Many think that judges are kind of powerless in certain stages of the criminal justice procedure and even if the judge is competent and non-corrupt, they can’t do much because the police and prosecutors have to be competent and non-corrupt as well — what if the police refuses to register an FIR? what if the police does not conduct the investigation properly? what if the prosecutor doesn’t present a crucial witness? etc. While I have no issues in attempting to solve the problems in our police and prosecution, I think Indian judges have vast powers and are almost like part-time police officers and prosecutors. They can direct police to register an FIR. They can monitor and supervise police investigation. They can take up cases suo-moto (by themselves). They consult DMs while they are deciding who can be a prosecutor. They can allow the victim to have private prosecution. They can summon any person as a witness and examine any person in court if they don’t like the way the prosecutor is examining them. Essentially, judges are not bottlenecked by the competence and corruption of the police and prosecutors.
I’m listing the relevant powers based on the limited information I have about our criminal justice system. If you’re aware of any that are not listed below, it’d great if you could let me know or if anything, that I included, does not apply. (Some powers might be limited to certain judges only.)
0.0.1 1. Registering FIR
If the police is not registering FIR or not starting the investigation, the Magistrate can order them to do so. One can directly go to the Magistrate with a complaint of a cognizable offense and the Magistrate can direct the police to register an FIR and investigate the matter.
Section 156. Police officer’s power to investigate cognizable case.
Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
Any Magistrate empowered under section 190 may order such an investigation as above- mentioned.
0.0.2 2. Monitoring and supervising police investigation
HC and SC judges can monitor and supervise police investigation. The Hindu reports on an SC judgement:
The Supreme Court has held that higher courts can monitor the progress of investigation in criminal cases if it is found that influential persons are trying to impact the course of justice.
A Bench of Justices Altamas Kabir and Cyriac Joseph rejected the argument of some accused persons in a criminal case that courts have no power to monitor investigations as it amounted to usurping the role of the investigating agencies.
0.0.3 3. Suo-moto case
SC judges can start a case without complainer filing the complaint. See this and this. Here’s an excerpt from the first link:
The Supreme Court of India has often taken up cases ‘suo moto’. This means they take up cases by their own notice, without any petition being filed, or interest being brought before them.
While such a power is granted by s. 23 of the Contempt of Courts Act, 1971 for contempt of court, the use of the procedure in writ or judicial review jurisdiction has been novel. It developed from the relaxation of procedure when considering PILs. The first instance is often considered to be in the Sunil Batra case. The procedure for suo moto petitions was formalised only in 2014 by the adoption of Order 38, Rule 12(1)(a) in the Supreme Court Rules, 2013.
0.0.4 4. Preparing list of prosecutors
DM prepares list of prosecutors after consultation with Sessions Judge.
Section 24. Public Prosecutors.
The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district.
No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4).
0.0.5 5. Private prosecution
Magistrate can allow victim to have private prosecution if public prosecutors are misfit.
Section 302. Permission to conduct prosecution.
Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector; but no person, other than the Advocate General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission: Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.
Any person conducting the prosecution may do so personally or by a pleader.
0.0.6 6. Summoning and examining witness
Judges can call any person as a witness even if prosecutor doesn’t want to present that person as a witness and themselves examine any witness if prosecutor is not “asking the right questions” as per the judge.
Section 311. Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or. recall and re- examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case.