STAY OF PROCEEDINGS UNDER THE CRPC

A trial court cannot stay its own proceedings in a criminal case and the adjudication of a
connected civil case has no bearing on the proceedings in a criminal case. A High Court can
provide an order for stay of proceedings in a criminal case under Section 482 of the CrPC.

482. Saving of inherent powers of High Court: Nothing in this Code shall be deemed to limit
or affect the inherent powers of the High Court to make such orders as may be necessary to
give effect to any order under this Code, or to prevent abuse of the process of any Court or
otherwise to secure the ends of justice.
In Asian Resurfacing of Road Agency Pvt. Ltd. v. CBI, the Court held that whatever stay has
been granted by any court including the High Court automatically expires within a period of
six months, and unless extension is granted for good reason, within the next six months, the
trial Court is, on the expiry of the first period of six months, to set a date for the trial and go
ahead with the same.

The Supreme Court in the case of Messrs. Neeharika Infrastructure Private Limited v. State of
Maharashtra, held that a High Court while exercising powers under Section 482 CrPC, can
grant stay of investigation or any other interim relief only in the rarest of rare cases.

ABUSE OF PROCESS AND STAY OF PROSECUTION UNDER THE UK SYSTEM

Abuse of process has been defined as “something so unfair and wrong that the court should
not allow a prosecutor to proceed with what is in all other respect a regular proceeding”. Both
the Crown Courts and magistrates' courts have discretion to protect the process of the court
from abuse. This includes protecting the accused person from oppression or prejudice. The
courts have an overriding duty to promote justice and prevent injustice. From this duty there
arises an inherent, exceptional power to stay/stop a prosecution in the magistrates' court, if
the court is of the opinion that to allow the prosecution to continue would amount to an abuse
of the process of the court.

In Connelly v DPP, it was held that the court may do so if either of the following apply, and
the court must consider each as a separate question:

 Is it impossible for the defendant to have a fair trial? - The first ground for abuse of
process, “right to a fair trial”.
 Is a stay of proceedings necessary to protect the integrity of the criminal justice
system? -The second ground, “integrity of the justice system”.
The inherent jurisdiction of the court to stop a prosecution to prevent an abuse of process is to
be exercised only in exceptional circumstances. In Crawley and others, it was stated that “It is
clear from the authorities and beyond argument that there is a strong public interest in the
prosecution of crime and in ensuring that those charged with serious criminal offences are
tried. Ordering a stay of proceedings, which in criminal law is effectively a permanent
remedy, is thus a remedy of last resort”

Courts should not use their inherent power to stay proceedings merely to discipline the
prosecution or because the court has formed the view that the prosecution was unwise. The
exceptional nature of the remedy of a stay of proceedings means that, absent bad faith, the
power “should not be used to punish prosecutors where a fair trial remains possible”( DPP v
Gowing).

ROLE OF PROSECUTOR

REVIEW: Where an application to stay proceedings as an abuse of process has been made, or
otherwise can reasonably be anticipated, a prosecutor must first review or re-review the case.
A decision to stay proceedings is a rare outcome. In a case in which, in accordance with the
Code for Crown Prosecutors, the evidential and public interest tests are otherwise met, it will
thus be in only the most exceptional case, where the Prosecutor can say with a high degree of
certainty that a court will rule that a prosecution is proved to be an abuse of its process, that a
decision not to prosecute is likely to be valid.

COUNTER MEASURES: When reviewing the case, the prosecutor should have regard to the
authorities relating to the category of abuse alleged. They should also consider
countermeasures to ensure the right to a fair trial or to preserve and uphold the integrity of the
CJS.

BOP: The burden is on an accused to show, on a balance of probabilities, that they are
entitled to a stay of proceedings on grounds of abuse of process.

PROCEDURE: Prosecutors also have a responsibility to ensure that proper procedure is

followed in relation to abuse of process applications. An application for a stay of proceedings
should be determined before any evidence is called. In the magistrates’ court the principles
must apply in the interests of fairness, justice and case management: namely, that any
application should be made as soon as the defendant becomes aware of the grounds for doing
so, be in writing and served on the prosecutor, setting out clearly the basis on which it is
made and all submissions and evidence in support, and permitting sufficient time for the
prosecution to respond. If necessary, prosecutors should seek directions from the court.

SYSTEM OF COURTS IN UK

The court system in England and Wales can be considered as consisting of 5 levels:

 Supreme Court (formerly the House of Lords) and the Judicial Committee of the
Privy Council
 Court of Appeal
 High Court
 Crown Court and County Courts
 Magistrates’ Courts and the Tribunals Service

Different types of case are dealt with in specific courts, and have different routes into the
Court of Appeal:

 All criminal cases will start in the Magistrates’ court, but more serious criminal
matters are sent to the Crown Court. Appeals from the Crown Court will go to the
Court of Appeal Criminal Division and potentially the UK Supreme Court.
 Civil cases will usually start in the County Court. Again, appeals will go to the High
Court and then to the Court of Appeal – although to different divisions of those courts.
 The tribunals system has its own structure for dealing with cases and appeals, but
decisions from different chambers of the Upper Tribunal, and the Employment
Appeals Tribunal, may also go to the Court of Appeal.

TRIAL PROCESS IN UK

All trials in England and Wales are conducted in accordance with the Criminal Procedure
Rules, which govern every aspect of every stage of the criminal court process.

If the case is being heard in a magistrates’ court, the trial will be overseen by two or three
magistrates or a District Judge. Trials for offences in magistrates’ courts are known as
summary trials. A trial in the Crown Court will be held with a jury who is guided throughout
the case by the judge before reaching a verdict on the defendant’s guilt. Juries are constituted
of 12 people randomly selected from the electoral register. Parties to the case can sometimes
vet or object to selection of members of the jury.

MAGISTRATES’ COURT TRIALS

In general terms, hearings begin with the prosecution opening their case against the
defendant. The prosecution will normally provide a summary of their case, how they say an
offence has been committed and how they intend to prove their case. The prosecution will
then call their witnesses and introduce any other evidence that they rely upon to try and prove
the case against the defendant. The witnesses who give oral evidence can then be cross-
examined by defence solicitor or barrister.

Once all the prosecution evidence has been produced before the court, the prosecution case
will be closed. Defendant’s solicitor or barrister may then be able to make a submission to the
court that there is no case to answer, if it can be shown the prosecution has failed to prove
their case. If the court agrees, the case will be dismissed and a costs application can be made.
If the submission of no case to answer is not made or is unsuccessful, the defence case will
then be presented. The defendant in the case, are normally the first person to give evidence.

CROWN COURT TRIALS

When the trial begins in a Crown Court, the Judge will make rulings relating to any legal
arguments that are put forward by the defence or prosecution.

The prosecution will commence the case by giving details to the jury about the allegations
made against the defendant. The prosecution will then call their evidence, which may include
witnesses or experts to prove their case. An opportunity will be given to the defence barrister
to cross-examine any prosecution witnesses who give oral evidence. Once the prosecution has
presented their evidence, their case closes. Similar to the Magistrates’ Court, an application to
dismiss the case may take place at this time to try and persuade the Judge that there is
insufficient evidence for the jury to convict. If such an application is not made or
unsuccessful, it is the turn of the defence to present their case. This is the opportunity, in
amongst others, to present evidence that counters what has already been shown or heard by
the jury from the prosecution and to highlight a lack of evidence or suggest that the
prosecution’s evidence is incorrect, inconsistent or weak. Defence will provide the evidences;
the prosecution gets opportunity to cross examine the witnesses.

The Judge will then summarise the evidence from the trial and provide a number of legal
directions for the jury. In particular, the Judge will explain that the jury can only find the
accused guilty of the offence(s) if they are sure that it was committed. The jury will then
retire to discuss the case and decide amongst themselves whether the accused is guilty or not
guilty. In most cases, a unanimous decision will need to be made, but a majority verdict may
be accepted, following direction from the Judge if all 12 jurors cannot reach a unanimous
decision. If neither a unanimous nor majority decision can be reached, this is called a ‘hung
jury’ and the Judge may direct that a retrial takes place.

Once the jury has made a decision, they will return to the court and confirm whether they find
you or your business guilty or not guilty on each count.

SENTENCING: If a defendant is found not guilty, then they will be free to leave court
immediately after the end of the hearing. If the defendant is found guilty, they are convicted
of the crime. It then falls to the judge (or magistrate) to pass a sentence which will serve as
punishment for the crime. The Sentencing Council is responsible for monitoring sentencing
in England and Wales. It publishes guidelines on sentencing for most of the significant
offences sentenced in the magistrates’ court and for a wide range of offences in the Crown
Court.
Then, appeal can be made to the higher court.

JURY SYSTEM

In the UK, juries play a critical role in the criminal justice system. The jury is responsible for
deciding whether a defendant is guilty or not guilty of the charges brought against them, and
this decision must be based on the evidence presented in court. In the UK, juries are used in
the Crown Court, which hears the most serious criminal cases, such as murder, rape, and
serious fraud. The jury is made up of 12 people who are randomly selected from the local
community and who are responsible for reaching a unanimous verdict.

The role of the jury in UK criminal courts is to listen to the evidence presented by both the
prosecution and the defence and to decide whether the prosecution has proven its case beyond
a reasonable doubt. The jury is instructed to consider only the evidence presented in court and
to disregard any outside influences or opinions they may have. The judge presiding over the
case is responsible for providing guidance to the jury on the relevant law and for ensuring
that the trial is conducted fairly. However, it is the jury's responsibility to make the final
decision on whether the defendant is guilty or not guilty. If the jury finds the defendant guilty,
the judge will decide on the appropriate sentence. The jury may also make recommendations
on the sentence, but it is ultimately up to the judge to decide. The role of the jury in UK
criminal courts is to ensure that justice is served in a fair and impartial manner. The
involvement of ordinary citizens in the administration of justice is seen as a key feature of the
UK's democratic system, and juries play a vital role in maintaining public trust in the legal
system.

PRE-SENTENCE INVESTIGATION

A Pre-Sentence Report (PSR) is a report prepared by a probation officer to help the judge
decide what sentence to give. It is used to find out about an offender’s background. The
presentence investigation is initiated either when a person enters a guilty plea or receives a
guilty verdict following a trial. A presentence investigation is conducted by a probation
officer. Presentence investigations include interviews with and soliciting records from the
defendant, family members, educators, treatment providers, employers, and law enforcement
officials to gather and/or verify background information. During this process, probation
officers review court, education, physical and mental health, substance abuse treatment,
military, financial, and employment records. The officer uses the information gathered to
assess the offender's living conditions, family relationships, community ties, and drug use.
The report is largely a simple biography of the defendant's life. Based on their investigations,
officers prepare reports that the attorneys and court rely upon to render fair and appropriate
sentences.

Before the presentence report is used by the Court at sentencing, the defendant, the
defendant's attorney, and the government attorney all have the opportunity to review the draft
report, to offer suggested changes. Prior to sentencing, the Court will rule upon any
outstanding requested, unresolved changes.

The presentence report then follows the defendant to the Bureau of Prisons and/or his/her
community placement, providing assistance in the determination of a variety of designation
and treatment decisions. Examples of such decisions include everything from facility
assignment, work assignments, dietary restrictions, medical and mental health treatment
needs, and other programming needs, to family visitor lists and release date calculations. Due
to the varied and important uses of the report, it is critical that the report be accurate and
complete.

PAROLE

Parole word is derived from the French phrase “je donne ma parole” which means “I give my
word “. And as per the dictionary meaning, parole means “word of honour”. It is a
conditional release of an offender who has served some portion of his sentence in the prison.
The concerned authorities allow parole to the offender who remains in custody and under the
supervision of the paroling authority. Parole is a legal measure aimed at correction,
reformation and rehabilitation while maintaining social security at the same time.

Types of parole

Custody Parole- It is granted in emergency circumstances like, death in a family, the marriage
of a family member, serious illness etc. Custody parole is given for 14 days.

Regular Parole- It is allotted on certain grounds like

 Marriage, accident, death or illness in a family

 Delivery of child by the wife of the convict
 Severe damage to life or property of the family of convict due to natural calamities
 Filing of a special leave petition by the convict or his family
 It is granted for a maximum period of 1 month.

Laws Related to Parole in India

Guidelines created under the Prison Acts of 1894 and 1900 are used to manage parole
legislation in India. Thus, in India, each state has its parole laws that differ slightly from one
another. The primary goal of the parole laws was to release inmates on leave. They are
progressive measures for the benefit of the prisoners.

Not all prisoners are eligible for release under parole, including those convicted of crimes
against the state or who pose a danger to the security of the country, non-Indian citizens, and
others. People found guilty of crimes like serial murder, child rape, murder, and other similar
crimes are also excluded unless the granting authority deems otherwise.

PAROLE IN UK

The Parole Board is an executive non-departmental public body, responsible for the parole
system. The Parole Board carries out risk assessments on these prisoners to determine
whether they can be safely released into the community. It is governed by the Parole Board
Rules, secondary legislation that sets out the procedures that must be followed when
determining parole cases.

PAROLE IN US
The United States Parole Commission is the parole board responsible for granting or denying
parole to, and supervising the parole releases of, incarcerated individuals who fall under its
jurisdiction. It is part of the United States Department of Justice. The Parole Commission
considers prisoners' applications for parole, deciding whether or not a prisoner has earned a
chance to reintegrate into the community.

Most states limit parole to inmates convicted of certain crimes who have served a certain
percentage of their sentence. For instance, offenders who have been convicted of first-degree
murder, kidnapping, rape, arson, or drug trafficking are generally not eligible for parole. For
other offenders, the parole board will consider each inmate's personal characteristics, such as
age, mental stability, marital status and prior criminal record. Parole boards do not grant
parole to offenders simply for "good behaviour" exhibited during incarceration. The parole
board will also consider the nature and severity of the offense committed, the length of
sentence served and the inmate's degree of remorse for the offense. Finally, the parole board
will examine the inmate's ability to establish a permanent residence and obtain gainful
employment upon release. Parole will be granted if there is no apparent threat to public safety
and the inmate is willing and able to re-enter the community.