers work in each legal system to conduct the criminal investigation and how it deals with

human rights issues and rule of law of right to fair and effective investigation etc.

The research also critically and specially examines the rights of the accused persons in

certain fundamental rights before the criminal court. Those fundament right to a criminal justice

system include i) Right to protection against arbitrary arrest and detention, ii) Right to

protection against unlawful search and seizure, iii) Right to legal aid counsel, iv) Right to

protection against self-incrimination, and v) Right to Speedy Trial. In this comparative analysis

deals with the question of how the Indian Supreme Court has applied the doctrine of fair, just,

reasonable and effective procedures and foreign precedent in its interpretation of the right to life

and liberty contained in articles 20, 21 and 22 of the Indian Constitution, examining the role of

judicial borrowing in the Court‟s move towards more expansive, substantive and procedural

interpretive approaches of right to fair and effective investigation and to what extend that the

Cambodian criminal justice qualified with the term of liberty, dignity, and Constitutional

safeguards under articles 32 and 38 of the Constitution and what it can be related to the terms

“right to fair and effective investigation”. The provisions of Criminal Procedure Codes of both

countries Cambodia and India are also the key points taken for this comparative analysis. Many

related article of the Codes are taken for critical examination in this Dissertation.

Thus, the comparative study of the two criminal justice systems is to make a comparison

with critically analysis of historical development and introduction of each criminal court and

criminal procedure codes, functions, rules, and powers of investigating officers, Prosecutors

(Cambodia), police officers, magistrates and other connected persons, in searching for truth in

criminal justice proceedings of both adversarial (India) and inquisitorial (Cambodia) systems and

the analysis of rights to protections of the accused persons against unjust, unfair, and

unreasonable procedures or the acts of violation of procedures established by existing law. The

two parts of comparative study are the essential points for this research.

9

1.1. LITERATURE REVIEW

Until recently many researchers, scholars, authors have interested in this area of research

on criminal justice and published. They have carried out numerous of handful researches by

focus on different topics of research involving with criminal justice as far as criminal

investigation, to illustrate the knowledge of fair trial in a criminal justice system and the value of

protection of human rights of the accused as well as the victims of the crime. Their findings and

suggestions are reviews here.

Hans Cross (1924), in his written book on Criminal Investigation: a practical handbook

for Magistrate, Police Officers and Lawyers noted generally the techniques of criminal

investigation. He worked generally of all the duties that an official can be called upon to perform

in the course of his service, those of an Investigating Officers are certainly not the least

important. That is, his services to the public are great and his labours full of interest will be

generally admitted, but rarely, even among specialists, is full credit given to the difficulties of the

position. An Investigating Officer must possess the vigour of youth, energy ever on the alert,

robust health, and extensive acquaintance with all branches of the law. He ought to know men,

proceed skilfully, and possess liveliness and vigilance. This is a general concept of criminal

investigation. He did not work on human rights aspects and its protection.

Amir Ratna Shrestha (1992), in his handful thesis on Constitutional Rights of an

Accused: a comparative study under the Constitutions of Nepal and India, observed that the

concept of protection of human rights in the administration of criminal justice has been change,

gradually. The cardinal principle of criminal justice administration is to be presumed an accused

innocent till he is proved guilty. He is required to prove on involvement in an offence and such

proving must be conducted in fair and just manner in according to procedure established by law

of that country. The state has to collect evidence against him and has to prove that he alleged

accused as involved in an offence, the accused has the right to keep silent while interrogation and

any other stage of criminal proceedings. And he also has exclusive right to defend his case

before the court. This is a comparative work on Indian and Nepal criminal justice systems. He

actually covered the rights of the accused which guaranteed by the Constitutions. A part of his

work also included a part of criminal investigation.

Jacqueline Hodgson (2006), in his comparative study work on Investigation and

Prosecution in France and England, he concluded that the judicial role in France is very different

10

from that in the England. Rooted in an inquisitorial procedure, it is part of the pre-trial

investigation as well as the trial. Whilst our own judiciary have become increasingly implicated

in the management of cases prior to hearing, this remains linked to the trial process and not to the

preparation of the case by the parties. To descend into the pre-trial, the proper mean would be to

move away from the independent function of arbiter and into the domain of the adversarial

parties in the case. In France, this is not considered problematic as the investigation is

characterised in more neutral terms as a search for the truth in which prosecutor, suspect and

victim may participate. He worked about criminal investigation and prosecution in France and

some comparative aspects to English systems. Of course, Cambodia was colonized by France,

and it adopted French system too, however, it is a part of this work to elaborate how the French

system closely connects to Cambodian legal system. He entirely covered the roles of police,

Investigating Judges and prosecutor in France which it is a part of my work in this dissertation.

Raed. S.A. Faqir (2008), in thesis on Protection of the Rights of Accused in India and

Jordan (a comparative study), worked on the whole issue of rights of accused in protection

against unlawful procedures, such rights of accused included right to be informed by the

authorities on grounds of arrest, right to bail, right against unlawful search and seizure, right of

accused to be presumed innocent and the right against illegally obtained statements, right against

self-incrimination and to remain silent.

Keith A. Findley (2011), in his article on Adversarial Inquisitions: Rethinking the

Search for the Truth argued that if one were asked to start from scratch and devise a system best

suited to ascertaining the truth in criminal cases, and to ensuring that, to the extent any

unavoidable errors in fact-finding occur, they do not fall on the shoulders of innocent suspects,

what would that system look like? It is inconceivable that one would create a system bearing

much resemblance to the criminal justice process. In his conclusion, he concluded that the

inquisitorial system focuses on truth-finding and its commitment to objectivity and shared

information, promises greater access to the truth. But the adversarial system‟s reliance on

adversaries who are committed to seeking evidence and interpretations of the evidence that

favour competing outcomes offers the best mechanism for ensuring that all possibilities are

considered, thereby guarding against tunnel vision and confirmation biases. The search for the

truth, therefore, should be enhanced by combining these strengths from both systems; the

openness and commitment to neutrality in investigations from the inquisitorial system and the

11

forced open mindedness that would be brought by permitting adversaries to jointly control that

investigation.

These abovementioned authors and research scholars have written on various topics

criminal justice systems as the comparative works between India to their countries‟ criminal

justice system. However, none of them has written on right to fair and effective criminal

investigation or even in specific topic of “right to fair and effective procedures of investigation”

and it found no topic research on Cambodian criminal justice system as well as a comparative

study of Indian criminal justice system to Cambodian criminal justice system in which these two

countries have adopted their own contradicted or different legal system (Adversarial and

Inquisitorial systems).

I personally, observed that this is a very new work, and [as a Master of Comparative Law

student] I ought to be on a mission to fill this lacuna. I think, I must be the first Cambodian Law

student who has been admitted to study in subject of law in Faculty of Law, University of Delhi

or even in India as the whole.

It was after thoroughly reviewing the above literatures and others that I made up my mind

to research on this topic Right to Fair and Effective Investigation in Pre-trial: a Comparative

Study of Cambodian and Indian Criminal Justice Systems for my Master‟s Dissertation of the

Postgraduate Progamme.

1.2. DESCRIPTION OF TERMS

Right : A claim or tittle to any subject matter whatsoever; legal tittle.21 A right is an

interest which is recognized and protected by law. As it is recognized by law a man is

entitled to have it. As it can be protected by law the possessor can enforce it by an

appropriate and reasonable action in a court. Immunity is one aspect of right and entitles

the possessor to see that no one interferes with it. It also furnishes him with a complete

answer to any action intended to interfere with that right.22

Fair : In common usage, the word conveys some idea of justice or equity; impartial;

free from suspicion of bias; equitable (Webster); reasonable; honest; and upright. The

word fair and equitable both mean just and unbiased. Fair procedure would mean that the

parties taking part in the examination must be capable of competing with each other by

21 Indian T. P. Act (4of 1882), s. 2(c). 22 Raj Rajendra Sardar Maloji Narshing Rao v. Sharan, AIR 1958 All 775, 787; see also P. Ramanatha Aiyara, Concise Law Dictionary 126-27 (LexisNexis Butterworths Wadhwa, 4th edn., 2012).

12

fair means. One cannot have an advantage either by copying or by having foreknowledge,

prejudice of the question case or otherwise.23 Fair trial is a trial in which law has been

administered with fairness, without prejudice to any of the parties. [CPC (5 of 1908),

O.VI, R. 16(b)].24

Effective : Adequate to accomplish a purpose; producing the intended or expected

result in useful manner. The work of investigation must professional and technical skill in

accordance with the circumstances of the cases. The term effective of investigation is to

ensure the reliability of and fairness of criminal proceeding. This meaning thereby, the

Investigating Officers including Police, Investigating Judge, Prosecutor, Defence Counsel

(defence lawyers) and expert must exercise reasonable and professional skill and ethnical

judgment in conducting of searching for the truth and finding justice for the accused

person and give satisfaction to the suffered victim of the crime.25 The test of Strikland,26

was adopted by Canadian Supreme Court in

R. v. G.D.B27 and held that “an accused who appeals a conviction on the basis that he or

she did not receive effective assistance of counsel must establish three things: (i) the

factual foundation of the claim; (ii) that in all of the circumstances trial counsel‟s acts or

omissions fell below the standard expected of a reasonably competent lawyer (the

“performance” component); and (iii) that trial counsel‟s conduct caused a miscarriage of

justice by undermining either the fairness of the trial or the reliability of the verdict (the

“prejudice” component)”.28 To remind the investigating officers that it‟s very responsible

task which he must carry out and fulfil the task for the sake of criminal justice for all.

Once the court acquitted an accused while relying on unfair and ineffective investigation,

it causes harm to the victim of an offence and justice remains unfound. On the other

hand, once the court sentenced an innocent man and put him into jail by replying on the

unreliable and superficial investigation, that nothing to be called fair trial as it is the end

of justice. Apart from this, a well-pared investigation, investigation equipped by modern

23 Id. at 282-84; see B. Ramanjini v. State of Andhra Pradesh, AIR 2000 SC 2023. 24 Ibid. 25 Strickland v. Washington, 466 U.S. 668 (1984). 26 Ibid. 27 R. v. G.D.B., [2000] 1 S.C.R. 520. 28 Ibid.

13

tool and forensic arts, professional expert and skilled, skilled training and budgetary, high

…etc. are the components, techniques or methods, of effective investigation.

Investigation : An investigation is a systematic collection of facts for the purposes of

describing what occurred and explaining why it occurred. The word systematic suggests

more than a whimsical process. In other words, it should be thorough and fair. There is a

right way to conduct a fair fact-finding investigation, just as there is a right way to take a

blood pressure reading. An investigator will collect the facts relating to the incident under

investigation. But a fact is not synonymous with truth. To the investigator, a fact is

nothing more than a piece of information. A witness might tell the investigator that he

saw Fred hit the customer. That is a piece of information, whether it is true or false.

An investigator collects facts in order to describe and explain to the organization what

occurred. Some facts will describe the event itself, such as a report in the company‟s files

stating that Fred, an employee, fell and broke his leg. There may also be physical

evidence indicating that there was a fall, or a fight. Or there may be witnesses to the

event. According to Indian Criminal Procedure Code, Section 2(h) “Investigation”

includes all the proceedings under “the Code of Criminal Procedure, 1973” for the

collection of evidence conducted by a Police officer or by any person (other than a

Magistrate) who is authorized by a Magistrate.29 The aim of the investigation and, in

fact, the entire Criminal Justice System is to search for the truth.30 Investigation is the arts

of inquire into (generally used for inquiry by police). The term investigation in the

section, in its ordinary dictionary meaning is, in the sense of ascertaining of facts, sifting

of materials and search for relevant data.31 All proceedings under the Criminal Procedure

Code, 1973 (India) for the collection of evidence by any other person (other than a

magistrate) who is authorized by a Magistrate in his behalf.32

Pre-trial : A proceeding held before an official trial, especially to clarify points of

law and facts. Here, the investigative phases take place before the trial proceedings.

29 Indian Criminal Procedure Code (Cr.P.C) 1973, s. 2(h). 30 Ministry of Home Affairs, Government of India, Malimath Committee Report 1, Reforms of Criminal Justice System, 95 (March 2013). 31 P. Ramanatha, supra note 22 at 680; see State v. Pareswar Ghosi, AIR 1968 SC 24. 32 Ibid.

14

1.3. RESEARCH QUESTIONS

The Dissertation is bound to answer the following questions;

1. Why does the right to fair and effective investigation important in pre-trial stages in a

Criminal Justice system especially for the purpose of fair trial and protection of

human rights of the accused persons in criminal proceedings?

2. What are the significances of the criminal jurisprudential concept of rights of the

accused to fair and effective investigation, fair, just and reasonable procedures and

human right approaches in pre-trial stages of investigation of an offence in both

countries laws, especially, Constitutional provisions on the right life and personal

liberty and other rights of the accused person before criminal justice administration

and Criminal Procedure Codes?

3. How does doctrine of right to fair and effective investigation apply into both Criminal

Justice Systems in pre-trial stage? And how does it relate to right fair trial and right to

justice of human beings before the Court of law?

4. What are the differences and similarities or likeliness of both Criminal Justice

Systems (Cambodia and India) in the light of right to fair and effective investigation,

both in substantive and procedural processes?

5. How and to what extend does the judicial authorities/executive exercise (approach)

the procedures prescribed by laws and its jurisprudential interpretive approach human

rights concept to criminal proceedings of right to fair and effective investigation in

both criminal justice systems?

6. What are the rights of the accused should be granted or safeguarded by the

Constitutional provisions in order to ensure the rights of the accused to fair and

effective investigation before the criminal justice proceedings, particularly the pre-

trial stage proceedings?

1.4. OBJECTIVES OF RESEARCH

The Dissertation is intended;

- To review the implication of the doctrine of the accused to fair and effective

investigation in Cambodian and Indian Criminal Justice systems‟ aspects including

Constitutional Rights especially the rights of the accused before the criminal

proceedings of a court, Criminal Procedure Codes, Indian (Supreme) Court

15

Judgments, Judicial Review and International Human Rights Law and other

international instruments of criminal aspects in regard to pre-trial investigation phases

of an offence.

- To make a comparative study of both jurisprudential concepts of right of the accused

to fair and effective investigation in each Constitutional provisions as well as

Criminal Procedure Code, are concerned along with other countries‟ criminal laws

including, United Supreme Court Judgments, England and some aspects of the France

Criminal Procedure Code which are the origins and sources of Cambodian and Indian

legal systems. This to find out how the right to fair and effective investigation in pre-

trial stage of a criminal offence of each legal system is different and to what extend

and in what extend it is similar. Of course, the jurisprudential concept of right to fair

trial has been originated in both systems as in Common is concerned and it is the core

element of criminal justice system.

- To explore that how fundamental importance of human rights of the accused in fair

and effective investigation in criminal justice and respectively in pre-trial stage.

- To discover that the how the right to fair and effective investigation applies in

Cambodian and Indian criminal justice systems, on accused persons such as in arrest

and detain of the accused, right to legal counsel, speedy trial, police custody

environment and order to detention by a Magistrate (India) and Investigating Judge or

Prosecutor (Cambodia), in examination of witness, civil party and accused,

confession, issuing warrant, summon, search and seizure, detention, release on bail

etc... And to make exploratory finding that how important need of rights of the

accused of a criminal offence to access a fair and effective investigation criminal

proceedings in pre-trial stages are fundamentally necessary in criminal cases

proceedings.

- To make the exploration of role and duty the investigating officers in both systems,

Cambodian inquisitorial and Indian adversarial models.

1.5. SCOPE OF THE RESEARCH DISSERTATION

The geographical scope of this research dissertation work is mainly limited to Cambodia

and India in criminal investigation matters in general. However, to some specific crimes, of its

criminal investigation, such as terrorist crime investigation, corruption matters, or drug

16

smuggling crimes, and other organized crime may not be covered by this topic. Therefore, the

study will cover on only in Cambodian and Indian Constitutional Provisions and their own

Criminal Procedure Codes regarding with criminal investigation in pre-trial phases of criminal

justice proceedings and with some perspectives of international laws. It is in a scope of pre-trial

(before trial) stages of investigation. The topic of “right to fair and effective investigation in

pretrial as the comparative study” also covers only to the rights of the accused person before

criminal justice systems of both countries. However, the research will also take some

jurisprudential concept fair and effective investigation, of some other countries‟ criminal laws

such as French Criminal Procedure Code, for example, to make additional exploring the concept

of right to fair and effective investigation in specifically criminal case proceedings area.

1.6. SIGNIFICANCE OF THE STUDY

A comparative Analysis and Critical examination of the Constitutional provisions, the

existing legislations which have been enforced in India and Cambodia will go a long way to

exposure any pitfalls in both legal criminal justice systems. The will bring a new finding of two

different criminal justice systems‟ aspects of Cambodia and India (Inquisitorial vs. Adversarial).

Secondly, the long essay will bring to the fore, (by way of re-appraisal), the successes

and failures recorded so far in the enforcement procedures of the respective criminal laws and its

procedures Cambodia and India and foreign countries taken legislations.

Finally, since the largest room remains the room for improvement, the study will lead to

the identification of various measures that, if adopted, will serve the end of justice in searching

for the truth and trial of the accused and better safeguard human rights of their respective

accused and all involved parties.

1.7. METHODOLOGY OF RESEARCH

The Dissertation adopted Doctrinal Research which means the library based research and

use legal citing system of Bluebook standard for its citation as it footnoting system.

The research applies the Doctrinal Research/Traditional research in comparative mode

and emphasising the constitutional provisions which has been adopted in Cambodian and Indian

Constitutions as well as their criminal procedure codes and in international convention and

judgments of the courts (the Supreme Court of India, respectively). With respect to the

17

Cambodian criminal justice system, there is no court case available for citation. The Court cases

in inquisitorial system are keeping secret. There is no spread of cases, judgment into the public

as that in adversarial model of justice has done. The primary aim of the research is to discover by

explaining, comparing and analyse and illustrating in a systematic form of the facts,

jurisprudential concept of fair, just and reasonable procedures established by laws as in aspects

of criminal proceedings, constitutional provisions of the rights of the accused persons to be

provided in fair and effective investigation and finally he can access to justice equally to others,

theories and the working of certain laws, judicial interpretation and legal institutions. The legal

propositions and doctrines are to be gathered through the judgments, statute laws include

constitutions, criminal procedure codes and international conventions, books, article scholars‟

researched papers, publications and as well as official reports of institutions.

Thus, the research will use the Comparative, Descriptive and Exploratory approaches

which the researcher intends to determine and examining whether any inadequacies or gaps of

the existing law, how the criminal jurisprudential concept of rights of the accused to fair and

effective investigation in pre-trial stage applies in each criminal justice system and different

implication of jurisprudential philosophy of right to fair and effective in both Constitutions and

criminal procedure codes and in various judgments of the Indian Supreme Court in investigative

phases of an offence. The consequence of fair trial resulted from the arts of fair and impartial

investigation. In all criminal justice systems, the basic of fair trial depends upon the fair

investigation and the fair investigation shall depend upon doctrine of fair and effective or just

procedure in its arts of investigation of the Investigating Officers.

Finally, through Analytical and Critical approaches, the researcher is expecting to analyse

the existing applicability of right of the accused persons to fair and effective investigation which

has been adopted into the Constitutional laws and criminal procedure codes of both countries‟

legal systems in order to elaborate of fundamental understanding of the differences of the

criminal justice systems and to critically analyse, to draw the inadequacies, disadvantages,

advantages, weakness and strengths of the systems and to express opinion on rational basis and

then come to conclusion of the research at the end.

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1.8. CHAPTERIZATION

The Dissertation will be divided into Five Chapters. First Chapter would be the

Introduction. In this introductory chapter is further sub-divided into small subordinate points

such Literature Review, Description of Terms, Research Questions, Objectives of Research,

Scope and Limitation of Research, Significance of Research, Methodology of Research and

Chapterization. The Second Chapter would be the historical Development of Cambodian and

Indian Criminal Laws and Codes. Chapter Three would be the comparative aspects of both

criminal justice systems “Criminal Investigative Phases in Pre-trial State under Criminal

Procedure Codes of (CCPC, 2007 and Cr.P.C, 1973). The Chapter is covered on i) Overview

(Genesis) on Criminal Investigation in pre-trail stage of both legal systems, ii) Criminal

Investigation under Cambodian Cr.P.C (2007), iii) Criminal Investigation under Indian Cr.P.C

(1973) and iv) Comparative Analysis. This will include the comparative analysis on the

weakness and strength of each criminal justice systems in searching the truth for justice and

other subordinate points

The Chapter Four would focus on Constitutional Rights of the accused persons to fair

and effective investigation of Cambodian and Indian Constitutions and Procedure Codes which

include i) Right to protect against arbitrary arrest and detention, ii ) Right to Protection against

unlawful search and seizure, iii ) Right to legal aid counsel, and iv) Right to protection against

self-incrimination and v) Right to Speedy trial. The analysis will also be emphasizing on the

aspects of International Conventions and norms regarding with right to fair, just, reasonable,

non-arbitrariness law in criminal proceeding of investigative phases and last Chapter (Chapter

Five) is the Concluding Remarks and Suggestions of the Dissertation.

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CHAPTER TWO

HISTORICAL DEVELOPMENT OF CAMBODIAN & INDIAN CRIMINAL

PROCEDURE CODES AND THEIR LEGAL SYSTEMS

The foreign colonies make Cambodia and India different in legacy of legal systems,

where Cambodia was colonized by France and has adopted France‟s system which is called Civil

Law system or in criminal matters so-called “inquisitorial system”, and India was colonized by

British emperor and has adopted the British system which is called Common Law system or in

the criminal justice administration so-called “adversarial system”. The two systems are different

in many aspects. Some may say it is almost entirely different. In Criminal Justice

Administration, however, both inquisitorial of Cambodia and adversarial of India are not purely

and absolutely dominated and influenced by either by Inquisitorial or Adversarial system. Indian

adversary is, somehow, in its criminal aspect accepts the inquisitorial legal aspect as its

components to settle the problem. On the one hand, the same as in Indian system, Cambodia is

also a hybrid system of adversary and high degree of inquisitorial system.

The followings are the comparative aspects of both legal and judiciary systems in

criminal aspects. The points will discuss about the both countries‟ legacy of legal systems

developments in constitutional developmental aspects, in the eras prior to their colonies, during

and after their independences from the colonization‟s, particularly the criminal justice systems of

both countries.

1. Cambodian Legal System and Judiciary

1.1. Overview of the Cambodian Legal System and Its Criminal Procedure Codes

Evolution

Like most countries in the region and in the world, Cambodian legal system has

developed from unwritten customary law to statutory law. Scholars have classified Cambodian

legal development into two phases, namely ancient law and modern law. The former refers to the

unwritten customary law from the Funan period to the Angkor period, whereas the latter refers to

the codification of Cambodian laws from A.D. 1336, the decline of Angkorean Age to the

20

present.33 The current status of Cambodian law is a heritage of diverse historical legal and

ideological concepts and multiple interventions and most of its aspects are influenced by French

system. For centuries, Cambodia has followed a system of government and law which was

influenced by Buddhist and Khmer traditions and rituals. This system had been changed when

Cambodia was colonised by the France and the Civil Law System has introduced.34 Since her

independence from France, Cambodian legal history has undergone many transformations in

decades afterwards.

Before French colonization (1863), Cambodia was governed by customary rules based on

consensus of religious ideologies. Then, from 1863 to 1953, the Cambodian legal and judicial

systems were based almost entirely on the French system well known as Civil Law System. The

first ever written Constitution was adopted in 1947 which was completely dominated by the

French system.35The basic system was retained after independence in 1954, subject to the Law

on the Amendment to the Organisation of Courts of 1959, with French-based legislation

including the Constitution, the Civil Codes of 1954 and 1963, the Civil Procedure Code of 1963

and the Penal Code of 1956.36

Later, the Codes had been amended and revised by the National Assembly in 1962.37 It

was a single book which contained two Acts, Penal Code and Procedure Code. In its influence,

the French system had a strong impact not merely on the law and legal education system but also

on Cambodian lawyers, Prosecutors, judges, scholars and bureaucrats until 197038 and 1975. The

entire legal system was overthrown in 1975. The basic facts of the Khmer Rouge era are

generally well known39 and can be simply summarised. After a five year civil war, on 17 April

33 Dr. Hor Peng, Dr. Kong Phallack, Jörg Menzel, Introduction to Cambodian Law 22 (Konrad-Adenauer- Stiftung, 2012). 34 John Tully, “France on the Mekong: A tory of the Protectorate in Cambodia 1863-1953” 12 Univ. of Amer. Press (2002). 35 Dr. Hor Peng, Dr. Kong Phallack, Jörg Menzel, supra note 33 at 25. 36 Suzannah Linton, “Putting Cambodia‟s Extraordinary Chambers into Context” 11 S.Y.B.I.L 195-259, 197 (2007). 37 Ibid. 38 In 1970, Cambodia had another hybrid legal system, that was a mixed system of American and its French dominated system. The country was no longer kingdom. It was overthrown by Pro-American Government, Gen. Lon Nol. The regime was known as Republic of Kampuchea (1970-1975). 39 The regime has been closely studied, although amid much contentious debate that continues to this day. The

following are some of the more widely reading books: Ben Kiernan, The Pol Pot Regime (New Haven: Yale University Press, 1996); David P. Chandler, The Tragedy of Cambodian tory: Politics, War, and Revolution Since 1945 (New Haven: Yale University Press, 1991); Ben Kiernan, How Pol Pot Came to Power: A tory of Communism in Kampuchea (London: Verso, 1985); Elizabeth Becker, When The War Was Over (New York: Public Affairs, 1998); David Chandler, Voices From S-21 (Bangkok: Silkworm Books, 1999); Alexander Laban

21

1975, Cambodia‟s capital Phnom Penh fell to the forces of the Communist Party of Kampuchea

(CPK), popularly known as the Khmer Rouge. It needs to be underlined that at the time of the

fall of Phnom Penh, Cambodia was already a ravaged, devastated nation that had been at war for

over five years, and the end of the war was welcomed by many.

In the years between 1970 and 1975 Cambodia had adopted another new constitution in a

new regime, called Republic of Kampuchea. A five year-regime of General Lon Nol was taken

over by Pol Pot (well-known as Khmer Rouge or an Official name “Democratic of Kampuchea)

and a new regime came to establish in 1975. From April 1975 to December 1978, the dictatorial

proletariat regime of the Khmer Rouge (Democratic of Kampuchea) eradicated the entire legal

system, existing laws, the judiciary and the government institutions. Judges, lawyers, scholars

and other legal professionals were the target of execution. A new Constitution was adopted by

this brutal killing regime. This third written Constitution of Democratic of Kampuchea (1975-

1979) introduced a pseudo-democracy with a communist system of government which produced

killing fields in which around two million people died.40 There was no Court of law, no judicial

infrastructures. This regime was the most brutal and absolutely bitter ever in Cambodian history.

With seriously suffering from black shirt regime, a group of Pol Pot’s Army in a

province sharing of boarders between Vietnam, has fled into Vietnamese territories. Vietnam, a

very close younger brother of Soviet Union (USSR), was asked for help by these escaped

soldiers who are now Cambodian topmost leaders, Prime Minister Hun Sen, one amongst them.

Vietnamese troops started to invade Cambodia and successfully occupied by January 7th, 1979.41

The new regime was established by Pro-Vietnam and USSR. This regime was named “the Social

Republic of Cambodia”. The fourth written Constitution of 1981 (new regime 1979-1989)

declared Cambodia as a democratic State with a socialist system of parliamentary government,

but actually it was not so and the regime was then replaced by the fifth Constitution (1989-1993)

Hinton, Why Did They Kill? Cambodia in The Shadow of Genocide (California: University of California Press, 2004) (hereafter, Alexander Laban Hinton, Why Did They Kill, (University of California, 2005); Tom Fawthrop & Helen Jarvis, Getting Away With Genocide?: Elusive Justice &The Khmer Rouge Tribunal, (Michigan: University of Michigan Press, 2004, and Sydney: University of South Wales Press Ltd, 2005); Philip Short, Pol Pot: tory of a Nightmare (New York: Henry Holt, 2005) and Brother Number One: A Political Biography of Pol Pot, (Colorado: Westview Press, 1999).

40 Joel Brinkley, “Cambodia‟s Curse: Struggling to Shed the Khmer Rouge‟s Legacy” 88(2) Council on Foreign Affairs Relation, 111 (U.S.A. March-April 2009). 41 Jitendra Mohan, “Why Vietnam Invaded Kampuchea” 16 (4) Economic and Political Weekly, 221-125 (Jan- 1981); see also Dr. Sok Sam Oeun, “Policing in Democratic Society in Cambodia” 2 U. B. M. HAM. 2 (2006).

22

which attempted to introduce a democracy with a moderated socialist system of a parliamentary

government, the same as the former. A pro-Vietnam installed-Government was ended by the

intervention of international community, the United Nations, and with the same meaning of

collapse of Soviet Union (Cold War). Thousands of Vietnamese troops were asked to withdraw

from Cambodian territory. At that time the country faced a severe shortage of lawyers and laws.

Michael Vickery in his article described this situation as a complete legal vacuum.42 The legal

system and administration of the country that emerged during this period was heavily influenced

and dominated by the Vietnamese communist system. In 1989, due to international politics of the

ending of the Cold War, and the starting collapse of USSR, and the demand for national

reconciliation gradually increased from the international community to endeavour a reform in

attempting to achieve a full national reconciliation and full peace, so that the Paris Peace

Agreement was signed by the parties to end the civil war in this country. Earlier to this, the

Constitution of 1981 was dramatically amended on 30 April 1989 by the National Assembly of

the People‟s Republic of Kampuchea, and it was put into force on 20 May 1989, as so-called the

Constitution of State of Cambodia or Kampuchea (SOC (K)) or the Constitution of 1989. The

Amended Constitution of 1989, in which had no preamble, tried to maintain the status quo of the

state organs but changed the name of Cambodia from “People‟s Republic of Kampuchea” to “the

State of Cambodia”.43 In 1989, the third Criminal Procedure was enacted by the National

Assembly of the State of Kampuchea called SOK Criminal Procedure Code to implement the

Penal Code which was adopted in 1983.44

Throughout two decades of a long civil war (since 1970), all Cambodian political parties

together with international community tried to seek full peace for Cambodia, and the political

negotiation process was started in December 1987 between Prince Norodom Sihanouk and Mr

Prime Minister Hun Sen. On October 23 1991, the Agreements on a Comprehensive Political

Settlement of the Cambodia Conflict were signed by Cambodian dispute parties‟ leader and other

eighteen nations in the presence of the United Nations Secretary-General in Paris.45 During the

42 Michael Vickery, “Kampuchea: Politics, Economics and Society” 111 The China Quarterly 499-500 (1986). 43 Dr. Hor Peng, Dr. Kong Phallack, Jörg Menzel, supra note 33 at 37. 44 Than Chanchamnan, Introduction to Criminal Procedure Law 43 (2009) (Unpublished Lecture, University of Cambodia). 45 See Full text of the Paris Peace Agreement on a Comprehensive Political Settlement of the Cambodia

Conflict, (United States Institute of Peace). The states participating in with fully granted a signed international guarantee namely Australia, Brunei Darussalam, Cambodia, Canada, the People‟s Republic of China, the French Republic, the Republic of India, the Republic of Indonesia, Japan, the Lao People‟s Democratic Republic,

23

period of the United Nations Transitional Authority in Cambodia (UNTAC) from 1991 to 1993,

a number of laws including a criminal law, a judicial law, and a press law were enacted. The

third Penal and Procedure Code was adopted, so-called Criminal Law & Procedure of 1992 of

UNTAC, and it came into force on September 10, 1992. It consisted of 75 Articles and a mixed

Act between Penal Code and Procedure.46

The present Constitution of the Kingdom of Cambodia is the sixth Constitution and also

the latest one; however, it has been amended seven times from its birth until 2010. It was

adopted by the Constituent Assembly of a representative of the Cambodian people which was

born from a democratic election organized by UNTAC after two decades of a long civil war, on

21 September 1993.

The new Constitution of 1993 was made under the influence of the United Nations and

the international community. It has reflected not only universal and modern constitutional

characteristics, democracy, human rights, and rule of law but also to its own historical and

traditional characters in an attempt of restoring historical continuity of kingship, state religions

and state institutions. In addition, the Constitution of 1993 prefers a British/Japanese model of

parliamentary democracy of government. It does not adopt the French or American system of

presidential democracy with the strict separation of powers. Regarding with criminal justice,

before adopted this new constitution, the Parliament of former regime (State of Cambodia which

was under the control of UNTAC, a transitional period, had adopted a new penal and criminal

procedure codes separately. The Code was adopted on January 28, 1993, that was coming before

the coming into force of the present Constitution, 1993 and the code called, “the Law on

Criminal Procedure”. This criminal procedure had introduced to the new regime (Kingdom of

Cambodia), and had been continuing until the adoption of the present Criminal Procedure Code,

2007. The Code contains of 238 Articles in Seven Chapters. The Code has introduced two years

before new and present Cambodia Penal Code (CPC), 2009.

The current legal system is a hybrid legal system which is an amalgamation of

Cambodian customs, the French based legal system (an influence from French colonization), and

the common law system, including the code itself, which is an influence arising from foreign aid

Malaysia, the Republic of the Philippines, the Republic of Singapore, the Kingdom of Thailand, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, the United States of America, the Socialist Republic of Vietnam and the Socialist Federal Republic of Yugoslavia.

46 See http://www.wipo.int/wipolex/en/details.jsp?id=6154 cited on September Feb 10, 2014; see also World Intellectual Property Organization (WIPO) at http://www.wipo.int/wipolex/en/text.jsp?file_id=223215

http://www.wipo.int/wipolex/en/details.jsp?id=6154

http://www.wipo.int/wipolex/en/text.jsp?file_id=223215

24

assistance to legal and judicial reform in Cambodia. However, there must be a deep research to

understand the entire legal structure, to understand elements of common law and civil law in the

Cambodian legal system. The present Constitution of 1993 proclaims to recognize and respect all

fundamental human rights which are stipulated in the United Nations Charter, the Universal

Declaration of Human Rights and the Covenants and Conventions related to Human Rights,

women‟s rights and children‟s rights47, on the one hand, it adopts specifically a catalogue of

fundamental human rights for all Khmer citizens. Therefore, in Cambodian context, generally

speaking, if we talk about a constitutional catalogue of fundamental human rights, we have to

examine not only constitutional texts but also international human rights laws as well. However,

as a matter of practice, the international human rights laws are rarely directly applied by

municipal courts. Until 2007, there had been progress that the Constitutional Council justified

legitimate sources of national law including all international conventions which have been signed

and ratified by the Parliament of the Kingdom. This attempt is to remind the municipal courts

that it needs to apply all relevant sources of law for answering the questions fundamental human

rights interpretation and protection.

The codifications of criminal law and procedure code are relatively recent occurrence in

the Kingdom of Cambodia‟s story. The 1993 Constitution of the Kingdom provides for the

recognition of and respecting of human rights it has guaranteed in all relevant international

human rights laws and instruments. The International Covenant on Civil and Political Rights

guarantees in Article 14 that “in the determination of any criminal charge against him, or of

rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a

competent, independent and impartial tribunal established by law.”48 When the 1991 Paris Peace

Accords concluded, the United Nations Transitional Authority (“UNTAC”) drafted provisions

relating to the Judiciary and Criminal Law and Procedure applicable in Cambodia during the

Transitional Period (the “UNTAC Penal Code”), which contained provisions on pre-trial and

trial procedures. However, the UNTAC Penal Code was criticized by human rights organizations

for failing to comply with international human rights standards. Efforts were subsequently made

to draft a criminal code and a code of criminal procedure that would define acts that are

criminalized under Cambodian law, who can be held legally responsible for those acts, and the

47 See supra note 10. Art. 3. 48 See Id. ICCPR.

mistake. corrected one is: supra note 10, Art. 3.

25

applicable legal procedures, from pre-trial investigations to appeals. The Code of Criminal

Procedure of the Kingdom of Cambodia (the CCPC) was adopted by the Cambodian National

Assembly on 7 June 2007, and in 2010 the Criminal Code 2009 of the Kingdom of Cambodia

(the “Penal Code”) was promulgated. Together, these documents define the parameters of

Cambodian criminal law and procedure enabling accused persons to have access to the law

pertaining to their criminal cases.

A new Criminal Procedure Code, 2007 has introduced to the Kingdom with the hybrid

system of Inquisitorial and Adversarial systems. However, it is an inquisitorial biased system.

And two years later, the new Penal Code 2009 has also come into force. The Cambodian

Criminal Procedure Code (the CCPC), 2007 is containing of 612 Articles.

1.2. Cambodian Judiciary (Criminal Court)

As mentioned earlier above, Cambodia was colonised by France and French

administration, included judicial administration, was influenced into the kingdom in the matter of

judicial system as well as the administration of the entire country in the period of its

colonization, both in criminal matters and civil matters. However, it is not a pure French System

as such. The adoption of the Civil Law System or we can say another word, Inquisitorial system

as in criminal justice matter, it makes difference between Indian and Cambodia legal system as

far as criminal justice system is concerned; while India has been inherited her legal system by

British Raj, as the Common Law system (or Adversarial system, in criminal court). Both

countries have been inherited of different origin of their own legal systems. These two systems

have its origin in Europe. Cambodian Criminal Justice System has many different aspects in

comparison to that in India, because each country has adopted different system from different

colonial rulers.

The theory of separation of powers requires the adoption of the modern concept of

judicial independence. The requirement of judicial independence is to protect the Court against

outside influence, especially by other branches of government. Montesquieu, a very famous

French philosopher says “the judiciary should function independently from the legislative and

executive arms of government”, and Locke says that “established law with the right to appeal to

independent judges are essential to a civilized society and that societies without them are still in

a state of nature”.49 John Locke and Montesquieu are generally considered to have the most

49 Justice F.B. William Kelly, An Independent Judiciary: The Core of the Rule of Law 2-3 (2000) (unpublished

26

influence on the evolution of the modern concept of judicial independence.50 Regarding judicial

system, in Cambodia there are three hierarchal levels of Criminal Court; (i) the Supreme Court,

is the apex court of the country, (ii) the Court of Appeal, is the second rank of the courts of the

country and (iii) the lowest court, is the Courts of First Instance, (which is also included one

single Military Court), are locating in all provinces and municipalities of the country.51

(i) The Supreme Court

The Cambodian Apex Court has its two jurisdictions; first is to settle the Request for

Cassation which filed writ petition by any party of the case who does not satisfied with the

decision of the Court of Appeal,52 and second; Motion for Review which is a procedure whereby

a party contests against a final judgment which already has the res judicata effect. The competent

authority to decide on a motion for review rests with Supreme Court in a plenary hearing.53 A

motion for review may be filed in any criminal case regardless of the court which made the

decision and regardless of the sentence pronounced.54 The Apex Court consists of a President

and a Vice President of the court, a General Prosecutor, a Deputy Prosecutor, and Prosecutors

(Prosecution Body), and teen Judges. However, the Cambodian Apex Court doesn‟t have any

power to interpret the Constitution like what of Indian Supreme Court has done. It has a very

limited and narrow power. It is the duty of the Constitutional Council who has been empowered

by the constitution itself to interpret any question regarding the constitutionality of laws. The

Council also has power to declare unconstitutionality of a law passed by the National Assembly

and reviewed by the Senate. If there is inconsistent with the provision of the Constitution, the

Council may declare it as unconstitutional.55

(ii) The Appellate Court (the Court of Appeal)

The Court of Appeal which has been located in Phnom Penh, the Capital City of the

kingdom of Cambodia, is the Appellate Court of the country which has jurisdiction to deal the

appealed cases from the lower Courts including; Court of First Instance of all provincial and

Manuscript). 50 Hon. Ken Marks, “Judicial Independence” 68(3) Aust. L. J. 173 (1994). 51 The Law on the Organization and Activities of the Tribunal of the State of Cambodia (LOAT) 1993, art. 3.

LOAT confers that the Appellate court and Supreme Court which are higher courts, they are located in Phnom Penh.

52 Cambodian Criminal Procedure Code, (CCPC) 2007, arts. 417- 442. 53 Id. art. 443. 54 Id. art. 444. 55 Supra note 10, Art. 136(New).

27

Municipal Courts and the Military Court of the Kingdom. The Court of Appeal composes of

Court‟s President, Vice President, Prosecutors, and number of judges. In criminal justice setting,

the court has set up its body namely; Criminal Chamber of the Court of Appeal which separates

into two different wings; the Investigating Chamber which consists of numbers of Investigating

Judges and the Prosecution body consisting of a General Prosecutor, a Deputy Prosecutor, and

plenty numbers of Prosecutors. The Criminal Chamber of the Appeal Court has jurisdiction to

decide appeals against decisions of the Court of First Instance within its scope of jurisdiction for

criminal cases56 and direct an order to redial the appealed case or to re-investigate the Appealed

Case referred by (to) the lower Courts. The court may re-investigate the question cases within its

jurisdiction and powers or may order the lower court to re-investigate such appealed case.

(iii) Courts of First Instance (Provincial and Municipal Courts):

The Province and Municipal Courts have authority to their own jurisdictions within the

boundaries of their locality and given powers. There is one court in each Province and a

Municipal Court (for the Phnom Penh Capital City only). The Court of First Instance composes

of a Court President, a Court Vice President, a Royal Prosecutor, a Deputy Prosecutor and

Prosecutors attached to the Court and number of Judges (both Civil and Criminal judges) and in

the Appellate Court, there are two wings Criminal Organizational hierarchy; a body of

Prosecution which composes of Prosecutors and a number of Investigating Judges.57 There is no

separation of specialized judges to deal with a particular and a certain case whether criminal

cases or civil cases as that in Indian Court system has. The number of Court‟s judges is in

accordance with the population of the provinces and workload of the court. Apart from this, there

is a Military Court in this country.58 The Military Court has jurisdiction only to cover the

military offence. Military offenses are those involving military personnel, whether enlisted or

conscripted, and which concern discipline within the armed forces or harm to military property.59

All ordinary offenses committed by military personnel are tried in ordinary courts. And if party

unsatisfied with the judgment of this court, he may appeal to the Appellate Court, the procedures

of ordinary courts apply.

56 Supra note 52, art. 373. 57 Id. art. 36. 58 Koy Neam, “Introduction to the Cambodian Judicial Process” 17 (the Asia Foundation, 1998); See Dr. Hor Peng, Dr. Kong Phallack, Jörg Menzel, supra note 33 at 14. 59 UNTAC Criminal Code, art. 11; see also supra note 52, art. 9.

28

2. Indian Legal System and Criminal Procedure Codes Evolution

2.1. Overview of the Indian Legal System and Criminal Procedure Codes Evolution

India is the second third largest country in Asia continent, the biggest country in South

Asia. In 1947 India attained independence from British. The independence was led to separation

between India and Pakistan. India bears a federal government system or in other word named a

Union of States. The territory of India comprises of States, Union Territories and any other

territory that may be acquired by the Government of India at any time.60 Today the Republic of

India has 27 States and seven Union Territories.61 Immediately after her independence, the

Constituent Assembly adopted the Constitution of India, 1949 and 16 Articles of the Constitution

came into force on the date of adoption and the rest of the Articles of the Constitution entered

into force on 26 Jan 1950.62 Up to now, the Constitution has been amended for the One-Hundred

and Seven times.63 Most of the rights relating to the criminal justice are incorporated in the

Constitution. These rights are; right to equality of before the law and equality protected by law64,

protection against ex post facto laws65, right against double jeopardy66, right against self-

incrimination67, right to life and personal liberty68, right against arbitrary arrest and detention69,

right to counsel70 and right to be produced before the magistrate71.

Indian Legal System is the Common Law Based which has been inherited by the British

Rule in India either in the period of East India Company and British Rule. The British Raj in

India introduced the common law into this country. This provides the basis of Indian present

legal system. The common law system has been officially and more entirely introduced to this

land by the Charter Act, 1853 when the East India Company delegated its powers to the British

60 P.M. Jain, Indian Constitutional Law 312 (LexisNexis Butterworths Wadhwa, 6th edn., 2012). at 312; see also supra note 2, Art. 1(1)&(3). 61 See supra note 2, Arts. 1(2), 152 and the First Schedule to the Constitution; see M.P. Jain, Id. at 312. 62 Dr. Amir Ratna Shrestha, Constitutional Rights of an Accused: A Comparative Study under the Constitutions of Nepal and India, 24 n.101 (1992) (Unpublished PhD Thesis, No.2958 F.O.L. University of Delhi). 63 Up to January 2013, the Indian Constitution has been amended Ninety-Eighth times. See The Constitution

(Ninety-Eighth Amendment ) Act, 2012, the Ministry of Law and Justice, dated 1st January 2013. A part from this, many Amendment Bills are awaiting for amending in this year.

64 Supra note 2, Art. 14. 65 Id. Art. 20(1). 66 Id. Art. 20(2). 67 Id. Art. 20(3). 68 Ibid. 69 Id. Art. 22(1). 70 Ibid. 71 Id. Art. 22(2).

29

Government.72 The British Raj began in 1858, a year after the First War Independence that was

handed over by the East India Company. The East India Company, since its first coming in A.D

1600 to rule some particular parts of India in A.D. 160073, did not bring common law system in a

real sense. But there could be said that the British did not entertain their legal system. The

company had applied the customary law and civil law of the French system.74 The nature of

Indian legal system by that time was a body of substantive Civil law and Common law as a

basis.75 As the evidence of the establishment of “Mayor‟s Courts” in Madras, Bombay and

Calcutta granted by the Charter of King George I in A.D 1726. The significance of the coming

of common law to India has not received adequate recognition in spite of the attention called to it

by several legal scholars. The judicial review of administrative action existed in India even

before the Constitution. The law courts could draw upon the common law principles of justice,

equality, and good conscience and the relevant statutes to correct the illegalities in administrative

action and give reliefs in suits filed for that purpose.76 The British Legislative Council had

adopted the Code of Civil Procedure in 1859, the Penal Code in 1860 and the Code of Criminal

Procedure in 1861, the first ever codifications in the Indian tory.77 The first ever Code of

Criminal Procedure (Cr.P.C) Act, 1861 composed of 445 Sections and came into force in

September 1861.

The very fact that much of the common law introduced in India was codified is testimony

to the obvious advantage of statute law over common law. Law needs to be certain, precise and

predictable. The Indian Penal Code and the Code of Criminal Procedure, the Evidence Act, as

also the Code of Civil Procedure, the Transfer Property Act, and the Contract Act are some the

great pieces of legislation achieved in this country. India legal system also a hybrid system which

is the combination of the civil law type courts mostly administered in the district courts by career

judges but it is based on common law principles which are developed by the superior courts in

interpreting statutes in the light of common law principles.78 In 1872, the Code of Criminal

72 Joseph Minattur (Rev), Indian Legal System viii (The Indian Law Institute, 2nd edn., 2006). 73 Kapil Raj, “Colonial Encounters and the Forging of New Knowledge and National Identities: Great Britain and India” 15 U. Chi. Press. 1760, 221 (2000). 74 Id. at ix; see also J. Minattur, “Legal System in British Indian Settlements” 15 J.I.L.I. 590 (1973). 75 Ibid. 76 Joseph Minattur, supra note 72 at 4. 77 Id. at ix; see Dr. Amir Ratna Shrestha, supra note 62 at 25; see also The Fourth Report of National Police Commission, 1980 at 1. 78 Id. at 15.

30

Procedure of 1861 was repealed and substituted by a new Code of 1872 called the Procedure of

the Courts of Criminal Judicature 1872 by the British Legislative Council and came into force in

September 1872. The Code consisted of 541 Section and divided into XII parts. The Code, 10

years latter was successively substituted by another new Criminal Procedure Code of 1882, and

latter this code was modified in 1888 and then 1891. The Code was repealed and adopted the

British Legislative Council in India in 1989 named the Code of Criminal Procedure Act 1898

and it came into force in July, 1898. It was the fourth Code of Criminal Procedure of 1898 that

spelt out the framework of investigational procedures which has remained more or less unaltered

to this day as far as the police are concerned, and it is embodied in the revised Code of Criminal

Procedure, 1973 which came into force on 1st April, 1974. The Code of Criminal Procedure Act,

1898 consisted of 565 Sections.79 The Code had been continuously enforced until 1973 in the age

of present Criminal Procedure Code has been enacted by the Parliament of the Republic. The

Fifth Indian Code of Criminal Procedure has been enacted in 1973 meaning thereby 36 years

after India gained independence fully from the British. The Code of Criminal Procedure is the

main and the latest legislation on procedure for administration of substantive criminal law in

India.80 It was enacted in 1973 and came into force on 1st April 1974. It provides the machinery

for the investigation of crime, apprehension of suspected criminals, collection of evidence,

determination of guilt or innocence of the accused person and the determination of punishment

of the guilty. Additionally, it also deals with public nuisance, prevention of offences and

maintenance of wife, child and parents. The Code is a very detailed document. The Act consists

of 484 sections, 2 schedules and 56 forms. The sections of the Code are divided into 38 Chapters.

The Code has also been eventually amended according to the needs of the changing of Indian

society and circumstances. The Evidence Act 1872 is another important law in the field of

criminal justice. Both, the Evidence Act, 1872 and the Procedure Code of 1973 have enunciated

procedural safeguards to the accused and guarantee the fair trial of criminal proceedings in

criminal courts. These were fabricated on the basis of English Common Law (Adversarial

System) and Statute law.

79 See the Indian Code of Criminal Procedure Act, 1898. 80 Bharti Dalbir, the Constitution and Criminal Justice Administration 320 (APH Publishing, 2005);

see Dr. Amir Ratna Shrestha, supra note 62 at 25; see also the Fourth Report of National Police Commission, supra note 62 at 1.

31

Article 21 deals with the right to life and personal liberty was the lifeless incantation for

long.81 The Supreme Court broadened the scope, and new dynamic meaning was also given to

the right to personal liberty in the landmark case of Maneka Gandhi v. Union of India.82 Indeed,

the rights to life and personal liberty are the most important human rights in criminal justice

jurisprudence. The Supreme Court of India opined that the Article 21 of the Constitution does

not only protect against the executive action but also protects against the legislative action and

that “no law can deprive a person of his right to life or personal liberty unless it is prescribed by

law. The law here must be a reasonable, fair and just and it would be for the court to determine

whether the procedure of such law is reasonable, fair and just and if it is not, the court will strike

down the law as unconstitutional, an invalid law.83

The Constitution opens new criminal jurisprudence in the field of free legal aid. The

matter of providing free legal aid has been recognized as one of the Directive Principles of the

State Policy.84

2.2. Indian Judiciary (Criminal Courtse)

Indian legal system is very big different from Cambodian legal system in comparison.

The two countries have adopted different legal system from different origin of the system. The

entire country consists of States and Union Territories and each State and Union territories is

divided into districts and municipalities, then in each district or municipality is divided into Sub-

division and others. There are two in order major Courts, (i) the Supreme Court of India, which

is the Apex Court of the country. The Indian Code of Criminal Procedure makes provision of

appeals to the Supreme Court under certain circumstances85, and also enables the Supreme Court

to transfer, in the interest of justice, cases and appeals from one High Court to another High

Court or from one criminal court which is subordinate to one High Court to another criminal

court which is subordinate to another High Court 86 and (ii) High Courts of every state and union

territories. However, not all states have their own court. There are some states which have shared

the high court together. Both of these two in order levels of court have been constituted and

power delegated by the Constitution of India, 1950.

81 P.N. Bhagawati, “Human Rights in the Criminal Justice System” 11 Ind. Bar. Rev. 321(1985). 82 Supra note 2. 83 Ibid. 84 Supra note 2, Art. 39A. 85 Supra note 29, Ss. 374 and 379. 86 Id. s. 406.

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(i) The Supreme Court

In any country, the Judiciary plays the important role of interpreting and applying the law

and adjudicating upon controversy between one citizen and another and between a citizen and

the state. It is the function of the courts to maintain the rule of law in the country and to assure

that the government runs according to law. In a country with a written constitution, courts have

the additional functions to safeguarding the supremacy of the Constitution by interpreting and

applying its provisions and keeping all authorities within the constitutional framework. In a

federation, the Judiciary has another meaningful assignment, namely; to decide controversies

between the constituent States inter se, as well as between the Centre and the States. A Federal

Government is a legalistic government87, a characteristic feature of which is the allocation of

powers between the Centre and the States. Disputes usually arise between the Centre and

constituent units relating to distribution of powers and function between them.

In India, in addition to the above, the judiciary also has the significant function of

protecting and enforcing the Fundamental Rights of the people guaranteed to them by the

Constitution.88 India has unified Judiciary system with the Supreme Court standing at the Apex

Court of the country however; the Supreme Court does not exercise administrative control over

the High Courts. There are High Courts below the Supreme Court; under each High Court there

exists a system of subordinate courts.89 The Supreme Court thus enjoys the topmost position in

the judicial hierarchy of the country. It is the supreme interpreter of the Constitution and the

guardian of the people‟s Fundamental Rights. It is the ultimate court of appeal in all civil and

criminal matters and the final interpreter of the law of the land, and thus helps in maintaining a

uniformity of law throughout the country. The Supreme Court is empowered by the Constitution.

Entry 77, List I, states that “Constitution, organization, jurisdiction and powers of the Supreme

Court (including contempt of such court), and the fees taken therein; persons entitled to practice

before the Court”. The Supreme Court has its original jurisdiction as the guardian of the

Fundamental Rights under Article 32, to issue writs for enforcement of Fundamental Rights.

(ii) High Courts

According to Article 227 of the Constitution, provides that every High Court shall have

superintendence over all courts and tribunals throughout the territories in relation to which it

87. M. P. Jain, “Role of Judiciary in a Democracy” 6 J.M.C.L. 239 (1979). 88. M. P. Jain, Indian Constitutional Law, supra note 60 at 201. 89. Id. at 399.

33

exercises jurisdiction.90 The High Courts can also enforce Fundamental Rights of the

Constitution by issuing writs under Article 226. The Code of Criminal Procedure also provides

further that every High Court shall so exercise superintendence over the courts of Judicial

Magistrate subordinate to it as to ensure tan expeditious and proper disposal of cases by such

magistrates.91 The Code has also entrusted very High Court with numerous powers and duties

including those relating to appeals and revision. In the State level, there are various levels of a)

Criminal Courts and b) Civil Courts which include; Criminal Courts and Civil Courts (under the

superintendence of the High court of its own territory).

In criminal justice system, notwithstanding the Supreme Court, special courts and some

particular Tribunals which are empowered by a specific legislatio, all courts are under

superintendence of the High Court in its own territorial jurisdiction. Those are included; (i)

Sessions Courts or Court of Session (Session Judges and Additional Session Judges who are

appointed to decide the cases in according with his authority and jurisdiction, (ii) Judicial

Magistrates of the First class, and in any Metropolitan area, Metropolitan Magistrates, (iii)

Judicial Magistrates of the Second class and (4) Executive Magistrates (under the

superintendence of the State Government).

(1). Courts of Session:

For every session division, the State Government shall establish a Court of Session which

shall be presided over by a judge to be appointed by the High Court.92 The High Court may also

appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a

Court of Session.93 The Court of Session shall ordinary hold its sitting at such place or places as

the High Court may, by notification, specify.94 A person appointed as a Sessions Judge,

Additional Sessions Judge or Assistance Sessions Judge, would be exercising jurisdiction in the

Court of Session and judgments and orders would be those of the Court of Session.95 According

to Section 28(1) of the Code a High Court may pass any sentence authorized by law for giving

sentences to an offence. Section 28(2) says that a Sessions Judge or an Additional Sessions Judge

may pass any sentence authorized by law; but any sentence of death passed by any such judge

90 Supra note 2, Art. 227. 91 Supra note 29, s. 483. 92 Id. s. 9(1)&(2). 93 Id. s. 9(3). 94 Id. s. 9(6). 95 Gokaraju Rangaraju v. State of A.P., AIR 1981 SCC (Cri) 652: (1981) 3 SCC 132: 1981 Cri. L.J. 876.

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shall be subject to confirmation by the High Court.96 Section 28(3) says that an Assistant Session

Judge may pass any sentence authorized by law except a sentence of death or of imprisonment

for life or of imprisonment for a term exceeding ten years.

(2). Courts of Judicial/Metropolitan Magistrates

a) Courts of Judicial Magistrates:

There are two Courts which subordinate to the Court of Session; the Court of Judicial

Magistrates and Metropolitan Magistrates. The Court of Judicial Magistrates include Additional

Chief Judicial Magistrate97, Sub-Divisional Judicial Magistrate.98 to according to Section 11 of

the Code, in every district (not being a metropolitan area), there shall be established as many

Courts of Judicial Magistrates if the first class and second class, and at such places as the State

Government may, after the consultation with the High Court, by notification specify.99 The State

Government may also, after consultation with the High Court, establish, for any local area, one

or more special courts of Judicial Magistrates of the first class or of the second class to try any

particular case or particular class of cases, and where any such Special Court is established, no

other court of magistrate in the local area shall have jurisdiction to try any such case or class of

cases for the trial of which such special court of Judicial Magistrate has been established.100 The

Power to determine the number of Courts of Judicial Magistrate of either class or their location is

left to the State Government since it will have to take into account various administrative and

financial considerations. The State Government, however, is required to exercise this power in

consultation with the High Court in order that Magistrates‟ Courts are established in adequate

number in all districts and at suitable place.101 In order to make of Judiciary effective, the

conferment of magisterial powers is kept with the High Court, and it has been provided that the

96 Supra note 29, s. 28(3). 97 Id. s. 1(2) of the Indian Cr.P.C says that the High Court may appoint any Judicial Magistrate to be an

Additional Chief Judicial Magistrate, and such magistrate shall have all or any of the powers of a Chief Judicial Magistrate as the High Court may direct.

98 Id. s. 12(3) of the Cr.P.C says that the High Court may designate any Judicial Magistrate of the first class in any Sub-division as the Sub-Divisional Judicial Magistrate. Subject to the general control of the Chief Judicial Magistrate, such Sub-Divisional Judicial Magistrate shall also have and exercise such powers of supervision and control over the work of the Judicial Magistrates (other than Additional Chief Judicial Magistrates) in the Sub-Division as the High Court may specify.

99 Id. s. 11. 100 Ibid. 101 The Law Commission of India, 41st Report on the Code of Criminal Procedure 1898 I. 22 (September 1969).

35

presiding officers of such courts shall be appointed by the High Courts102 and it is further

provided that the High Court may, whenever it appear to it to be expedient or necessary, confer

the powers of a Judicial Magistrate of the first class or of the second class on any number of the

Judicial Magistrate Service of the State, functioning as a judge in a civil court.103 This would

enable the High Court to provide for situations where it might not be necessary or possible to

appoint full time Judicial Magistrate.

b) Courts of Metropolitan Magistrates

As in a district, every metropolitan area will almost a parallel set up Judicial Magistrates.

In every Metropolitan area, the State Government may, after consultation with the High Court,

establish courts of Metropolitan Magistrates at such places and in such number as it may

specify.104 The presiding officers of such courts shall be appointed by the High Court, and the

jurisdiction and powers of every such magistrate shall extend throughout the metropolitan

areas.105 Likewise, in every metropolitan area, the High Court shall appoint a Metropolitan

Magistrate as the Chief Metropolitan Magistrate. It may similarly appoint an Additional Chief

Metropolitan Magistrate and such magistrate shall have all or any of the powers of a Chief

Metropolitan Magistrate as the High Court may direct.106 The Code makes specific provision

regarding with the establishment of Special Courts of Judicial Magistrates to try any particular

case or class of cases but it does not likewise provide the establishment of Special Court of

Metropolitan Magistrates.107 However, the High Court, in particular circumstance or particular

case, if requested the Central Government or State Government, may appoint a person as a

Special Metropolitan Magistrate or Judicial Magistrate to deal with the said cases.

Regarding the amount of sentence of the offence for (1) and (2) Courts above, Sub-

Section (4) of Section 29 confers powers to the Judicial Magistrate/Metropolitan Magistrate and

their subordinate bodies by saying that “a Chief of Judicial Magistrate or a Chief Metropolitan

Magistrate may pass any sentence authorized by law except a sentence of death or of

imprisonment for life or imprisonment for a term exceeding seven years”.108 Section 29(4)

confers the Judicial Magistrate of the first class or a Metropolitan Magistrate the powers to give 102 Supra note 29, s. 11(2). 103 Id. s.11(3). 104 Id. s.16(1). 105 Id. s.16(2)&(3). 106 Id. s.17. 107 Id. s.11(1). 108 Id. s. 29(4).

36

sentence of an offence by saying that Judicial Magistrate of the first class or a Metropolitan

Magistrate may pass a sentence of imprisonment for a term not exceeding three years, or of fine

not exceeding five thousand rupees, or of both.109 And concerning with the Judicial Magistrate of

the second class, the code confers power to pass a sentence to an offence by saying that a

Judicial Magistrate of the second class may pass a sentence of imprisonment for a term not

exceeding one year, or of fine not exceeding one thousand rupees or both.110

(3) Executive Magistrates

The Indian Criminal Procedure Code also confers the powers for the State Government to

establish Executive Magistrates to function magisterial functions. Section 20 (1) says in “every

district and in every metropolitan area, the State Government may appoint as many persons as it

thinks fit to be Executive Magistrates”.111 Executive Magistrates are appointed for performing

magisterial functions allotted to the executive. This becomes essential implementing the policy

of separation of the Judiciary from the Executive. Section 6 of the Code said that the Courts of

Executive Magistrates as a separate category distinct from the Courts of Judicial Magistrates.

This makes the adoption of the policy of the separation between the Judiciary and the Executive

to function its own allotted tasks. Article 50 of the Indian Constitution mandates, in Directive

Principles of State Policy, Part IV, that “the State shall take steps to separate the judiciary from

the executive in the public services of the State”.112

The Functionaries under the Code of Criminal Procedure, 1973, the functionary

exercising powers and discharging duties are; (1) the Police, (2) the Prosecutor, (3) Defence

Counsel, (4) Magistrate, and Judges of higher Courts, and (5) the Prison/Correctional Centre

authorities and Correctional Services Personnel. Amongst these roles of the Magistrates and

Courts are pivotal; the other functionaries are, in a way, accessories only. It was therefore,

expedient considered first, the constitution and hierarchy of the criminal courts, their territorial

jurisdictions and their powers.

3. Comparative Analysis

Systems of law vary around the world. Two very common legal systems are the civil law

and the common law. Often, the use of one system over another has to do with the history of the

109 Id. s. 29(2) read with s. 29(4). 110 Id. s. 29(3) read with s. 29(4). 111 Id. s. 20(1). 112 Supra note 2, Art. 50.

37

country or region in question. For example, France uses civil law and England or the United

States of America use common law; as a result, Cambodia uses civil law because it was

colonized by France, while the India uses common law because it was colonized by Britain.

However, there is difficult to find that an adopted legal system is pure of a single system. There

must be something mixed up with others systems such as within the two and traditional and

ancient systems, for example religious norms and practice. In the two systems, each system has

its own criminal justice system, where Civil Law system has inquisitorial system and Common

Law system has adversarial system. The two models, inquisitorial and adversarial are the

different measures of providing criminal justice administration in the both systems of Civil and

Common Law Systems.

An inquisitorial system is a legal system where the court or a part of the court is actively

involved in investigating the facts of the case, as opposed to an adversarial system where the role

of the court is primarily that of an impartial referee between the prosecution and the defense.

Inquisitorial systems are used in some countries with civil legal systems as opposed to common

law systems. Also countries using common law, including the United States, may use an

inquisitorial system for summary hearings in the case of misdemeanours such as minor traffic

violations. In fact, the distinction between an adversarial and inquisitorial system is theoretically

unrelated to the distinction between a civil legal and common law system. Some legal scholars

consider “inquisitorial” misleading, and prefer the word “non-adversarial”.

In the inquisitorial system, the judge, in essence, conducts public inquisition or

investigation of crime. The judge can question witnesses, interrogates suspects, orders searches

for other or further investigations, and finally declare the verdict and decide on the penalty. Their

role is not to prosecute the accused, but to gather facts to reach the correct verdict, and as such

their duty is to look for any and all evidence, incriminating or exculpatory. When declaring

verdict, the judge must also release the reasoning explaining the verdict. Therefore, any

perceived fault in the judge's reasoning (due to logic, science or newly discovered evidence) is a

ground for appeal by both prosecutor and defence. Also, in inquisitorial system, there is no such

thing as plea. Even if the accused declare himself to be guilty of crime, the judge may declare the

accused not guilty if the judge believe there is evidence to indicate that the accused is innocent.

In adversarial system, judges focus on the issue of the law and procedure and act as a

referee between the battle between the defence and the prosecutor. Jury decide on the matter of

38

fact. Neither judge nor jury can question witness or initiate inquiry. While jury will declare

verdict, the reasoning behind the verdict and the discussion among jurors cannot be made public.

Therefore, the defence could make appeal, technically speaking, only on the procedural ground,

such as failure of prosecutor to disclose evidence or fault in evidence presented at the trial. On

the other hand, prosecutor in adversarial system cannot appeal against not guilty verdict.

The inquisitorial system applies to questions of criminal procedure as opposed to

questions of substantive law; that is, it determines how criminal enquiries and trials are

conducted, not the kind of crimes for which one can be prosecuted, nor the sentences that they

carry. It is most readily used in some civil legal systems. However, some jurists do not recognize

this dichotomy and see procedure and substantive legal relationships as being interconnected and

part of a theory of justice as applied differently in various legal cultures.

In some jurisdictions, the trial judge may participate in the fact-finding inquiry by

questioning witnesses even in adversarial proceedings. The rules of admissibility of evidence

may also allow the judge to act more like an inquisitor than an arbiter of justice.

The followings aspects of criminal investigation in pre-trial stags would be the points of

the differences between inquisitorial and adversarial criminal justice models which Cambodia

and India have been inherited by their foreign rulers. The following Chapter will discuss about

criminal investigation in pre-trial stages under the criminal procedure codes of the two countries.

The provisions of the procedure codes will define the differences of characteristics of the

inquisitorial and adversarial in the matters of investigation of an offence. The discussion also

intends to find out the rights of the accused person to fair and effective investigation by which

the manners adopted under the supreme law of the land to protect and safeguard the

jurisprudential concept of human rights.

39

CHAPTER THREE

CRIMINAL INVESTIGATIVE PHASES IN PRE-TRIAL STAGE

UNDER CRIMINAL PROCEDURE CODES OF

(CAMBODIA, CCPC, 2007 AND INDIA, CR.P.C, 1973)

1. Genesis

Why would an organization conduct an investigation whether it‟s a judicial investigation

or non-judicial investigation? Most of us would respond: “To find out the truth, to discover the

truth.” But the “truth” is rarely self-evident. What an investigation can do is fact finding. Every

criminal justice system has set up its own criminal procedure as the settings of guideline for

criminal case proceeding. The modern science and technology has come to play very important

role in criminal investigation and finding the truth for the victims of the crime as well as the

accused, is concerned.

Most criminal laws are found in State Criminal Codes created by elected representatives

in state legislatures and municipal codes created by city and town councils elected by the people.

There‟s also a substantial body of criminal law in the Cambodia and India Criminal codes

created by the Parliaments of both countries. Sometimes, these elected bodies invite

administrative agencies, whose members aren‟t elected by the people, to participate in creating

criminal law, as in Cambodia, the draft of law (Bill) of criminal code was made by the Executive

and sent to the National Assembly for approval. Legislatures weren‟t always the main source of

criminal law making in Common Law system. Court judge‟s opinions were the original source of

criminal law in common law system like India as such, and it remained that way for several

centuries.

Inquisitorial procedure is dated back to the 13th century and is the product of a more

institutionalised and centralised state role, which does not rest upon equality between the parties.

In its original “pure” form, the enquiry and prosecution was conducted by a single individual, a

representative of the state (rather than either “party”) who investigated, prosecuted, could

instigate coercive measures and determined whether the case should go to trial. The defence did

not participate in any aspect of the pre-trial phase. The procedure was written, secret and not

debated. The different emphases within the two procedures means that the locus of fact-finding

40

takes place during the pre-trial period in an inquisitorial model and the trial during an adversarial

model, corresponding to a longer investigation period in the former and a longer trial in the

latter.

In the inquisitorial system, power to investigate offences rests primarily with the judicial

police officers (Police/Judiciare). In Cambodia as well as in country of France‟s judicial system,

they investigate and draw the documents on the basis of their investigation. The Judicial Police

Officer (JPO) has to notify in writing of every offence which he has taken notice of and submit

the dossier prepared after investigation, to the concerned Prosecutor or to his Investigating Judge

in case he is under the supervision of the Investigating Judge. If the Prosecutor finds that no case

is made out, he can close the case, and decided on “filing without action”. If, however, he feels

that further investigation is called for, he can instruct the judicial police to undertake further

investigation. The judicial police are required to gather evidence for and against the accused in a

neutral and objective manner as it is their duty to assist the investigation and the prosecution in

discovering truth. If the Prosecutor feels that the case involves serious offences or offences of

complex nature or politically sensitive matters, he can move the judge of instructions to take over

the responsibility of supervising the investigation of such cases. Provisions of the Cambodian

Criminal Procedure Code, 2007 provided that the investigation of the offence is a must for felony

and it is a task of the Investigating Judge.113

In all inquisitorial systems, to enable the Investigating Judge or another term used the

Judge of instructions in French, to properly investigate the case, he is empowered to issue

warrants, direct search, arrest the accused and examine witnesses through introductory

submission. The accused has the right to be heard and to engage a counsel in the investigation

proceedings before the judge of instructions and to make suggestions in regard to proper

investigation of the case. It is the duty of the judge of instructions to collect evidence for and

against the accused, prepare a dossier and then forward it to the trial judge. The accused is

presumed to be innocent and it is the responsibility of the judge to discover the truth. The

statements of witnesses recorded during investigation by the judge of instructions are admissible

and form the basis for the prosecution case during final trial. Before the trial judge the accused

and the victim are entitled to participate in the hearing. However the role of the parties is

restricted to suggesting the questions that may be put to the witnesses. It is the Judge who puts

113 Supra note 52, art. 122.

41

the questions to the witnesses and there is no cross-examination as such. Evidence regarding

character and antecedents of the accused such as previous conduct or convictions are relevant for

proving the guilt or innocence of the accused. For serious and complex offences the investigation

is done under the supervision of an independent judicial officer (Investigating Judge) who for the

purpose of discovering truth collects evidence for and against the accused.

In the inquisitorial system the Investigating Judge combines to some extent the roles of

the investigator and the Judge. The defence has only a limited right of suggesting questions to

the Judge. It is left to the discretion of the Judge whether to accept the suggestions or not.

Therefore, a biased evaluation of the evidence from the defence is restricted through the judge‟s

discretion.

In Cambodia as it is a French legal system based, most criminal investigation cases are

undertaken by the Police and Investigating Judge under the supervision of the Prosecutor. The

pre-trial investigation is divided into two; Preliminary Inquiry and Investigation. As in

Preliminary inquiry, when the judicial police officers have acknowledged the acts which may be

qualified as felony, misdemeanour or petty offence, they may conduct a preliminary inquiry at

their discretion or upon the request of the Royal Prosecutor.114 The rules for Preliminary Inquiry

have to be restricted followed by the JPOs in his conducting the preliminary inquiry.115 After the

completion of preliminary inquiry, the JPO is mandatory to submit his prepared reports; records

to the Prosecutor, and then the Prosecutor begin to charge the accused of an offence according to

the provisions state in the Penal Code. The offence committed by the accused shall be named in

the Penal Code. After charging the accused of a certain criminal offence, it‟s time for opening

the judicial investigation. The judicial investigation could be conducted by the Prosecutor and

police officer or by the Investigating Judge through the introductory submission submitted by the

royal prosecutor; otherwise he has no power to investigate the case.116 In case of felony, the

investigation must be investigated by the Investigating Judge as mandatory.117And it is optional

for a misdemeanour.

Similar to the Magistrate in Indian Adversarial model, the Royal Prosecutor has a judicial

status along with the Investigating Judge or another term named Instruction Judge and the Trial

114 Id. art. 111. 115 Id. arts. 90, 95, 105, 107, 108 for the Rules of Conducting a Preliminary Inquiry by the JPO; See also art. 112 of the Code. 116 Id. art. 124. 117 Id. art. 122.

42

judge. The Royal Prosecutor, therefore, provides judicial supervision of police powers and is

responsible for the protection of individual rights and freedoms. The prosecutor is the only

person who represents the State interest in initiation of criminal motion.118 It‟s meaning thereby

the criminal actions are brought by Prosecutors for the general interests of the society. The

Prosecutors initiate criminal proceedings and request the application of the law by the

investigating and trial judges.119 The victim of the offence and victim‟s relatives, all public

authorities, officers, civilians who have seen and learned about a felony or misdemeanour shall

immediately report the incident to the judicial police officers or directly to the Prosecutors and

the JPOs shall submit the Prosecutor all information, records, letters and items relating to that

committed offence.120

In a Preliminary investigation (enquête préliminaire) the police may investigate for

several months for a very serious and sensitive case, gather evidence via surveillance, witness

statements etc. Any search of premises may only be conducted with the consent of the person

concerned. If it is deemed to be necessary for the investigation, a judge may, at the request of the

prosecutor, authorise the police to carry out a search without consent. Once a suspect is

identified, the Prosecutor must be informed by the Investigating Judge or JPO who are under his

supervision, so that he can oversee the investigation.

During the investigation of a recently committed offence or another word Flagrant

Offences, fragrante delicto the police enjoy wider powers (for example to search the suspect‟s

premises without consent) for a period of up to seven days from the date of offence

committed.121However, if he could not finish within seven days, the judicial police officer must

refer the case to the prosecutor. The JPO must submit the investigating records and all exhibits

found to the Prosecutor along with the arrested person, in case he is under the supervision of the

prosecutor, otherwise to the Investigating Judge.122Generally the records established by the JPOs

are for information only. However, such records shall be deemed original and valid unless the

contrary is proven.

The police may arrest a suspect and place him in detention for questioning (in garde à

vue, GAV or Judicial Custody) for up to 48 hours for adult who his age above eighteen years, but

118 Supra note 10, Art. 131 (New). 119 Supra note 52, art. 4. 120 Id. arts. 40, 41 and 42. 121 Id. art. 106. 122 Id. art. 107.

43

not more than 36 hours for suspected of felony offences, minor aged fourteen and less than

sixteen years old, and not more than 24 hours for suspected of misdemeanour offences, whose

age fourteen years old and less than sixteen years old.123 In case of felony, a minor aged between

sixteen years old and less than eighteen years old may not be placed in police custody for more

than 48 hours. In case of misdemeanour, a minor aged between sixteen years old and eighteen

years old may not be placed in police custody for more than 36 hours. And a minor who is less

than fourteen years of age may not be placed in police custody.124

In case of a felony, when there is evidence showing the detained is guilty, the judicial

police officer may extend the duration of the police custody if such measure is necessary to

conduct investigation properly. Any extension shall be authorised beforehand by the Royal

Prosecutor of the Court of First Instance who has to examine whether the factual and legal

conditions are fulfilled. The written authorization for an extension of the duration of the police

custody with an explanation of the reasons shall be placed on the case file. The extension is an

exceptional measure and must be a necessary one. An extension of the duration of the police

custody shall not be longer than 24 hours additional hour, excluding the time necessary for the

transportation of the detained persons.125

The suspect may see his lawyer for 30 minutes at the start of detention.126 This will be the

extent of the lawyer‟s involvement during the pre-trial investigation. This is very significant

given the absence of other safeguards such as tape recording or the presence of a judge or lawyer

during interrogation. Whilst the Prosecutor is responsible for the oversight of this period of

detention, he is not present at the police station and is unlikely to have any contact with the

suspect until the close of the police custody (GAV).

At the expiry of the period of police custody, the accused person shall be (a) handed over

to the Royal Prosecutor attached to the Court of First Instance, or (b) released. The decision shall

be made by the Prosecutor. The Prosecutor must decide whether to prosecute or release the

suspect, or whether to send the case to the Investigating Judge (IJ) for further investigation by

opening of judicial investigation.127When the accused person has to be handed over to the

Prosecutor, that person shall be brought before him immediately. Where timely handing-over is

123 Id. art. 96. 124 Ibid. 125 Ibid. 126 Id. art. 98. 127 Id. arts. 43 and 103.

44

not possible and due to transportation difficulties or long distance of the place, the arrested

person cannot be handed over on the same day, the Prosecutor may allow for additional time

period to transport the accused person. In any case, the handing-over of the accused person shall

be done as soon as possible. The causes of the delay shall be written in the record which a JPO

shall submit to the Royal Prosecutor attached to the Court of First Instance.128

The Investigating Judge (IJ) cannot investigate on his own initiative and discretion.129

Once he uncovers the evidence of another crime during her investigation, this must be referred to

the Prosecutor who will decide whether to issue a supplementary instruction to the Investigating

Judge (or indeed to a different IJ). If the Prosecutor refers a case to the Investigating Judge, the

delegated Investigating Judge must have a preliminary interview with that person and determine

whether there is serious or corroborating evidence that he has committed an offence. The

Investigating Judge enjoys wide powers and unless expressly forbidden, may undertake any

investigation that assists in uncovering the truth. Virtually all aspects of the investigation may be

delegated to the police through the procedure of rogatory letter (Commission Rogatoire).130 In

some cases, the Investigating Judge who is under the introductory submission of the Royal

Prosecutor may authorize his investigating task to any judge, who is in the same court or in

another court, judicial police officers or judicial police units to investigate on his behalf.131

There is one important exception to this: once a person is being investigated in this way,

he may not be questioned by the police. Only the Investigating Judge may interview her and she

is entitled to have her lawyer present during any questioning. If a suspect is identified during the

course of the enquiry, the Investigating Judge may order the police to detain and question this

suspect. Whilst the investigation is conducted by the Investigating Judge, the Prosecutor has

access to the dossier and can request that specific investigations be carried out, as can the

defence and victim. If these requests are refused, the Investigating Judge must give reasons and

her decision can be appealed to the Investigating Chamber (Chambre d’Instruction)132 of the

128 Id. art. 104. 129 Id. art. 44, 123 and 124. 130 Supra note 52 arts. 131, 173 and 174. A Rogatory Letter specifies the nature of investigative work to be done.

That work shall relate directly to the offence charge. A rogator letter cannot be general; the letter shall provide clear cute and specific guidelines. The Investigating Judge shall set a time limit for the execution of a rogatory letter. The rogatory letter shall be dated and signed by the Investigating Judge. The Investigating Judge may revoke a rogatory letter at any time. Id. art. 174.

131 Id. art. 173. 132 Id. arts. 25-28.

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Court of Appeal. At the close of the investigation, the Investigating Judge will report on which,

if any, charges are made out and ready for prosecution. The Investigating Judge shall inform the

prosecutor, accused (charged person), the civil parties, and the lawyer (s).133

Indian Criminal Justice System, however, is not strictly adversarial. Some provisions in

the Criminal Procedure Code discount the adherence of the adversarial trial system in the interest

of justice while the adversarial system requires the magistrate to remain an observer of the trial;

it does not absolve him of his duty to provide assistance to the process of the trial. At stages

within the decision making process, the Magistrate assists the case towards justice, some notable

examples of which are as follows:

Sections 228 and 240 of the Cr.P.C, 1973 suggest that charge against the accused is to be

framed by the Court and not the Prosecution, therefore this allows the court to refine the

prosecution‟s accusations and only judge issues that have prima facie merit. Section 311

empowers the court to examine any person as a witness though such person has not been called

by any party as a witness (Similar power is also given to the court under Section 165 of the

Indian Evidence Act, 1872). Section 313 allows the court to examine the accused at any time to

get an explanation regarding the trial. Section 321 prohibits the prosecutor from withdrawing the

case without the consent of the Court.

Unlike in inquisitorial system, in India as an adversarial system, Section 2(a) of the Code

of Criminal Procedure, 1973 defines the words bailable and non-bailable. According to Section

2(a), a bailable offence is an offence which is shown as bailable in the first schedule to the

Code, or which is made bailable by any other law for the time being in force. A non-bailable

offence means any other offence. Another category of offence, Cognizable Offence, Section 2(c)

states “cognizable offence” means an offence for which, and “cognizable case” means a case in

which, a police officer may, in accordance with the First Schedule or under and other law for the

time being in force, arrest without warrant. And Section 2(l) mentions about Non-cognizable

Offence that “non-cognizable offence” means an offence for which, and “non-cognizable case”

means a case in which, a police officer has no authority to arrest without warrant.134

Bailable and Non-Bailable Offence: The word bail means release of a person from legal

custody. Thus, when a person is granted bail, he is released from restraint. In the case of bailable

133 Id. art. 246. 134 Supra note 29, s. 2(a)&(c), and (l).

46

offence, bail can be claimed as a matter of right, as provided under Section 436(1). The accused

is bound to be released on bail, as soon as he is prepared to give bail, on such terms as may

appear reasonable to the Police Officer or the Court, as the case may be.135 The Officer or the

Court can even discharge the accused on executing a bond, as provided in Section 436, instead of

taking bail from him.

The Code does not lay down any criterion for classification of bailable and non-bailable

offences. However, this classification may be explained on the basis that the offences are less

grave or serious in nature. Generally speaking, bailable offences are less grave in nature than the

non-bailable offences. The yardstick followed for classifying the offences under the Indian

Penal Code is as follows:

If an offence is punishable with imprisonment for less than three years or with fine only,

it is bailable. The first Schedule to the Code gives a list of bailable offences viz., rioting, being a

member of unlawful assembly, bribery, committing affray, giving false evidence, and so on. A

non-bailable offence is one which is punishable with a death penalty or life imprisonment, or

imprisonment for three years or more.

Cognizable and Non-cognizable offences: A cognizable offence means an offence for

which a Police Officer may, in accordance with Schedule I of the Code of Cr.P.C 1973, or under

any law for the time being in force, arrest without a warrant. A non-cognizable offence is one

where a Police Officer has no such authority to arrest without a warrant. Sections 2(c) and 2(l)

of the Code gives the definition of cognizable and non-cognizable offences. The code of

Criminal Procedure, 1973, shall apply to offences under this Act as if they were cognizable

offences (a) for the purpose of investigation of such offences; and (b) for the purposes of matters

other than (i) matters refers to in Section 42 of that Code, and (ii) the arrest of a person without a

warrant or without an order of a magistrate.

Non-cognizable offences are trivial and less serious than cognizable offences, therefore,

the Police will not interfere or arrest without a warrant. Cognizable offences are serious in

nature; therefore, the Police are authorized to arrest without a warrant, as the offender might

escape by the time the police obtain a warrant.

Similarly, a cognizable case is a case in which a Police Officer may arrest without a

warrant; and a non-cognizable case is one in which a Police Officer has no authority to do so. A

135 Id. s. 436.

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case cannot be partly cognizable and partly non-cognizable. In a single case there may be

several offences. If all the offences are non-cognizable, then it is a non-cognizable case. If,

however, one or more of the offences is cognizable, it would be a cognizable case. If the offence

is one which is non-cognizable, a Police Officer cannot investigate into it without the authority

of a Magistrate under Section 155(2); nor can he make a search under Section 165.

In Adversarial System like India, the investigation vests in the Police, or any persons

authorized by the Magistrate but not the magistrate himself.136The police have been empowered

to investigate the crime by his own discretion in any cognizable offence.

136 Id. s. 2(h).

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2. Criminal Investigation under Cambodian (C.C.P.C) 2007)

Because of the legacy of the French protectorate particularly in relation to the

inquisitorial nature of the criminal justice procedure, there are a number of similarities between

the prosecution of criminal cases in France and Cambodia. A notable similarity is the extensive

role of the Investigating Judge. Two distinctions, yet closely collaborating, groups therefore

conduct the prosecution and investigation of a criminal case; Prosecutors and Investigating

Judges. In Cambodian criminal courts, each province has a Royal Prosecutor department, whose

role is to supervise the case brought before the judicial police. In principle, the usual routs for the

prosecution, investigation, and adjudication of a criminal case start with the judicial police. The

letter receive denunciations or complaints relating to crimes, misdemeanours and minor offences,

gather evidence, may decide on detention of the suspects for a maximum not more than 48 hours;

and then make reports to the Prosecutor of the competent jurisdiction court. Then, the duty of the

Prosecutor is to immediately open judicial inquiry by requesting to the JPOs or do it by himself

before framing a charge sheet against the accused person.

As earlier mentioning from the beginning, the criminal justice system of the inquisitorial

system is different from the adversarial. In inquisitorial system of Cambodia, the conducting of

preliminary inquiry into the case is conferred by the criminal procedure code. It‟s laid down from

Article 111 to Article 120 of the Code. It is conducted by the Judicial Police Officers (JPOs) or

Judicial Police Agents (JPAs), ordered and supervised by a Prosecutor and/or an Investigating

Judge. Practically, before framing a charge sheet against the suspect of the offence, the

Prosecutor generally conduct preliminary inquiry by order the JPOs or JPAs who are under his

supervision or he may participate directly by himself into the crime spot or accident spot with

assisting by the such competent JPOs or JPAs. Moreover, the competent authorities including

JPOs or JPAs, if he received or informed on the commission of the offence, he may conduct the

preliminary inquiry by himself or in accordance with the Prosecutor‟s order.137 In case, the

preliminary inquiry of the felony or misdemeanour offence, he (JPOs) may conduct a search and

seize the relevant exhibitions. On the one hand, after making charge sheet against the accused,

it‟s time for the Prosecutor to investigate the criminal case through Judicial Investigation. It‟s

so-called criminal prosecution. The judicial investigation may refer to criminal investigation by

the Prosecutor himself with the assistance of the JPOs or JPA and by the Investigating Judge


49

who has been submitted the Introductory Submission as the delegated power to investigate the

case. The most of the cases, judicial investigation is involved with the Investigating Judge. In

this case, the Investigating Judge is delegated of power and the JPOs and JPAs are under his

supervision. He has full authority to command, order those competent authorities for the sake of

administration of justice.

Again, the judicial investigation is a court-based investigation, presided over by an

Investigating Judge (IJ) and also his act is under the supervision of the Prosecutor but

independently. Unlike, the adversarial system like India, the criminal investigative powers vest

in police jurisdiction but in inquisitorial system, the criminal investigation is cooperation

between Judicial Police Officers and Prosecutor and Investigating Judge. The Investigating

Judge has a very limited jurisdiction and authority. The judicial investigation is confidential.138 It

is a process based on the initial or introductory submissions provided to the Investigating Judge

and can be opened against identified or unidentified individuals. Given the different professional

and political hierarchies within which the two work, it is important to note that the ways in which

the Investigating Judge performs is independent, but upon the Prosecutor‟s consultation. The

Investigating Judge is not empowered to begin an investigation upon his own initiative or

discretion. The authority of referring cases for investigation to the Investigating Judge rests with

the Prosecutor.139 This rule applies even once an instruction has commenced: if during the course

of an enquiry, the Investigating Judge uncovers evidence relating to a separate offence; it may

not be investigated under the existing instruction. Prosecutor may ask Investigating Judge to

investigate the new facts by making a supplementary submission. If there is no such

supplementary submission, the Investigating Judge has no jurisdiction to investigate the news

facts of the offence. However, if the new facts are only to constitute aggravating circumstances

of the facts already under judicial investigation, no supplementary is required.140 Instead, the

matter is referred back to the Parquet that must open separate or supplementary information in

order that evidence relating to the second offence may be investigated. In most instances, this

procedure is unproblematic; the Investigating Judge and Prosecutor continue to work together

and generally agree on the types of cases that will be investigated through instruction and

whether investigations should be joined together. In some instances, however, particularly those

138 Id. art. 121. 139 Id. art. 124. 140 Id. art. 125.

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involving high profile and politically sensitive cases, the Investigating Judges have accused the

parquet of succumbing to political pressure to stymie investigations. This discretion is part of the

pivotal role played by the Prosecutor in regulating the overall flow and destination of criminal

cases. He is responsible for the supervision of the initial police enquiry, for the framing of any

charges against the suspect, for determining whether or not the case should proceed to some form

of trial or alternative to trial, for determining in which level of court the case will be heard, for

deciding whether an information should be opened, and if so, when (and on what basis) this will

take place.

Although formal responsibility for the instruction rests with the Investigating Judge, he is

authorised to delegate much of his investigatory power to the police through the use of the

rogatory letter (commission rogatoire).141 Under this procedure, named police officers are

authorised to conduct specific enquiries within a specified time frame, before then reporting back

to the Investigating Judge. In practice, the majority of the investigation is carried out by the JPOs

through this mechanism; the Investigating Judge conducts personally only those acts of

investigation that the law prevents him from delegating. Principally, the questioning of the

suspect, known as the indictment letter (mise en examen) once the instruction has commenced.

Thus, the instruction becomes an important mechanism through which JPOs‟ powers can be

extended. As a consequence, the impetus for opening information comes directly from the police

in some instances, in order that they can continue an investigation with the wider powers which

might be delegated to them under the instruction procedure. In this way, delegation operated as a

function of a police-dominated investigation, dictated not by the Investigating Judge‟s

assessment of the enquiry, but by that of the JPOs.

One should be noticed that the preliminary police enquiry often provided the key witness

statements and all important confessions come from the suspect, such that the dossier contained a

kind of information that might be found in the Public Prosecution (PP) file in adversarial

criminal justice model like India. However, for countries follow adversarial system, in opening

information, the verification of this evidence is then conducted by the Investigating Officers

(IOs) rather than by the Judicial Officers (the court). Theoretically and historically, the pre-trial

investigation was the most important stage in inquisitorial procedure, the trial serving almost as a

formality confirming the earlier findings. Whilst the trial has taken on a different form with both

141 Id. art. 124.

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the Prosecutor and defence lawyers playing a more active part, during the instruction, the

emphasis continues to be on obtaining and evaluating all the relevant information during the pre-

trial stage, rather than the trial phase. In this way, the instruction characterises most strongly the

inquisitorial roots of Cambodia as well as French criminal procedures, where issues are selected

and debated not by the prosecution and defence at trial, but by a judge during a pre-trial

investigation. There has been some debate in Indian criminal justice system reform in 2003 in

over the possibility of entrusting a judge with a pre-trial role in terrorism cases, enabling him to

make decisions on sensitive material. This would entail a significant shift towards the more

inquisitorial procedure in civil legal system of the France, where the tradition has been for the

judge to determine issues pre-trial, rather than the parties.142

Now, to sum up of the chapter of pre-trial investigation of a criminal case; the

Prosecutor‟s responsibility in delegating of power to the Investigating Judge is to prepare the

initial or introductory submission, which must include the following information;143

a) A summary of the facts;

b) A legal qualification of the facts;

c) The relevant provisions of the law and sanctions for the offense; and

d) The name(s) of the suspect(s), if known.

The initial or introductory submission must be signed and dated. If any of the formalities

are not adhered to, then the initial submission will be void.144

The procedure for a judicial investigation is as follows:

i) Introductory Submission from the Royal Prosecutor of the Court of First Instance

formally placing the suspect under judicial investigation;145

ii) Investigation of both inculpatory and exculpatory evidence146

iii) Interrogation of accused147, interviewing civil party148, interview witnesses149,

search and seizure of exhibits150 and experts reports151…etc.

142 Ian Seiderman (Ed), Yearbook of the International Commission of Jurists: 2004 153 (Antweep-Oxford, 2004); See also Malimath Committee Report, Supper note 30 at 96. 143 Supra note 52, art. 44. 144 Ibid. 145 Id. art. 124. 146 Id. art. 127. 147 Id. arts. 145-149. 148 Id. arts. 150-152. 149 Id. arts. 153-158. 150 Id. arts. 159-161.

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As now we discovered that in inquisitorial system, the investigation of an offence is

supervised by the Prosecutor who has been empowered absolute authority, on the other, in the

very serious matters of criminal cases, the investigation is conducted by the Investigating Judge

who is appointed by the Court President and may be withdrawn by the Court President 152and

Judicial Police Officers who have been given rogatory letter for performing investigative tasks

by the Prosecutor or Investigating Judge. As we can see here, the vast of power is under the

Prosecutor in statutory provisions, while the judicial police officers (JPOs) who have to

investigate an offence according to the order commanded by the Prosecutor or Investigating

Judge.

In Inquisitorial of Cambodia, the Criminal Procedure Code provides the hierarchy of the

judicial officers and persons under judicial officer‟s command, of the Court are; (i) Judicial

Police, (ii) Prosecutors, (iii) Investigating Judges, (iv) Trial Judge, (v) Court Clerk, (vi) Bailiff

and (vii) Experts. However, in regard to the judicial investigation, there are only Judicial Police,

Prosecutor, Investigating Judge, and Court Clerk who involve their functions and duty to

perform the investigation and other criminal proceedings. The following is the description of

their functions and authority in performing investigation an offence in inquisitorial criminal

proceedings. Because of the limitation of the topic the following descriptions focus on certain

points (i), (ii), (iii) and (v).

(i) Judicial Police (Police Units)

In addition to the existence of two policing bodies, both police and gendarmes, the Police

have two distinct policing roles, one as administrative and judicial is another. The distinction is

crucial as the officer‟s powers will depend upon the capacity in which he is acting. The

administrative role is characterised as preventing the crime, ensuring the maintenance of public

order and security etc., whilst the judicial function concerns the investigation of a specifically

identified crime and under the supervision of the court officers. Put simply speaking, one is

before the commission of an offence (or concerning more general criminal investigation), the

other is after (concerning a specific case). In practice, the distinction is not always clear cut and

actions which begin as administrative (such as policing a public demonstration or gathering

intelligence) may become judicial policing matters once offences are committed.

151 Id. arts. 162-171. 152 Id. arts. 51-54.

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The judicial and administrative distinctions are also significant and potentially

problematic, giving that officers depend upon a different hierarchy for each of the two functions.

As Judicial Police conducting criminal investigations and so performing acts which impact upon

the liberties of the individual, they are under the Minister of Justice with day to day

answerability to the Prosecutor. The police organisation and administrative function (including

crime prevention, maintenance public order, notably the policing of demonstrations, traffic

control political intelligence gathering) is under the Minister of the Interior, with answerability to

the chief police (or, in some larger cities the chief police) at the level of department. This offers

the potential for a government minister, either directly, or through the prefecture system, to exert

political influence over the wider operation of the policing role, particularly in relation to the

National Police. At the local level, the Chief Police is responsible for the implementation of

government policy and makes operational policing decisions affecting the types of offences and

areas to be targeted and the mounting of particular police operations as well as gathering political

intelligence. Given the primary accountability to the interior ministry, it is perhaps not surprising

that a number of these policies are overtly political.

In Inquisitorial system, Cambodia is concerned; judicial police is “a public force that

assists the court officials (Prosecutor and Investigating Judge) in the handling of criminal cases

through the examination of crimes, identification and apprehension of offenders, and, gathering

of evidence”.153 According to article 57 of Criminal Procedure Code 2007, judicial police is

composed of (a) Judicial Police Officers (JPOs), (b) Judicial Police Agents JPAs), and (c) State

Officials of some specialized fields. All Judicial Police as ahead mentioned in (a), (b) and (c) are

monitored and controlled by the General Prosecutor attached to Court of Appeal.154

The heads of units of judicial police officer, judicial police agents shall obey the

injunction of the General Prosecutor attached to the Court of Appeal.155 He is empowered to take

disciplinary actions against judicial police.

(a) Judicial Police Officers (JPO)

Judicial Police Officers (JPO) are156;

153 Id. art. 56. 154 Id. art. 59. 155 Id. art. 35. 156 Id. art. 60.

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- Any member of the National Police Force who is holding the rank of at least major

lieutenant and have at least two-year work experiences and carries out higher

diplomas of judicial police certificate;

- Any member of the military police forces who has at least two-year work experiences

and hold higher diplomas of judicial police certificate as states in Article 60 (2) of the

Code; and

- Any State officials of various sections as stated by article 60(3) of Criminal

Procedure Code 2007 such as Governors of provinces and municipalities and chiefs

and vice-chiefs of commune police.

The Judicial Police Officers (JPOs) are functioned with; searching and examining crimes,

receiving, recording and processing complaints (i.e. receiving (FIR) the report of commission of

an offence from the informant or victim of the crime, reports such criminal records to the

Prosecutor without delay). In any circumstance, whether the criminal case has been revoked or

negotiated between the victim and the suspect, thee JPOs cannot keep the dossier without

submitting it to the Prosecutor.157 JPOs can either launch immediately a preliminary inquiry into

the crime indicated by an informant or denunciation or send the criminal record of that complaint

or denunciation to the Prosecutor for further proceeding. It should be noted that if JPOs decide to

conduct a preliminary inquiry (instead of submitting First Information Report to the Prosecutor

for frame of criminal charge) they may in discretion, do it following a consultation with the

Prosecutor (i.e. to ask advice from the Prosecutor what they should do with the reported crime or

in accordance with the scope of their inquiry). However, this “optional” prior consultation is

allowed only in the case of complaints. As for denunciations, JPOs must imperatively seek the

Prosecutor‟s advice before launching their preliminary inquiry,158 investigating crimes at the

Investigating Judge‟s behest under rogatory letter, serving the Investigating Judge‟s summons

on the accused or persons suspected of being involved in crimes, and executing the Investigating

Judge‟s orders to bring and arrest warrants.

JPOs function within the areas of their units.159 However, there are two situations in

which JPOs can effectively work beyond their usual jurisdiction.160 First, when dealing with


55

flagrant felonies (flagrante delicto) or flagrant misdemeanours,161 JPOs of a specific station

constable may operate nationwide provided by the Prosecutor, who may point it out the

direction. Second, when executing a rogatory letter, JPOs of a specific station constable may

operate nationwide if the Investigating Judge authorizes it.

Article 89 of the Code says “that in preliminary measures in Flagrant Felonies or

Misdemeanours, the JPOs shall immediately inform the Royal Prosecutor of the Court of First

Instance and he shall visit the site (the crime spot) to establish and collect the necessary facts and

evidence”. JPOs shall protect evidence from disappearing. He may order any persons at the site

(crime spot) not to leave until the police operations are completed. If the Royal Prosecutor

considers it as a useful manner, he may go to the site to supervise the inquiry. In performing

their missions, JPO receive or ask for orders only from judicial authorities, who are Prosecutor

and Investigating Judge (if he is under the executing of rogatory letter.162 After receiving a

criminal action (first information report) he shall immediately initiate an inquiry or send such

case record of criminal action to the Prosecutor who will make a decision upon how to proceed

in further stage. Before initiating a police inquiry, the JPO may ask for advice from the

Prosecutor.163 JPO may summon and question witness but he may not question a charged person

or a civil party.164

JPO who commit mistakes while carrying out their missions face disciplinary sanction.

First, the Prosecutor or Investigating Judge (depending on whose authority and stage a JPO is

working under and in when his misconduct occurs) reports that JPO‟s misconduct to the General

Prosecutor to the Court of Appeal. Then, General Prosecutor of the Court of Appeal (GPCA), the

“overseer” of judicial police,165 notifies the head of the fault-committing JPO‟s institution, who

is either the Minister of Interior (if that JPO is a member of National Police) or the Minister of

National Defence (if that JPO is a member of Military Police) of his malpractice, and asks him

(i.e. Minister of Interior or Minister of National Defence) to impose an appropriate disciplinary

sanction on that JPO (e.g. reprimand, suspension (from work), demotion, dismissal…). GPCA

deeming a JPO‟s malpractice discreditable to the integrity of judicial police may impose his own

161 Definition of Felony and Misdemeanour please read Cambodian Penal 2009, arts. 46-47. 162 Supra note 52, art. 70. 163 Id. arts. 74 and 111. 164 Id. arts. 179 and 180. 165 Id. art. 35.

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penalty on that JPO by prohibiting him from acting as a JPO for a period not more than five

years or, if serious, permanently.

It should also be noted that if the misconduct of a JPO constitutes a crime (e.g. destroying

evidence,166 disobeying Investigating Judge‟s rogatory letter167, that JPOs will face not only

disciplinary sanction but also criminal punishment.168

(b) Judicial Police Agents

Judicial police agents (JPAs) are, simply speaking, all of members of the police force and

military police force who do not qualify as JPO in accordance with Article 60(1) of Criminal

Procedure Code 2007, who have two-year working experiences but do not have higher diplomas

of judicial police or who works under the command of the officers of the police force and

military police force as specified by Article 60(3) (e.g. subordinates of chiefs and Vice-Chiefs of

commune police)169. The Judicial Police Agents (JPAs) have two missions namely; examining

crimes especially petty offence, and assisting JPO to conduct preliminary inquiry, investigate

the criminal offence, arrest the suspect, collecting evidence and any other work under the

supervision of JPOs.170

Like JPOs, JPAs are subject to disciplinary sanction for their misconduct. If their

malpractice is a crime, they would face criminal punishment as well as disciplinary sanction in

accordance with the law. The procedure of imposing disciplinary sanction on JPAs by their

heads of institutions (i.e. Minister of Interior and Minister of National Defence) is identical to

that on JPOs.171

(c) State Officials of Some Specialized Fields

Article 82 of Criminal Procedure Code 2007, which is the only provision of the Code that

concerns these State Officials. It does not state who they really are. Nonetheless, it is most likely

that these officials are those whose work to deal with matters like environmental matters, fishery

and forestry. In spite of its “vagueness” of article 82 of Criminal Procedure Code 2007 does not

contain some information about these officials such as their task of examining crimes and the

procedure of imposing disciplinary sanction on them by the heads of their institutions.

166 Id. art. 533. 167 Id. art. 520. 168 For the details of the imposing of penalties on JPO and more, see id. arts. 64, 65, 66. 169 Id. art. 60. 170 Id. art. 78. 171 Id. art. 79.

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(ii) Prosecutors (Procureur)

The Prosecutor generally makes the decision to prosecute even in cases where the

Investigating Judge has already been involved, although the Investigating Judge may send the

case to trial against the wishes of the Prosecutor. The decision of the Investigating Judge in such

cases may be appealed.

In theory, the Prosecutor enjoys a complete discretion as to whether or not to initiate

criminal proceedings which strongly the same French criminal procedure but in practice, with the

position in other European civil law jurisdictions (with the exception of Belgium) where

prosecution is, at least in theory, mandatory and there is no such discretion. However, in practice,

Prosecutorial discretion is limited by reviews of individual Prosecutor‟s decisions by hierarchical

superiors. It is, in theory at least, further limited by the ability of the victim to constitute him

civil party (partie civile) and attempt to provoke a prosecution. In some certain case, like

misdemeanour, if the Prosecutor decides that the case is to proceed, he will commit the

defendant for trial directly, either at a future date or immediately under the rapid trial procedure

of Immediate Appearance (comparution immediate).172 In case of misdemeanours, according to

article 45 of the Code, the Prosecutor may; firstly decide to open a judicial investigation as

provided in article 44 (Opening Judicial Investigation) through empowering the Investigating

Judge for investigation the offence via the Introductory Submission or may not. Secondly, he

may directly summons the accused to appear before the Court of First Instance by following the

procedure of article 46 (Citations)173 of the Code. And thirdly, he may order the accused to

immediately appear before the CFI in accordance with the conditions of article 47 (Immediate

Appearance) and article 48 (Procedure Immediate Appearance) of the Code. In short, in case of

misdemeanour (but not a felony which he must conduct the investigation by referring the case to

the Investigating Judge through article 44 of the Code), the Prosecutor may decide to choose any

option amongst the three options for proceeding the case. One of the three options, the third one,

according to article 47 (the Procedure of Immediate Appearance), the Prosecutor must follow if

he decided to choose this option. The requirements for immediate appearance shall be satisfied

by the four elements. Those elements are; (a) the offence (misdemeanour) is a flagrante delicto,

172 Id. arts. 45, 46, 47 and 104. 173 According to art. 46, A citation is an order to the accused to appear before the Court of First Instance (CFI).

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which carries a sentence of imprisonment for not less than a year and not exceeding five years;

(b) the accused reaches a legal age (not a minor) and there are substantial facts to be tried.174

All three in order of Cambodian courts, there is a Prosecution Wing in each court. In the

Supreme Court, there is a General Prosecutor attached to the Supreme Court, Deputy General

Prosecutors and Prosecutors. Article 32 provides the roles of General Prosecutor attached to the

Supreme Court that the General Prosecutor attached to the Supreme Court participates in request

for application of law in the appeal to the Supreme Court, motions for review of a decided case

by the lower court or other claim made to the Apex Court.175 However, the Code does not

provide him powers like the General Prosecutor of the Appellate Court.

Like in the Supreme Court, in the Court of Appeal, there is also a Prosecution Wing

which consists of a General Prosecutor, Deputy Prosecutors and Prosecutors176 and Investigating

Chamber (enquêter Chambre) of the Appellate Court, which composes of numbers of

Investigating Judges.177 The role of General Prosecutor attached to the Court of Appeal is to

monitor the application of law within its jurisdiction and hearing the application appealed by the

Prosecutor, accused and civil party. The GPCA can inspect the offices of the Prosecutors that are

located within his jurisdiction. In case of a serious offence, he shall make a report to the Minister

of the Ministry of Justice.178 The General Prosecutor attached to the Appellate Court shall

monitor and control judicial police officers. He may invite the person in charge of a judicial

police unit to discuss any matters related to the functioning of the unit. He has powers to assign

or authorise any duties to be performed by judicial police officers or judicial police agents that

are necessary for good management and functioning of the judicial police and for the sake of

administration of justice. He may inspect a judiciary police unit at any time. He can participate in

interviews. He may examine the implementation of police custody, especially to ensure

compliance with the legal procedures and the rules for custodial management. The heads of units

of judicial police officers, judicial police agents shall obey the injunction of the General

Prosecutor attached to the Appellate Court.179

174 Id. art. 47. 175 Id. art. 32. 176 Id. arts. 28 (2) and 33. 177 Id. arts. 253-265. 178 Id. art. 34. 179 Id. art. 35.

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In Courts of First Instance (Provincial and Municipal Courts) like the Crown Prosecution

Service (CPS) in England and Wales and Public Prosecutor (PP) in India, the Prosecutors in

inquisitorial system, is responsible for reviewing the evidence, apply the application of law then

framing a charge sheet in accordance to the codified law (penal code) and determining whether

or not to pursue a prosecution in accordance with the procedure provided in criminal procedure

code. He is the only one who has powers to frame the charge sheet against the suspect and

initiate the criminal action to the Court of Law.180 But unlike the Public Prosecutor in adversary,

the Prosecutor in inquisitorial system exercises a supervisory function over the police units and

Investigating Judge. As the Magistrate, he plays a more neutral and wider ranging role than that

of a simple (more partisan) Prosecutor, that means he is a judicial officer, responsible for

directing the police and overseeing the detention of suspects in police custody, including the

protection of their due process rights. Although the nature of the legal structured framework of

supervision is different from that during instruction, both the Prosecutor and the Investigating

Judge perform a dual investigative and judicial functions within his given powers. In this way, it

is the Prosecutor‟s oversight of the JPOs that represents the most common form of pre-trial

judicial supervision in Cambodia. To those familiar with a more adversarial criminal process

which shares out these functions differently and in particular, which anticipates that the defence

lawyer (rather than the same person responsible for the investigation and prosecution of the

offence) will play a role in monitoring the protection of pre-trial defence interests and this model

of judicial supervision represents a remarkable concentration of power. But it is the Prosecutor‟s

status and ideology as a Magistrate (rather than just a Prosecutor) which, in theory, justifies this

position. Furthermore, as part of the Grown, the Prosecutor is part of a centralised hierarchy of

authority, headed by a Government minister, the Minister of the Ministry of Justice. In of serious

offence, the Royal Prosecutor attached to Court of First Instance shall report to the General

Prosecutor attached to the Appellate Court and the GPCA must make a report to the Minster of

the Ministry of Justice. Designed to ensure the legitimacy and democratic accountability of the

Prosecutor as well as a degree of centralisation and uniformity within the Parquet, this

hierarchical control defines and constrains the exercise of the Prosecutor‟s discretion. Article 37

of the Code confers Royal Prosecutor the powers in leading, coordinating the operations of all

Judicial Police Officers (JPOs) and Judicial Police Agents (JPAs) within his jurisdiction.

180 Supra note 10, Art. 131(New).

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However, when implementing rogatory letter the competent judicial police shall be under the

authority of the Investigating Judge. The Royal Prosecutor must exercise all authority designated

in the Code and may delegate it to the judicial police officers for investigative actions. The Royal

Prosecutor may visit the investigation site or crime spot and give useful instructions to the

judicial police officers. In special circumstances, a Prosecutor may revoke delegated

investigating powers from JPOs and arrange for their replacement. The Royal Prosecutor may

inspect a judicial police unit at any time. He may participate in interviews of the suspect, witness

and victims. He may examine the implementation of any police custody, especially to ensure

compliance with the legal procedures and the rules for custodial.181 The Prosecutor brings charge

of criminal offences against accused and asks for the application of law by the Court. The

Prosecutors are responsible for the implementation of orders of the criminal court on criminal

offences, including the dissemination of arrest warrants. In performing his duty, a Prosecutor has

powers to directly mobilize public forces. A Prosecutor must, in all case hearing, attend the trial

court in criminal cases.182

Like all criminal investigations, the principal means of regulating the Police Custody (La

garde à vue, GAV) period of the police investigation is supervised by a Magistrate in adversarial

system of Common law, in inquisitorial system, the initial decision to detain a suspect is made by

an Judicial Police of Officers, JPOs, or a an Investigating Judge who is under authorized duty,

but the Prosecutor must be informed at the outset or any stage of investigation and express

authority is required for detention beyond forty eight hours. In a range of serious offences,

detention may be extended for a further twenty four hours due to special circumstances and with

a very reasonable statement which must be included into such dossier. However, the extension is

not permitted if the detainee is a minor whose age less than sixteen years if he has committed a

misdemeanour offence.183 A suspected minor who age under sixteen years and above fourteen

years cannot be detained exceeding 36 hours including the extended period for detention in

police custody. A minor in Cambodian Criminal Justice is a child whose age below eighteen

years old.184 And the age of criminal liability in Cambodian criminal justice system is above

fourteen years old, however, the method convicted minor who his age below eighteen years and

181 Id. art. 37. 182 Id. art. 27. 183 Id. art. 96. 184 Ibid.

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above fourteen years is differentiated, separated and must be implemented if the circumstance of

the offence or personality of the minor criminal is required. The purpose of advising the

Prosecutor in this regard is to enable him to ensure that the police custody is conducted properly

and is effectively confirmed by the procedure established by law.

Informing the Prosecutor marks the beginning of the judicial supervision of the police

custody, the primary safeguard is to ensure both the proper treatment of the suspect and the

effective conduct of the investigation. However, the way in which this supervision should be

effected is not stipulated by the law: there is no obligation beyond the provision of information

by the police to the Prosecutor, which may be done by telephone or by fax.

The Prosecutor‟s oversight is the principal safeguard during the investigation and judicial

detention of the accused person. It is very difficult for the defence lawyer to play any part in the

investigation, or to have any impact on the construction of the dossier. His role during the police

custody is very limited. The lawyer has only 30 minutes for communicating with his client and in

many cases are then listed for trial shortly afterwards, effectively closing the investigation. There

is no opportunity either in the structure of the criminal procedure or within informal working

practices for the defence lawyer to participate in the pre-trial investigation supervised by the

Prosecutor.

Additional safeguards, such as record keeping remain peripheral, concerned to bolster the

legal bureaucratic form of the dossier, rather than the ways in which the evidence is constructed

and produced. Due process safeguards are given a narrow construction and compliance with such

protections is a matter of form rather than an indication of process, serving only to authenticate

rather than actively to regulate the enquiry. The Prosecutor is not concerned to scrutinise the

process by which evidence is obtained in order to evaluate its credibility. Rather, it is the

outcome and the legal form of the dossier that are taken to demonstrate the reliability of

evidence. The dangers of such “arm‟s length” supervision have been powerfully demonstrated in

a number of Cambodian miscarriage of justice cases, where detainees have been persuaded to

make false confessions to offences such as armed robbery and child murder through a process of

detention and interrogation which places no effective constraints upon the ways in which the

police construct the evidence of suspects.

In the inquisitorial environment of the distinction between investigation and prosecution

is more blurred than in common law system. As Ambos remarks, the French system in distinction

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between Prosecution and Investigation and it refers to different phases of the proceedings and

thereby distinguishes between the competences of Prosecutor and Investigating Judge.

Generally, Prosecutors are responsible for the whole pre-trial stage, including investigations and

he may presence in the trial stage, except the investigating judge. There are a number of

variations among different inquisitorial system as far as the ambit Prosecutors‟ powers are

concerned. Nevertheless, in most of them, the prosecuting authority is empowered to instruct the

instigation of investigations, to give instructions on the scope of investigations, personally to

investigate criminal cases, to participate in investigations and to decide on the type of

investigations.

The Cambodian Criminal Procedure Code (CCPC) 2007 states that the Prosecutor has

formal authority over the police services when they investigate criminal offences.185 In order to

facilitate the execution of their duties, the Code provides that Prosecutors can issue general

instructions (apart from the specific instructions they give in individual cases) to investigators in

which they explain the choices in the crime policy and the priorities in the detection of particular

categories of crimes. The police must report to Prosecutors all offences known to them and seek

instructions as to the lines of investigations. They also have the formal obligation to inform the

Prosecutors of all arrests they make and of the decision to put a suspect in police custody as well

as to seek their authorization for the use of undercover investigation techniques. The Prosecutors

may, if they think fit, take over the investigation themselves.

In the case of serious offence and complex investigations, the Prosecutors can request

that a judicial inquiry be opened. The case is then brought to the Investigating Judge, for felony,

to opens the judicial investigation through the introductory submission. If there is already a

suspect in the case, the Investigating Judge will inform him of the existing charges and declare

him “subject to investigations”. The Investigating Judge continues the investigations and directs

the JPOs. He may order the JPOs to record phone taps and basically any other investigation

techniques as long as it remains within the legal framework and is needed to discover the

truth.186 He also has power to decide on putting an accused in preliminary detention or

provisional detention.

185 Supra note 52, arts. 27, 29, 37, 59… etc. 186 Id. art. 172.

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(iii) Investigating Judge, (IJ) (juge d’instruction)

An Investigating Judge is a court official who conducts the judicial investigation into a

crime in order to discover evidence of all natures relating to that crime as well as other relevant

facts which are necessary for the determination of guilt or innocence of a person having been

charged by the Prosecutor, with it in a subsequent trial. There are two noteworthy features of the

Investigating Judge who partially active participates in criminal procedure. First, the

Investigating Judge performs his duty only after there is an introductory submission187 handed

over by the Prosecutor. Without such a request, the Investigating Judge cannot begin his

investigative work.188 Second, the Investigating Judge is not legally required to perform for all

kinds of crimes. For petty offence, it may be passed directly by the Prosecutor stage to the trial

judge stage through citation; and for misdemeanours, at the Prosecutor‟s discretion, they may

also move directly from the Prosecutor‟s handling to the trial judge through an order of Citation

or procedure of immediate appearance as abovementioned description.189 Investigating Judge

whose primary mission is collecting both exculpatory evidence and inculpatory evidence190

relating to the crime shall abide by four fundamental rules as the following;

a) Investigating Judge must strictly maintain confidentiality of his judicial investigation.

Investigating Judge is criminally responsible for breaching the secrecy of his tasks

during the course of investigation191;

b) Investigating Judge must be accompanied by a Court Clerk in any stage of his judicial

investigation, especially when he visits a place to gather evidence and questions the

accused person192;

c) Investigating Judge shall be in constant contact with the Prosecutor during the judicial

investigation, informing the subsequence of his various decisions and measures, and

considering Prosecutor‟s requests and recommendations193; and

187 Id. art. 124. 188 Ibid. 189 Id. arts. 45, 46, 47, 48 and 122. 190 Id. art. 127. 191 Id. art. 121, or supra note 161, art. 314. 192 Supra note 52, arts. 128, 129 and 130. 193 Id. arts. 125, 130, 132, 135, 136, 146, 151, 162, 170, 197, 206, 207, 215, 216, 217, 218, 226, 227, 228, 229, 230, 246, and 247.

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d) Investigating Judge must inform the accused, before questioning him, of his criminal

charge(s) and his basic rights such as right to remain silent and right to be assisted by

a lawyer during the questioning194

To ensure the successfulness in his judicial investigation, the Code confers the

Investigating Judge many powers and the most significant powers are:

- Power to visit any place in the country for the sake of collecting evidence. If the

Investigating Judge visits a place within the jurisdiction of his competent Court of

First Instance (CFI), he must inform the Prosecutor of that CFI. When a place is

outside the jurisdiction of his CFI, he must make a notification the Prosecutor of CFI

of the concerned province or municipality of that place before visiting it.195

- Power to interview the Civil Plaintiff (in other words use in Adversarial model

termed “Petitioner or the Deceased Party”) about the committed crime in order to

establish and prove its facts196. It is to ensure how the offence is committed and who

is involved with.

- Power to interview any person whom he deems to be a witness or witnesses of the

crime or be able to provide useful information about the accused and the commission

of a crime197. Any person who has been called as the witnesses refuse to appear

before the him under subpoena would face criminal punishment198;

- Power to search for and seize articles, tools and means which relate to the

commission of crime199;

- Power to ask experts of various specialized fields or skills to assist him overcome

technical difficulties which encountered during the investigation200;

- Power to order the eavesdropping or secret listening of private phone calls, recording,

videographing and the interception and reading of private correspondence made, sent,

and received by the accused with other person who he thinks are involved in the

crime201;

194 Id. art. 143. 195 Id. art. 130. 196 Id. arts. 150-152. 197 Id. arts. 152-158. 198 Id. art. 538. 199 Id. arts. 159-161. 200 Id. arts. 162-171. 201 Id. art. 172.

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- Power to ask JPOs to investigate a case in his behalf through a rogatory letter. The

IJ shall ask JPO to investigate only certain aspects of the case, not the whole of it.202

- Power to issue summons, order to bring, and issuing arrest warrant203 and;

- Power to place the accused person in pre-trial detention.204

a) Investigations conducted or supervised by the Investigating Judge (IJ)

The Cambodia describes its system as a mix or hybrid of the inquisitorial and adversarial

models. To the extent that professional judges (either the Prosecutor (procureur) or the

Investigating Judge (juge d’instruction) will exercise some degree of oversight or control over

the activities of the police, participate in the investigation, and take the decision to prosecute,

then the system can be described as falling squarely within the inquisitorial tradition. Similarly,

the fact that the case revolves around a written case dossier which is built up in the pre-trial

phases and is used by the trial and appellate courts is consistent with the inquisitorial model.

However, the practice sometimes strays from the model. For example, there are many

cases where largely for resourcing reasons, the police exercise significant autonomy in the

investigation and preparation of a case for trial. In a similar vein, the degree of judicial control

over the investigative stage is variable due to the police not always notifying the Prosecutor‟s

office of all offences or failing to notify in a timely fashion.

The investigation represents the paradigm model of investigation within French

inquisitorial procedure, but its role has declined to the extent that today, less than five per cent of

cases are dealt with in this way. This procedure is mandatory for the most serious offences

202 Id. arts. 131, 173 and 174. 203 How do summons, order to bring, and, arrest warrant differs and relate?

The Investigating Judge orders the accused or any person whom he (i.e. IJ) suspects of being implicated in a crime to appear before him for the questioning for the first time through a summons. Summons is delivered to the accused or a suspect of a crime by JPOs, JPAs, or, bailiff. If the recipient of a summons does not comply with it (i.e. does not present himself before The Investigating Judge has ordered), The Investigating Judge may subsequently issue an order to bring, to a JPOs, commanding that JPOs to apprehend and send the aforementioned recipient to him (i.e. IJ). As for arrest warrant, The Investigating Judge may issue it against the accused or a suspect of a crime, regardless of whether there have been summons and order to bring prior to its issuance (i.e. the issuance of arrest warrant) or not, if three conditions are met. First, the crime that the accused or the suspect has allegedly committed is a felony or misdemeanour which is punished with imprisonment. Second, the whereabouts of the accused or the suspect is unknown. Three, The Investigating Judge has already consulted the prosecutor regarding the content of arrest warrant. Arrest warrant creates two distinctions yet related obligations for JPO and warden of prison/head of detention centre; for JPO, he arrests the accused or the suspect and sends him to the warden of prison/head of detention centre for confinement; for warden of prison/head of detention centre, he sends the accused or the suspect, now under his custody (following JPO‟s arrest and sending), to the Investigating Judge for questioning as soon as possible. (See arts. 186-202 of the Code).

204 Supra note 52, arts. 219 and 220.

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(crimes) and at the discretion of the prosecution for middle ranking and trivial or petty offences.

There must be serious or corroborating evidence making it likely that the person has acted as

principal or accomplice in the commission of the offence for which the information is opened.

Once this has been confirmed, in his task of investigating evidence for and against the suspect,

the Investigating Judge is empowered to undertake any lawful investigation that she considers

will assist in the discovery of the truth and the victim, accused and Prosecutor may also ask for

certain acts of investigation to be carried out. As a position of a judge, (Magistrate in Common

law) the investigating is not subject to the same hierarchical control as the Prosecutor who,

ultimately, is answerable to the Minister of Justice. In theory, this means that the Investigating

Judge investigations are more independent of political scrutiny and control. In practice, the

Prosecutor remains implicated in all stages of the instruction.

1. Interrogation of the Accused person

The most significant part of the Pre-trial investigation by Prosecution is the interrogation

of the suspect of accused. An interrogation may be defined as the confronting and discussing of

the accused person who is suspected of a crime commission or in face has committed an offence

about the offence charged with and criminal evidences in order to prove of guilt of the accused.

Interrogations are an important and dangerous part of investigation where it includes the

conversation between the Royal Prosecutor, Investigating Judge and the accused about the facts,

circumstances and the elements of the crime which is believed to have been committed. When an

accused has a lawyer, the Investigating Judge must summon the lawyer at least five days before

the interrogation take place. During that period, the lawyer may examine the case file. In some

exceptional case, as provided in article 145 of the Code, the Investigating Judge may interrogate

the accused without summoning the lawyer if the accused person expressly waives right to

lawyer‟s presence and this waiver, the Investigating Judge must note in a separate record of the

accused person‟s interrogation and shall be signed by the accused person. Apart from this, in

case of urgency, the Investigating Judge may interrogate the accused person without

summonsing the lawyer also. This urgency situation is due to the danger of death or by a risk of

losing evidence. Such urgency has to be recorded in written report. The criticism on the period of

inform to the lawyer is now an interesting topic. It‟s always criticized by lawyers of the accused.

It‟s too short for them to prepare the case before the court while they have many cases to

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represent also. Some cases require them to spend at least a week before case hearing starts in the

court room.

The interrogation of the accused has two purposes. First of all it is a measure to aid the

defense. The Investigating Judge must inform the accused of the charges against him

immediately on his appearance. The accused may make any statement he wishes, he may deny

the charges, justify or explain his actions. It is the duty of the Investigating Judge to test the truth

of these assertions. But the interrogation is also intended to uncover facts which are

disadvantageous to the accused. The Investigating Judge may interrogate the accused as often as

he believes necessary and one of his primary objectives is a confession of guilt. The confession

was the principal object of the interrogation in the older inquisitorial procedure. When all other

means failed, torture was applied. At the present time physical methods of extorting confessions

are illegal. Just as in adversarial system, the accused cannot be compelled to testify.

Unfortunately, so long as one of the objects of the interrogation by the Investigating Judge is to

obtain a confession and Investigating Judge will be found who will use unjustifiable means to get

it. Although the Investigating Judge is the master of the investigation, but he must obtain the

opinion and approval of the Prosecutor‟s view. The Investigating Judge must keep the Prosecutor

informed of what is being done and give him access to the dossier at any time. There is no

secrecy in the investigations so far as the Prosecutor is concerned.

During interrogations of the accused, the Prosecutor and lawyers may ask questions with

the authorization of the Investigating Judge. If the authorization is refused, this shall be noted in

the written record.205

2. Interviewing of Civil Party (Deceased Party)

A civil party may be assisted by a lawyer. In this case, the Investigating Judge has to

summon the lawyer of the civil party at least five days prior to date of interview of the civil

party. During this period, the lawyer may examine the case file and prepare for interviewing. A

civil party may be interviewed only in the presence of his lawyer. However, if the lawyer was

properly summonsed or informed but he does not appear on the specific date and time or without

any requesting for delay being made, the Investigating Judge may interview the civil party

205 Id. arts. 145-146.

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without the presence of his lawyer. The absence of the lawyer shall be noted in the written record

of the civil party‟s interview.206

3. Interviewing of Witnesses

The Investigating Judge may examine any person whose response is deemed useful to the

revelation of the truth. The Investigating Judge question witness separately, without any presence

of the accused person and any civil party (complainant). The Investigating Judge may also

arrange a confrontation between the accused, civil party and witness if he thinks fit. Any person

who has been called as the witness(s) of the case must appear before him. It is mandatory. In

case, the person concerned who was called as the witness refused to appear before him, he may

ask the public police force to bring such concern witness before him. The Investigating Judge

may issue an order to appear. This order to appear has to include the identity of the witness and

date to be appeared before him and a signature and seal of the Investigating Judge.207 Before

answering the Investigating Judge‟s question, the witness(s) is required to take an oath that he

will tell the truth, in accordance to his religious faith and belief. However, there is some

exception to some people who are not necessary to be swearing in their statements. These people

are;

i. Father, mother and ascendants of the accused.

ii. Sons, daughters and ascendants of the accused.

iii. Brothers and sisters of the accused.

iv. Brother-in-laws and sister-in-laws of the accused.

v. Husband or wife of the accused or even ex-husband and wife.208

For the sake of right to defense, the Investigating Judge and the court clerk may not call

as a witness any person against whom there is inculpatory evidence209 indicating his involvement

in the crime under investigation. In such case, the judge has to follow the procedures provided in

Article 143 of the code.210 In case, if the witness is sick and he is unable to move from his

206 Id. arts. 150, 151 and 152. 207 Id. art. 153. 208 Id. art. 156. 209 Inculpatory evidence is evidence that establish the guilt of an accused. It indicates that a defendant

committed a crime. Inculpatory evidence shows, or tends to show, a defendant‟s involvement in an act. In criminal law, evidence that favours the prosecution‟s case is called the inculpatory evidence. It is the opposite of exculpatory evidence, which indicates the innocence of the accused. For example, if a man is stabbed to death by a knife and if such knife is found in possession of his wife then that knife will be considered as inculpatory evidence against the wife.


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residence, the Investigating Judge may with her clerk visit his residence or the place where the

witness is staying to get the statement of the witness(s).

4. Expert’s Reports.

The Code provides the necessity of expert‟s report in criminal investigation. The experts

may be the JPOs or any persons who have been ordered by the Investigating Judge. The

Investigating Judge may ask the expert to assist him on certain matters by his discretion or upon

the request of the Prosecutor, accused or civil party.211 Not all experts can be called for assisting.

The experts who are eligible to be called must be registered in national list of experts.212 The

experts must take an oath which has been prepared by the Minister of Justice, at the Appellate

Court. A part from taking an oath in accordance with the prepared oath words, he must take an

oath in accordance with his religious belief. In any case and in all circumstances, the experts

must make his work report and submit such report to the Investigating Judge. The Investigating

Judge may appoint multiple experts, if he thinks fit. With the unsatisfactory result of the test of

experts, the Prosecutor, accused and civil party may request for additional expertise or the IJ

himself may appoint a counter-expert.213 He may refuse upon the request.

5. Pre-trial Detention

In Pre-trial detention, the Investigating Judge may put the accused in pre-trial detention

only if two conditions are satisfied. First, the crime that the accused has been charged with (by

the Prosecutor) is a felony or misdemeanour which is punished with imprisonment of at least one

year. Second, the custody of the accused awaiting for trial is an absolutely necessary measure to

prevent some likely occurrences such as escape of the accused (from the future trial), destruction

of evidence by the accused, and retaliatory attack on the accused (by the victim or his family).214

Investigating Judge is duty-bound to justify his pre-trial detention decision by stating clearly in

that decision that these two conditions have been effectively fulfilled and notify the Prosecutor

and the accused as expeditiously as possible. Being displeased with Investigating Judge‟s pre-

trial detention decision, the Prosecutor or the accused through his representative (lawyer) may

file an appeal against the decision to the Investigation Chamber of the Appellate Court who will


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decide instead of the Investigating Judge within five days after receiving the notification.215

Investigating Judge makes a pre-trial detention decision by himself or at the request of the

Prosecutor. The Prosecutor calls on Investigating Judge to put the accused in pre-trial detention

through an introductory submission itself or a separate request under an order of requesting for

pre-trial detention. In this case that if the Investigating Judge does not agree to the Prosecutor‟s

request, he shall issue a decision of an order of non-permissible of pre-trial detention within five

days following his questioning with the accused, and notify the Prosecutor of it as soon as

possible. After being informed of such a decision, the Prosecutor being dissatisfied with it has

five days to appeal it to the Investigation Chamber.216 On the contrary, if Investigating Judge

does not make any decision relating to the Prosecutor‟s request (of pre-trial detention) within

five days following his questioning with the accused, the Prosecutor may ask the Investigation

Chamber to decide in behalf of that decision.217 Five days after the notification of an uncontested

pre-trial detention decision or after the Investigation Chamber of the Appellate Court has

definitively rejected any appeal against a pre-trial detention decision or upheld it, the

Investigating Judge shall order the warden of a prison/head of a detention centre to receive and

keep the accused in his facility through a pre-trial detention order.

The law provides for different durations of pre-trial detention for the accused, depending

on their ages and crimes that they have been charged with. If the accused is an adult who has

been charged with a felony, his initial pre-trial detention period is six months at the longest,

extendable twice, each for six months maximum. Thus, the maximum total pre-trial detention

period is eighteen months. However, it should be noted that for “the most serious” of all felonies

like crime of genocide, crime of war, and, crime against humanity the initial pre-trial detention

period for the accused is one year at the longest, extendable twice, each for one year maximum.

So the maximum total pre-trial detention period for the accused of such felonies is three years.

If the accused is an adult who has been charged with a misdemeanour, his initial pre-trial

detention period is four months at the longest, extendable once for two months maximum. Thus,

the maximum total pre-trial detention period is six months. In reality, these periods (i.e. initial

period of four month, extended period of two months, and, total period of six months) can apply

only for misdemeanours which are punished with minimum imprisonment of one year like

215 Id. art. 207. 216 Id. art. 217. 217 Ibid.

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involuntary manslaughter218 and intentional violence.219 Conversely, for misdemeanours like

desecration of burial place220 and theft221 the minimum imprisonment periods of which are one

month and six months respectively, these periods (i.e. initial period of four month, extended

period of two months, and, total period of six months) cannot apply at all, because the law also

states that the (maximum total) pre-trial detention period for misdemeanours shall not exceed

half of their (legal) minimum imprisonment period. Therefore, for the accused of the crime of

desecration of burial place, his (maximum total) pre-trial detention period is fifteen days,

whereas for the accused of the crime of theft, his (maximum total) pre-trial detention period is

three months.

If the accused is a minor who is at least fourteen years old222 and has been charged with a

felony, his maximum pre-trial detention period223 is four months or six months according to

whether he is fourteen years old or fifteen years old or sixteen years old seventeen years old (i.e.

four months for the accused who is fourteen or fifteen years old; six months for the accused who

is sixteen or seventeen years old). If the accused is a minor who is at least fourteen years old224

and has been charged with a misdemeanour, his maximum pre-trial detention225 is two months or

four months according to whether he is fourteen years old fifteen years old or sixteen years old

seventeen years old (i.e. two months for the accused who is fourteen or fifteen years old; four

months for the accused who is sixteen or seventeen years old). When the Investigating Judge

decides to extend a pre-trial detention period of the accused (of course, the accused in this case is

an adult), he must justify his decision and notify the accused of it as soon as possible. Within five

days after receiving the notification, the accused can appeal it to the Investigating Chamber of

the Appellate Court. Any time during the pre-trial detention, the Investigating Judge may release 218 Supra note 161, art. 207. 219 Id. art. 217. 220 Id. art. 262. 221 Id. arts. 353 and 356. 222 The law prohibits Investigating Judge from putting the accused who is younger than 14 years old in pre-trial

detention. Consequently, we can say that Investigating Judge may impose pre-trial detention on the accused who is a minor only if three conditions are met. First, the crime that the accused has been charged with is a felony or minor punishable by imprisonment of at least one year. Second, pre-trial detention is crucial for preventing some likely situations such as escape of the accused (from the future trial) or commission of the same crime or another crime. Third, the accused is a minor who is at least 14 years old. In spite of the fact that Investigating Judge cannot put the accused who is less than 14 years old in pre-trial detention, Investigating Judge is still able to take other measures like ordering the parents of that minor to keep him under custody or sending him to an educational facility to await the future trial.

223 No extension of pre-trial detention period like adults, even once. 224 Supra note 52, art. 35. 225 Id. art. 533.

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the accused out of it by himself or at the request of the Prosecutor or the accused through a

decision of provisional bailable order.

If it is the Investigating Judge who takes the initiative in releasing the accused out of pre-

trial detention, he shall first consult the Prosecutor before deciding it, except for emergency

situations (e.g. the accused is in immediate need of medical attention abroad for his stroke…).

Being dissatisfied with the Investigating Judge‟s decision, the Prosecutor can appeal it to the

Investigation Chamber within five days after being notified of it. If the Prosecutor calls for the

release of the accused out of pre-trial detention, the Investigating Judge has five days after

receiving his request to approve it or not. In the event that Investigating Judge does not make any

decision within this period, the Prosecutor can ask the Investigation Chamber to make one in his

place. On the contrary, if the Investigating Judge decides not to release the accused and, instead,

issues a decision, the Prosecutor can appeal it to the Investigation Chamber within five days

following the notification of such a decision. If the accused himself asks for his release out of

pre-trial detention, the Investigating Judge shall first forward his request to the Prosecutor

promptly and consult the latter about it. Within five days after sending the request of the accused

to the Prosecutor and consulting the Prosecutor, the Investigating Judge shall make a relevant

decision. If the Investigating Judge turns down his request, the accused can ask for his release

again. However, t possibility is allowed only one month after the rejection of the initial request.

For such a request of the second time, the accused can submit it to the Investigating Judge or

directly to the Investigation Chamber. Investigating Judge or the Investigation Chamber handling

the request has five days to make a relevant decision. It should be noted that if the Investigating

Judge does not make any decision about it within five days after receiving the request, the

accused can ask the Investigation Chamber to decide on his behalf. But, if the Investigating

Judge again rejects the request (for the second time) and issues an order of provisional non-

bailable, the accused may appeal it to the Investigation Chamber of the Appellate Court within

five days after the rejection of the Investigating Judge upon the request previously being made,

following the notification of such a decision of Investigating Judge. Unfortunately, the Code

does not further provide the final appeal provision, but article 417 of the Code confers the right

of the accused to appeal before the Supreme Court within the scope of “request for cassation”.

However, no request for cassation is admissible again an indictment issued by the Investigation

Chamber of the Appellate in ordering the case to be trial at the lower court.

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After releasing the accused out of pre-trial detention, Investigating Judge may subject

him to another device called judicial supervision226 through a decision of an order of putting an

accused under the Court Supervision. The Investigating Judge sometimes makes such a decision

at the request of the Prosecutor. The provision of the Code allows the Prosecutor and the accused

to appeal the Investigating Judge‟s decision (to put the accused under judicial supervision) to the

Investigation Chamber within five days after being notified. Being under judicial supervision, the

accused, while awaiting his future trial, must comply with one or more obligations imposed by

the Investigating Judge such as not traveling to a certain place (e.g. the victim‟s house or

neighbourhood…), posting a certain amount of money as bail (bond) and undergoing medical

treatment. If the accused fails to fulfil his obligation(s), the Investigating Judge may put him in

pre-trial detention again. The period of pre-trial detention imposed on the accused as a

consequence of his violation of judicial supervision obligation(s) shall not exceed four months if

the accused is an adult, and two months if he is an at least fourteen-year-old minor.227

b) Deficiency of Investigation

With the development of modern technology, the criminals in various types of crimes are

also very difficult to detect in the arts of investigation by the investigating officers. Once the

investigation officer needs to follow the human rights law such as rights to liberty of individuals

and rights of the accused person to criminal justice…etc. and the procedures of criminal law to

be followed, the arts of investigation of a criminal cases are the concerned issues in balance

between the right to personal liberty and the right to ensure the effective investigation in seeking

for the truth for the accused and the victims of the crimes. Effective investigation means the

investigation with less or without defective investigation and to obtain the effective

investigation, some rights to personal liberties have to be curtailed and put it aside. Many things

have to be done in order to achieve the effective investigation and logically it may not be

226 Judicial supervision is not solely for the accused who has previously been put in pre-trial detention. In other

words, Investigating Judge can also use it against the accused whom he just finishes questioning and whom he does not plan on putting in pre-trial detention. The law simply states that judicial investigation can be employed by the Investigating Judge against the accused who has been charged with a crime that is punishable by imprisonment of whatever length. But, what crime that the accused has been charged with is not punished with imprisonment?

227 It should be noted that the maximum period of pre-trial detention for the accused who is an adult is always four months irrespective of whether the crime that he has been charged with is a felony or misdemeanour. As for the maximum period of pre-trial detention for the accused who is an at-least-year-old minor, it is always two months regardless of whether the crime allegedly committed by that minor is a felony or misdemeanour, and, he is 14 years old or 15 years old or 16 years old or 17 years old.

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achieved hundred per cent. One of the needs for effective investigation is the criminal

investigation which is facilitated by scientific investigation but these techniques may, somehow,

affect the right to liberty of individual. No doubt, by growing of new types of crimes such as

organized crimes, cybercrimes and terrorist acts, for instance, the arts of investigation of an

investigation agency has to be developed and equipped. Without this, such complex crime may

not be detected by the investigators. Crime investigations are a specialized work, where the I.Os

can perform their duties properly only when they are properly trained and possess necessary

skills, expertise and equipped with modern facilities. Both technical and scientific devises or

facilities and technical skill, forensic science, experts, tactics of the investigators are very

necessary for today criminal detection. Without these facilities, the effective investigation cannot

be achieved and seeking for the truth in criminal cases also would not be satisfied. To this

extend, it does not mean that the investigation agency must use all its forms of method, and

techniques for detecting the criminals, but thing has to be balance whether the use or the

implication of the methods of investigation amount to heavily violation of human rights,

especially his personal liberty. The course of using of modern technology or the implication of

methods for detecting the criminal must not cause to the violation of the right to self-

incrimination. As Cambodia is a developing country, it‟s lacking of these requirements. The

third methods of criminal investigation have been widely used by the police in their conducting

the investigation to extract the information from the accused or may be witness. It‟s not only

human resources but also the tools for assisting investigators to search for the truth. Police

officers, mostly have not been properly trained the arts of detecting the crimes. As it is required

by law to be eligible of investigator, he shall be successfully obtained his high diploma of

police.228 However, in reality they could be not trained properly. In the course of human rights to

criminal justice, many of them have not been schooled. It‟s just a fulfilment in lieu of

requirement of law only. Not only these things which leads to defect of investigation, but many

factors also come to involve such as corruption within the investigation of the cases, low salary

which leads to corruption, abusing of powers, inappropriate time for investigation, investigation

operates without team work, workloads, misconduct of investigating officer, political

interference…etc. these factors are causing to deficiency of criminal investigation in Cambodia.

The deficiencies lead to perfunctory of investigation.

228 Supra note 52. art. 61.

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(iv) The Court Clerk

Actually, a court clerk is an assistant of a judge or Prosecutor or Investigating Judge. He

does not play necessary role in criminal justice system. Article 128 of the Code requires an

Investigating Judge to be regularly assisted by a court clerk. But the code does not provide any

power for a court clerk to act in behalf of Investigating Judge.229 Article 129 provides roles of the

court clerk such as keeping case files, providing copy services when lawyers or other permitted

persons asked for case record copies. He has the duties to keep case files in a safe place and

chronological order.230 The next Article provides further that an investigation judge may visit

any crime spot he must always be accompanied by court clerk in the such jurisdiction of the

Court of First Instance, to personally conduct any investigative acts that he believes to be useful,

such as site observation, searches, and seizure of exhibits. An Investigating Judge shall inform

the Royal Prosecutor of this visit, who shall accompany the court clerk. When an investigation is

necessarily so required, the Investigating Judge may visit any site (crime spot) within the

national territory, accompanied by a clerk. The Investigating Judge shall notify the Prosecutor

for the Court of First Instance of the location of the visit beforehand. The Investigating Judge

shall establish a written record his activities. The visitation of Investigating Judge to the crime

spot must be companied by court clerk is a mandatory, as provided in Article 128 of the Code,

otherwise the activities are deemed to be void and null.231 It a mandatory rule among other

mandatory in judicial investigation.

229 Id. art. 128. 230 Id. art. 129. 231 Id. art. 252.

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3. Criminal Investigation under Indian Cr.P.C 1973

The criminal justice system has four important components in India, namely, the

Investigating Agency (Police), the Judiciary, the Prosecution Wing and the Prison and

Correctional Services. A brief mention of their structure and their roles is made here below:

a) Investigating Agency

The police forces are raised by the State under the Indian Police Act, 1861. The basic

duty of the police forces is to register cases, investigate them as per the procedure is laid down in

the Code of Criminal Procedure and to send them up for trial. In addition to the State Police

Forces, the Government of India has constituted a central investigating agency called the Central

Bureau of Investigation (CBI) under the special enactment called the Delhi Special Police

Establishment Act, 1946. It has concurrent jurisdiction in the matters of investigation in the

Union Territories. It can take up the investigation of cases falling within the jurisdiction of the

states only with the prior consent of the state governments concerned. The CBI has been

empowered to investigate the cases which have been transferred by the Police Department

whether of any State Government or Courts.232 However, in the very early pasted case of Prof.

K. V. Rajendran233, the Supreme Court of India held that “Transferring of the case to

independent investigating agency like CBI must be in rare and exceptional cases. Investigation

already been concluded in respect of allegations levelled against accused. Also final report has

already been filed”. In this case the Supreme Court referred to the case of State of West Bengal v.

Committee for Protection of Democratic Rights case234, and clarified that “Extraordinary power

to transfer the investigation from State Investigation agency to any other investigation agency

must be exercised sparingly, cautiously and in exceptional situations where it is becomes

necessary to provide credibility and instil confidence in investigation or where the incident may

have national and international ramifications or where such an order may be necessary for doing

complete justice and enforcing the fundamental rights”. In another case, the Supreme Court held

that “This Court or the High Court has power under Article 136 or Article 226 of the

Constitution to order investigation by the CBI. That, however, should be done only in some

cases; otherwise, the CBI would be flooded with a large number of cases and would find it

232 Rubabbuddin Sheikh v. State of Gujarat & Ors., (2010) 2 SCC 200: AIR 2010 SC 3175. 233 Prof. K. V. Rajendran v. Superintendent of Police, CBCID South Zone, Chennai & Ors., 2013 Cri. L.J.4464. 234 AIR 2010 SC 1476; see also Ashok Kumar Todi v. Kishwar Jahan & Ors., AIR 2011 SC 1254.

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impossible to properly investigate all of them”.235 There are certain other specialised

investigating agencies constituted by the central government, in various departments, namely, the

Customs Department, the Income Tax Department, the Enforcement Directorate, etc. They

investigate cases falling within their jurisdictions and prosecute them in the courts of law. Thus,

India has both the state police investigating agencies and a central investigating agency as

mentioned above. CBI, however, is the primary investigating agency of the central government.

b) The Courts236

The cases instituted by the state police and the Central Investigating Agency are

adjudicated by the courts. We have a four-tier structure of courts in India. At the bottom level is

the Court of Judicial Magistrates. It is competent to try offences punishable with imprisonment

of three years or less. Above it is the Court of Chief Judicial Magistrates, which tries offences

punishable with less than 7 years. At the district level, there is the Court of District and Sessions

Judge, which tries offences punishable with imprisonment of more than 7 years. In fact, the Code

specifically enumerates offences which are exclusively triable by the Court of Sessions. The

highest court in a state is the High Court. It is an appellate court and hears appeals against the

orders of conviction or acquittal passed by the lower courts, apart from having writ jurisdiction.

It is also a court of record. The law laid down by the High Court is binding on all the courts

subordinate to it in a state. At the apex, there is the Supreme Court of India. It is the highest court

in the country. All appeals against the orders of the High Courts in criminal, civil and other

matters come to the Supreme Court. This Court, however, is selective in its approach in taking

up cases. The law laid down by the Supreme Court is binding on all the courts in the country.

c) Prosecution Wing

It is the duty of the state to prosecute cases in the courts of law. The state governments

have constituted cadres of public Prosecutors to prosecute cases at various levels in the

subordinate courts and the High Court. The investigation of a criminal case, however good and

painstaking it may be, will be rendered fruitless, if the prosecution machinery is indifferent or

inefficient. One of the well-known causes for the failure of a large number of prosecutions is the

poor performance of the prosecution. In practice, the accused on whom the burden is little; he is

not to prove his innocence, engages a very competent lawyer, while, the prosecution, on whom

235 Sakiri Sasu v. State of U.P., AIR 2008 SC 907. 236 See Supra Chapter 2 “Indian Legal System and Criminal Procedure Codes Evolution”.

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the burden is heavy to prove the case beyond reasonable doubt, is very often represented by

persons of poor competence, and the natural outcome is that the defence succeeds in creating the

reasonable doubt in the mind of the court.

Another important factor for the success of the prosecution is proper coordination

between the prosecutor and the Investigating Officer, without in any manner, undermining the

independence of the Prosecutor by making subordinate to the police hierarchy. It is to be pointed

out that prior to the Code was amended in 1973; the prosecutors appearing in the courts of

Magistrates were functioning under the control of the Police Department. Eminent advocates of

proven merit were being appointed by the Government for a reasonable term, to function as

Public Prosecutors in Sessions Courts. The Prosecutors in those days were giving advice on legal

matters wherever necessary. The papers before filing in Courts would be scrutinized by the

Prosecutor, and advice given wherever any deficiencies came to be noticed. Only after the

rectification of the same, would the papers filed in Court. The Prosecutor would keep a close

watch on the proceedings in the case, inform the jurisdictional police, and get the witnesses on

dates of trial, refresh the memory of witnesses where necessary with reference to their police

statements, and examine the witnesses, as far as possible at a stretch. In view of the close

monitoring of the progress of trial witnesses turned hostile in very few cases.

d) Prisons and Correctional Services.

This is the fourth important element in the criminal justice system. The prisons in India

are under the control of the state governments and so are the correctional services.

The adversarial model is characterised by two opposing parties gathering, selecting and

presenting evidence for trial. The court has an adjudicative rather than an investigating function;

it has no mission to go beyond the evidence presented by the partisan parties (or increasingly,

their representatives), either to seek out further information or to verify the probity of that

offered. That is the task of the parties themselves. Accuser and accused therefore play a central

role in adversarial procedure both in the trial and the pre-trial phase, controlling the nature of the

evidence on which the court will base its decision. This is demonstrated in the defendant‟s

decision to enter a guilty plea, which has the effect of short-circuiting the court‟s fact finding

role; the defendant‟s public admission becomes a formal judicial finding of guilt without the

need for any further judicial scrutiny.

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The parties to criminal litigation in the adversarial system are the accused on one hand

and the state on the other. The criminal investigation and the criminal trial are run by these

parties. The Public Prosecutor gathers and presents evidence to prove the defendant‟s guilt, and

the defendant may respond by rebutting the state‟s evidence and by gathering evidence of his

own to prove his innocence. The important elements of an adversarial system, for our purposes

here, are these:

1. Litigation is run by the parties, and not by the judge. The parties decide who the

witnesses will be and what evidence will be presented. The two parties are, at least in

theory, of equal status before the court.237

2. The defendant, through his counsel, is entitled to confront and cross-examine his

accuser.238

3. The defendant is entitled to have a jury of laymen to decide the facts of his

case.239

4. The fact-finder (the jury, or in some cases the judge) may take into account only

the evidence presented in court at trial, and may not consider evidence in the pre-trial

record which is not presented at trial; this is understood in our tradition as part of the

presumption of innocence.240

5. The victim has no role in the prosecution of the case.241

The Indian Supreme Court in case of Vinay Tyagi v. Irshad Ali @ Deepak242 held that

Investigation can be ordered in varied forms and at different stages. Right at the initial stage of

receiving the FIR or a complaint, the Court can direct investigation in accordance with the

provisions of Section 156(1) in exercise of its powers under Section 156(3) of the Code.

Investigation can be of the following kinds:

(i) Initial Investigation.

(ii) Further Investigation.

(iii) Fresh or de novo or re-investigation.

237 Francis Parks, Comparative Criminal Justice 50-59 (Willan Publishing, 2004). 238 John Henry Merryman and Rogelio Pérez-Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America 130-31 (Stanford University Press, 3rd edn., 2007). 239 Erika Fairchild and Henry R. Dammer, Comparative Criminal Justice Systems 114 (2nd edn., 2001. 240 Giulio Illuminati, “The Frustrated Turn to Adversarial Procedure in Italy: Italian Criminal Procedure Code of 1988” 4 Wash. U. Global Stud. L. Rev. 567, 569 (2005). 241 Mirjan Damaska, Problematic Features of International Criminal Justice 175-180 (2009). 242 [2012] 13 S.C.R. 1026.

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The Initial Investigation is the one which the empowered police officer shall conduct in

furtherance to registration of an FIR. Such investigation itself can lead to filing of a final report

under Section 173(2) of the Code and shall take within its ambit the investigation which the

empowered officer shall conduct in furtherance of an order for investigation passed by the court

of competent jurisdiction in terms of Section 156(3) of the Code.243

Further Investigation is where the Investigating Officer obtains further oral or

documentary evidence after the final report has been filed before the Court in terms of Section

173(8). This power is vested with the Executive. It is the continuation of a previous investigation

and, therefore, is understood and described as a “further investigation”. Scope of such

investigation is restricted to the discovery of further oral and documentary evidence. Its purpose

is to bring the true facts before the Court even if they are discovered at a subsequent stage to the

primary investigation. It is commonly described as “supplementary report”. “Supplementary

report” would be the correct expression as the subsequent investigation is meant and intended to

supplement the primary investigation conducted by the empowered police officer. Another

significant feature of further investigation is that it does not have the effect of wiping out directly

or impliedly the initial investigation conducted by the investigating agency. This is a kind of

continuation of the previous investigation. The basis is discovery of fresh evidence and in

continuation of the same offence and chain of events relating to the same occurrence incidental

thereto. In other words, it has to be understood in complete contradistinction to a

“reinvestigation”, “fresh” or “de novo” investigation.244

However, in the case of a “fresh investigation”, “reinvestigation” or „de novo

investigation‟ there has to be a definite order of the court. The order of the Court unambiguously

should state as to whether the previous investigation, for reasons to be recorded, is incapable of

being acted upon. Neither the Investigating agency nor the Magistrate has any power to order or

conduct “fresh investigation”. This is primarily for the reason that it would be opposed to the

scheme of the Code. It is essential that even an order of “fresh” or “de novo” investigation passed

by the higher judiciary should always be coupled with a specific direction as to the fate of the

investigation already conducted. The cases where such direction can be issued are few and far

between. This is based upon a fundamental principle of our criminal jurisprudence which is that

243 Ibid. 244 Ibid.

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it is the right of a suspect or an accused to have a just and fair investigation and trial. This

principle flows from the constitutional mandate contained in Articles 21 and 22 of the

Constitution of India. Where the investigation ex facie is unfair, tainted, mala fide and smacks of

foul play, the courts would set aside such an investigation and direct fresh or de novo

investigation and, if necessary, even by another independent investigating agency. As already

noticed this is a power of wide plenitude and, therefore, has to be exercised sparingly. The

principle of rarest of rare cases would squarely apply to such cases. Unless the unfairness of the

investigation is such that it pricks the judicial conscience of the Court, the Court should be

reluctant to interfere in such matters to the extent of quashing an investigation and directing a

“fresh investigation”.245

The Cr.P.C, 1973 provides in Section 2(h) that “Investigation” includes all the

proceedings under “the Code of Criminal Procedure, 1973” for the collection of evidence

conducted by a Police Officer or by any person (other than a Magistrate) who is authorized by a

Magistrate.246 The investigation can be conducted by the Police if it is a cognizable offence.247

However, the offence whether it is cognizable offence or non-cognizable offence, the police

officer in charge may be ordered by a Magistrate who is competent to provision of Section 190

of the Code, to investigate, if the case is decided by such Magistrate.248

3.1.How/when does an Investigation an offence initiate?

When we talk about criminal investigation in Indian legal system, First Information

Reports is very important for the adversarial system. It is fundamental information that brings

criminal offence in motion. It is not merely a substantive piece of evidence of the case file,249 but

it is very fundamental information. The Supreme Court in this case held that “FIR, it is settled, is

not substantive piece of evidence, but certainly it is a relevant circumstance of the evidence

produced by the investigation agency. Merely because the informant turns hostile it cannot be

said that FIR would lose its entire relevancy and cannot be looked into for any purpose”. In

another case, Shambhu Dass250, the Supreme Court held that FIR under section 154 is not a

substantive piece of evidence; it‟s only used to contradict or corroborate the matter thereof.

245 Ibid. 246 Supra note 29, s. 2(h). 247 Id. s. 156(1). 248 Id. s. 156(3) read with s. 190. 249 Bable Alias Gurdeep Singh v. State of Chhattisgard Tri. P.S. O.P., Kursipur, 2012 Cri. L.J. 3676. 250 Shambhu Dass v. State of Assam, AIR 2010 SC 3300: (2010) 10 SCC 374.

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In in the case of H.N. Rishbud and Inder Singh251the Supreme Court of India observed

that “Investigation usually starts on information relating to the commission of an offence given

to an officer in charge of a police station and recorded under Section 154 of the Code. If from

information so received or otherwise, the officer in charge of the police station has reason to

suspect the commission of an offence, he or some other subordinate officer deputed by him, has

to proceed to the spot to investigate the facts and circumstances of the case and if necessary to

take measures for the discovery and arrest of the offender”. It is further held “thus, investigation

primarily consists in the ascertainment of the facts and circumstances of the case. By definition,

it includes “all the proceedings under the Code for the collection of evidence conducted by a

police officer”.252

Thus, under the Code investigation consists generally of the following steps:(1)

Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3)

Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the

commission of the offence which may consist of (a) the examination of various persons

(including the accused) and the reduction of their statements into writing, if the officer thinks fit,

(b) the search of places of seizure of things considered necessary for the investigation and to be

produced at the trial, and (5) Formation of the opinion as to whether on the material collected

there is a case to place the accused before a Magistrate for trial and if so taking the necessary

steps for the same by the filing of a charge-sheet under section 173.253

Usually, in case of cognizable offences, the investigation is initiated by the giving of

information under section 154254 of the Cr.P.C to a police officer in charge of a police station.

251 H.N. Rishbud and Inder Singh v. The State of Delhi [1955] 1 S.C.R. 1150. 252 Ibid. 253 Ibid. 254 The Section 154 (1) had been amended by the Act No 13 of 2013 (3-2-2013).

Provided that if the information is given by the woman against whom an offence under section 326A, section 326B, section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer: Provided further that; (a) in the event that the person against whom an offence under section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person's choice, in the presence of an interpreter or a special educator, as the case may be; (b) the recording of such information shall be videographed;

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However, such First Information Report (FIR) is not an indispensable requisite for the

investigation of crime. Even without any FIR, if a police officer in charge of a police station has

reason to suspect the commission of a cognizable offence, he can proceed to investigate the

offence under Section 157(1). The police of course, have no unfettered discretion to commence

investigation under section 157. They can exercise the power of investigation only if the FIR or

other relevant material prima facie discloses the commission of a cognizable offence.255 The

magistrate under certain circumstances can also order a police officer in charge of a police state

to investigate a cognizable or even non-cognizable offence case.256

Sub-section (1) of Section 156 confers wide powers on the police to investigate a

cognizable offence without any order of a magistrate. This statutory right of the police to

investigate cannot be interfered with or controlled by the judiciary.257 If, however, the FIR or

other relevant materials do not prima facie disclose any cognizable offence, the police in that

case have no authority to investigate. In such a case the High Court, in the exercise of its inherent

powers under Section 482 or in the exercise of power under Art. 226 of the Constitution may

stop and quash such an investigation.258

As mentioned earlier, Section 156(3) provides that “any magistrate empowered under

Section 190259 can order a police officer in charge of a police station to investigate any

(c) the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of section 164 as soon as possible.

255 State of W.B v. Swapan Kumar Guha, 1982 SCC (Cri) 283: 1982 Cri. L.J. 819; see also observations in State of W.B v. Sampat Lal, 1985 SCC (Cri) 62: AIR 1985 SC 195; observations in Ram Biraji Devi v. Umesh Kumar Singh, (2006) 6 SCC 669.

256 Supra note 29, s. 156. 257 King-Emperor v. Khwaja Nazir Ahmad, 1945 Cri. L.J. 413; see also State of W.B v. S.N. Basak, AIR 1963

SC 447: 1963 (1) Cri. L.J. 341; H.N. Rishbud v. State of Delhi, AIR 1955 SC 196: 1955 Cri. L.J. 526; Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC 117: 1968 Cr. L.J 97; S.N. v. Bipen Kumar Tiwari, (1970) 1 SCC 653 (Cri) 258: 1970 Cri. L.J. 764; State of W.B. v. Sampat Lal, AIR 1985 SC 195; State of Bihar v. J.A.C. Saldanha, (1980) 1 SC 554. See also observations in Harinder Pal Singh v. State of Panjab, (2004) Cri. L.J. 2648 (P&H); Bhavat Din v. State of U.P., (2003) Cri. L.J. 2281 (All); State of M.P. v. Ramesh C. Sharma, (2006) 1 SCC (Cri) 683; State Of Gujarat v. Parshottam Narsibhai Chauhan, 1983 Cri. L.J. 1124.

258 State of W.B. v. Swapan Kumar Guha (1982) 1 SC 561; R.P. Kapur v. State of Panjab, AIR 1960 SC 866: 1960 Cri. L.J. 1239; Jahan Singh v. Delhi Administration, (1974) 4 SCC 522: 1974 SCC Cri 558: 1974 Cri. L.J. 802; State of U.P. v. R.K. Srivastava, (1989) 4 SCC 59: 1989 Cri. L.J. 2301, and see also observation in Popular Muthiah v. State, (2006) 7 SCC (Cri) 296.

259 Supra note 29, section 90 of the Code provides that; Subject to certain restrictions to take cognizance in respect of certain offences, any magistrate of the first class, or any magistrate of the second class specially empowered in t behalf by the Chief Judicial Magistrate, may take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence; or (b) upon a police report of such facts; or (c) upon information received from any person other than a police officers, or upon knowledge, that such an offence has been committed.

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cognizable offence”. Usually, it is for the police to register the case.260 However, on perusal of a

report the magistrate can order registration of the case under Section 156(3)261. But he has no

authority to order investigation by an agency other than a police officer in charge of a police

station as it is not conferred by this provision.262 It has been held that a magistrate issuing

process on the basis of a complaint, when the police report on the earlier complaint to them was

received, was not proper. He ought to consider the police report as well.263 When a complaint is

filed before a magistrate, the magistrate instead of taking cognizance of an offence may simply

order investigation by police under Section 156(3). A complaint disclosing a cognizable offence

may be such as to require a thorough investigation by the police, and that is why power is given

to the magistrate under Section 156(3) to send the complaint to the police officer for

investigation.264

In this connection it may be noticed that it is only at the pre-cognizance stage that the

magistrate forwards the complaint under Section 156(3) to police for investigation. When the

magistrate initiates action under Section 202 it is after taking cognizance that he issues process.

It has been opined that if a magistrate has acted upon a complaint under Section 202, it may not

be possible for him to send up the complaint to the police under the Section 156 (3) for

investigation.265 It is mandatory for the Magistrate to apply his mind to the allegations made in

the complaint and only when the allegations made in the complaint make out the ingredients to

constitute an offence, the Magistrate can pass an order of investigation under S. 156(3) of

Cr.P.C. Equally, when the ingredients to constitute the offence are not made out in the complaint,

the Magistrate cannot direct investigation under section 156(3) of the Code if such an order

passed without jurisdiction.266 However, in a case, after the investigation report under Section

156(3) and examination under Section 202, the magistrate again sent the complaint to the police.

260 Indraji Mukherjee v. State of W.B., 1995 Cri. L.J. 3250 (Cal); A. Nallasivam v. State T.N., 1995 Cri. L.J.

2754 (Mad); Naurata Ram v. State of Haryana, 1995 Cri. L.J. 1568 (P&H), Madhu Bala v. Suresh Kumar, (1997) 8 SCC 476: 1997 SCC (Cri) 111; Udayabhan Shuki v. State of U.P., 1999 Cri. L.J. 274 (ALL).

261 Charan Singh v. State of Haryana, 1994 Cri. L.J. 1003 (H&P). 262 State Kerala v. Kolkkacan Moosa Haji, 1994 Cri. L.J. 1288 (Ker); Kuldip Singh v. State, 1994 Cri. L.J.

2502 (Del); and see also Indumate M. v. Navender Muljbai Asra, 1995 Cri. L.J. 918 (Guj). 263 Jagdish Ram v. State of Rajasthan, 1989 Cri. L.J. 745 (Raj). 264 Gopal Das Sindhi v. State of Assam, AIR 1961 SC 986: 1961 (2) Cri. L.J. 39; State of Assam v. Abdul Noor,

(1970) 3 SCC 10: 1970 SCC (Cri) 360: 1970 Cri. L.J. 1264; Jamuna Singh v. Bhadai Shah, AIR 1964 SC 1541: 1964 (2) Cri. L.J. 468.

265 State of Maharashtra through Deputy Commissioner of Police, Nagpur v. Shashikant S/o. Ekanth Shinde, 2013 Cri. L.J. (NOC) 568 (Bom); Zahir Ahmed v. Azam Khan, 1996 Cri. L.J. 290 (Cal). 266 Ibid.

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The Karnataka High Court ruled that such a step could be taken by the magistrate as he is

entitled under Section 202 to order further investigation or re-investigation.267 The Court

apparently relied on the Supreme Court‟s decision in Randhir Singh v. Sate (Delhi) Admin,268

which held that a Judicial Magistrate after taking cognizance of an offence on the basis of police

report and appearance of accused cannot order further investigation. Here the accused neither

appear nor was he summoned. Hence the Magistrate‟s sending the complaint again to the police

was held proper.

The Supreme Court in Babubhai Jamnadas Patel v. State of Gujarat269 held that in

appropriate cases, the courts (Magistrates) may monitor an investigation in to an offence when it

is satisfied that either the investigation is not being proceeded with or is being influenced by

interested persons.

The issues considered was to whether the Court had power to direct the investigation

agency to submit a report in accordance with the view taken by the Court. While concerning with

the provisions of sections 156(3), 169, 173 and 190, this Court cited its previous judgment in

M.C. Abraham v. State of Maharashtra270, in which the Bench of this could held that while

investigation is in progress the court cannot direct the investigation agency to submit a report in

accordance with the Court‟s own view. In the facts and circumstances of that case, the court

observed that it was open to the Magistrate, to whom the report is submitted by the Investigation

Agency after a full and complete investigation to either accept the same or to order a further

inquiry. Here, the principle is to prevent the court not to interfere with the investigation agency

while the investigation is in progress.

Before a Magistrate directs investigation under Section 156(3) he has to notionally decide

that investigation by police is needed and inquiry by him might not be sufficient. It has been

suggested that the magistrate should be required to record reasons for his decision.271 The police

in complaint sent to them under Section 156(3) may make the investigation of the offence and

send a report to the magistrate under Section 173. In such a case when cognizance is latter taken

by the magistrate, it would be deemed to have been taken on the police report and not on the 267 Bharatiban v. N.G. Lokanath, 1998 Cri. L.J. (Kant). 268 (1997) 1 SCC 361. 269 2010 Cri.L.J. 2249. 270 (2003) 2 SCC 649; See also Director, Central Bureau of Investigation v. Niyamavedi, 1995 Cri .L.J. 2917; State of Haryana v. Bhajan Lal & Others AIR 1992 SC 604. 271 Suresh Kumar Kupta v. State of Gujarat, 1997 Cri. L.J. 3948 (Guj); see also Silk Import and Export Inc. v. Exim Aides Silk Exporter, 1997 Cri. L.J. 4366 (Kant).

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original complaint. The question whether cognizance of the offence has been taken by the

magistrate on a complaint or on a police report, is of some importance, because the trial

procedure in respect of cases instituted on a police report is different from that in order cases.

This is particularly so in trial before a court of session.272

The power conferred upon the Magistrate under Section 156(3) can be exercised by the

Magistrate even after submission of a report by the investigating officer which would mean that

it would be open to the Magistrate not to accept the conclusion of the investigating office and

direct further investigation.273 A Magistrate empowered to take cognizance of an offence under

Section 190274may, instead of ordering an investigation under Section 156(3), proceed to take

cognizance of the offence on a complaint and examine complaint under Section 200. The

Magistrate may, if he thinks fit, postpone the issue of process (summons or warrant) against the

accused, and either make inquiry into the case by himself or direct an investigation to be made

by a police officer or by such other person as he thinks fits for the purpose of deciding whether

or not there is sufficient ground for proceeding.275 When complaint is sent to a police officer

under Section 202 of the Code for investigation and report, the officer has all the power which

may be exercised by a police officer in the course of an investigation as provided in Section

156(1). He is to investigate in precisely the same manner as he would have done if his powers

have been first invoked by a First Information Report under Section 154.276The report of the

police officer is useful for the purpose for deciding whether or not there is sufficient ground for

proceeding i.e. whether the process is to be issued against the accused or whether the complaint

is to be dismissed under Section 203.The cognizance of the offence being already taken by the

Magistrate on the complaint, the subsequent police investigation and report under Section 202

will not make the case as one instituted on a police report. It has been ruled by the Patna High

Court that if the Magistrate takes the cognizance of the offence on the inquiry report of the police

272 Supra note 29, Ss. 207 & 208, Ss. 238-243 and Ss. 244-247, 273 State of Bihar v. J.A.C. Saldanha, 1980 SCC (Cri) 272, 286: (1980) 1 SCC 554; Ram Autar v. State of Bihar, 1986 Cri. L.J. 51 (Pat). 274 Provisions of this Chapter generally applicable to summons and warrants of arrest. The provisions contained in t Chapter relating to a summons and warrants, and their issue. Service, and execution, shall, so far as may be, apply to every summons and every warrant of arrest issued under this Code. 275 Supra note 29, S. 202 (1). 276 Emperor v. Bika Moti, AIR 1938 Sind 113, 114: (1938) 39 Cri. L.J. 681 (FB).

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officer, otherwise than under Section 173, the case made would not be treated as one instituted

on police report inasmuch as the report would not amount to an investigation report.277

From the above discussion one can briefly conclude that the process of investigation may

start at (a) where FIR is given under Section 154; or (b) where the police officer has otherwise

reason to suspect the commission of a cognizable offence (Section 157(1) and 156 (1) or (c)

where a competent Magistrate orders the police to investigate;

(i) A non-cognizable case (Section 155(2))

(ii) By sending a complaint to the police officer under Section 156(3) without taking

cognizance on a complaint under Section 200;

(iii) After taking cognizance of the offence on a complaint for the purpose of deciding

as to the issue of process against the accused (Section 202(1)) and Section 203.

3.2. Preliminary Inquiry vs. Registration of FIR

The Problem of whether the police before registering FIR is required to conduct

preliminary inquiry to the offence or not, has been the unsettled problems and it is coming to the

Court until today. In the case of Ramesh Kumari278genuineness or otherwise of the information

can only be considered after registration of the case. Genuineness or credibility of the

information is not a condition precedent for registration of a case. We are also clearly of the view

that the High Court erred in law in dismissing the petition solely on the ground that the contempt

petition was pending and the appellant had an alternative remedy. The ground of alternative

remedy or pending of the contempt petition would be no substitute in law not to register a case

when a citizen makes a complaint of a cognizable offence against a police officer. That a police

officer mandatorily registers a case on a complaint of a cognizable offence by the citizen under

Section 154 of the Code is no more res integra.

In the case of Lalita Kumari279, an important question has been raised about the issue or

Registration of FIR and Preliminary Inquiry to the reported case. An extremely important issue

which arises in this petition is whether under Section 154 of the Code of Criminal Procedure

Code, a police officer is bound to register an FIR when a cognizable offence is made out or he

has some latitude of conducting some kind of preliminary enquiry before registering the FIR.

The conflicting of interpretation of the provision of section 154 had continued. In some judgment

277 Tung Nath Ojha v. Haji Nasiruddin Khan, 1989 Cri. L.J. 1846 (Pat). 278 Ramesh Kumari v. State (NCT of Delhi), (2006) 2 SCC 677. 279 Lalita Kumari v. U.P., (2012) 4 SCC 1.

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of the Court, whenever the information of a cognizable offence has been received by the police

about the alleged commission of offence, there is duty of the police to register the FIR. In the

case of Aleque Padamsee v. Union of India280, the Court referred to the judgment in the case of

Ramesh Kumari (Supra) in paragraph 2 of the judgment has observed that “whenever cognizable

offence is disclosed the police officials are bound to register the same and in case it is not done,

directions to register the same can be given.”281

The true meaning of Section 154(1) is that any information relating to the commission of

a cognizable offence if given orally, to an officer in charge of a police station shall be reduced in

writing by him or under his directions. The provision is mandatory. The use of the word “shall”

by the legislation is indicative of the statutory intent. In case such information is given in writing

or is reduced in writing on being given orally, it is required to be signed by the persons giving it.

It is further provided that the substance of commission of a cognizable offence as given in

writing or reduced to writing “shall” be entered in a book to be kept by such officer in such form

as the State Government may prescribe in this behalf. Sub-section (2) provides that a copy of

such information as recorded in sub-section (1) shall be given forthwith free of cost to the

informant. So that the informant has to be given a copy of such information which he has

reported to the police. In order to constitute the FIR, the information must reveal commission of

act which is a cognizable offence.282 It is submitted that all that the Court has to see at the very

outset is what does that provision say. If the provision is unambiguous and if from that provision,

the legislative intent is clear, the Court need not call into it the other rules on construction of

statutes.283 This judgment is referred to and followed in a recent decision of this Court in B.

Premanand v. Mohan Koikal284. It is submitted that the language employed in Section 154 is the

determinative factor of the legislative intent. That‟s meant it is very constructive intent of the

legislation. There is neither any defect nor any omission in words used by the legislature. The

legislative intent is clear. The language of Section 154(1), therefore, admits of no other

construction.

280 (2007) 6 SCC 171. 281 Ibid. 282 Damodar v. State of Rajasthan 2004 (12) SCC 336; Ramsinh Bavaji Jadeja v. State of Gujarat 1994 (2) SCC 685. 283 Hiralal Rattanlal v. State of U.P, 1973(1) SCC 216. 284 (2011) 4 SCC 266.

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The Court in Lalita Kumari285 case the Court denied the concept of preliminary enquiry

as contained in Chapter IX of the CBI (Crime) Manual, first published in 1991 and thereafter

updated on 15.7.2005 as unreliable upon to import the concept of holding of preliminary enquiry

in the scheme of the Code of Criminal Procedure. The interpretation of Section 154 cannot be

depended upon a Manual regulating the conduct of officers of an organization, i.e., C.B.I. But

this Court in the case could settle the doubtfulness of the two doctrines.

However, in some judgments of the same Court, Rajinder Singh Katoch286 v. Chandigarh

Administration, the police in sake of meaning of Article 21 of the Constitution, before registering

an FIR shall conduct preliminary inquiry to the case. Therefore, Section 154 must be read in the

light of Article 21 and so read preliminary inquiry is implicit in Section 154. The registration of

an FIR should be effective and it can be effective only if further investigation is to be carried out

and further investigation can be carried out only if the police officer has reasonable ground to

suspect that the offence is committed. If, therefore, there is no reasonable ground to suspect the

commission of cognizable offence, the police officer will not investigate and if that is a situation,

then on the same footing he may decline to register the FIR.

The Supreme Court in this case observed that “although the officer in charge of a police

station is legally bound to register a first information report in terms of Section 154 of the Code

of Criminal Procedure, if the allegations made by them give rise to an offence which can be

investigated without obtaining any permission from the Magistrate concerned, the same by itself,

however, does not take away the right of the competent officer to make a preliminary enquiry, in

a given case, in order to find out as to whether the first information sought to be lodged had any

substance or not. In this case the authorities had made investigations into the matter. In fact, the

Superintendent of Police himself has, pursuant to the directions issued by the High Court,

investigated into the matter and visited the spot in order to find out the truth in the complaint of

the petitioner from the neighbours. It was found that the complaint made by the appellant was

false and the same had been filed with an ulterior motive to take illegal possession of the first

floor of the house.”287

285 Supra note 279. 286 Rajinder Singh Katoch v. Chandigarh Administration, 2007 (10) SCC 69. See also T.T. Anthony v. State Kerala 2001 SC 2637. 287 Ibid.

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While referring to the decision of this Court in Ramesh Kumari in para 11 of the

judgment in Rajinder Singh’s case, it was observed that “we are not oblivious to the decision of

this Court in Ramesh Kumari v. State (NCT of Delhi)288 wherein such a statutory duty has been

found in the police officer. But, as indicated hereinbefore, in an appropriate case, the police

officers also have a duty to make a preliminary enquiry so as to find out as to whether allegations

made had any substance or not.”

At the end of the Laita Kumari289 a landmark and latest judgment, the Supreme Court

directed and held that;

(i) Registration of FIR is mandatory under Section 154 of the Code, if the information

discloses commission of a cognizable offence and no preliminary inquiry is

permissible in such a situation.

(ii) If the information received does not disclose a cognizable offence but indicates the

necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain

whether cognizable offence is disclosed or not.

(iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be

registered. In cases where preliminary inquiry ends in closing the complaint, a copy

of the entry of such closure must be supplied to the first informant forthwith and not

later than one week. It must disclose reasons in brief for closing the complaint and

not proceeding further.

(iv) The police officer cannot avoid his duty of registering offence if cognizable offence

is disclosed.

Action must be taken against erring officers who do not register the FIR if

information received by him discloses a cognizable offence.

(v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the

information received but only to ascertain whether the information reveals any

cognizable offence.

(vi) As to what type and in which cases preliminary inquiry is to be conducted will

depend on the facts and circumstances of each case. The category of cases in

which preliminary inquiry may be made are as under:

288 Supra note 278. 289 Supra note. 279.

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(a) Matrimonial disputes/family disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e) Cases where there is abnormal delay/laches in initiating criminal prosecution,

for example, over 3 months delay in reporting the matter without satisfactorily

explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may

warrant preliminary inquiry.

(vii) While ensuring and protecting the rights of the accused and the complainant, a

preliminary inquiry should be made time bound and in any case it should not

exceed 7 days. The fact of such delay and the causes of it must be reflected in the

General Diary entry.

(viii) Since the General Diary/Station Diary/Daily Diary is the record of all information

received in a police station, we direct that all information relating to cognizable

offences, whether resulting in registration of FIR or leading to an inquiry, must be

mandatorily and meticulously reflected in the said Diary and the decision to

conduct a preliminary inquiry must also be reflected, as mentioned above.

3.3. Procedure for Investigation

The Procedure for Investigation in Indian Criminal Justice system is prescribed by

section 157 of the Code, the section requires that immediate intimation of every complaint or

information preferred to an officer in charge of a police station of the commission of a

cognizable offence shall be sent to the Magistrate having jurisdiction. The object of this

provision is obvious, and it involves more than a mere technical compliance with the law. The

Magistrate is primarily responsible for the condition of the district as regards repressible crime,

and he is not at liberty to divest himself of that responsibility or to relax that supervision over

crime which the law intends that he should exercise and execute his functions. In considering

with the question of whether accusation made in the complaint makes out a case for commission

of offence or not, the police while reaching to the prima facie satisfaction of suspecting the

commission of cognizable offence, cannot ignore the general exception was provided under IPC.

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After registering FIR, he must send the report to the Magistrate and it is a duty-bound of

the police officer in charge. It is mandatory in nature.290 The report is to be sent forthwith to the

competent Magistrate. The word “forthwith” in section 157(1) does not mean that the

prosecution is required to explain every hour‟s delay in sending the copy of FIR to the

Magistrate. Of course the same has to be sent with reasonable despatch, which means within a

reasonable time.291 The word “forthwith” in such section means promptly and without any undue

delay.292 Then he must start to proceed upon the investigation into the case registered if it is a

mere cognizable offence. He must forthwith proceed to the spot and without delay take all

necessary measures for the discovery and arrest the offenders. The ordinary investigation is

undertaken on information he received, the receipt of information is not a condition precedent for

investigation. Section 157 prescribes the procedure in the matter of such investigation which can

be initiate either on information or otherwise. It is clear from the said provision that a police

officer in charge a police station may start investigation either on information or otherwise.293

The commencement of investigation in a cognizable offence by a police officer is subject to two

conditions, firstly, the police officers should have reason to suspect the commission of a

cognizable offence as required by section 157(1) and secondly the police officer should

subjectively satisfy as to whether there is sufficient ground for entering on an investigation even

before he starts an investigation into the facts and circumstances of the case as contemplated

under clause (b) of the proviso to section 157(1). As the clause permits the police officer to

satisfy himself about the sufficiency of the ground even entering the investigation, it postulates

that the police officer has to draw satisfaction only on materials which were placed before him

at that stage, namely, the FIR together with the documents, if any, enclosed. In other words, the

police officer has to satisfy himself only on the allegations mentioned in the FIR before he enters

on an investigation as to whether those allegations to constitute a cognizable offence warranting

an investigation.294 The law is designed to keep the Magistrate informed of the investigation so

as to be able to control the investigation and if necessary to give appropriate direction under

section 159.

290 Ahmad Nabi v. State of U.P., 1987 (1) Crime 85 (All). 291 Alla China Apparao v. State of A.P., AIR 2002 SC 3648: (200) 8 SCC 440. 292 Arjun Marik v. State of Bihar, 1994 SCC (Cri) 1551 (1561). 293 State of U.P. v. Bhagwant Kishore Joshi, AIR 1964 SCC 221: (1964) 3 S.C.R. 71: 1964 (2) Cri. L.J. 919. 294 Ratanlal & Dhirajlal, The Code of Criminal Procedure 551 (LexisNexis Butterworths Wadhawa, 19th edn., 2010).

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The condition precedent to the commencement of an investigation under section 157 as

earlier mentioned is that the FIR must disclose, prima facie, that a cognizable offence has been

committed. It is wrong to suppose that the police have an unfettered discretion to commence

investigation under this section, it was held that their right of inquiry is conditioned by the

existence of reason to suspect the commission of a cognizable offence.

After receiving the report sent by the police officer (through superior officer of police as

mentions in section 158), such Magistrate may direct an investigation, or, if he thinks fit, at once

proceed, or depute an Magistrate subordinate to him to proceed, to hold a preliminary inquiry

into, or otherwise to dispose of, the case in the manner provided in the Cr.P.C.295 By the meaning

of this provision to dispose of means he has powers to dismiss the case if there is no sufficient

ground for investigation. The section is primarily provides power of the Magistrate directing an

investigation in cases where the police decide not to investigate the case under section 157(1),

and it is in those cases that, if he thinks fit, he may choose the second alternative of proceeding

himself or deputing any subordinate Magistrate to hold a preliminary inquiry.

3.4. Procedure when investigation cannot be completed in 24 hours

As provided by section 157 of the Code, it has been already seen that a police officer

cannot detain an accused person arrested without a warrant for more than 24 hours.296 When the

accused is arrested with a warrant, the police officer may keep him in police custody for a period

not exceeding 24 hours. Before expiration of such a period, the arrested person has to be

produced before the nearest Magistrate, who can, under section 167297, order his detention for a

term not exceeding fifteen days on the whole, or he may be taken to a Magistrate who has

jurisdiction to try the case, and such Magistrate (the competent Magistrate) may remand the

person to custody for a term which may exceeding fifteen days but not more than sixty or ninety

days. The computation of total period of sixty or ninety days is to be computed from the time

when the Magistrate authorized the detention for the first time but not include the 24 hours of

police custody.298 The Magistrate who has no jurisdiction to try the case cannot order to put

295 Supra note 29, s. 159. 296 Id. s. 57 “Person arrested not to be detained more than twenty-four hours”.

No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate‟s Court.

297 Id. s. 167. 298 L.R. Chawla v. Murari, 1976 Cri. L.J. 212 (Del).

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accused in custody whether police or judicial custody more than fifteen days.299 The intention of

the legislature is to that an accused person should be brought before a Magistrate competent to

try or commit with, as little delay as possible. Section 57 of the Code is pointer to the intendment

to uphold liberty and to restrict to the minimum the curtailment of liberty.300 There cannot be any

detention in police custody after the expiry of first fifteen days even in a case where some more

serious offences, either serious or otherwise committed by an accused in the same transaction

come to light at a later state.301 As provided above, remand to police custody is permissible

within first fifteen days of surrender and not thereafter. The law does not make distinction

whether the accused himself surrenders or is arrested by the police.302 The right of the

prosecution to obtain police custody remand under section 167(2) cannot be frustrated by the

Court by granting long time to the accused to file revision in the high Court and obtain stay order

against the order allowing police remand. The remand of accused person to police custody for

two days to interrogate them, to know the hide-outs and whereabouts of absconding accused and

to recover offence weapons subject to the condition that the police will not ill treat them was

held proper.

The extension of remand of the accused is restricted with special reason. The scheme of

the Code clearly establishes that the considerations that would weigh with the Magistrate who is

competent to try the case at the time of remanding an accused person for a period of 15 days at

the first instance is different from the ground on which the period of remand is extended beyond

the period of fifteen days as per the proviso. Special reasons must be given for extending the

period of remand originally granted.303 Where the accused is produced before the Magistrate

before the completion of statutory period and prayer is made for extension of remand, the

Magistrate must examine the grounds and only extend the period where adequate grounds exist.

3.5. Roles and Powers of the Police in Indian Criminal Justice System

The Police force in India is entrusted with the responsibility of maintenance of public

order and prevention and detection of crimes. Each state and union territory of India has its own

separate police force. Article 246 of the Constitution of India designates the police as a state

299 CBI Cell-I, New Delhi v. Anupam J. Kulkarni, AIR 1992 SC 1768: 1992 Cri. L.J. 2768 (2773); See also Jayrajsinh Temu Bha Jadeja v. State of Gujarat, 2004 (2) Crimes 247 (Guj). 300 Mohd. Ahmed Yasin Mansuri v. State of Maharashtra, 1994 Cri. L.J. 1854 (1859) (Bom-DB). 301 Dudh Singh v. State of Punjab, (2000) 9 SCC 266 (267). 302 Public Prosecutor, A.P. High Court v. J.C. Narayana Reddy, 1996 Cri. L.J. 462 (464) (AP). 303 G.K. Moopanar v. State, 1990 Cri. L.J. 2685.

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subject, which means that the state governments frame the rules and regulations that govern each

police force. These rules and regulations are contained in the police manuals of each state force.

The Police force in the state is headed by the Director General of Police/Inspector General of

Police. Each State is divided into convenient territorial divisions called ranges and each police

range is under the administrative control of a Deputy Inspector General of Police. A number of

districts constitute the range. District police or Metropolitan is further sub-divided into police

divisions, circles and police-stations.304

The Police Forces are governed by the India Police Act, 1861 which has been inherited

by the British. It is the Central Act of the country. Additionally, each State of India has set up its

own Police Act to govern its Police Units or Police Forces within its jurisdiction. The Act has

been amended many times since its birth due to the change of society and needs of recently

circumstance. The Act is old enough and many proposals have been suggested for reforming or

adopt a new one as the whole of the Act.

According to the Police Act, 1861, police are one of the most ubiquitous organisations of

the society. The policemen, therefore, happen to be the most visible representatives of the

government. In an hour of need, danger, crisis and difficulty, when a citizen does not know, what

to do and whom to approach, the police station and a policeman happen to be the most

appropriate and approachable unit and person for him. The police are expected to be the most

accessible, interactive and dynamic organisation of any society. Their roles, functions and duties

in the society are natural to be varied and multifarious on the one hand; and complicated, knotty

and complex on the other. Broadly speaking the twin roles, which the police are expected to play

in a society are maintenance of law and maintenance of order. However, the ramifications of

these two duties are numerous, which result in making a large inventory of duties, functions,

powers, roles and responsibilities of the police organisation.

Under section 23 of the Police Act, 1861, stipulates the duties of the Police Officers that

“it shall be the duty of every police-officer promptly, to obey and execute all orders and warrants

lawfully issued to him by any competent authority; to collect and communicate intelligence

affecting the public peace; to prevent the commission of offences and public nuisances; to detect

and bring offences to justice and to apprehend all persons whom he is legally authorised to

apprehend, and for whose apprehension sufficient ground exists; and it shall be lawful for every

304 The Police Act, 1861, Preamble.

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police-officer, for any of the purposes mentioned in this section, without a warrant to enter and

inspect, any drinking-shop, gaming-house or other place of resort of loose and disorderly

characters.305

Section 31 of the Act also provides another duty of the Police Officer to keep order on

public roads, etc.., and the Sections says “it shall be the duty of every police officer to keep order

on the public roads...to collect and communicating intelligence affecting the public peace; to

prevent the commission of offences and public nuisance; to detect and bring offenders to justice

and to apprehend all persons whom he is legally authorized to apprehend, and for whose

apprehension suffering grounds exist…”.306

The Criminal Procedure Code, however, does not contemplate the use of the police in

respect of investigation into each and every offence. The Code has classified all offences into

categories (1) Cognizable Offence and (2) Non Cognizable Offence as defined in section 2 of the

Code.307

The primary responsibility of Police is to protect life, liberty and property of citizens. It is

for the protection of these rights that Criminal Justice System has been constituted assigning

important responsibility to the Police. They have several of duties to perform, the most important

among them being maintenance of law and order and investigation of offences. The police are

charged with the responsibility of protecting precious human rights of the citizens. Whenever

there is invasion or threat of invasion of one‟s human rights it is to the police that the citizen

rushes for help. Unfortunately the contribution of the police in this behalf is not realized and only

the aberrations of the police are noticed, highlighted and criticized. The aberrations must be

corrected and the police respected for the difficult role they play even at the cost of their lives in

the process of protecting the rights of the citizens. The manner in which police investigations are

conducted is of critical importance to the functioning of the Criminal Justice System. Not only

serious miscarriage of justice will result if the collection of evidence is vitiated by error or

malpractice, but successful prosecution of the guilty depends on a thorough and careful search

for truth and collection of evidence which is both admissible and probative. In undertaking this

search, it is the duty of the police to investigate fairly and thoroughly and collect all evidence,

305 Id. s. 23. 306 Id. s. 31. 307 Dr. K.N. Chandrasekharan Pillai, R.V. Kelkar’s Criminal Procedure 32-33 (Eastern Book Company, 5th edn., 2008).

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whether for or against the suspect. Protection of the society being the paramount consideration,

the laws, procedures and police practices must be such as to ensure that the guilty are

apprehended and punished with utmost dispatch and in the process the innocent are not harassed.

The Code provides specific powers, e.g., powers to make arrest, search, seize, conducting

investigation of cognizable offences, etc. on the number of the police force who are enrolled as

police officers. Wider powers have been given to police officers who are in charge of police

stations. Such station-house officers are also required to discharge onerous duties in relation to

detection of crime, investigation and prevention of crime.

In criminal justice system, the aim of the investigation and, in fact, the entire Criminal

Justice System is to search for truth. To achieve this objective, the investigating officers must be

properly trained and supervised and necessary scientific and logistical support should be made

available to them. The police perceive themselves psychologically and morally bound to do

everything possible to curb crime and investigate the cases successfully to meet the peoples‟

expectations. In this process the police often resort to short cut methods and exhibit negative

traits of police sub-culture, namely, rudeness, use of third degree methods, defensiveness in face

of criticism, lack of innovativeness etc.308

The report of the Committee of the Ministry of Home Affairs has criticized that “even

though investigation is the foundation of the Criminal Justice System it is unfortunate that it is

not trusted by the laws and the courts”.309 The report of the Committee further criticizes that

Sections 161 (Examination of witness by police and 162 (Statements to police not to be a signed:

Use of Statements in evidence) of the Code provide that the statements of the witnesses

examined during investigation are not admissible and that they can only be used by the defence

to contradict the maker of the statement. The confession made by accused is also not admissible

in evidence. The statements recorded at the earliest stage normally have greater probative value

but can‟t be used in evidence. The observations of the courts in several criminal cases show that

the judges are reluctant to accept the testimony of police officers. Such is not the position in

other countries. This is a historical legacy of the colonial rulers. It is common knowledge that

police often use third degree methods during investigation. There are also allegations that in

some cases they try to suppress truth and put forward falsehood before court for reasons such as

308 Supra note 30 at 96. 309 Ibid.

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corruption or extraneous influences political or otherwise. Unless the basic problem of

strengthening the foundation is solved the guilty continue to escape conviction and sometimes

even innocent persons may get implicated and punished. It is therefore necessary to address

ourselves to the problems and strengthen the investigation agency.

In the case of Sidhartha Vasht v. State (NCT of Delhi)310, the Court stated that it is not

only the responsibility of the investigating agency, but also that of the courts to ensure that

investigation is fair and does not in any way hamper the freedom of an individual except in

accordance with law. An equally enforceable canon of the criminal law is that high responsibility

lies upon the investigating agency not to conduct an investigation in a tainted or unfair manner.

The investigation should not prima facie be indicative of a biased mind and every effort should

be made to bring the guilty to law as nobody stands above law dehorns position and influence in

the society.

4. Comparative Analysis

An adversarial system such as India has adopted this model of criminal justice is that

where the court act as a referee between the prosecution and the defense. The whole process is a

contest between two parties. As regard crime, these two parties are the state & the accused

person .In this process, the court takes a non-partisan role. The Magistrate plays no role in

investigation of cognizable offence. Public Prosecutor plays not role in investigation and

criminal charge. The entire work of investigation rests upon the police unit. The adversarial

system aims to get to the truth through the open competition between the prosecution and the

defence to make the most compelling argument for their case. Critics of the adversarial approach

argue that the pursuit of winning often overshadows the search for truth. An inquisitorial model

has faith in the integrity of pre-trial processes (overseen by the prosecutor or examining

magistrate) to distinguish between reliable and unreliable evidence; to detect flaws in the

prosecution case; and to identify evidence that is favourable to the defence. In many

jurisdictions, this culminates in the preparation of a “dossier” for the trial court that outlines all

aspects of the case and forms the basis for the trial itself. Pre-trial processes are therefore an

indispensable part of the process for seeking out the truth. By the time a case reaches trial, there

is a greater presumption of guilt than in an adversary model.

310 (2010) 6 SCC 1.

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An inquisitorial system like Cambodia that has adopted this model is a legal system

where the court is actively involved in proof of facts by taking investigating of the case. This

system is resolving disputes and achieving justice for individuals and society. The inquisitorial

system is generally described as a system that aims to get to the truth of the matter through

extensive investigation and examination of all evidence and it is conducted by the state officers

rather than individual parties of the case. The Prosecutor play very important role in criminal

investigation and supervise over the JPOs and Investigating Judge. The supervision of the Royal

Prosecutor over the Investigating Judge in criminal investigation is not absolute and dominated.

Principally, they work inter-dependent and with mutual consultation. The supervision here is

meaning that, the Investigating Judge can only perform his function under the introductory

submission, which details about the facts of the case, the instruction or roadmap which has been

given in the introductory submission letter. However, even the task is has been given to the

investigating judge, but the Royal Prosecutor still has power to handle the case. He is the one,

who presences the case to trial court. The Police are the assistant of the Prosecutor, or

Investigating Judge. The Police play no role independently from the Court as that in Adversarial

system. However, the police are the real actor in criminal investigation. A big part of proving

guilty of the accused person is relied up the police investigation.

The following table outlines the fundamental differences (and areas of convergence)

between typical adversarial of Indian and inquisitorial of Cambodian Criminal Justice models.

The table is covered all criminal proceedings between the two systems.

Table 1.

No Adversarial System Inquisitorial System

1

It aims to get the truth through the open

competition between the prosecution

and the defence.

It is generally aims to get the truth of the

matter through extensive investigation and

examination of all evidence.

2

All parties determine what witnesses

they call and the nature of the evidence

they give. The court overseeing the

process by which evidence is given.

The conduct of the trial is in the hands of

the court. The trial judge determines what

witnesses to call & order in which they are

to be heard.

3 In adversarial systems, the previous

decisions by higher courts are binding

There is little use of judicial precedent in

inquisitorial systems. This means Judges are

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on lower courts. The lower court may

decide the case upon the previous

judgments.

free to decide each case independently of

previous decisions by applying the relevant

statutes. It is very rare case.

4

In an adversarial system the role of

lawyers is active. The lawyer is

advantaged in defending the case.

In an inquisitorial system the role of

lawyers is passive. It is limited upon the

discretion of the trial judge, investigating

judge or prosecutor.

5

The Public Prosecutor plays no role in

criminal investigation of an offence.

The Royal Prosecutor plays very active role

in conducting investigation and making

charged sheet.

6

Magistrate plays no role in cognizable

offence, but he has power to frame a

charge sheet.

The investigating judge plays active role in

investigation is serious offence, when he is

authorized to investigate the case.

7

The police have full power and very

independent to investigate into the

cases which has been registered & the

police are not under supervision of any

court officers, except it is non-

cognizable offence.

Prosecutor (or investigating judge)

supervise, control over the JPOs and JPAs

in any criminal proceedings except the pity

offence, which the penalty is one pecuniary

fine.

8

The trial judges pronounce judgment

depending on the hearing, evidence or

on the basis of examination & cross-

examination.

The trial judge plays an active rule for

questioning & hearing the parties directly.

The conducting question by himself. Fewer

cross-examinations would be allowed.

9 In an adversarial system the role of the

judges are merely passive in nature.

In an inquisitorial system the rule of the

judges is very active.

10

In an adversarial system all references

are presented by the respective lawyers

of both the parties.

In an inquisitorial system references also

presented by the judge & they play‟s an

active rule.

11

The case management depends upon

the lawyers of both the parties & they

get unfettered opportunity for the case

The case management depends upon the

judges and the judges fixes the term for the

disposal of any case.

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management upon their own wishes.

12

In an adversarial system the hearing,

evidence or examination & cross-

examination done by the lawyer get

priority.

In an inquisitorial system documents and

information about the real facts get priority.

13

Case management is not effective

under this system because the judges

cannot exchange views with the parties

for taking any decision. So no initiative

can be taken for speedy disposal of any

case.

Case management is effective under this

system & the judges sit with the parties and

can exchange views for taking any decision

for speedy disposal of any case.

14

In an adversarial system judges has

discretionary power but that is not wide

by the evidence.

In an inquisitorial system judges have wide

discretionary power.

15

Repeated time petition (common

practice) is permitted at the time of

continuance of the case & the lawyer‟s

take the opportunity of making time

petition. So delay occurs in disposal of

any cases.

The main object of this system is to reduce

the time for disposing a case and to ensure

speedy justice. Judge plays an active role in

deciding time petition & may honored or

reject time petition.

The investigation of a criminal case, however good and painstaking it may be, will be

rendered fruitless, if the prosecution machinery is indifferent or inefficient. One of the well-

known causes for the failure of a large number of prosecutions is the poor performance of the

prosecution. In practice, the accused on whom the burden is little and he is not to prove his

innocence engages a very competent lawyer, while, the prosecution, on whom the burden is

heavy to prove the case beyond reasonable doubt, is very often represented by persons of poor

competence, and the natural outcome is that the defence succeeds in creating the reasonable

doubt on the mind of the court.311

311 Supra note 30 at 125.

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Contemporary Cambodian criminal justice system is better described as a mixed or hybrid

model but much more dominated by inquisitorial model. More recently, in Cambodia as well as

in France has been introduced a number of changes which, whilst modest in the context of an

adversarial process, have given the defence a greater role in both the pre-trial and trial procedure,

for example, allowing the defence lawyer to see his client for 30 minutes during police detention;

allowing the defence to present arguments against the pre-trial detention of her client. Instead,

the changes have been influenced primarily by the developing of criminal jurisprudence of the

United Nations Transitional Authority for Cambodia (UNTAC Code Penal Code and Procedure)

in the new born of the Kingdom era and are described in Cambodia as part of a move to

strengthen the principle of Contradictoire (Contradictory), that of greater participation and the

ability for both sides to debate the issues. This change also found in the Extraordinary Chambers

in the Courts of Cambodia (ECCC)312, an hybrid tribunal which has been trying the case of

Khmer Rouge genocide. This is a new trend of change of Cambodian criminal justice toward

adversarial system. It is resisted by some as an unwanted „external‟ influence (particularly by the

political right) and even among those in favour of the changes it brings, the translation of

Convention guarantees into the Cambodian (Constitution) inquisitorial context can be

problematic; as many provisions of Criminal Procedure Code, 2007 and Constitution itself, are

often understood in adversarial terms, and therefore are not considered to be wholly appropriate

to inquisitorial criminal procedure, within which the central role of the judge is revered. The

development of pre-trial defence rights has been particularly challenging in this respect, creating

tensions with prevailing legal cultures at the legislative, judicial and investigative level. Given

the careful balance that must be struck between the parties within adversarial procedure in order

to ensure fairness and equality of arms, the significance of the different role, the principle of fair

trial, and searching for the truth of the adversarial system, assigned to the defence within the

French model of judicially supervised investigations should not be underestimated.

Adversary mode of justice of India is close to Anglo-American system and its past

colonies. It advocates the supremacy of law, that is, equal treatment of law for all segments of

society. It places the court in the neutral position equivalent to that of an umpire in a football

game. Therefore legal representation from both sides is indispensable part of this system. It

insists upon due process of law. That is strict observance of criminal procedure by the prosecutor

312 To understand more detail about ECCC, it is available at http://www.eccc.gov.kh/en; cited on 22 March 2014.

http://www.eccc.gov.kh/en

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and the police in the course of investigation and trial. It thinks that if both parties were to act

according to the rules of procedure justice can be secured. The judge looks whether the evidence

collected is in accordance with the law or not. He excludes any evidence, which is extorted

through malpractices, such as entrapment, deception practiced on the accused etc. It is expected

that exclusion of evidence unfairly obtained leads the police or the prosecutor to work within the

limit of his power. The neutral behavior of the judge promotes the sense of justice and fairness of

the trial. The accused has right to silence. However, the right to silence is not merely established

in India as it is done in the United States adversarial model. The police must interfere upon

another‟s affair only if he has sufficient evidence to do so. He cannot expect any co-operation

from the accused after the arrest. The accused need not cooperate with the police and he can

remain silent in the court throughout the trial. The accused may not join co-operate with police

for any task of investigation. The Prosecutor must prove his guilt, ex-part beyond reasonable

doubt. This system claims that it would promote the supremacy of law, fairness in the

proceedings, secures rights to privacy and liberty of the individual. Individual can work is their

daily life without any fear, interference or undue encroachment upon their private life by public

officials of the state. This is very much necessary to promote justice, freedom and progress.

However, it is a pity that the importance of prosecution as an agency of criminal justice system

has not been adequate realized in India.313 Generally, the Public Prosecutors are left alone in the

Courts even in an important case to contest against a battery of lawyers representing the accused

person. The prosecutor is at either considered as the part of executive or judiciary. In many

sensitive cases, there were political interferences into the working of prosecution machinery

also.314 But the trend has been changed recently by the recommendations of the previous set up

committee, especially in Malimath Committee in 2003.

Whilst the Adversarial System focuses very much on the roles of the individual parties

(police/prosecution and defence), the French legal process as well as Cambodian inquisitorial

model, continues to have a state centred conception of Justice. During the pre-trial phase in

particular, the focus of the investigation is said to be the offence, rather than the suspect. The

judge maintains a central role during the investigation and he plays passive role in investigation.

As a Royal Prosecutor representing the public interest (rather than that of the prosecution or

313 D. Banerjea (Ed.), “Criminal Justice India Series” 17(2) Allied Publisher Private Co. 32 (2005). 314 Id. at 31.

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defence) he is charged with searching for the truth, gathering evidence which might exculpate as

well as incriminate the suspect. The defence rights of the accused have been somewhat

neglected, and if not so, it is even very less recognize, in part because the public interest

orientation of the Prosecutor is considered sufficient protection and also, because the accused has

been seen traditionally as an object of the search for the truth, rather than a party to the

proceedings. The balance has been shifted to some extent during the investigation, but in the

majority of cases investigated by the police under the supervision of the Prosecutor and

Investigating Judge, the defendant has no real opportunity to participate in the pre-trial

investigation. This is extremely significant given the importance attached to written evidence

gathered during the pre-trial phases and the lack of oral testimony at trial. As noted above, when

comparing Inquisitorial criminal procedure with that in Adversarial, the diminished role enjoyed

by the defendant in Cambodia is part of the fundamental difference in the two procedures; in the

roles of the parties, the checks and balances in place and the ways in which the rights of the

accused are safeguarded.

Again, unlike in Cambodian Criminal Justice System, the criminal justice in India in field

of investigation of a committed offence, generally, the powers to investigate of an offence are

vested in Police (Police Units) for every cognizable offence, and a person appointed by a

Magistrate, rather than a Magistrate himself. In adversarial system of India, the Magistrate,

which is in inquisitorial system normally treated an Investigating Judge or Prosecutor, has played

very passive role in investigative phases, while in inquisitorial system Investigating Judge plays

very active role and function in conducting investigation when he has been empowered by the

Prosecutor through the introductory submission. The Royal Prosecutor, even has handled the

case to the Investigating Judge to carry about, but his powers remain exist. In contrast to

Cambodian criminal investigation, the investigation of an offence in India is vested in the hand

of the Police and he enjoys very much independent roles and functions in all stages and pictures

of investigation, for every cognizable offence. However, in non-cognizable offence, he has a

very limited power in investigation unless receiving an order from the Magistrate for performing

the tasks.

The object of the penal law is to protect life, liberty and property of the citizen. All

citizens who are victims of crimes punishable under the Penal Code are entitled to be treated

fairly, reasonably and equally. By categorizing large number of offences as non-cognizable or

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petty offence, unreasonable burden has been placed on the citizens by requiring them to

investigate the case, collect evidence and produce them before the Magistrate. The citizen would

be also obliged to engage a lawyer to conduct his case as he may not be familiar with court

procedures. Sometimes witnesses will not be willing to co-operate with the complainant. The

complainant would be required to spend a lot of time to investigate. This is not easy for a private

citizen who has no training in investigation. Thus a heavy burden, financial and otherwise is

placed on the victims of non-cognizable offences.

The following Chapter is the comparative study of the Constitutional rights of the

accused to fair and effective investigation in pre-trial stages and before the trial courts. The

Chapter will discuss on what are the rights of the accused to be fair, just, and reasonable

treatments in criminal justice administration in both countries‟ systems. The Chapter is mainly

focus on the rights to fair, just, and reasonable procedures established by law exercised by the

State authorities. Right to life and personal liberty is the most fundamental rights of the citizens

as well as the accused persons are concerned. No one can deprive his personal liberty except

according to procedure established by law, and this is the core element of universal criminal

jurisprudential concept of human rights to criminal justice administration. Right of an accused to

be fair of investigation is one of the most important of the rights to fair trial. Before placing the

accused before the trial court, he shall be proved with reasonable procedures, just proceedings

according to what the law has said to follow. The State Authorities must act with good faith, and

responsible to the act of investigation.

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CHAPTER FOUR

CONSTITUTIONAL RIGHTS OF THE ACCUSED TO FAIR AND

EFFECTIVE INVESTIGATION

Liberty is the most precious of all the human rights. It has been the founding faith of the

human race for more than 200 years.315 Both the American Declaration of Independence, 1776

and the French Declaration of the Rights of Man and the Citizen, 1789, spoke of liberty being

one of the natural and inalienable rights of man. The Universal Declaration of Human Rights

adopted by the General Assembly of the United Nations on December 10, 1948, contains several

articles designed to protect and promote the liberty of individual. So does the International

Covenant on Civil and Political Rights, 1966.316 One of equal importance is the maintenance of

peace and law and order in the society. Unless there is peace, no real progress is possible.

Societal peace lends stability and security to the polity. It provides the necessary conditions for

growth, whether it is in the economic sphere or in scientific and technological spheres. Just as

liberty is precious to an individual, so is the society interested in peace and maintenance of law

and order in the society. Both are equally important. A major problem of human society is to

combine that degree of liberty without which law is tyranny with that degree of law without

which liberty becomes license.317

Whether it is for securing the liberty of an individual or for maintaining the peace and

law and order in the society, law is essential. Not only should there be a proper law, there should

also be proper implementation of law. In short, the society should be governed by the rule of law

and not by the rule of an individual, however benevolent he may be. Failure of rule of law is a

sure indication of the liberty of the individual coming into peril and so does the peace of the

society. It is therefore required of law that it should try to promote both these contending

concepts and to maintain a balance between them, viz., the balance between the necessity to

protect and promote the liberty of the individual and the necessity to maintain peace and law and

order in the society.

In this Chapter, the comparative analysis of the Cambodian Constitutional provisions and

Indian Constitutional provisions in light of right to fair and effective investigation by the 315 Government of India, Law Commission of India Report 177th, “Law Relating to Arrest” 5 (December 2001). 316 Ibid. 317 Arthur T. Vanderbilt “United We Stand” A.B.A.J. 639 (Aug 1938).

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investigating agency (officers) is to be divided into particular subordinate parts of the Chapter.

The Fourth Chapter covers the following subordinate points in each part of Constitutional

provisions of Cambodia and India. These are included i) Right to protect against arbitrary arrest

and detention, ii) Right to protect against unlawful search and seizure, v) Right to Legal aid

Counsel, iv) Right to protection against self-incrimination and v) Right to Speedy Trial.. In each

point, a comparative analysis is concluded at the end of explanation. The analysis will also be

emphasizing on the aspects of International Conventions and norms regarding with right to fair,

just, reasonable, non-arbitrariness law in criminal proceeding of investigative phases

i) Right to Protection Against Arbitrary Arrest and Detention…etc. a) Genesis

To arrest and detain anyone without observing due process of law is a serious

infringement of individual liberty. Anyone who has been arrested will lose educational,

employment and other opportunities seriously. In fact, an act of arrest and detention which

damage reputation of person irreparably tarnishes the name of his family and deprive the source

of sustenance. The stigma of arrested person remains subsequent to the release after 24 hours of

his arrest. Thus, it is said that the arrest is a “doomsday” device.318 The freedom from unlawful

arrest and detention is the one of the most fundamental and important right among the civil and

political right. Any arrest should be justified to avoid unsecured life of individual in society.

Generally, it can be justified on the grounds that individual‟s prosecution is actually intended or

at least contemplated as a possibility. The police, as important agency of state to maintain the

law and order, required to justify the every exercise of their powers of arrest by reference to the

legal source of these powers. Otherwise, the arrest without justification considers as a serious

encroachment upon the liberty of person or persons arrested.

Arrest is not desirable to sue in each and every case. But it accepted that arrest is the most

effective method of securing attendance of the accused at his trial. Sometime arrest may become

necessary as a precautionary measure in respect of person intending to commit an offence and

sometime it becomes necessary for obtaining the correct name and address of a person

committing an offence.

Each country has its own constitutional and statutory provisions and judicial decisions

regulating the exercise of arrest powers. It is significant to mention here that the law of arrest in

318 J. Shame Creamer, The Law of Arrest, Search and Seizure 64 (New York, Rinehart & Winston, 1980).

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the United States of America has not varied significantly from the law of arrest that involved 350

years back under the English Common Law.319 The Fourth Amendment to the Constitution of the

United States of America designed to make the arrest on suspicion impossible.320

b) Meaning of Arrest and Detention

The word “arrest” is amorphous. Generally, the word arrest means apprehension of a

person by an authority resulting in deprivation of his liberty. But the term defined operationally,

as taking a person into physical custody for the alleged commission of an offence in order to

initiate a criminal action in a court of competent jurisdiction. Arrest is the taking of a person into

custody in order that he may forthcoming to answer for the commission of an offence. A mere

pronouncement of arrest or touching of body would be sufficient to put someone under arrest

unless the person or persons sought to be arrested surrenders himself to arresting officer. A

person or persons deemed to be under arrest either after the submission of himself to police or

police overpowers such person. Therefore, where police orders some to stop and the person(s)

obeys the command of the police consider that he is under arrest. If a person stopped in

connection to the investigation by police and his command to stop obeyed, would constitute a

valid arrest. A mere threat to arrest, which is not accomplished by an overt act on the part of

police, does not constitute an arrest. Thus, arrest implies apprehension or restraint or deprivation

of one‟s personal liberty. Arrest defined as it consists in taking into custody of another person

under authority empowered by law, for the purpose of holding or detaining him to answer a

criminal charge or of preventing him the commission of a criminal offence.321

A private individual can also arrest a person or persons in fragrant crime, flagrante

delicto322, or where an offender has actually committed an offence.323 A reasonable force may be

used by a private individual, in order to give effect to arrest. After arresting a person or persons

by private individuals must send the arrested person or persons to the police station as soon as

reasonably possible. A judicial officer also can arrest a person in fragrant crime, flagrante

delicto.

319 Id. at 56. 320 Martone V. B. Hennessey, “Constitutional Rights of the Accused” 60 Mass. L. Q. 18 (1975). 321 Roshan Beevi v. Joint Secretary to the Govt. of Tamil Nadu, 1984 Cri. L.J. 134 (Mad.). 322 Supra note 52, art. 86. 323 Id. art. 87; supra note 29, s. 43.

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c) Grounds of Arrest to be Informed

The police arrest powers are indeed awesome even though they protect society, they can

destroy a life of a person. There are numerous jurists that support the idea that the law of arrest

unduly hamper police in the performance of their duties. Public makes the work of the police

more difficult by their captious attitude and the public expects and demands that police should

provide protection and should give justice to accused person promptly. Thus, the practical

problem falls primarily under the police, Prosecutor, or Investigating Judge. Anyone arrested

has right to enquire with police, Prosecutor, or Investigating Judge that on what ground he has

been arrested. If a person or persons arrested with warrant, he is entitled to ask to show warrant

to him. He has to be satisfied himself that he is being arrested properly. Arrest will be illegal if

warrant is not shown to the person arrested with warrant. It is considered that warrant is a media

of information of arrest. Thus, the person arrested with warrant will be able to know the grounds

of his arrest immediately. The person arrested without warrant has to be served with separate

note of information of grounds of arrest. In Christie and another v. Leachinsky and another324,

the House of Lords of the United Kingdom held that:

If a policemen arrests without warrant upon reasonable suspicion of felony, or of the other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason, in other words, a citizen is entitled to know on what charge or on suspicion of what crime he is seized.

Thus, the arrested person must be informed of precise act done by him for which he

would be tried. In a landmark Judgment regarding with arrest, the Supreme Court of India in the

case of Joginder Kumar325 case held that “Constitutional and legal provisions requiring an

arrested person to be informed about the grounds of arrest, her/his right to be represented by a

lawyer and to be promptly produced before a court must be strictly followed.

d) Making Presence of Accused before the Court

Legally arrested person is liable to lawful detention in police custody in further criminal

proceeding. However, detention can only be done in accordance with law and the police custody

must follow the procedures for detaining an arrested person. As per law, the arrested person can

be detained up to 24 hours in police custody and it can be extended up 48 hours according to

Cambodian Criminal Procedure Code 2007 with the high degree of restriction and very 324 [1947] AC 573. 325 Joginder Kumar v. State of U.P., 1994 SCC 260.

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reasonable grounds and circumstances of the case.326 It is an absolute and mandatory of 24 hour

of police custody under Indian Criminal Procedure Code, 1973. Police is required to produced

such detainee before a judicial officer within the said period of his arrest excluding period of

journey. The arrested person cannot be detained more than the statutory period provided. During

this period, police has to investigate into the involvement of accused in offence committed. If

police found him guilty he will be charged formally otherwise he would be released. Though, the

permissible period has been claiming insufficient there is no reason at all, to extend statutory

period provided by law of police custody. This extension will harm the individual liberty. The

Police have power to detain accused for longer period than the statutory period by the order of

the court for thorough investigation. Such detention may be termed as arrest and pre-trial

detention or provisional detention, for investigation. It assumed that after the police have brought

the detained person before a judicial officer, police cease to have control over such person. The

police will not dare to resort physical abuse leaving visible welts and bruises on the body of the

detainee. By prompt production of the detainee before the judicial officer, it will help not to

resort to unlawful acts against the accused.

The right to be brought before a Magistrate (Judicial Officer) within a period not more

than 24 hours of arrest have been created with a view (i) to prevent arrest and detention for the

purpose of extracting confessions, or as a means of compelling people to give information; (ii) to

prevent police stations being used as though they were prisons, a purpose for which they are

unsuitable; (iii) to afford an early recourse to a judicial officer independent of the police on all

questions of bail or discharge.327

It has been standing rule that a police is under a duty to produce detainee before the

judicial officer immediately. As well, it is a right of arrested person and detainee also that he

should be produced before judicial officer as soon as possible, i.e., within the statutory period of

his arrest. This enables the judicial officer to apply his judicious mind. But the question arises

that whether a person arrested with warrant should be produced before judicial officer within the

said period or not. The judicial mind applied at the time of presence of arrest will be reasonable

as the judicial officer will be able to hear arrested person. Reason behind producing arrested

person before judicial officer is to examine the legality of the arrest. Thus, the arrested person,

326 Supra note 52, art. 96. 327 Mohammad. Suleman v. King Emperor, 30 C.W.N. 985; See Chandra Mohan Upadhyay, Human Rights in Pre-trial Detention 82-110 (A.P.H. Publishing Corporation, 1999).

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even by warrant, is required to produce him before the judicial officer immediately within the

statutory provided by law.

The act of arbitrary arrest and detention or police custodial torture etc. are also under the

provisions of international laws, especially the Universal Declaration of Human of the United

Nations. The state parties to the international declaration, conventions or whatsoever regarded as

the international instruments, the states signatory and ratified them, are binding with obligation

to enforce them as their own municipal laws. The following table is containing of the

international instruments speak on laws of arrest, detention and torture, adopted by the United

Nations.

Table 2.

Nº Name of International Instruments/Laws Year

1 Universal Declaration of Human Rights 1948

2 Standard Minimum Rules for the Treatment of Prisoners 1955

3 International Covenant on Civil and Political Rights (ICCPR) 1966

4 Code of Conduct for Law Enforcement Officials 1979

5 Declaration on the Human Rights of Individual who are not Nationals

of the Country in which they live 1985

6 Body of Principles for the Protection of All Persons under Any Form of

Detention or Imprisonment, 1988 1988

While reviewing the above international instruments it can be concluded that the

international laws of arrest, detention and torture are exhaustively adopted by the United Nations

from time to time.

To sum up, right to be informed of grounds of arrest and right to be produced before the

judicial officer of a court which is competent to jurisdiction of the case are the fundamental

principle of criminal jurisprudence.

e) Comparative Analysis

Arrest means the deprivation of a person of his liberty by legal authority or at least by

apparent legal authority. In a free society like India and Cambodia, law is quite jealous of

personal liberty of every individual and does not tolerate the detention of any person with legal

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sanction. The right of personal liberty is a basic human rights recognized by the General

Assembly of the United Nations in its Universal Declaration of Human Rights. This has also

prominently included in the International Convention on Civil and Political Rights (ICCPR) to

which now India and Cambodia have been the parties. Furthermore both supreme law of the land

of the two countries have recognized and incorporated into their own Constitutions.

Under Cambodian constitutional provisions, Article 32 of Cambodia Constitution

provides that “everyone has the right to life, liberty and security of person and in any case, there

shall be no death penalty.”328 Here, the right to liberty, right to life and security of a person are

granted by the constitution. Article 38, forbids any physical abuse against any individual and

protects the life, the honour and the dignity of the citizens. Any criminal prosecution, arrest,

police custody or detention of any person shall not be done, except in accordance with the law.

The coercion, physical punishment or any other treatment aggravating the penalty of the detainee

or prisoner must be forbidden. The culprits or principals of such acts, co-principal and

accomplices have to be punished in accordance with the existing law. The act of confessions the

accused person obtained by physical torture or mental pressure must not be admissible as

evidence to prove the guilty of the accused person. It shall be deemed invalid. The doubt shall

benefit the accused. Any accused is presumed innocent up to the final verdict of the court. Unless

the final conviction has been prevailed, the accused shall be deemed to be innocent.

Under Cambodian Criminal Procedure Code, an arrest and detention cannot be initiated

unless it is an absolutely necessary.329An arrest warrant has to be issued by the Investigating

Judge330 and the arrest warrant is to be appreciate as valid if (i) the office in question is a felony

or misdemeanour publishable by imprisonment; (ii) the suspect has fled or his whereabouts are

unknown or is staying outside of the territory of the Kingdom of Cambodia.331 He may issue an

order to the police forces for arresting such person and detain him. However, before issuing an

arrest warrant, the Investigating Judge must ask for opinion of the Royal Prosecutor.332 After

obtaining the opinion of the Prosecutor, the Investigating Judge shall issue an arrest warrant with

reasons. The arrest warrant shall consists of identity of the involved person or persons; the

charged offence and the law which defines and punishes such offence; name and position of the

328 Supra note 10, Art. 32. 329 Supra note 52, arts. 96 and 203. 330 Id. art. 195. 331 Id. art. 196. 332 Id. art. 197

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judge who issued the arrest warrant, it must be signed the date and sealed by the Investigating

Judge who issued it.333 The execution of the arrest warrant must be done by JPOs with the

original document. In case of urgency, the arrest warrant may be published by all means of

publications.334

In view of Mr Hertbart Ira Handman, an arrest takes place whenever the police indicates

by words or action that he intends to take the suspect to police headquarters or to a judicial

officer or that the suspect is no longer at liberty.335 An arrest is the beginning of imprisonment

when a man is first take by police and restrained his liberty. It is a public act that may seriously

interfere with the defendant‟s liberty, whether he is free on bail or not. Arrest disrupt his

employment, drain his financial resources, curtail association, subject hi to public obloquy, and

create anxiety in him, his family and friends. The arrested person will be the subject of public

accusation. A lawful authority takes away a person‟s freedom and places him in the custody of

law by the instrument of arrest.

There are certain fundamental rights of arrested persons guaranteed under Articles 20, 21

and 22 of the Constitution of India. The Supreme Court, while interpreting these articles, has

built up jurisprudence of the rights of arrested persons. Article 21 of the Indian Constitution

provides that “No person shall be deprived of his life and personal liberty except according to

procedure established by law.”336 Further, the procedure contemplated by this article must be

right, just and fair and no arbitrary, fanciful or oppressive; otherwise it would be no procedure at

all and requirement of Article 21 would be satisfied. Immediately after arrest, at the end of

statutory period of 24 hours of police custody, the police must produce the accused before the

nearest Magistrate for cognizance of further criminal proceedings. The Supreme Court has

strongly urged upon the State and its police authorities to ensure that the constitutional and legal

requirement to produce an arrested person before a Judicial Magistrate within 24 hours of the

arrest be scrupulously observed. The healthy provision enables the magistrates to keep and check

over the police investigation and it is necessary that the magistrates should try to enforce this

requirement and where it is found disobeyed, come heavily upon the police.337

333 Id. art. 198. 334 Id. art. 199. 335 Herbart Ira Handman, The Rights of Convicts 17 (New York: Oceana Publications Inc., 1975). 336 Supra note 2, Art. 21. 337 Khatri (II) v. State of Bihar, 1981 SCC (Cri) 228. 233-234: (1981) 1 SCC 627; D.G. & I.G. of Police v. Prem Sagar, (1999) 5 SCC 700: 1999 SCC (Cri) 1036.

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In addition, certain basic rights of arrested persons have been incorporated in the Code of

Criminal Procedure, 1973, some of which are as under:

- Ss. 41-41D, 46-47-Arrest (also included rights of the arrested person)338

- S.50 Persons arrested to be informed of grounds of arrest and of right to bail.339

- S.50A Obligation of person making arrest to inform about the arrest etc., to a

nominated person.340

- S.57 Persons arrested not to be detained more than 24 hours.341

- S.303 Right of the accused to be defended by a Lawyer of his choice.342

- S.304 Legal Aid to accused at State expense in certain cases.343

- S.327 Trial to be held in open court.344

Article 21 of the constitution of India declares that “no person shall be deprived of his life

or personal liberty except according to procedure established by law”. In Maneka Gandhi v.

Union of India345, a Constitution Bench of the Supreme Court went into the meaning of the

expression “procedure established by law” in Article 21. The Court held that the procedure

established by law does not mean any procedure but a procedure which is reasonable, just and

fair. Be that as it may, the fact remains that the procedure established by law which affects the

liberty of a citizen must be right, just and fair and should not be arbitrary, fanciful or oppressive

and that a procedure which does not satisfy the said test would be violative of Article 21

.Therefore, the procedure established law must be fair, just and reasonable. The heading of the

said article is “Protection of life and personal liberty”. Article 20 contains three guarantees,

namely, (a) not to be convicted of an offence which was not in force or punishable at the time of

the commission of the offence, (b) not to be prosecuted or punished for the same offence more

than once and (c) not to be compelled to be a witness against himself. These are all the rights

guaranteed to a person accused of an offence. Clause (1) of Article 22 declares that “No person

who is arrested shall be detained in custody without being informed, as soon as may be, of the

grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal

338 Supra note 29, Ss. 41-41D, 46-47. 339 Id. s. 50. 340 Id. s. 50A. 341 Id. Ss. 57 and 167. 342 Id. s. 303. 343 Id. s. 304. 344 Id. s. 327. 345 Supra note 1.

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practitioner of his choice”. Clause (2) of Article 22 is indeed more fundamental. It says “every

person who is arrested and detained in custody shall be produced before the nearest magistrate

within a period of 24 hours of such arrest excluding the time necessary for the journey from the

place of arrest to court of the magistrate and no such person shall be detained in custody beyond

the said period without the authority of a magistrate”. If the period of 24 hours has passed by

without compliance with the requirement of the clause, the arrested person is entitled to be

released forthwith.346.

The Madras High Court in the case of Roshan Beevi347 submitted that although

technically the appearance of the accused before the Magistrate might amount to surrender to

judicial custody, in actuality no attempt had been made by anyone to restrict the movements of

the accused which may have led him to believe that he had never been arrested. In this case, the

Court has laid down the following elements to constitute an arrest in the instant case.348 Those

elements are; (i) that there must be an authority to arrest; (ii) the authority must intend to make

an arrest; (iii) the intention of arrest be expressed by a seizure or detention of the person; (iv) the

seizure or detention be a manner known to the law; (v) the foregoing acts and events must

convey to the arrested person that he is being put under arrest; and (vi) the same be understood as

such by the person arrested.

However, there are two exceptions to clauses (1) and (2) of the Article 22 of the

Constitution. The two exceptions are provided in clauses (3) “Nothing in clauses (1) and (2) shall

apply (a) to any person who for the time being is an enemy alien; or (b) to any person who is

arrested or detained under any law providing for preventive detention”.349 The preventive

detention must not exceeding of three months unless there is proved of sufficient causes and

reasons which are required to extend the period of preventive detention. In case of preventive

detention under this article, the Court cannot interfere with the exercising of discretion by

authority of the executive350 unless there is a complaint of arbitrary arrest and the court with

reason to believe their mala fide act of the authority in concerned arrest and preventive

detention.351 According to the Indian Supreme Court ruling in the very landmark judgment of

346 P.C. Kakar v. Director General of Police, 1986 (1) Crimes 620, 625 (AP). 347 Supra note 321. 348 Id. at 142. 349 Supra note 2, Art. 22. 350 M.P. Jain & S.N. Jain, Principle of Administrative Law 652 (Lexis Nexis, 6th edn., 2013). 351 The Court, if there is reason to believe that such arrest and preventive detention is mala fide and arbitrary, may

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Maneka Gandhi v. Union of India352 article 21 envisages “reasonable, fair, and just procedure”.

Strange thought it may seem, the Constitution of India visualizes the possibility of a law of

preventive detention as a peace-time measure.353 Preventive detetion has not been known in

other democratic countries like Canada, Australia, UK or even Cambodia, but their recourse has

been had to it only in war time. In India, however, with all the emphasis on individual liberty and

Fundamental Rights, it has been found necessary to resort to preventive detention even in peace

time because of unstable law and order situation. Law for preventive detention can be made by

Parliament “exclusively for reasons connected with defence, foreign affairs or the security of

India354, and by Parliament and State Legislatures concurrently for reasons connected with their

security of a State, maintenance of public order, or maintenance of supplies and services

essential to the community.355

Clause (4) to (7) of article 22 provide some protection to the individual in preventive

detention by requiring the law providing for preventive detention to contain a few procedural

safeguards mentioned therein. Clause (5) of the article provides that the detaining authority

“shall, as soon as may be, communicate to such person the grounds on which the order has been

made and shall afford him the earlier opportunity of making presentation against the order”. It is

necessary to give the grounds on which the detention has been made against a person otherwise

he may remain in custody without having the least idea as to why his liberty has been taken

away. This is considered as an elementary right in a free democratic country, article 22(5),

however, is silent as to the person to whom the detenu is to make a representation. It confers on

the detenu only the right to make a representation, not a right to being heard orally, or through a

lawyer, or to lead evidence.

The Supreme Court while examining an order passed by the Madras High Court,

dismissing the petition filed by the appellant for grant of a writ in nature of habeas corpus, and

thereby sustaining the order of detention passed by the detaining authority under section 3(1)(i)

of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and

quashed the case and set the arrested or detained person on free, under Article 226 if the petition is filed before the High Court and under article 32 if the petition is filed before the Supreme Court.

352 Supra note 1. 353 Prevention Detention means detention of a person by an executive authority merely on suspicion without any

trial and conviction by a court of law. On preventive detention generally, see M. P. Jain, Indian Constitutional Law, supra note 60 at 506-524.

354 Seven Schedule of the Constitution of India, List I, entry 9. 355 Id. List III, entry 3.

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observed that, preventive detention essentially deals with the curtailment of a person‟s liberty

and it therefore a potential weapon for human right abuse. It is further observed that in the U.S,

some State statutes authorise preventive detention, where there is clear and convincing evidence

that the defendant is a danger to another person or to the community, and that no condition or

combination of conditions of pre-trial detention release can reasonably protect against that

danger. It was noted that pre-trial detention is not to be employed as a device to punish a

defendant before guilt has been determined, nor to express outrage at a defendant‟s evident

wrongdoing, but its sole purpose is to ensure public safety and the defendant‟s future appearance

in court when the Government proves that conditions of release cannot achieve those goals. The

Court also noticed that UK, preventive detention is more or less employed in counter-terrorism

measures. Accordingly the Supreme Court directed released of the dentenu.356

From the above, it is clear that article 22 permits the bestowal of a large of discretion on

the administration to order preventive detention. It is judicially established that the making of an

order of preventive detention can be left entirely to the subjective satisfaction of the executive

without the legislature setting up an objective standard or test for the purpose.357 A law of

preventive detention cannot be faulted on this ground so long as it provides for the safeguards

laid down in article 22(4) and (5). The control of the judiciary over preventive detention is only

marginal. The courts cannot substitute their own satisfaction for that or the detaining authority.

They are confined to reviewing in order of detention like any other discretionary order on such

grounds as mala fides, irrelevant or extraneous considerations, and non-application of mind by

the detaining authority.

In the very landmark judgement regarding with arrest procedure, police custodial

violence, and compensation in the case of D.K. Basu v. State of West Bengal358the Supreme

Court of India observed that custodial torture is a naked violation of human dignity. The situation

is aggravated when violence occurs within the four walls of a police station by those who are

supposed to protect citizens. The Court accepted that the police have a difficult task in light of

the deteriorating law and order situation, political turmoil, student unrest, and terrorist and

underworld activities. They agreed that the police have a legitimate right to arrest a criminal and

356 Gimik Piotr v. State of TN., (2010) 1 SCC 609 (19): AIR 2010 SC 924. See generally ICCHU Devi Choraria v.

Union of India, 1980 531; Gopalanachari v. State of Kerala, 1980 SC 649; Citizens for Democracy v. State of Assam (1995) 3 SCC 743.

357 M.P. Jain, Indian Constitutional Law, supra note 60, at 514. 358 (1997) 6 SCC 642.

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to interrogate her/him in the course of investigation. However, the law does not permit the use of

third degree methods or torture on an accused person. Actions of the State must be right, just and

fair; torture for extracting any kind of confession would neither be right nor just nor fair. This

Court laid down certain basic “requirements” to be followed in all cases of arrest or detention till

legal provisions are made in that behalf as a measure to prevent custodial violence. The

requirements read as follows:

1. The police personnel carrying out the arrest and handling the interrogation of the

arrestee should bear accurate, visible and clear identification and name tags with their

designations. The particulars of all such police personnel who handle interrogation of the arrestee

must be recorded in a register.

2. That the police officer carrying out the arrest of the arrestee shall prepare a memo of

arrest at the time of arrest and such memo shall be attested by at least one witness, who may

either be a member of the family of the arrestee or a respectable person of the locality from

where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time

and date of arrest.

3. A person who has been arrested or detained and is being held in custody in a police

station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or

other person known to him or having interest in his welfare being informed, as soon as

practicable, that he has been arrested and is being detained at the particular place, unless the

attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

4. The time, place of arrest and venue of custody of an arrestee must be notified by the

police where the next friend or relative of the arrestee lives outside the district or town through

the Legal Aid Organisation in the district and the police station of the area concerned

telegraphically within a period of 8 to 12 hours after the arrest.

5. The person arrested must be made aware of this right to have someone informed of his

arrest or detention as soon as he is put under arrest or is detained.

6. An entry must be made in the diary at the place of detention regarding the arrest of the

person which shall also disclose the name of the next friend of the person who has been informed

of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

7. The arrestee should, where he so requests, be also examined at the time of arrest and

major and minor injuries, if any present on his body, must be recorded at that time. The

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„Inspection Memo’ must be signed both by the arrestee and the police officer of effecting the

arrest and its copy provided to the arrestee. The arrestee should be subjected to medical

examination by a trained doctor every 48 hours during his detention in custody by a doctor on

the panel of approved doctors appointed by Director, Health Services of the State or Union

Territory concerned. The Director, Health Services should prepare such a panel for all tehsils and

districts as well.

9. Copies of all the documents including the memo of arrest, referred to above, should be

sent to the Illaqa Magistrate for his record.

10. The arrestee may be permitted to meet his lawyer during interrogation, though not

throughout the interrogation.

11. A police control room should be provided at all district and State headquarters, where

information regarding the arrest and the place of custody of the arrestee shall be communicated

by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control

room it should be displayed on a conspicuous notice board.”359

This Court also opined that failure to comply with the above requirements, apart from

rendering the official concerned liable for departmental action, would also render him liable to

be punished for contempt of court and the proceedings for contempt of court could be instituted

in any High Court of the country, having territorial jurisdiction over the matter.

Article 22 of the Indian Constitution has been composed to cover all cases of arrest,

including “protective detention”. If a person apprehended by a legal authority he must be deemed

to be arrested within the meaning of Article 22. Therefore, it is immaterial whether the term

arrest has been used or not in the statute or the rules.360 Article 22 lays down certain safeguards

to the arrested and detained person. However, the safeguards enshrined in Article 22 are not

available in all cases of ordinary arrest or detention. These safeguards are only for punitive

reasons. The safeguards of Article 22 do not apply in the case of arrest made for protection and

in view of benefit for arrested person.

The guarantee provided in Article 22 and detained person in custody will become

meaningless if the magistrate act mechanically without applying judicial mind to see whether the

arrest of the person produced before him is legal in accordance with law. The arrest to deport

359 Ibid. 360 Ajaib Singh v. State of Punjab, AIR 1952 Punjab. 309 F.B.

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alien to his country also does not come under the authority of this Article. An under-trial person

should not be handcuffed and also not be taken into possession through the principles against

humanity.

ii) Right to Protection Against Unlawful Search and Seizure

a) Genesis

A search is inevitable in case of an arrested person, and for the purpose of investigation

into criminal offence which police officers, or investigating officer have reason to believe that

any suspicion has occurred and related to the commission of crime. The policeman or

investigating officers are empowered by law to enter the premise of the accused, by forces if

necessary, to search for possible evidence and exhibition and making seizure if necessary. Search

and seizure are the important parts of the pre-trial process of criminal proceedings, so-called pre-

trial investigation. But it encroaches upon a person‟s privacy and sanctity of his home. It has

been rightly observed that an intrusion of one‟s privacy is demeaning to individuality and his

personal liberty and is an affront to personal liberty.361 A search extends beyond his person and

includes the area where he is arrested and the things under his immediate possession or control.

The search officers have power to seize articles or properties in case the search officers found

something related with an offence committed and it is very necessary to be seized. It is not

necessary that there will be search of person or place of an individual not being arrested. A

search conducted without authority of law is considered as a serious encroachment upon the

rights of an accused person and other innocent persons. Thus, the search should be conducted

under the authority of law, fair procedure with a proper manner and follow the procedure which

is established by law.

A coercive search of any premise, someone‟s residence is an encroachment upon the

rights of the occupant of the premise.362 It infringes the person‟s liberty.

b) Requisites for Lawful Search

Privacy of a person cannot be intruded by anyone. His residence, belongings, property

etc. are guaranteed not to be invaded, by the Constitution and procedure established by law. If it

is invaded even for a while, is a trespass and bound to show by way of justification that some

positive law has justified or excused him/her. Thus, the certain essential requisites for a lawful

361 Edward J. Bloustein, “Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser” 39 N.Y. Uni. L. Rev. 973 (1984). 362 R.V. Kelkar, Outlines of Criminal Procedure 60 (Eastern Book Company, 1984).

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search, which are discussed below, must be followed unconditionally. The essential requisites for

lawful search are;

a. Search warrant;

b.Search Incident to an arrest/grounds of search;

c. Consent search;

d.Emergency search363

Search Warrant: Any search should be conducted after securing search warrant. A

search warrant is primary requisite for a lawful search. The police officer or investigating officer

is obliged to produce and handover a search warrant to the person whom to be search, the

occupant of the premise, to be searched. The warrant executing officer is also required to identify

himself. He should not enter into the place to be searched without getting consent from the

owner of the residence or without the eye-witnesses accompanied with. The search warrant has

to be issued by judicial officer or a court or authorized officer who is competent to such

jurisdiction.364 It must be very carefully examining the statement submitted by police. Such

statement should be on basis of proper information. The judicial officer should mention

specifically the place to be searched in search warrant. He cannot be authorized to search entire

building where probable cause has been shown only for searching one room or apartment. But

his authorization to search entire premise could valid if the premise is under control of a single

occupant. A search warrant should also clearly describe the articles sought for seizure. But these

articles may come across in the course of valid search. In such condition, these articles also can

be seized by officer in case these articles are related with the crime. A search warrant should be

used within a reasonable period of conduct search. Unreasonable or unexpected delay may make

the search invalid.

Search Incident to an Arrest/ grounds of Search: A search can be conducted against

arrested person even without warrant. However, there must be unambiguous pointing and with

reasonable grounds. Search must be reasonably incident to a valid arrest or detention. If the

arrest is unlawful for any reason, the incidental search will become unlawful. The arrest must not

contain elements of subterfuge. An arresting officer should arrest the person whom to be arrested

363 Dr. Amir Ratna Shrestha, supra note 62 at 96. 364 In Cambodian CCPC, 2007 (Art. 159), It is to be issued by the Investigating Judge or he may conduct such

search and seizure by himself. In Indian Criminal Procedure Code (S. 91), it shall be issued by a competent Magistrate of a Court.

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immediately at the very moment of seeing the person to be arrested. A police officer who has

ample opportunity to arrest the accused in the public street outside his home should arrest

immediately. Police must not wait till the person to be arrested enters into his home and then

make the arrest with an intention to conduct an incidental search in the house. Without masking

his face or without anything covering his face, the accused should be allowed to go out. He

should be allowed to capture of video or picture by media without masking his face.

Consent for Search: Consent for search is most important basis for a valid search. An

individual has constitutional right not to be subjected to unlawful search and seizure.365

However, he may waive this right and may give consent to search. But the general requirement is

that the person to be searched must have voluntarily and independently waived this right. As the

right to protection against unlawful search and seizure is a personal right, the concerned person

only can give consent to search. A person cannot give consent for another person and a consent

given by other person for someone is also not admissible to conduct search. However, a joint

tenant can give consent to if in case of jointly property between the tenants. A vicarious consent

is not valid for a lawful consent. There should be immediate possession of property to give

consent. The consent must be voluntary and independent. A consent take under compulsion or

coercion or misrepresentation or fraud or undue influence is invalid. Whether the consent is

taken under voluntarily or independently is a matter to be decided with the help of evidence. A

judicial officer is sole authority to decide upon it.

Emergency Search: A search conducted under emergency also considered as valid. In

emergency, search must be conducted as soon as possible. Generally, arrest should be followed

by search, but in the process of destroying evidence, police is authorized to obtain the evidence

immediately. The search officer has to prove that he did search under emergency conditions. In

such case, a search warrant is not requisite to obtain. If police officer pursues a person, whom

has a probable causes to believe that he has committed a crime, hot pursuit occurs. If a suspect

enters into a house, a police officer also can enter into the house while maintaining hot pursuit

and can conduct a search, with warrant, to protect own safety and safety of others and prevent

the suspect from escape or committing any further offence.

365 Supra note 10, Art. 40 Para.3. supra note 2, Ss. 93-94.

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c) Evidentiary Value of Seized Articles

A searching officer is required to specify the seizure articles in a document after search.

The evidentiary value of seized article depends upon the validity of search. If a search is valid,

then the evidentiary values of seized articles are undisputable. However, the seized articles must

bear some reasonable relation with an offence.

Plato rightly said that “the searching officer is required to search himself while entering

into the place to be searched to make sure that the police officer has not carried along with him

any articles relating with an offence.”366 The personal search should be conducted of all persons

entering into house for search, in the presence of respectable and independent persons or

witnesses. The fact that the competition of personal search of the police officer and other persons

entering into the house to be searched should be recorded in a document prepared after the

completion of search of a house. The police officer has authority to seize the alleged articles

found during the search. But he should not give a receipt of articles to the owner of the seized

article.

For the international law relating to protection against unlawful Search and Seizure, the

international instruments enunciated law of privacy which provides that no one shall be

arbitrarily interfered with his home, family, correspondence or privacy.367

d) Comparative Analysis

It is unfortunate that the Constitution of India does not recognize this right or the right to

be free from unreasonable search and seizure as a fundamental right, whereas Part III of the

Constitution contains a long list of fundamental rights. Kazi Syed Karimuddin moved on the line

of 4th Constitutional Amendment of the U.S.A in the Constituent Assembly but his idea was

rejected.368 The aim of having a declaration of fundamental right is that certain primary rights

should be regarded as inviolable under all conditions and should not give a free hand in

interfering with these fundamental rights. But Justice Jagannathdas in the case of M.P. Sharma

said that the Constitution of India did not recognize the right to privacy and there is no

justification to import it by some process of strained constitution.369 However, the importance of

right to privacy as a human right and its need for legal protection has been acknowledged by the

366 Quoted in Symposium, “Constitutional Problems in the Administration of Criminal Law” 59 North. West Univ. L. Rev. 611 (1984/1985). 367 See the Table 2, international instruments No. 1, 3 and 5. 368 7 C.A.D. 794. 369 M.P. Sharma v. Satish Chandra, AIR 1954 SC 306 (307).

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Supreme Court and High Courts of India. These Court liberalizes to interpret Article 21 instead

of, even though there is no specific provision in Part III of Fundamental Rights in the

Constitution.

Article 21 may cover this matter. Article 21 is very liberal and wide interpretation. It says

“no person shall be deprived of his life or personal liberty except according to procedure

established by law.” The Supreme Court of India in the case of Maneka Gandhi v. Union of

India370 seven judge of constitutional bench interpreted that Article 21 covers a variety of rights

and some have status of fundamental rights and given additional protection under Article 19.

Triple Test for any law interfering with personal liberty: (i) it must prescribe a procedure; (ii) the

procedure must withstand the test of one or more of the fundamental rights conferred under

Article 19 which may be applicable in a given situation; and (iii) it must withstand test of Article

14. The law and procedure authorizing interference with personal liberty and right of privacy

must also be right and just and fair, non-arbitrary and fanciful or oppressive.

The judicial law recognized the houses/residences of Indian citizens as castle, but not of

other persons. It is really unfortunate that the house of other persons such as alien was not

considered as castles. The observation of t regard as follows;

An Indian citizen‟s house, it must be always remembered, in his castle, because next to his personal freedom comes the freedom of his home. Just as a citizen cannot be deprived of his personal liberty except under authority of law, similarly, so no officer of the state has a prerogative right to forcibly enter a citizen‟s house except under the authority of law.371

In Cr.P.C. the Code therefore, provides initially for a summons to produce any

documents or things before the court issue the search and seize warrant.372 If this method fails or

is apprehended to fail, the court may issue orders to police for the search and seizure of such

documents or things.373 A very wide power of search and seizure have given to the Court by the

Code, general search and immediate search of a place without issuing a warrant from the

Magistrate of a court if it is exigencies of the investigation proceedings may sometimes require

the immediate search of such a place, for instance. The Code empowers the court to issue a

warrant for general search of any place for the purposes of any inquiry or trial, or to issue

370 Supra note 2. 371 State v. Bhawani Singh, AIR 1968 Del. 208 (211) (F.B.); See also Malicio Fernandes v. Mohan, AIR 1966 Gao 23 (32); Emperor v. Mohammed Shah, AIR 1946 Lah. 456, 458. 372 Supra note 29, s. 91 373 Id. s. 93.

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warrants for the search of places suspects to certain stolen property, counterfeit coins or currency

notes or stamps, obscene objects and such other objectionable materials. A search warrant is a

written authority given to the police officers or other person by a competent Magistrate or a

court, for the search of any place either general or for specified things or documents or for

persons wrongfully detained.374

Unlike Indian Constitution, the Cambodian Constitution 1993, Article 43 Paragraphs 4,

provides the fundamental right of Cambodian citizens of all rights to privacy and right to

confidentiality. It cannot be violated. The provision provides that the protection of the rights to

the inviolability of residence and to the confidentiality of correspondences by mail, telegram,

telex, facsimile and telephone shall be guaranteed. All kinds of violation of right to privacy are

forbidden. The State must secure the confidentiality of its citizens. Deprivation of the right to

privacy is the same as deprivation of the right to liberty. Any searching of residences, houses,

properties and body search must be done in accordance with the legal stipulations. It has to be

done with the conformity of procedure established by law375

Therefore, the Cambodian Code of Criminal Procedure, 2007 lays down its provisions to

be followed by the judicial officers and JPOs to conduct of search and seizure. Search and

Seizure are also compulsory procedures, in case of felonies and misdemeanour offences. The

Prosecutor, Investigating Judge, and JPOs can search places and seize things when believe such

searches or seizures may lead to the truth about the commission of the offences either in proving

the guilt or innocence of the accused.

The CCPC, 2007 has empowered the Investigating Judge on making any search, and

seizure of exhibitions on which could be necessary for the sake of evidence if he is submitted the

introductory submission. However, there are rules and restrictions to be taken into account by the

Investigating Judge in doing such things. Search and seizure of exhibitions have to be done in the

presence of the occupant of a place. In case, in the absence of the occupants, the Investigating

Judge has to search the place in the presence of two witnesses, and such witness must not be the

police or military officers from the force conducting the search. Except to the searching of some

places including; a place open to the public, a place where drugs are produced, stored, circulated,

distributed or consumed, the Investigating Judge must conduct searching after 6:00 a.m. or

374 Ibid. 375 Id. Art. 43.

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before 18: 00 p.m.376 as general rule, he is not allowed to enter the house or residence and search

it, unless the occupant of the residence is suspected, accomplice, accessary, possessing any

documents related to the offences or hiding the accused or items. The search has to be recorded

on any found, date, time, persons involved, items have been found and seized etc…The seized

properties must be signed by the occupant or by witnesses and affixed with official seal of the

Investigating Judge.377 The seized properties also have to be signed by the Investigating Judge

and his clerk and attached with the identities of the two witnesses and occupants. Any seized

property which is not in serious dispute, the Investigating Judge has power to return such seized

properties to the owner. However, it has be reach with the opinion of the Prosecutor. The

decision of the returning seized properties, with expeditious procedure, the plaintiff and his

lawyer shall be notified about the returning of such items.378

iii) Right to Legal Aid Counsel a) Genesis

Justice Doughlas opined that the right to beard would be of no avail if it did not

comprehend the right to be heard by counsel.379 In the absence of a lawyer, an accused needs

special training or knowledge in the science of law to prove his innocence without which even

intelligent and educated accused will not be able to establish his innocence and may be

convicted. An accused may not have legal knowledge. Even if such person has, he may not be in

position to defend himself because of mental upset.

The right to legal defence is considered as indispensible to the fair administration of

criminal justice. The application of the right ensures that the accused person is provided with a

legal advisor who is familiar with the intricacies of the law. The right to legal defence can be

described as the fundamental of all other rights of the accused person. It serves different rights

and perhaps most important than other rights. Protecting personal liberties of the accused and

securing them a fair and just criminal proceeding are the main philosophy behind the existence

of this right. The right of the accused to have his own lawyer to defend his case during criminal

proceedings is guaranteed as safeguarded under both countries constitutions and criminal

procedure codes, Cambodian and Indian.

376 Id. art. 159. 377 Id. art. 160. 378 Id. art. 161. 379 Jon Richard Argersinger v. Raymon Hamlin, 407 U.S 25 (1972).

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Most of the accused are not able to defend themselves due to lack of legal knowledge and

pecuniary sources. On the other hand, government of many countries spends lots of money for

the prosecution of the accused. Prosecutors are deemed essential to protect the interest of the

society. They will try their level best to convict the accused. If there is no defence lawyer, the

accused hardly will be able to escape from punishment in criminal case. The public Prosecutor

will not place such evidence before Court or point out pitfalls in the evidence or arguments

placed by him which may adversely affect to the interest of the society. Though, the duty of the

public Prosecutor is to pursue for justice and to assist the court, yet his aim will be to get

maximum conviction irrespective of the merits of the case. The ultimate result will be the

victimization of the accused. If the ends of justice are to be met, then both side (i.e. the

government and accused) must have equal opportunity to defend their case by a competent

lawyer. Most of the democratic societies have assured that an accused can consult and be

defended by a lawyer. This assurance was given through legislative provision in early stage.

Access to a lawyer was considered as a legal right. But there was a fear of changing of legislative

provision by the state machinery in their convenience. Thus, the right to counsel has been

recognized as a fundamental right.

Principle 1 of the United Nations Principles and Guidelines on Access to Legal Aid in

Criminal Justice Systems states that “recognizing that legal aid is an essential element of a

functioning criminal justice system that is based on the rule of law, a foundation for the

enjoyment of other rights, including the right to a fair trial, and an important safeguard that

ensures fundamental fairness and public trust in the criminal justice process,14 States should

guarantee the right to legal aid in their national legal systems at the highest possible level,

including, where applicable, in the constitution.”380

The participation of the accused person‟s lawyer during the pre-trial stage is very

significant in mitigating the imbalance between the state power and the inability of the accused

person. Without the participation of the lawyer of the accused, who understands the procedural

rules of evidence, the accused person would be unable to face the police and prosecution actions

during the stage of investigation and interrogation. In India, the interrogation of the accused is

carried out by police, the stage of interrogation is considered as a very dangerous stage where the

380 See United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, Principle 1, adopted by the General Assembly of the United Nation, Resolution number 2012/15 of 26 July 201.

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police can be very biased in obtaining confession by foul means. Therefore, the presence of the

lawyer during the process of interrogation could serve as a substantial guard use of force or

pressure of psychological variety. Thus, the right to counsel serves different and perhaps it is

most important than other rights. After incorporation of the right to counsel in the constitution,

the government may no longer employ the techniques for eliciting information from an

uncounselled accused that might have been possible at the stage of interrogation. It is at this

point the right to counsel becomes necessary to guarantee the right to a fair trial. The right to

legal counsel, of an accused, is taken as axiomatic.381 However, determining the scope of the

accused person‟s right to counsel is a difficult area of constitutional adjudication.

The international instruments relating to the human rights ensure the right to counsel.

However, the 1948 Declaration did not mention the right to counsel explicitly. The right to

counsel should not have ignored by the framers of the 1948 Declaration. This right has been

conspicuously missing in the 1948 Declaration.

However, some international instruments also have provided the right to counsel such as

Standard Minimum Rules for the Treatment of Prisoners 1955382, International Covenant on

Civil and Political Right 1966383 and Body of Principles for Protection of All Persons under Any

Form of Detention or Imprisonment 1988384.

b) When the Right to Counsel Begins?

Adversary system of the criminal proceedings, in view of recording certain incriminatory

statement, commences at the moment of an accused is first subjected to the police questionings

while in custody at the police station or otherwise deprive of freedom of action in any manner.

So to say, an accused can exercise the right to counsel from the moment of police station.

Herbert Ira Handman opined that the defendant has a right to the assistance of the criminal

proceedings where the substantial right of the accused may affected.385 The accused can exercise

the right to counsel from the moment of arrest. It is not that he can be defended only in the court.

He may need legal advice from a lawyer before replying to any questions put by police officials

at custodial interrogation. So that. either he may appoint a lawyer from the moment of arrest or

381 Alec Samules, “Legal Representation Before the Board of Visitors” 701 Cri. L. Rev. (1989). 382 See Standard Minimum Rules for the Treatment of Prisoners 1955, Art. 93. 383 Supra note 5, Art. 14(3)(d). 384 Body of Principles for Protection of All Persons under Any Form of Detention or Imprisonment 1988, Principles 11(1), (2), 17(1), (2) , 18(1), (2), (3). 385 Herbert Ira Handman, supra note 335 at 20.

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he can ask with his government for the appointment of a lawyer to defend his case on plea that

he could not afford a lawyer to defend his own expense due to his destitution. Sometimes, the

procedure for applying to get a lawyer takes a long time. Such bureaucratic attitude makes things

difficult in getting legal assistance. Such environment may deprive justice to the accused. The

role of lawyers is pivotal in terms of justice. They are the crucial person who can defend his

client properly. The presence of a lawyer often has salutary effect upon the conduct of

proceedings in police station. Access to a lawyer, as of right, is of no value if no lawyer made

available or the available lawyer is not of the right sort. Indeed, a clever lawyer is not required,

only requirement is the independent and competent lawyer, who can give the confidence to an

accused; can analyse the evidence and facts and can present a competent plea in mitigation.

c) Waiver of Right to Counsel

An accused may unknowingly and intelligently waive the right. The evidence obtained as

a result of interrogation cannot be used against the accused unless and until waiver demonstrated

by the prosecution at the trial. An accused is required to knowledge, in written form, that he

waived his constitutional right to counsel. An accused who is illiterate, should put on his thumb

impression is acknowledgement and that is required to be verified by some other independent

witnesses. Such verification is needed because of the danger that the police could prepare a false

acknowledgment. An accused who was served with Miranda warnings386 at the moment of

custodial interrogation may refuse to sign in the acknowledgment. Mere silence or waiver by

conduct or demeanour of the accused is not an act of waiver of the right to counsel.

If police fails to record an oral waiver, they should try to show that the accused initiated the

conversation with the police officials voluntarily and there was no compulsion during the

questions. The Supreme Court of the USA emphasized in Edwards v. Arizona387 that any waiver

of the right to counsel must be made not only voluntarily but should be knowingly and

intelligently.

d) Engagement of a Lawyer

As the accused has the constitutional right to counsel, he naturally has the right to appoint

a lawyer of his choice to defend his case. The accused must have confidence upon his defender.

He cannot be denied to appoint a lawyer of his choice. Police or any other person should not

386 Miranda v. Arizona, 384 US 436 (1966). 387 451 US 482 (1981).

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impose upon him to engage a particular lawyer for his defence. In fact, it is a personal matter of

an accused to appoint a lawyer of his choice. The right to engage a lawyer exclusively lies with

the accused only.388The right to counsel should not be ascertained by a lawyer whose presences,

was not requested by the accused.389 If the accused is being defended by a lawyer not of his

choice, it will be considered as a material irregularity which results into illegality of the trial and

leads to injustice provided he made an objection in this regard.390 If an accused in the police

custody, it is the duty of the police that the necessary arrangement should be made for the

engagement of a lawyer to the accused. Police has no option except to accept the request of the

accused for the engagement of lawyer of his choice. The police should arrange such a place

where the accused can discuss openly with his lawyer. The police should not hear or record any

discussion between the accused and his lawyer. It may be at the sight of the police for the

security listen.391The police should not interfere with the communications between the accused

and his lawyer. An accused have open and unfettered discussion with his lawyer392. The lawyer

acts as a middleman between his client and the state. The police should obstruct the efforts of an

accused person‟s lawyer to act as a middleman between the state and the accused.

The accused person who is under the custody of police has the right to engage and

consult a lawyer of his choice. He should have full opportunity and right to get into

communication of a pleader by his choice. It is prudent on the part of the police to allow a lawyer

to interview and contact the arrested person, if he wants at the time of questionings.393 The police

cannot refuse to allow a lawyer to be present when a person is questioned without giving reasons

to exclude the lawyer from subsequent interviews.

e) Comparative Analysis

The right to counsel is both given and recognized by the Cambodian Constitution 1993

and Criminal Procedure Code 2007, but with narrow scenes of justice. The Criminal Procedure

Code does not confer the right of the accused to engage his lawyer during arrest or immediately

after his arrest or within the period of 24 hours of his detention in the police custody. Article 38,

paragraph 8 of the Constitution, provided that “any individual shall have the right to his own

388 Moran v. Burbine, 106 S.C.R. 1142 (1986). 389 Ibid. 390 See Charles E. Ares, “Constitutional Criminal Law” 74 Col. L. Rev. 362. (1974). 391 Ibid. 392 R.V. Kelkar, Outlines of Criminal Procedure, supra note 362 at 1152. 393 Gain Singh v. State (Delhi Admn.) 1981 Cri. L.J. 100.

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defense through the judicial system”.394 A part from the Constitutional provision, the Codes has

provided the accused to access to his legal representative (lawyer) in several articles; articles 97

(record of Police Custody), Article 98 (Assistance of Layers during Police Custody), article

109(9) (Mandatory Rules), article 145 (Presence of Lawyer during interrogation), article 147

(Confrontation), and the very important provision are articles 149 (Right to Defence) and 510

(Communication of Detainee with his lawyer). Article 98 of the CCPC 2007 provides the right to

assistance of Lawyer during police custody but after 24 hours of period of arresting of the

accused. The Code does not provide the right to speak with his lawyer his relatives after

immediately of his arrest or even within the period of 24 hours. It says that “after a period of 24

hours from the beginning of police custody has expired, the detainee may request to speak with a

lawyer or any other person who is elected by the detainee, provided that the selected person is

not involved in the same offence…etc.395 Here, some illegal acts committed by the police to the

accused may happen in any hours within the period of 24 hours. The police may sometime

pressure him to extract the information or making forced confession from the accused person.

The pressure could be physical or mental which is called the “third method”.

According to the provisions, the Code requires the police must inform the accused that he

has the right to legal representative. The rules of provisions of Articles 97 and 98 is mandatory

and it must be strictly complied with and if any violation of these rules, it shall be deemed as null

and void.396 Article 149 of the Code says “the lawyer of a charged person who is in detention

may freely communicate with his client in the detention centre or in prison. The conversation

between the lawyer and the charged person shall be confidential and not be listened to and

recorded by others. The lawyer may read out part of the case file to his client. The lawyer may

not give the copies of part of the case file to his client.397 It is meaning thereby, the accused has

full right to choose or hire a lawyer for his case defence but this right is merely restricted and not

wider in the real scene of justice, reasonable and fair for the accused. On the one hand, both the

provisions of the Constitution and the Criminal Procedure Code do not merely mention right to

394 Supra note 10, Art. 38(8). 395 Supra note 52, arts. 98. The right to legal counsel also provided in Arts. 97, 143, 149 and 510 396 Id. art. 109. 397 Id. art. 149.

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legal counsel is the expense of the state. However, the compulsory of assisting a lawyer is given

to the case of minor accused.398

The presence of the accused lawyer during the investigation is very significant for

ensuring the fair trials. The right to defence should be granted to any accused and continue

throughout his trial. The principle of guaranteeing the accused person‟s right to defence does not

depend on the character of the charge, time limit or on the personality of the accused or on the

persuasiveness of the evidence gathered against him. The general rule is that investigations are

opened and public, and the accused and his lawyer during investigations must be considered as

one body, so it the accused has the right to be presented at investigation that means his lawyer

must be too.

Even the constitutional provision and criminal procedure code provisions have provided

very crucial roles of lawyer to be represented to the accused, but in practice, it is rarely achieved

and implemented. A collective letter submitted by a group of eleven lawyers dated 26 February

2014, “Requesting for Intervention” to President of the Bar Association of Cambodia, the

lawyers of the 23 accused persons of criminal cases (1) No. 013 dated 03 Jan 2014, (2) 016 dated

4 Jan 2014, (3) No.019 dated 4 Jan 2014 of the Phnom Penh Municipal Court of First Instance,

complained that (i) they were facing with the difficulties of meeting with their clients for

consultation because the Ministry of Interior as well as the Court Officers did not tell them

accurately and truly the place where the accused have been detained, when the lawyers asked for

confirmation. (ii) After long many days untrue, they have been confirmed the place of detention.

They reached the place to meet their clients but the director of the detaining centre did not allow

them to meet their client even though they showed their legality of being the legal representative

of the accused persons. (iii) Nine days have gone, they could reach their clients, but the director

of the prisoners did not guarantee the right to confidentiality of meeting between the accused

persons and their lawyers. The collective lawyers complained that the right to legal counsel and

the right to confidentiality of the lawyer as conferred by the articles 149 and 510 of the Criminal

Procedure Code, article 31 of the Law on Prison 2011 and article 58 of the Law on Statute of

Cambodian Lawyers, have been seriously infringed by the authorities of the Government.399 On

398 Id. art. 143(4). 399 See further the collective letter sent by 11 Lawyers of the 23 accused persons, dated 26 February 2014.

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5th March, the President of the Bar Association of Cambodia, sent his official letter to the

President of the Appellate Court, petition to settle such difficulties.400

In Indian context, the right to counsel has been guaranteed to the accused by Article 22(1)

(the Fundamental Rights) and 39A of the Constitution. Article 22(1) says “no person who is

arrested shall be…denied the right to consult and to be defended by a legal practitioner by his

choice.401 The Constitution of India lays down the right to counsel and be defended by a lawyer

of his choice in absolute terms. Article 39A is about the concept of legal aid in form

constitutional framework. Hence, legal aid is not a charity or bounty, but is a constitutional

obligation of the state and right of the citizens. The problems of human law and justice, guided

by the constitutional goals to the solution of disparities, agonies, despairs, and handicaps of the

weaker, yet larger brackets of India‟s humanity is the prime object of the dogma of “equal justice

for all”. Thus, legal aid strives to ensure that the constitutional pledge is fulfilled in its letter and

spirit and equal justice is made available to the downtrodden and weaker sections of the society.

It is the duty of the State to see that the legal system promotes justice on the basis of equal

opportunity for all its citizens. It must therefore arrange to provide free legal aid to those who

cannot access justice due to economic and other disabilities.

In the case of Mohm. Hussain v. State (Govt. of NCT), Delhi,402 Justice Chandramauili

Kri. Prasad observed that Article 21of the Constitution of India commands in emphatic terms

that no person shall be deprived of life or personal liberty except according to the procedure

established by law and Article 22(1) therefore confers on the person charged to be defended by a

legal practitioner of choice. Article 39A casts duty on the state to ensure that justice is not

denied by reason of economic or other disabilities in the legal system and to provide free legal

aid to every citizen with economic or other disabilities.

Article 22(1) embodies a rule which has been always been regarded as vital and

fundamental safeguarding personal liberty in a system governed by rule of law. Apart from the

Constitutional provisions, Sections 303 and 304 of the Code of Criminal Procedure 1973 are

embodied to provide the right to counsel of the accused person. According to section 303 of the

Code, the accused of an offence against whom criminal proceedings were instituted has right to

400 See detail in the letter of President of the Bar Association of Cambodia sent to the President of the Appellate Court of Cambodia, dated 5th March 2014. 401 Supra note 2, Art. 22(1). 402 2012 Cri. L.J. 1069 (1070).

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be defended by a pleader.403 The Code has specifically recognised accused person‟s right to

consult and be defended by a lawyer of his choice. Section 304(1) of the Code contemplates

legal aid to accused facing charge in a case triable by Court of Session if the accused is not

represented by a pleader and has not sufficient means, the Court shall assign a pleader for his

defence at State expense. Both constitutional and legal provisions gave perfect opportunity to the

accused to engage a lawyer of his choice. The right to counsel begins from the moment of arrest

of the accused.404 Justice Krishna Iyer opined in Nandini Satpathy v. P.L. Dani405 that the right

to counsel begins not only since the arrest is made of an accused but also extend to any near-

custodial interrogation of an accused. The right to consult a lawyer can be availed at the moment

of police questioning.406 At important that this, the accused has not only right to consult and be

defended by a lawyer but he also has the right to choose a lawyer by his own desire. He should

not be imposed to engage a lawyer upon whom he has no faith. He should be given opportunity

to choice of a lawyer. However, if the accused who has already obtained a lawyer he has no right

to claim for providing such constitutional right.407

In the latest case of the Indian Supreme Court, K. Vijaya Lakshmi v. Govt. of A.P.,408 the

Court held that “the accused do have the right to be defended lawfully until they are proved

guilty, and the advocates have the corresponding duty to represent them, in accordance with

law.” The Court referred to the provisions of the Advocates Act 1961 in t regard.409

iv) Right to Protection against Self-incrimination

a) Genesis

In many countries, the suspect who is detained and questioned by law enforcement

officers has a number of fundamental rights. They include the right against self-incrimination

and the right to a lawyer. These rights will be examined in the specific context where a person is

in custody. They apply in other context as well. For example, an accused has a right of silence

and a right to have a lawyer at the trial.410

403 Supra note 29, Ss. 303 and 304. 404 Moti Bai v. State, AIR 1954 Raj 241, 243. 405 AIR 1978 SC 1025. 406 Supra note 366. 407 Ash Chadha v. Asha Kumari, 2012 Cri. L.J.773. 408 AIR 2013 SC 3589 (3597). 409 See The Advocates Act, 1961, s. 49 read with Rules 11 and 15 of t section. 410 Ho Hock Lai “The Privilege against Self-incrimination and Right to Access to a Lawyer: A Comparative Assessment” 25 S. Ac. L.J. 826 (2013).

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The right against self-incrimination is accepted as a landmark in the development of

procedural guarantees. This right reflects fundamental values and most notable aspirations. The

right began as a doctrine of English Common Law and was given constitutional status by the

Fifth Amendment to the Constitution of the United States of America.

The rule of right against self-incrimination protects an accused from compelling him to

give incriminatory statement against himself and promotes active investigation from external

sources. It is said that the state is facing difficulties in detection of crime as a result of this rule. It

is also said that the rule has been better hiding place. Self-incrimination meant conveying

information based upon the personal knowledge of the person giving the information. It does not

include mere technical process of submitting documents, which do not contain any personal

statement of the accused, in court though such document may throw a light on any point in

controversy. For example, the accused may be in possession of a document which in his hand

writing or which contains his signature or his thumb impression. Such document does not

contain of personal knowledge of an accused. Thus, the production of such document with a

view to comparison of the writing, the signature or the impression is not the statement of an

accused which can be said to be nature of a personal testimony. An accused is not compelled to

give his personal testimony. If an accused is taken into custody or otherwise deprived of his

freedom by the authorities in any significant way and is subjected to questioning, this right is

jeopardized. Procedural safeguards must be provided to protect the and the following measures

are required to follow, unless other fully effective means are adopted to notify the person of

right to silence and to assure that the exercise of the right will be scrupulously honoured. The

first measure is that an accused must be warned prior to any questioning that he has right to

remain silent and that anything he says cannot be used against him in court of law. The second

measure is that he has the right to presence of a lawyer; and that is he cannot afford a lawyer, one

will be appointed from him, prior to any questioning if he so desires. The opportunity to exercise

these rights must be afford to him throughout the interrogation. However, an accused may

knowingly an intelligently waive these rights and agree to answer any questions or make

statement after such warnings have been given and such opportunity afforded to him. The

evidence obtained as a result of interrogation cannot be used against accused unless and until

such warnings and waivers are demonstrated by the prosecution on trial. Therefore, the object of

the right against self-incrimination is to protect accused from police who may use third degree

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method to extort involuntary confession from the accused during the custodial interrogation. The

protection against self-incrimination enables for the maintenance of human privacy and the

observance of civilized standards in the enforcement of criminal justice. Justice Doreen J. Mc

Barnet opined that the accused has a right to silence, he is not compellable witness and he need

not incriminate himself, so that the Prosecutor he to be able to prove his case without

cooperation of an accused.411 In England there was a time when the Star Chamber had employed

ex-officio oath to induce people to make incriminatory statements.412 The privilege against self-

incrimination was developed due to reaction to the extensive employment of the oath. Hence, the

principle as established in the Common Law as a revolt against procedures in which the accused

were questioned under oath by judges, both to get evidence and to get confession.

b) Scope of the Right

Whether the Common law principle that “no man is bound to accuse himself” is a “right”

or “privilege”, some authors enjoyed signifying as a “privilege”413 and some authors enjoyed

signifying as a “right”. David M. Paciocco used the term principle against self-incrimination

rather the familiar term privilege against self-incrimination.414 Many authors prefer using of the

term “privilege” rather than “right”. In fact “privileges” differ from “rights”. Privileges are

granted and revocable by the government and rights are neither granted nor are they granted by

the government. Rights impose limitations on the exercise of government power. Rights are

inviolable and beyond the reach of the executive power. If the Common Law principle is

recognized as a privilege, this will be easily centre attacked and misused by the executive.

Therefore, the common law principle that no one is bound to accuse himself has been recognized

as constitutional right. The using of the world privilege for t principle degrades the value. In

view of Leonard Levy “to speak of the privilege against self-incrimination, degrades it,

inadvertently in comparison to other constitutional rights.415

The three basic rationales for the right may be discussed as; (i) the desire to maintain a

responsible accusatorial system; (ii) the desire to prevent cruel and inhumane treatment for the

411 Doreen J. Mc. Barnet, Conviction, Law, the State and the Construction of Justice 1 (London, The Mac Millan Press Ltd., 1981). 412 George T. Felkness, Constitutional Law and Criminal Justice 255 (Prentice Hall Inc., 1978) 413 John H. Langbein, “The Historical Origins of the Privilege against Self-incrimination at Common Law” 92 Mich. L. Rev. 1047 (1993-94). See also Ho Hock Lai, Supra note 410 at 826. 414 David M. Paciocco, “Self-Incrimination: Removing the Coffin Nails” 35 McGill L.J. 75 (1989). 415 Leonard Levy, “The Right Against Self-Incrimination: History and Judicial History” 84 Jour of Pol. 9 (1969).

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individual by forcing them into self-accusation and (iii) the belief that compelled confessions are

serious invasion of personal privacy. The concept of fair play demands that the individual needs

not be required to accuse and convict himself out of own mouth. The case against him must be

built by the government without taking help of an accused. The process of invoking the right is

to refuse to speak out against himself. The right grew out of the high sentiment and regard of

jurisprudence for conducting criminal trials and investigatory proceedings upon a place of

dignity, humanity and impartiality. This right has been deigned to prevent using force against

accused to produce and authenticate any personal disclosure which might incriminate him. The

general rule is that there must be real possibility of incrimination for the right to be invoked. But

in many countries‟ criminal justice system, fails to enforce such right. The accused is always

suffered from incriminate against himself.

The Supreme Court of the United State of America observed in Miranda case that;

Once warnings have been given the subsequent procedure is clear, if the individual indicates in any manner, at any time prior to or during questioning that he wishes to remain silent, the interrogation must cease. At this point has shown that he intends to exercise his privilege, any statement taken after, the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in custody interrogation operates on the individual to overcome free choice in producing the statement after the privilege has been once invoked.416

An accused must be warned before questioning that he has the right to remain silent and

that his statement may be used as evidence against him in court of law. He must also be notified

that he has the right to presence of a lawyer during questioning, as such he cannot be questioned

if the indicates that he wishes to consult a lawyer before replying to any question. This to ensure

that the Police or investigation officers will not extract the information from the accused in the

absence of lawyer and they take advantage for this opportunity and then used other methods,

especially the “third method” and all kinds of pressure both physical and mental pressures.

c) Compulsion of Personal Disclosures.

Interrogation should be conducted when the accused is clearly up to the mental or

physical standard. He should not be in position of intoxication, illness, hysterical or physically

run down at the moment of interrogation. The question put before an accused should be not

insulting, humiliating, threatening or trickery. He should not be compelled by any means of

confusion to disclose his personal testimony against himself. If any personal disclosure of an

416 Supra note 386 at 378.

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accused forms a necessary and essential like in the chain of testimony which would be sufficient

to convict him of any crime, he is not compelled to answer it. Accusatorial system requires the

government to shoulder the entire load in providing accused person culpability. In the United

States of America, it is the absolute right guaranteed by the Constitution.

Generally, the term compulsion denotes physical coercion. But mental coercion is also

equally a sort of severe compulsion. Even mental coercion proves hardship to an accused person

in compare to physical coercion. Some accused person may resist physical torture as they may be

physically well built. But it is difficult to withstand mental torture by anyone. The police resorted

to physical brutality such as beating, hanging, whipping along with mental coercion which

makes the accused helpless.

The extension of the meaning of compulsion to mental or psychological ought to be

welcome as the poor, weak and ignorant persons are always been scapegoats of the secret

inquisitorial process. Lawyers investigates should be provided to the accused from the beginning

of the investigation into the crime.


Common, civil, and religious jurisdictions currently up to 1993 over fifty countries

recognize an individual‟s right against self-incrimination.417 Although the scope and application

of the right to self-incrimination is vary in each jurisdiction418, the right in its most basic form,

accords an individual freedom from compulsory self-accusation in the criminal proceedings.

Right to self-incrimination is seemed granted by the Cambodian Constitution, but it does

not merely express the term. It forbids any form of extracting answers from the accused by using

any forms of coercion whether it is physical or mental pressure. It is deeded to be inadmissible if

the answers resulted by such acts of confession. Article 38 of the Constitution says;

“The law forbids any physical abuse against any individual. The law protects the life, the honour and the dignity of the citizens. The prosecution, arrest, police custody or detention of any person shall not be done, except in accordance with the law. The coercion, physical punishment or any other treatment aggravating the penalty of the detainee or prisoner shall be forbidden. The author of such acts, co-authors and accomplices shall be punished according to the law.

417 M. Cheif Bassiouni, “Human Rights in the Context of Criminal Justice: Identifying International Procedural

Protections and Equivalent Protections in National Constitutions” 3 DUKE. J. COMP. & INTER’L. L. 235, 256 n.138 (1993).

418 Jeffry K. Walker, “A Comparative Discussion of the Privilege Against Self-Incrimination” 14 N.Y.L. SCH. J. INTER’L. & COMP.L. 1 (1993).

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Confessions obtained by physical torture or mental pressure shall not be admissible as evidence of guilt. The doubt shall benefit the accused. Any accused is presumed innocent up to the final verdict of the court. Any individual shall have the right to his own defense through the judicial system”.419 In civil law countries the duty to testify does not include an obligation to produce

documents, although such an obligation exists in common-law countries. In addition, the duty to

testify does not include, and it should not be confused with, the duty to submit to legally

conducted searches, seizures, or physical examinations, or with the duty to keep records and

make oral reports. In all phases of a civil law judicial proceeding the questioning of accused or

witnesses are performed by a judge, generally by the Investigating Judge.420 The judge may order

the accused or witness to answer his own questions or questions propounded by opposing

counsel.421But the questions asked the accused‟s lawyer must be confirmed by the Investigating

Judge.422 The obligation to testify does not arise until the accused or witness is questioned by a

judge or until he is directed by the judge to answer questions posed by counsel. The judicial

police officers have no authority to order any person to secretly listen or record any telephone

conversation even a Flagrant Crime.423

The right against self-incrimination is envisaged in Article 20(3) of the Indian

Constitution, but it is not an absolute as it is guaranteed by the Constitution of the United States

of America. After recognizing the right self-incrimination by Article 20(3), it can be said that the

new vista has been open. Article 20(3) read as “no person accused of any offence shall be

compelled to be a witness against himself.” Art. 21 grants a further fundamental right to life and

liberty and states that the liberty of a person cannot be taken away except by a procedure laid

down by the law. In Maneka Gandhi‟s case it was further interpreted that the procedure

envisaged by Art. 21 is a procedure which must be just, fair and equitable.

In India, the Constitution provides the status of fundamental right to this principle of

protection against self-incrimination. The following elements have found in provision of Article

20(3) of the Constitution, (i) it is a right belonging to an accused, (ii) it is a protection against

compulsion to be a witness and (iii) it is protection against giving witness against himself. The

419 Supra note 10, Art. 38. 420 Supra note 52, arts. 145 and 150. 421 Ibid. 422 Id. art. 146. 423 Id. art. 105.

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Constitutional right against self-incrimination is applied to an accused only. He can invoke the

application of Article 20(3).424 As well, an accused should be made compelled to be a witness

against himself in order to invoke the application of Article 20(3).425 Both the accused and

suspect entitled to claim the right to silence, as the Supreme Court announced the inclusion of

suspect in accused.

No one is bound to criminate himself. Hence although an accused person may of his own

accord make a voluntary statement as to the charge against himself, a justice, before receiving

such statement from him is required to caution him that he is not obliged to say anything and that

what he does say may be given in evidence against himself. Hence, it also arises the rule that

evidence of a confession by the accused is not admissible unless it is proved that such confession

was free and voluntary.426

In the case of M.P. Sharma v. Satish Chanda,427 the Indian Supreme Court taking a broad

view of Article 20(3) held that “to limit Article 20(3) to the oral evidence of a person standing

trial for an offence is to confine the content of the constitutional guarantee to its barely liberal

import; and so to limit Article 20(3) would be to rob the guarantee of its substantial purpose and

to miss the substance.”

A person can be a witness not merely by giving oral evidence but also by producing

documents or making intelligible gestures as in the case of a dumb witness. The phrase to be a

witness in Article 20(3), the Court ruled, meant nothing more than furnish evidence and this

could not be done through lips, or by production of a thing or a document, or in any other mode.

Every positive volitional act which furnishes evidence is testimony and testimonial compulsion

connotes coercion which procures the positive volitional evidentiary acts of the person as

opposed to the negative attitude of silence or submission on his part.

The Supreme Court reconsidered the matter in State of Bombay v. Kathi Kalu Oghad.428

A bench of eleven judges was constituted to consider the issue involves. The main question

involved was whether Article 20(3) is violated when the accused is directed to give his specimen

hand writing, or signature, or impression of his palms and fingers. The answer to the question

424 R.K. Dalmia v. Delhi Administration, AIR 1962 SC 1821. 425 Mohd. Dastagir v. State of Madras, AIR 1960 SC 756. 426 Justice Y.V. Chandrachud, The Law Lexicon 1298 (2nd edn., 2006). 427 AIR 1954 SC 300: 1954 S.C.R. 1077. 428 AIR 1961 SC 1808: (1961) 2 S.C.R. 10; see also observation in Nandini Satpathy v. P.L. Dani, AIR 1978 SC 1025.

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depended on the interpretation of the word to be a witness found in Article 20(3). The Court now

ruled that Article 20(3) is not violated in any of the above situations. The Court stated that “self-

incrimination must mean conveying information based upon the personal knowledge of the

person giving information and covers only person testimony which must depend upon his

volition. The Court stated in Oghad that:

“To be a witness may be equivalent to furnishing evidence in the sense of making oral or written statement, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for purposes of identification”.

The Court emphasized that it is as much necessary to protect an accused person against

being compelled to incriminate himself, as to arm the agents of law and the law court with

legitimate powers of bringing offenders to justice. The Court stated regarding production of

documents in the possession of the accused, that if it is a document which not statement

conveying his personal knowledge relating to the charge against him, he may be called upon by

the court to produce that document.

The Court in the case of State of Maharashtra v. Kamal Ahmed Mohammed Vakil

Ansari429 held that “the admission/confession is admissible only as against the person who had

made such admission/confession”. Naturally, if it would be inappropriate to implicate a person

on the basis of a statement made by another, therefore, the next logical conclusion that the

person, who has made the admission/confession, should be a party to the proceeding because that

is the only way a confession can be used against him. T Court has referred to Sections 24, 25, 26,

and 30 of the Evidence Act (1 of 1872).430 Ordinarily, a confession statement is admissible only

as against an accused who has made it. So, here the Court was to interpret that the admissibility

of in evidence is depended on whether admission/confession relates to “relevant fact” or “fact in

issue”.431

In regarded to the reason of purposing to obtain an effective investigation of a criminal

case, it‟s sometime leads to violation of personal liberty of an individual. Those are the

involuntary administration of certain scientific techniques, namely narcoanalysis, polygraph

examination and the Brain Electrical Activation Profile (BEAP) test for the purpose of

improving investigation efforts in criminal cases. This issue has received considerable attention

429 AIR 2013 SC 1441. 430 The Indian Evidence Act, 1872, Ss. 24, 25, 26, 30. 431 Supra note 429 at 1447.

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since it involves tensions between the desirability of efficient investigation and the preservation

of individual liberties.

The Indian Supreme Court in the very landmark case of Selvi v. State of Karnataka432

held that “the involuntary administration of the impugned techniques prompts questions about

the protective scope of the right against self-incrimination which finds place in article 20(3) of

the Constitution. In one of the impugned judgments, it was held that the information extracted

through methods such as polygraph examination and the Brain Electrical Activation Profile

(BEAP) test cannot be equated with testimonial compulsion because the test subject is not

required to give oral verbal answers, thereby falling outside the protective scope of article

20(3).” At the end of the judgement, the Court held that even though the main task of

constitutional adjudication is to safeguard the core organizing principle of our polity, we must

also highlight some practical concerns that strengthen the case against the involuntary

administration of the tests in question. First, the claim that the results of the tests obtained from

these techniques will held in extraordinary situations is questionable. All of the tests in questions

are those which need to be patiently administered and the forensic psychologist or the examiner

has to be very skilful and thorough while interpreting the results. Secondly, if the court was

permitted the forcible administration of these techniques, it could be the first step on a very

slippery-slope as far as the standards of police behaviour are concerned. In some of the

impugned judgments, it has been suggested that the promotion of these techniques could reduce

the regrettably high incidence of third degree methods that are being used by policemen all over

the country. And third, the claim that the use of these techniques will be sought in cases

involving heinous offences rings hollow since there will be no principled basis for restricting

their use once investigators are given the discretion to do so.433

In the latest case and the same purposing and intention of interpretation, the Supreme

Court observed in case of taking voice sample of accused during the course of investigation of an

offence cannot be included in the expression to be a witness because it is the same thing as

taking finger print or specimen of handwriting for the purposing of investigation434 The Court

held that “taking a voice sample of accused for investigation of an offence does not violate right

432 AIR 2010 SC 1974; See also Nandini Satpathey v. P.L. Dani, AIR 1978 SC 1025: 1978 Cri. L.J. 968: (1978) 2 SCC 424. 433 Ibid. 434 Ritesh Sinha v. State of U.P., AIR 2013 SC 1132.

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under Article 20(3) of the Constitution. Voice sample is like finger print impression, signature or

specimen handwriting of an accused. Like giving of a finger print impression or specimen

handwriting by the accused for the purpose of investigation, giving a voice sample for the

purpose of investigation cannot be included in the expression “to be a witness”.”435The Court

continued observed that to be a witness may be equivalent to furnishing evidence in the sense of

making oral or written statements, but not in the larger sense of the expression so as to include

giving of thumb impression or impression of palm or foot or fingers or specimen writing or

exposing a part of body. Furnishing evidence in the latter sense could not have been within the

contemplate of the constitution-makers for the simple reason that - though they may have

intended to protect an accused person from the hazards of self-incrimination, in the light of the

English Common Law on the subject.436 In this sense, the Constitution makers could have

intended to put obstacles in the way of efficient and effective investigation into crime and of

bringing criminals to justice. The taking of impressions or part of the body of an accused person

very often becomes necessary to help the investigation of a crime. It is as much necessary to

protect an accused person against being compelled to incriminate himself, as to arm the agents of

law and the law courts with legitimate powers to bring offenders to justice. The Court in this case

referred to sections 53 and 165(2) of the Criminal Procedure Code 1974 and the Identification of

Prisoners Act 1929.437 During the course of investigation and the accused putting into police

custody, the police cannot extract the information or commit the act of revenge to the accused

person. If the police officer did so to the accused person and if the wrong act found by the Court,

the Court must sanction to the offender who has committed such punish brutality for the

credibility of the rule of law.438

v) Right to Speedy Trial

a) Genesis

The accused facing a trial cannot live with peaceful mind. He has to face a lot of mental

harassment until his case finally disposed. His agony increases because of prolonged trial. Such

prolonged trial, not only affects to his mental condition but also makes him economically and

physically handicap. It is necessary to decide a case as soon as possible to avoid inconvenience

435 Ibid. 436 Id. at 1140. 437 See details in supra note 29, Ss. 53, 165; Identification of Prisoners Act 1929, Ss. 2(a), 4 and 5. 438 Raghubir Sigh v. State of Haryana, AIR 1980 SC 1087: 1980 Cri. L.J. 801.

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to the accused. In fact, a prolonged trail is not only a matter of inconvenience to the accused but

also a denial of justice. Justice, rendered to the accused after unreasonable delay, does not have

any sense. It is shameful to deliver delayed justice to the accused on the part of the judiciary.

Judge James Pickles wrote in his 1977 in his evidence to the Royal Commission on Legal

Services that “Justice delayed is justice denied”.439 The dictum “Justice delayed is justice denied

is one of the important principles of natural justice. A case must be decided by a court promptly

and speedily. An accused charged with an offence has the right to get verdict of a court as soon

as possible. The court must release him from the court proceedings either convicted or acquittal.

He should not be kept busy around the court for many years. This will hamper the valuable time

of court as well as of accused. The prolonged trial may subject the accused, even if he is not

incarcerated prior to trial, to public scorn, deprive him of employment and will force curtailment

of his speech association and participation in popular causes. His liberty will be restrained and

will be compelled to live under a cloud of anxiety, suspicion and often hostility. The accused,

who cannot obtain his release, are even more in serious conditions in case of prolonged trial. The

time spent in jail awaiting trial has a detrimental impact on the individual. It often means loss of

a job, it disrupts family life and it enforces idleness. The time spent in jail is simply a death time.

Moreover, the accused detained in jail, is hindered in his ability to collect evidence contact

witnesses, or prepare his defence. Thus a court must look to the possible prejudices and

disadvantages suffered by the accused during delay.440 He could utilize this time of loitering

around the court to develop his career and in contributing to develop the nation. The accused

should be made free from the case against him as soon as possible. In order words the accused

has the right to speedy trial which is one of the basic human rights of the accused before the

court of law.

b) Reasons for Delay of Trial

The trial of an accused may be delayed due to certain reasons. The concerned authorities are

required to diagnosis the reasons for delayed trial and must try to eliminate the reasons. The

concerned authorities should not delayed even to find out the reasons. Otherwise, it will not only

affect adversely upon the accused but also upon the whole judiciary system and also to the

439 See Judge James Pickles, Straight From Bench (Melbourne: Phoenix House, 1987) Chapter V. 440 Barker v. Wingo, 407 US 532 (1972).

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functioning of a State. A judiciary and concerned authorities must fully devote for a prompt and

effective trial to the accused in order to respect the rule of law.

The reasons for delayed trial could be various several parties are connected to a case. A

prosecution agency, an accused, a lawyer or lawyers, a judge or judges who hear and decide and

the bureaucracy of a State are the parties connected to case. A trial of a case may be delayed

because of conduct of any of the parties connected to a case. All of the parties connected to a

case must be sincere enough to protect the accused person‟s right to speedy trial. However, a

trend in developing country is to blame each other for the delayed trial. Some of the reasons are

overburdened with numerous cases, role of prosecution agency, role of lawyers, inadequate

number of judges, role of judges, and role of executive.

c) Necessity of Speedy Trial

An accused, awaiting trial, will be in such a position that the Sword of Damocles is

hanging over his head. He will have to stay mentally disturbed that when the Sword will fallen

down over his head. The prolonged trial makes him compel to live under such an awkward

position which is very much harmful in the interest of the accused, his family members and to

the nation. A speedy trial is the pre-requisite of the fair and public trial. The constitutional

protection provided to the accused against an unlawful deprivation of his liberty would be

meaningless without the help of the speedy trial. It is notable that the right to a speedy trial is the

only means through which the objectives of the criminal justice administration could be

achieved. An ineffectiveness of the right to speedy trial paralyses of rights of the accused and

obloquy the whole of the judiciary. The right to speedy trial works a safeguard of the other rights

of the accused. Due regard and proper protection to the right to speedy trial must be given in

order to secure effective criminal administration of justice. It is rightly said that “justice delayed

is justice denied”. This maxim is viewed from the point of view of the accused. It recognized the

right of the accused to a speedy trial so that there may be an early end of a case against him

resulting either acquittal or conviction. The right to speedy trial should be so judicially

developed as to ensure that the existing legal profession and judicial system do not thrive at the

expense of the individual who rightly or wrongly, is caught in the web of criminal law

enforcement in order to make the guarantees conferred upon the accused under the constitution

and criminal legislation more meaningful.441 In a very landmark and early delivered case of the

441 Upendra Baxi, “Right to Speedy Trial, Geese, Gander and Judicial Sauce, (State of Maharashtra v. Champalal)”

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Supreme Court of India, Noor Mohammed v. Jethanand442, the Court expressed the maxim of the

jurisprudential of concept of right to speedy trial that;

“In a democratic set up, intrinsic and embed faith in the adjudicatory system is of seminal and pivotal concern. Delay gradually declines the citizenry faith in the system. It is the faith and faith alone that keeps the system alive. It provides oxygen constantly. Fragmentation of faith has the effect-potentiality to bring in a State of cataclysm where justice may become causality. A litigant expects a reasoned verdict from a temperate Jude but does not intend to and, rightly so, to guillotine much of time at the altar of reasons. Timely delivery of justice keeps the faith ingrained and establishes the sustained stability. Access to speedy justice is regarded as a human right which is deeply rooted in the fundamental concept of democracy and such a right is not only the creation of law but also a natural right. The philosophy of justice, the role of a lawyer and the Court, the obligation of a litigant and all legislative commands the notability of the Bench and the Bar, the ability and efficiency of all concerned and ultimately the divinity of law are likely to make a way for apathy and indifference when undue delay takes place, for procrastination on the part of anyone destroyed the values of life and creates a catastrophic turbulence in the sanctity of law.”

For right to speedy trial in international law, there are provisions in international

instruments which guaranteed the right to speedy trial; International Covenant on Civil and

Political Rights, 1966. Article 9(3) declared that the detained accused shall be brought before a

judge promptly and entitled to trial within the reasonable period of time. Article 9(4) provides

rights to the detained accused to take proceedings before court to decide without delay on the

lawfulness of his detention. and Body of Principles for the Protection of All persons under any

Forms of Detention or Imprisonment, 1988. It is stated in Principles 30 of the Body. It is very

regret that the 1948 Declaration of Human Rights, the International Magna Carta, did not

specifically mention the right to speedy trial in its text.


Right to speedy trial is implicit in the right to life and liberty guaranteed by Article 21 of

the Constitution of India. However, there is a huge pendency of criminal cases and inordinate

delay in the disposal of the same on the one hand and very low rate of conviction in cases

involving serious crime. As per the latest amendment, Section 309 of the Cr.PC has been inserted

with an explanation to its sub-clause.443 With an aim to speed-up trials, the amendment states

that no adjournment should be granted at the party‟s request, nor can the party‟s lawyer being

engaged in another court be ground for adjournment. Section 309 contains a mandatory provision

25 J.I L.I. 106 (1983). 442 AIR 2013 SC 1217. 443 The Criminal Law (Amendment) Act 13 of 2013, section 21.

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that in every inquiry or trial the proceedings shall be held as expeditiously as possible and in

particular when the examination of witnesses has once begun the same shall be continued from

day to day until all witnesses in attendance have been examined unless the court finds the

adjournment of the case beyond the following day to be necessary for reasons to be recorded.

When the enquiry or trial relates to an offence under Section 376 to 376D IPC, the same shall be

completed within a period of two months from the date of commencement of the examination of

witnesses.

Differently, the Cambodian Constitution, there is no specific provision deal with the right

to speedy trial. However, the Criminal Procedure Code, 2007 stipulates some provisions which

could be interpreted in the language of the right to speedy trial and it is very necessary for

Cambodian Criminal Justice administration. Unfortunately, in the real practice, too much

delayed time of hearing the cases has been found and criticized. In the Criminal Procedure Code,

2007, the procedure of filing a case or appealing to the upper courts and the decision of the

judges while any request before him has been placed. Article 32 of the Constitution guarantees

the Khmer citizens the right to life, liberty and security of person. And paragraph 2 of article 38

“life, dignity and honour” of the citizens are protected by law. Article 128 the citizens‟ rights and

liberties are protected by the courts who are empowered by the constitution. The court is the

protector of the citizens‟ rights and liberties. These provisions of the Constitution, which in its

spirit imply that the state should conduct the criminal proceedings expeditiously. It is a great

regret that the right to speedy trial is not included and termed in the constitution of Cambodia.

Therefore, with the existence of present norms of democracy, rule of law and human rights, it is

required that the constitution of Cambodia should be amended in order to include the right to

speedy trial as a constitutional right. In comparison to the situation in India is different, even the

Indian constitution does not contain any provision which clearly termed and guarantee the right

of the accused to a speedy trial but the Constitution empowers the Courts especially the Supreme

Court under article 32 to enforce and interpret the Fundamental Rights. In Criminal Procedure,

there are some provisions of duration of provisional detention in case of felony and

misdemeanour.444 The total period of pre-trial is not exceeding 18 months for the felony case445,

and not exceeding six months for misdemeanour case of at least year imprisonment charged

444 See details in Supra Chapter Three 2(ii). above (Pre-trial detention). 445 Supra note 52, art. 208.

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offence446 and in cases of crimes against humanity not exceeding three years.447 The

abovementioned provisions are the maximum period of pre-trial detention and all including of

the period of extension. The detention of the accused in pre-trial stage for judicial investigation

and its extension must be tested with the article 205 (the reasons for detention of the accused).448

The Code empowers the Investigating Judge to issue the pre-trial detention449 as well as

order to release the accused at liberty at any time450 or putting the accused under judicial

supervision.451 The Prosecutor may at any time (release of charged person upon request of

Prosecutor)452 or the accused himself (release upon request of charged person)453, at any time,

may request to the Investigating Judge for release. Investigating Judge has five days for making

decision to release or not. If within five days, the request for release by the Prosecutor could not

be reached, the Prosecutor may appeal to the Investigating Chamber of the Appellate Court. In

case it is submitted by the accused the Investigating Judge has to send the application to the

prosecution for consultation but it does mean that the application of mind must be reached by the

consent of the Prosecutor. The investigating may decide to release or not within five days after

receiving the application from the accused party. If it is rejected, the accused may re-submit the

application to the concern Investigating Judge for release or appeal to the Investigating Chamber

of the Appellate Court, after one month of the date of previous rejection by the investigating. In

any case, the Investigating Judge while order to release or not, must contain a statement of

reasons. Within fifteen days after receiving the application from the Prosecutor or the accused,

the Investigating Chamber must issue an order upon the application. At the expiry of the fifteen-

day period, the charged person shall be automatically released, except if further investigative

action has been ordered or if there are unforeseeable or insurmountable circumstances

446 Id. art. 209. 447 Id. art. 210. 448 Article 205 says: Provisional detention may be ordered when it is necessary to:

1- Stop the offence or prevent the offence from happening again; 2- Prevent any harassment of witnesses or victims or prevent any collusion between the charged person and

accomplices; 3- Preserve evidence or exhibits; 4- Guarantee the presence of the charge person during the proceedings against him; 5- Protect the security of the charged person and; 6- Preserve public order from any trouble caused by the offence.

449 Id. arts. 219 and 220. 450 Id. art. 215. 451 Id. art. 218. 452 Id. art. 216. 453 Id. art. 217.

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obstructing the pronouncement of the decision within this period. The investigating Chamber of

the Appellate Court, while deciding to release or to continue the detention, he must apply the

provision of article 205 (reasons for provisional detention).454

In Indian criminal justice, the jurisprudential concept of fair, just and reasonable

procedure implicit in Article 21 of the Constitution and it creates a right in the accused to be tried

speedily. Right to speedy trail is a concept which deals with disposal of cases as soon as possible

so as to make the Judiciary more efficient and trustworthy. The main aim of right to speedy trial

is to inculcate justice in the society. It is the human life that necessitates human rights. Being in

a civilized society organized with law and a system as such, it is essential to ensure for every

citizen a reasonably dignified life. Thus every right is a human right as that helps a human to live

like a human being. Even if the person is detained or arrested, due to commission of some

wrongs, some Fundamental Rights such as right to life and personal liberty etc. are not taken

away from him until he commits a major crime and the court or judge thinks that the person

might commit the same offence in the future. If the court thinks that the accused is a danger to

the society and has harmed the individuals of the society and also has intentions to harm the

individuals of the society in the future if released, only then this right could be taken away from

him and he might he given death penalty, which is very rare. Simply because a person is under a

trial or convicted, his rights cannot be discarded as a whole. Right to speedy trial is the right of

the accused. The fact that a speedy trial is also in public interest or that it serves the social

interest also, does not make it any the less the right of the accused. It is in the interest of all

concerned that the guilt or innocence of the accused is determined as quickly as possible in the

circumstances. The Supreme Court of India in the very landmark judgment of Hussainara

Khatoon455 held that speedy trial is an integral and essential part of the fundamental right to life

and liberty enshrined in article 21 of the Constitution of India. Right to speedy trial flowing from

Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal,

revision and re-trial.456 This case was referred by this Court in the latest judgment of Babubhai

Bhimabhai457, the Court held that

“It is in the light of the settle legal position, no longer possible to question the legitimacy of the right to speedy trial as a part of the right to life under article 21 of the Constitution.

454 Id. art. 278. 455 Supra note 13. 456 A.R. Antulay v. R.S. Nayak, (1992) 1 SCC 225: AIR 1992 SC 1701. 457 Babubhai Bhimabhai v. State of Gujarat, AIR 2013 SC 3648 (3653).

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This essence of article 21 lies not only in ensuring that no citizen is deprived of his life or personal liberty except according to procedure established by law, but also such procedure ensures both fairness and an expeditious conclusion of the trial. It is in that backdrop not possible to countenance a situation where addition Babubhai Bhimbhai Bokhiria as an accused to the case at hand would lead to an undefined suspension of trial and eventual recall of 134 witnesses already examined against the applicant who has been in jail for over six years now. There is, therefore, no reason for a blanket stay against the progress of the trial before the courts below qua other accused persons.”

That is how, this Court has understood this right and there is no reason to take a

restricted view. The concerns underlying the right to speedy trial from the point of view of the

accused are: (a) the period of remand and pre-conviction detention should be as short as possible.

In other words, the accused should not be subjected to unnecessary or unduly long incarceration

prior to his conviction; (b) the worry, anxiety, expense and disturbance to his vocation and peace,

resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and (c)

undue delay may well result in impairment of the ability of the accused to defend himself,

whether on account of death, disappearance or non-availability of witnesses or otherwise.458 The

Supreme Court sounded in case of Sher Singh that the essence of the matter is that all

procedures, no matter what the stage, must be fair, just and reasonable…Article 21 stands like a

sentinel over human misery… it reverberates through all stages include the trial, the sentence, the

incarceration and finally the executing of sentence.459

The Court separated between the criminal jurisprudential concept of “the right to fair

trial” and “right to speedy trial”. The Court in Dharmendra Kirthal460 v. State of U.P., observed

that “right to speedy trial and fair trial to a person accused of a crime are integral part of article

21. There is, however, qualitative difference between the right to speedy and the right to fair

trial. Unlike the right fair trial, deprivation of the right to speedy trial does not per se prejudice

the accused in defending himself.”

458 RANJAN DWIVEDI v. C.B.I., Through the Director General [2012] 7 S.R.C. 329; See, e.g., Abdul Rehman

Antulay v. R.S. Nayak [1991] (3) Suppl.S.C.R 325: (1992) 1 SCC 225; Kartar Singh v. State of Punjab [1994] (2) SCR 375: (1994) 3 SCC 569; P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578; Hussainara Khatoon v. Home Secretary State of Bihar, Patna 1979 (3) S.C.R 169 : AIR 1979 SC 1360; Vakil Prasad Singh v. State of Bihar [2009] (1) S.C.R 517 : (2009) 3 SCC 355; Japani Sahoo v. Chandra Sekhar Mohanty [2007] (8) S.C.R 582 : (2007) 7 SCC 394; and P. Vijayan v. State of Kerala [2010] (2) S.C.R 78 : (2010) 2 SCC 398.

459 Supra note 2, AIR 1983 SC 465 : (1983) 2 SCC 344. 460 Dharmendra Kirthal v. State of U.P., AIR 2013 SC 2569 (2578).

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“If independent and efficient judicial system is to remain the basic

structure of our Constitution, a competent subordinate judiciary is its

indispensable link.”461

Hon‟ble Mr. Justice P.Sathasivam

Chief Justice of India

CHAPTER FIVE

CONCLUSION AND SUGGESTIONS

Criminal Justice reflects the responses of the society to crimes and criminals. The key

components engaged in this role are the Courts, Police, Prosecution, and Defence Council.

Administering criminal justice satisfactorily in a democratic society governed by rule of law and

guaranteed fundamental rights is a challenging task. It is in this context that the subordinate

judiciary assumes great importance. Criminal system to be truly just and fair must be free of bias.

There should be judicial fairness otherwise the public faith in rule of law would be broken. One

of the cardinal principles of criminal law is that everyone is presumed to be innocent unless his

guilt is proved beyond reasonable doubt in a trial before an impartial and competent court.

Justice requires that no one be punished without a fair investigation and fair trial and judicial

officers play their part in ensuring the same.

The purpose of any criminal justice system is to punish the offender and protect the

innocent. Offenders are the threat to the society. State machinery is operative to prevent the

crime and penalize the offender. The wrong doer should be punished in accordance with the law

and the innocent too should be safeguarded by the law. While the necessity of discovering the

truth is needed to apply the inappropriate procedures or methods and even may, sometime,

infringe the fundamental rights of the accused or any person involved, the liberty and

jurisprudential concept of human rights in criminal justice must not be denied. Of course, the

accused or arrested person may, in somehow, be sanctioned by procedures established by law,

but the rights of the accused to justice before the court of law cannot be putting aside. The

interests of the parties of the crime have to be balanced and adjusted with a just, reasonable and 461 Hon‟ble Mr. Justice P.Sathasivam, speech delivered remark at Tamil Nadu State Judicial Academy for the Newly Recruited Civil Judges on 05.01.2013.

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fair manner. Thus, it is a matter of concern for all that innocent must not suffer in the name of

justice. Right to fair and effective investigation is the fundamental right of the accused person of

a criminal charge. The Investigating Officers play very crucial and expensive role in seeking for

the truth. The investigation into a criminal offence must be free from objectionable features or

infirmities which may legitimately lead to a grievance on the part of the accused that

investigation was unfair and carried out with an ulterior motive. It is also the duty of the

Investigating Officer to conduct the investigation avoiding any kind of mischief and harassment

to any of the accused. The Investigating Officer should be fair and conscious so as to rule out

any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as

to its genuineness. The Investigating Officer is not to bolster up a prosecution case with such

evidence as may enable the court to record conviction but to bring out the real unvarnished truth.

Investigation is a delicate painstaking and dexterous process. Ethical conduct is absolutely

essential for investigative professionalism. Therefore, before countenancing such allegations of

mala fides or bias it is salutary and an onerous duty and responsibility of the court, not only to

insist upon making specific and definite allegations of personal animosity against the

Investigating Officer at the start of the investigation but also must insist to establish and prove

them from the facts and circumstances to the satisfaction of the court. Malice in law could be

inferred from doing of wrongful act intentionally without any just cause or excuse or without

there being reasonable relation to the purpose of the exercise of statutory power.

The criminal justice administration systems in Cambodia as well in India place human

rights, liberty and dignity for human life at a much higher pedestal. In both constitutional

jurisprudence of criminal justice systems, an accused is presumed to be innocent till proved

guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the

prosecution is expected to play balanced role in the trial of a crime. The investigation should be

judicious, fair, transparent and expeditious to ensure compliance with the basic rule of law.

These are the fundamental canons of both criminal jurisprudence and they are quite in

conformity with the constitutional mandate contained in Articles 32 and 38 of the Cambodian

Constitution and Article 20 and 21 of the Constitution of India.

The Investigation Officers including, Police, Prosecutors, Investigating Judges, and may

be experts, who have been entrusted by the statutory power must act in good faith and

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responsible. While dealing with the criminal petition on the case of Dayal Singh462, the Supreme

Court of India observed that The Investigating Officer, as well as the doctor who are dealing

with the investigation of a criminal case, are obliged to act in accordance with the police manual

and the known canons of medical practice, respectively. They are both obliged to be diligent,

truthful and fair in their approach and investigation. A default or breach of duty, intentionally or

otherwise, can sometimes prove fatal to the case of the prosecution. An Investigating Officer is

completely responsible and answerable for the manner and methodology adopted in completing

his investigation. Where the default and omission is so flagrant that it speaks volumes of a

deliberate act or such irresponsible attitude of investigation, no court can afford to overlook it,

whether it did or did not cause prejudice to the case of the prosecution. It is possible that despite

such default or omission, the prosecution may still prove its case beyond reasonable doubt and

the court can so return its finding. But, at the same time, the default and omission would have a

reasonable chance of defeating the case of the prosecution in some events and the guilty could go

scot-free. Hence, the defective investigation may lead to fatal of the prosecution or acquittal of

the accused. On the one hand, punishing the innocent people and putting him to live in jail, the

right to life and personal liberty and dignity of person as guaranteed by the Constitutional

provisions will be meaningless. Thus, the hope of justice would not be necessary but important

for him. The idea of protection of the accused rights during criminal investigation at the time

before trial goes back to the deepness of history. Some of the general standards, regarding to

protection and treatment of the persons accused with the commission of a crime, were

safeguarded in ancient times. At the present time, more advanced principles and standards have

adopted, developed and recognized under the International Convention on Civil and Political

Rights 1966, Universal Declaration of Human Rights 1948 and other international instruments

supporting access to lawyer, criminal proceeding in judicial process of the court of law etc. In

modern era as today, the accused persons have been granted of rights to criminal justice of fair

trial before the court by the Constitution and criminal legislations which must established a just,

reasonable and fair procedure to bring justice by searching for the truth to the accused persons

and other innocent persons.

Although the adversarial system of India is contrasted with the Inquisitorial system of

Cambodia, the latter in fact also enshrines in law the right of the accused to oppose the evidence

462 Supra note 14.

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of the prosecution and introduce evidence to prove innocence; it is thus contradictoire or

adversarial in that sense. It is rather the structure and organization of the forensic process or

investigative method, than the adversarial nature of proceedings that distinguishes the two

systems. Both adversarial and inquisitorial systems of Cambodia and India, which effectively

monopolize the determination of the existence of a criminal offence and sentencing, in the hands

of the State, have as their primary and the most fundamental purpose is the prevention of private

justice by retribution. In this objective both systems have arguably been largely successful over

long periods of time. Further, the goal of the criminal law procedure in a democratic and rights-

based jurisdiction is to ensure procedural fairness, while balancing the rights of the individual

with the rights and interests of society as a whole. And public demonstration of fairness, justice

and respect for rights in criminal proceedings, as the fair investigation in pre-trial, for instance, is

important as it justifies the monopolization of criminal justice by the State, and helps to maintain

public confidence in the system.

Through the entire study of this comparative research in this dissertation, we have fond

that there are advantages and disadvantages of the two criminal justice systems in regard to

rights of the accused to fair and effective investigation in pre-trial stages, which such rights shall

be implemented by the State authorities with just, fair and reasonable procedures established by

the existing laws of the countries. Of course, there is neither hundred percent perfect of

inquisitorial system nor adversarial systems which Cambodia and India have differently adopted

from different rooted legacy of legal systems of foreign rulers. There has to be some weaknesses

or disadvantages of either inquisitorial of Cambodia‟s or adversarial of India‟s, and there must be

some strengths or advantages of either inquisitorial of Cambodia‟s or adversarial of India‟s in

term of criminal administration, especially in criminal investigative phases. The following are

the advantages and disadvantages of the two criminal justice systems of Cambodia and India.

1. Advantages of Cambodian Inquisitorial Model of Justice;

(b) The court plays substantive role in the trial to secure justice (e.g. Prosecutor and

Investigating Judge). The criminal proceedings even take less time than in

adversarial system and the rate of conviction is higher than adversarial.

(c) Minor error in the procedure is ignored, if the purpose of justice is solved.

Procedure is not held vital, ultimate justice is regarded as the goal.

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(d) All the components of criminal justice system, i.e. the Judicial Police Officer

(JPOs), Judicial Police Agents (JPAs), the Prosecutor, the Defense Lawyer, the

Court and the accused must help to secure justice. So, particularly, the accused

has no right to silence.

(e) Any distortion of evidence, dubious practice followed by the accused or by the

lawyers can be easily detected with the effort of the court.

2. Advantages of Indian Adversarial Model of Justice;

(a) It insists upon strict observance of procedural law. Due process of law is regarded as

the most appropriated method to attain justice. Violation of procedure leads to

exclusion of evidence in the court. The right to life and personal liberty under article

21 of the Constitution is regard as the most fundamental right of the accused in this

criminal justice system. The Constitutional rights of the citizens under Part III of the

Constitution is the basic structure of the Constitution and they cannot be amended by

the parliament and all constitutional rights guaranteed under this Part is interpreted

and enforced by the Courts, particularly, the Supreme Court.

(b) The position of the court is regarded as that of an umpire. Both parties contest in the

court. The court is to see whether the game being played before it is fair and

conducive to justice or not.

(c) The representation of lawyer from both sides is indispensable and the cross-

examination is conducted.

(d) The accused has right to silence. However, the right to silence of the accused in India

Criminal Justice system is limited. He need not give evidence from his side.

Prosecution must prove the guilt beyond reasonable doubt. The accused may claim

benefit of doubt.

(e) Individual‟s right to privacy is best preserved under it.

The adversarial system, typified by party disposition and party prosecution, is often

criticized because it is not sufficiently concerned with finding the truth, as parties rather than

State agencies, control and circumscribe the forensic process, and judges do not participate

actively in the search for truth. In justice may result, as prosecuting authorities pursue

convictions while disregarding the truth, and because judges are passive adjudicators, neither

concerned with nor responsible, as is said to exist in inquisitorial.

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In the inquisitorial system the emphasis is on outcomes, in the common law system on

process. The process-focused, mechanistic common law principle may be described as follows:

the result of the two parties vigorously defending their version of the facts from legally equal

positions and before a natural and unprejudiced arbiter will be that the truth comes out. The

inquisitorial of Cambodia‟s attitude is that a search for the truth by an impartial officer of the

State is the best method. It is important in that system that the judicial officer, be a Judge or

Prosecutor is indifferent as to whether a conviction results or not. The followings are some

disadvantages of these two criminal justice systems:

3. Disadvantages of Cambodian Inquisitorial Model of Justice

(a) Participation of the court in the inquisition of the case may lead it to biased attitude.

(b) Right to privacy of the accused is denied and that the accused is exposed to express

everything which he need not express keeping in view of the merit of the case.

(c) The Royal Prosecutor or the Police having separate law to deal with their conduct

may misuse their powers and is likely to exceed their authority, which they are not

entitled to.

(d) Short period for criminal proceeding leads to defective of investigation of an offence.

(e) Supremacy of law and equal treatment of the law for all segments of the society is not

entertained.

4. Disadvantages of Indian Adversarial Model of Justice

(a) The accused does not help the police. The police must work on his own strength

against the accused.

(b) Too much insistence upon procedure some time may lead to acquittal of the accused

and impunity on the offence. That leads to lower conviction of the cases.

(c) The judge in the court as an umpire is a misleading conception. It is desirable to

expect that the judge is there to do justice and that justice is done by whatever means

it is possible. Here, the trial judge plays passive criminal proceedings. The Court

cannot interfere with the investigation progress which is conducting by the Police,

unless the investigation is completed.

(d) Contest on technical error in the court is possible. The court is helpless to correct it.

The Magistrate plays limited role in criminal investigation of a cognizable offence.

The judicial supervision in pretrial stages of inquisitorial system consist of various

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layers, at least in theory: the Prosecutor supervises the police and the investigating

judge (magistrate) and the Investigation Chamber of the Appellate Court supervision

all criminal proceedings of the lower courts‟ decisions.

(e) The police sometime may not be able to find sufficient evidence against the accused.

He cannot expect any help from the accused. This leads to dropping-out of the case.

Because the system open for all parties participate in all criminal proceedings equally,

the accused who has opportunity to reach smart and skillful lawyers to defense the

cases, while many police officers are less educated than defense lawyers of the

accused.

In Justice Malimath Committee Report, Justice Maimath has proposed for a shift of the

adversarial to the inquisitorial criminal justice system in term of reforms of criminal justice

reform in India. He has picked up the importance of the roles of magistrate in investigative

phases or pre-trial stage. The assumption is that the adversarial system is at root of the

malfunctioning and distrust. However, not only it is doubtful whether conviction rate is in any

way linked to the inquisitorial system, but above all, it is not the rationale of the inquisitorial

system convict the greatest possible number of the accused. Rather, the role the Magistrate in

this system is not to be above all “effective”, but mainly to conduct a fair trial, to examine all

evidence for and against the accused person and to protect the accused person from the

arbitrariness. Therefore, as the statement of the Justice Malimath Committee, according to which

the inquisitorial system is certainly efficient in the sense that the investigation is supervised by

judicial magistrate which results in a high rate of conviction mistaken in that it overlooks the

safeguards abuses in the investigation process. Where it is the self-evidence that the main

objective of the criminal law process is the searching for truth, it is certainly not the only duty of

the Magistrate.

As now it is discovered that an inquisitorial system is said to be more focused on truth-

finding than the adversarial system. Inquisition advocates often assert that “criminal procedure

that relies on professional judges of fact and an impartial, state-appointed Prosecutor. In part,

that is because the adversarial system places greater emphasis on the process than on simple

truth-finding. Marvin Zalman has thus advanced the hypothesis that “the adversary process itself

is a contributor to erroneous convictions.”463 Much of the problem, as already noted, is that the

463 Keith A Findley, “Adversarial Inquisitions: Rethinking the Search for the Truth” 56 N.Y. L. Sch. Rev. 911,

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outcome of a case is usually determined long before trial (or plea), that is, at the administrative

investigation stages. If truth and reliability are the objectives, therefore, what really must be done

is improve the quality of the evidence gathering and interpreting at the initial investigation

stages. All of this might be interpreted to suggest that an inquisitorial system, expressly focused

on neutral examination of the facts to find the truth, offers a better path to accurate assessment of

claims of innocence. The inquisitorial system, however, is only superior in this regard if the

inquisitorial model takes hold early in the process before the investigation seals the defendant‟s

fate and only if the inquisitor truly can remain neutral and objective, and indeed, can

aggressively pursue evidence supporting innocence. Thus, in an inquisitorial system, “both the

legitimacy of criminal justice and the fate of the individual in terms of fair trial depend to a large

extent on the integrity of state officials and their visible commitment to nonpartisan truth finding.

Moreover, the inquisitorial system is superior only to the extent that the Prosecutor (or

Investigating Judge) has the incentives and fortitude to second-guess even her own initial

suspicions and judgments and to see facts from multiple perspectives, a very tall order indeed. In

Indian criminal justice system, the powers to investigate an offence are vested in Police for

cognizable offence as well as in the Magistrate as it is non-cognizable offence. The role of Public

Prosecutor is nothing in pre-trial stage as that in Cambodia. In Cambodian Criminal Procedure

Code, 2007, the Prosecutor plays as “the guardian of law”. He even presents the evidence that

favour of the accused and superior to the Investigating Judge and JPOs.

Simply assigning investigative responsibility to a neutral investigating judge or in some

Continental systems of Civil Law called Magistrate (previous Cambodian Criminal Procedure

also named investigating judge as a Magistrate) does not ensure a vigorous and unbiased search

for the truth. Problems can arise not just when individual Prosecutors (or investigating judges)

succumb to adversarial law-and-order pressures, or fail to adhere to the norms of neutrality.

Recent applications of social science research on cognitive processes reveal that even the most

well-meaning actors, who are sincerely trying to be objective, are frequently subject to cognitive

distortions that make true impartially difficult if not impossible. Indeed, even in Continental

systems with rich inquisitorial traditions, it has been argued that investigating judges tend to

adopt the attitudes of police and prosecutors. The strength of the adversary process is that it

creates adversarial role players who actively challenge the State‟s evidence and the State‟s

929 n.101 (2011-2012).

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theory of guilt. In Cambodian inquisitorial systems, defense counsel plays a much weaker role

than in adversarial of India. They lack the defense rights or adversarial means and skills and do

not conduct their own pretrial investigations. And neutral judges or magistrates do not fill that

role adequately. Instead of adversarial testing of the evidence, the judge essentially serves to

review the prosecution‟s case. In the context that is perhaps best known for its adherence to

rigorous truth-seeking processes scientific inquiry. It is never enough to merely review evidence;

in science, investigators actively test theories and attempt to find evidence to disprove them. The

inquisition‟s review process thus conflicts with the way we search for truth in a scientific

context. The reality is that, whether that task of searching for and presenting facts is delegated to

an inquisitorial judge or adversarial lawyers, the facts made available for consideration will

depend on the ability, initiative, bias, determination, thoroughness, energy, aggressiveness,

interest, knowledge, and motivation of the specific human being acting as inquisitorial judge or

as adversarial lawyer in that specific case.

In the adversarial system, the lawyer for a party has the duty to act zealously and

faithfully for his client. Zealous, faithful advocacy means the obligation to search out all

favorable evidence, to seek, neutralize or destroy all unfavorable evidence, and to press the most

favorable interpretation of the law for his client. That is simply not the obligation of an

inquisitorial judge.

The study of the Right to Fair and Effective Investigation in Pre-trial stage of Cambodian

and Indian Criminal Justice Systems as the comparative analysis and is considered as a vital

dynamic subject due to the following reasons;

The primary object of the criminal trial, according to criminal administration of

justice is to ensure fair trial of an accused and it begins with the core of accused

person‟s right fair and effective in seeking for the truth and the accused‟s right to

presumption of innocence, which is always in favour of the accused person.

The topic concerning the protection of the rights of the accused in well associated

with the idea of the protection of the human rights, which have been the central

attention of both international and national levels.

The main object of this dissertation is to let all specialized and non-specialized

persons to know about the pre-requisite and fundamental needs of the right to fair and

effective investigation of the accused person during both pre-trial and trial stages, and

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to what extend these guarantees contribute in making proper conditions that help the

accused to defend himself against the alleged charges. In addition, to explore the role

of such guarantees in helping public authorities to find the truth behind the

commission of a crime without touching the human dignity of the accused.

Since time immemorial, the trial always revolves around the accused and it is

universal and not confirmed to a single part of the world. Therefore, the weakness of

the individual comparing with the strength of the modern state requires the criminal

jurisprudence to give the field of the accused guarantees more attention.

The following recommendations are made in regard to the rights of the accused to fair

and effective investigation and fair trial and they are applicable for Cambodian and India;

A. Here are the important suggestion that the Royal Government of Cambodia should

pay attention and taking into consideration.

1. The three long-awaited laws on reform of the judiciary; (1) The law on the

Organization of the Courts464, (2) the on the Organization and Functioning of the

Supreme Council of Magistracy465 and (3) the Law on the Statute of the Judges and

Prosecutors, should be fast-tracked and enacted by the National Assembly with fair,

just, reasonable, transparent and democratic participation. Some provisions of the

Criminal Procedure Code, 2007 should amended to ensure that they can be properly

enforced and have real impact upon the way in which the legal and judicial systems

operate

2. The law on the Supreme Council of the Magistracy will “help the king ensure the

independence of the court‟s power” while the law on judges and prosecutors will

ensure they are “competent, honest and have good morals. By adopting the above

mentioned Draft of Law and this Draft of law should separate the independency

between the Executive and Judiciary.

3. The Judges and Prosecutors must be independent and free from political interference

and must not be a political party member. An immediate and unconditional

commitment should be given from both the Royal Government of Cambodia (the

464 The draft of law will be replaced the old law on the Organization and Activities of Adjudicative Courts of State of Cambodia, 1993. 465 The draft of law will be substituted the Law on the Organization of and Functioning of the Supreme Council of Magistracy, 1994.

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“RGC”) and the judiciary that the courts will not be misused as political tools to

silence dissent and stifle debate. The judiciary is under the influence of outside

sources in numerous ways. Judges and prosecutors are currently appointed by the

Ministry of Justice, political influence pervades the courts, and corruption is endemic.

Government influence on the courts can be seen in the number of politically-

motivated cases seen in recent years.

4. There should be separated between Civil Court and Criminal Administrations and

other Specialized Courts. The Civil case judge and the Criminal case judge should be

clear cut separated.

5. To be eligible as the Police Officers, there should be well qualified and corruption

free. The certificate of Diploma should be given to whom is the real qualified.

Minimum educational qualification should be adopted.

6. They should be well trained with human rights law and much more understand about

Constitutional Rights of the citizens and especially, of accused. The mala fide or the

misconduct JPOs should just and fair sanctioned and the disciplinary and criminal

sanction in accordance with the law should be immediately implement. The culture

and practice of decriminalization of the mala fide Officer should be eliminated.

7. They should be equipped and facilitated by the suited forensic scientific investigation

means. High-tech facility should be by facilitated to detect some particular new

developed crimes such as organized crime.

8. The Prosecutor or the Investigating Judge should direct lead or participate in criminal

investigation by himself. The Prosecutor and Investigating Judge should be more

active in criminal investigation and strictly supervise the JPOs in conducting their

given duty on criminal detection.

9. The Defense lawyer should be given more active role in criminal proceedings,

especially in criminal investigation and trial stage.

10. All Criminal Proceedings should be strictly enforced and expeditious and confirmed

with the procedure established by the Criminal Procedure Code, 2007, the procedure

of arresting of the accused, detention, interrogation, search and seizure, legal counsel,

delaying of trial etc. should be strictly confirmed with the existing law, especially and

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Constitutional Rights of the accused before the Criminal Court of Law and the

procedure established by Criminal Procedure Code.

11. Right to Protection against Arbitrary Arrest and Detention, Right to Legal aid (free

legal aid to some sections of people), Right to Public Trial, Right to Self-

Incrimination, Right to Speedy Trail, Right should be specifically termed and granted

(in) by the Constitution.

12. Right to remedy or compensation of damages of wrong conviction should be granted

by the enforced and a new law on such issue should be adopted.

13. Victim Rehabilitation and Caring and Protection for Witnesses should be taken into

account.

14. The Law on Juvenile Justice Care and Protection and a separate Juvenile Court

should be established.

15. In overall, the continuing of judicial reform to should make the court system more

effective and to promote confidence in the judicial system and its capacity to impose

appropriate sentences on traffickers.

B. The following suggestions could be considered as regard to the Indian Criminal

Justice System;

1. The Police and Judiciary Reforms in Justice Verma Committee, 2013, Law

Commission of India Reports, 2009 and 2012; (1) Report No. 230 on Reforms in

Judiciary and (2) Report No. 239 on Expeditious Investigation and Trial of Criminal

Cases Against Influential Public Personalities, National Human Rights Commission

Reports, National Police Commission Reports, the Supreme Court Directions the case

of Prakash Singh v. Union of India466, Direction of the Supreme Court in the Case of

D.K. Basu v. State of West Bengal467 and especially in Justice Malimath Committee

Report, 2003; are to be concerned and taking into account by the Government of India

in reforming its Police Reforms and Judiciary Reforms.

2. With the above the Commission Reports on reforming the Police and Judiciary, the

New Police Act should be adopted and/or modernized, as mentioned in the judgment of

the Prakash Singh case of the Supreme Court of India. The same in Prakash Singh

466 (2006) 8 SCC 1. 467 AIR 1997 SC 610.

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case, the separation investigation law and order should be made. All above

recommendations and suggests are very important and they should be entertained to the

eyes of the Government to account of the reformation of the criminal justice system in

India.

3. The problems of this criminal justice in the matters of high acquittal of the accused and

low rate of conviction have to be considered. A new survey concerning the matters of

the rate of conviction and acquittal of the accused and under-trial persons should be

redone in order to find out the new change after some plenty reform of the criminal

justice system.

4. The Prosecution Wing should be under the Judiciary Administration but separate from

Criminal Court Administration. This would make the Public prosecution plays more

active role than current system and to clear cut about this institution in sake of

administration of justice.

5. The Investigative branch of the police should have the appropriate scientific equipment

and training to be able to conduct the highest standards of investigation in every case.

Investigative branch of the police should also be appropriately trained to investigate the

new developed crimes. On the one hand, the adequacy of the investigating officers in

each constable station should be taken into account due to the increasing of population

in India and especially in the populated city.

6. The educational qualification of the Police Officers should be considered. This is to

response the challenge of high qualified and smart lawyers before the Court in

defending the cases. Many lawyers or advocates are highly educated and qualified and

they have been trained very well in their fields of law, despite, many investigating

officers are lower educated than those lawyers and even have not been adequately

trained.

7. Lawyers must curtail prolix and repetitive arguments and should supplement it by

written notes. The length of the oral argument in any case should be too long, unless

the case involves complicated questions of law or interpretation of Constitution. The

proportionality of consuming time for argument in prosecution between the defense

council and accused party should be ensured and re-look for another reforming

procedure.

164

8. Rights and Security of the Witnesses of the crime should be assured by law. Most of

the cases, the examination and security are being ignored by the State. State should

ensure the rights and security of the witnesses and all expenditures of the witness to be

able to presence in every case hearing and any examination in the police station as well.

9. Numbers of High Court in some most populated State should be more than one due to

the large population in that state and increasing cases in such High Court, for example,

State of U.P.

10. Right to silence of the accused should be granted by the Constitution as that in the

United States Constitution.

11. Political interference by Politicians in sensitive cases into the investigation by the

police should be avoided. The same thing also should be done with the Public

Prosecutor.

12. The roles and functions of the Prosecutor should be more active than the today

mechanism of the criminal justice system.

13. The interference of the court into criminal proceedings in pre-trial stages should be

limited but to assure justice, fairness, and effectiveness of investigation and for the sake

of criminal justice system in India.

165

BIBLIOGRAPHY

I. Statutes

1. Cambodian Criminal Code, 2009

2. French Criminal Procedure Code

3. Indian Criminal Procedure Code, 1861




7. Indian Penal Code, 1860

8. Indian T. P. Act (4of 1882)

9. International Convention on Civil and Political Rights (ICCPR), United Nations

10. State of Cambodia Criminal Procedure, 1993

11. The Cambodian Constitution, 1993

12. The Code of Criminal Procedure of Cambodia, 2007

13. The Constitution (Ninety-Eight Amendment) Act, 2012, the Government of India,

Ministry of Law and Justice, dated 1st January 2013.

14. The Criminal Law (Amendment Act), 2013, No. 13 of 2013, dated 2nd April 2013.

15. The Indian Constitution, 1950

16. The Indian Criminal Procedure Code, 1973

17. The Indian Evidence Act, 1872

18. The Law on the Organization and Activities of the Tribunal of the State of Cambodia

(LOAT) 1993.

19. The Police Act, 1861

20. UNTAC Code and Criminal Procedure, 1992

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1. Body of Principles for Protection of All Persons under Any Form of Detention or

Imprisonment 1988.

2. International Convention on Civil and Political Rights (ICCPR) 1966.

3. Standard Minimum Rules for the Treatment of Prisoners 1955.

166

4. U.N. Basic Principles on the Independence of the Judiciary, G.A. Res. 146, UN GAOR,

40th Sess, 1985.

5. Universal Declaration of Human Right, 1948.

6. United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice

Systems, resolution 2012/15 of 26 July 2012.

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167

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University of South Wales Press Ltd., 2005).

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1978).

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6th edn., 2012).

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Ltd., 1963).

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(London, The Mac Millan Press Ltd., 1981).

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168

30. Prof. Paranjape N.V., Criminology and Penology with Victimology, (Central Law

Publications, 5th edn., 2011.

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Wadhawa, 19th edn., 2010).

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operative Publishing, 1986).

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(Intersentia, Antweep-Oxford- New York, 2004).

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Westview Press, 1999).

35. Short Philip, Pol Pot: tory of a Nightmare (New York: Henry Holt, 2005).

36. Upadhyay Mohan Chandra, Human Rights in Pre-trial Detention (A.P.H. Publishing

Corporation, 1999).

37. Wild Susan Ellis, Webster’s New World Law Dictionary (Jonathan Wallace, 2006).

38. Year Book of the United Nations (New York, 1948-1949).

IV. Articles/ Researched Papers/Journals

1. Ares Charles E., “Constitutional Criminal Law” 74 Col. L. Rev. (1974).

2. Bandes Susan A., “Protecting the Innocent as the Primary Value of the Criminal Justice

System” 7 Ohio St. J. Crim. L. 413, 424–25 (2009) (citing Jacqueline Hodgson, French

Criminal Justice: A Comparative Account of the Investigation and Prosecution of Crime

in France (2005)).

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International Procedural Protections and Equivalent Protections in National

Constitutions” 3 DUKE. J. COMP. & INTER’L. L. (1993).

4. Baxi Upendra, “Right to Speedy Trial, Geese, Gander and Judicial Sauce, (State of

Maharashtra v. Champalal)”, 25 J.I L.I. (1983)

5. Bhagawati P.N., “Human Rights in the Criminal Justice System” 11 Ind. Bar. Rev.

(1985).

6. Bloustein Edard J., “Privacy as an Aspect of Human Dignity: An Answer to Dean

Prosser” 39 N.Y. Uni. L. Rev. (1984).

169

7. Brinkley Joel, “Cambodia‟s Curse: Struggling to Shed the Khmer Rouge‟s Legacy” 88(2)

Council on Foreign Affairs Relation (U.S.A. March-April 2009)

8. Chanchamnan Than, Introduction to Criminal Procedure Law (2009) (Unpublished

Lecture, University of Cambodia).

9. Digiusto Erol, “Effectiveness of public legal assistance services” Vol. 2. Justice Issue

(October 2012).

10. D. Banerjea (Ed.), “Criminal Justice India Series” 17(2) Allied Publisher Private Co. 32

(2005).

11. Dr. Sam Oeun Sok, “Policing in Democratic Society in Cambodia” 2 U. B. M. HAM.

(2006).

12. Findley Keith A. & Michael S. Scott, “The Multiple Dimensions of Tunnel Vision in

Criminal Cases” 2 Wisc. L. Rev. 291 (2006).

13. Findley Keith A., “Adversarial Inquisitions: Rethinking the Search for the Truth” 56 N.Y.

L. Sch. Rev. 911 (2011-2012).

14. Findley Keith A., “Innocents at Risk: Adversary Imbalance, Forensic Science, and the

Search for Truth” 38 Seton Hall L. Rev. 893 (2008).

15. Hennessey Martone V.B., “Constitutional Rights of the Accused” 60 Mass. L. Q. (1975).

16. Hon‟ble Justice Katju Markandey, “Individual Liberty and Criminal Law” vol. 2 Cri. L.J.

(2010).

17. Illuminati Giulio, “The Frustrated Turn to Adversarial Procedure in Italy: Italian Criminal

Procedure Code of 1988”, 4 Wash. U. Global Stud. L. Rev. (2005).

18. Jain M.P., “Role of Judiciary in a Democracy” 6 J.M.C.L.(1979).

19. Justice Kelly William F.B., An Independent Judiciary: The Core of the Rule of Law 2-3

(2000) (unpublished Manuscript).

20. Lai Hock Ho “The Privilege against Self-incrimination and Right to Access to a Lawyer:

A Comparative Assessment” 25 S.Ac.L.J. (2013).

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Common Law” 92 Mich. L. Rev. (1993-94).

22. Levy Leonard, “The Right Against Self-Incrimination: History and Judicial History” 84

Journal of Politics. (1969).

170

23. Linton Suzannah, “Putting Cambodia‟s Extraordinary Chambers into Context” 11

S.Y.B.I.L 195-259, 197 (2007).

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Weekly (Jan-1981).

27. Neam Koy, “Introduction to the Cambodian Judicial Process” 17 (the Asia Foundation,

1998).

28. Paciocco David M., “Self Incrimination: Removing the Coffin Nails” 35 McGill L.J. 75

(1989).

29. Quoted in Symposium, “Constitutional Problems in the Administration of Criminal Law”

59 North. West Univ. L. Rev. (1984/1985).

30. Raj Kapil, “Colonial Encounters and the Forging of New Knowledge and National

Identities: Great Britainand India” 15 U. Chi. Press. (2000).

31. Rao Strikrishna Deva, “Expediting Delivery of Criminal Justice: Imtiyaz Ahmad and

Beyond” vol. 1 J.N.L.U. (2013).

32. Samules Alec, “Legal Representation Before the Board of Visitors” Criminal Law

Journal Review. (1989).

33. Sathasivam P. J., Supreme Court of India, “Role of Judicial Officers in Criminal Justice

Administration” 100 A.I.R (May 2013).

34. Tully John, “France on the Mekong: A tory of the Protectorate in Cambodia 1863-1953”

12 Univ. of Amer. Press (2002).

35. Vanderbilt Arthur T., “United We Stand” A.B.A.J. (Aug 1938).

36. Vickery Michael, “Kampuchea: Politics, Economics and Society” 111 The China

Quarterly (1986).

37. Walker Jeffry K., “A Comparative Discussion of the Privilege Against Self-

Incrimination” 14 N.Y.L. SCH. J. INTER’L. & COMP.L. (1993).

V. Official Reports and Publications

1. Government of India, Law Commission of India Report 177th, “Law Relating to Arrest”

(December 2001).

171

2. Ministry of Home Affairs, Government of India, Malimath Committee Report 1,

Reforms of Criminal Justice System (March 2013).

3. The Fourth Report of National Police Commission, 1980.

4. The Law Commission of India, 41st Report on the Code of Criminal Procedure 1898 I.

(September 1969).

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