unit 4 basic understanding of criminal procedure

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Basic Understanding ofCriminal ProcedureUNIT 4 BASIC UNDERSTANDING OF

CRIMINAL PROCEDURE

Contents

4.0 Objectives

4.1 Introduction

4.2 Crimes and their Categories

4.3 First Information Report (FIR), Investigation and Charge Sheet

4.4 Arrest and Warrant

4.5 Meaning of Bail

4.6 Right of the Arrested Persons

4.7 Let Us Sum Up

4.8 Key Words

4.9 Suggested Readings

4.10 Answers to Check Your Progress

4.0 OBJECTIVESThe main aim of this unit is to apprise with procedure of dealing with criminal cases.This unit will give you the necessary understanding on the basic legal procedures andlegal terminology. After reading the unit, you will be able to:

! know the different types of offences;

! understand the legal procedures involved in FIR, investigation, charge sheet,warrant and bail; and

! know the rights of arrested individuals especially women and children.

4.1 INTRODUCTIONThe law, besides imposing duties and conferring rights on persons, also lays downprocedure for their enforcement. This branch of law is called law of procedure.Procedural law insists that certain things have to be done in a specific manner. If theyare not done in the prescribed manner, the procedure becomes illegal. This is all themore true in case of criminal procedures. The most important criminal law that dealswith legal procedure in India is the Criminal Procedure Code, 1973. This Code appliesto offences under the Indian Penal Code, as well as to offences under other CentralActs, and under State Acts except where those special or local laws provide differentlyon a particular matter. The main objective of this procedural law is to protect theprocedural rights of the accused during the preliminary stage, trial period and to providehim a fair trial in accordance with the accepted principles of natural justice, humanrights and human dignity.

A great majority of Indian citizens are ignorant of the provisions of criminal laws.Ignorance of law, legal rights and duties often results in violation of these laws or

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Basics of LegalLiteracy

ignorance towards exercising legitimate rights by the individuals. Sometimes, theauthorities concerned with prevention of crime and punishment of criminals seem toexceed their legal powers or use illegal means in dealing with accused persons. It is theduty of every citizen to know his legal rights and obligations so that he can behave in aresponsible manner and render assistance to the authorities whenever and wherever itis necessary. It would also help him in preventing his exploitation by law enforcingpersonnel and fellow citizens.

This unit explains certain basic provisions relating to First Information Report (FIR),arrest, bail, investigation, charge-sheet, police-custody and rights of the arrested persons.Understanding of these provisions is necessary to protect ones rights when he is arrestedby police or is confronted by law enforcing personnel.

4.2 CRIMES AND THEIR CATEGORIESBefore we study legal procedure related to crime let us try to understand the nature ofcrime. Crime is an act of commission or omission contrary to law. It is presumed to bean act against the community or society at large. State has power to punish a personwho has committed a crime and if he is found guilty. In criminal law, it is generallypresumed that an accused person is innocent until the contrary is proved through ajudicial process.

There are mainly three kinds of offences: (i) Cognizable and non-cognizable, (ii) Bailableand non-bailable, and (iii) Compoundable and non-compoundable.

i) Cognizable and Non-Cognizable Offences

Cognizable offences are offences for which a police officer can arrest a person withouta warrant. They are more serious than non-cognizable offences. In non-cognizableoffences the police cannot arrest the offender without a warrant from the Court.

ii) Bailable and Non-Bailable Offences

There is a column in the Schedule to the Code which lays down a list of offences whichare bailable and those which are not bailable. Bailable offences are less serious thannon-bailable ones. In bailable offences, the accused has a right to get bail whereas innon-bailable offences granting of bail is left to the discretion of the Court.

iii) Compoundable and Non-Compoundable Offences

The Code lays down a complete list of compoundable offences under Section 320.Compoundable offences, less serious in nature, are those offences which can becompromised with or without the permission of court by persons mentioned in thespecified sections. A compromise petition, after it is filed, cannot be withdrawn. A casecan be compounded, before judgement is pronounced, even in revision.

The Indian Penal Code defines crimes and prescribes specific punishment. The typesof cases each court can deal with are specified in the Schedule of the Code.

There is a hierarchy of Police Officers beginning from a constable to a Superintendentof Police in a district. Usually the officer-in-charge of a police station is called theStation House Officer (S.H.O.). He and his superior officers can exercise power withinthe local area to which they are appointed. The commission of a criminal offence is tobe reported to the police station within whose jurisdiction the offence has taken place.This is called the First Information Report (F.I.R.)

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Basic Understanding ofCriminal ProcedureCheck Your Progress I

Note : a) Use the space provided for your answers. b) Check your answers with tthose provided at the end of this unit.

1) Which is the most important procedural law related to crime in Indian andwhat is its main objective?

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2) What are the legal duties of a citizen?

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3) Why is it necessary to know the legal provisions related to procedural laws?

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4) What are the different categories of crimes?

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4.3 FIRST INFORMATION REPORT (FIR),INVESTIGATION AND CHARGE SHEET

a) First Information Report (FIR)

FIR is the first information given to a police officer regarding the commission or occurrenceof an offence. The offence committed may be cognizable or non-cognizable. Incognizable cases, the police can investigate upon information received without aMagistrates order. In non-cognizable cases the police cannot investigate without aCourts order.

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FIR must contain the following points:

i) the name and address of the accused,

ii) the date, place and time of the occurrence of the offence,

iii) particulars regarding the offence viz. identifying details of property where it is aproperty crime, or motive if it is a crime against person, etc., and

iv) identity of the witnesses, if any.

It is not necessary to mention all the details of the offence. The FIR must be lodged asearly as possible. Undue or unreasonable delay in lodging the FIR inevitably gives riseto suspicion, which puts the court on guard to look for possible motives and theexplanations for the delay. Any person aware of the commission of an offence can giveinformation to the police officer. It must be given to the officer in-charge of the nearestpolice station. It can be given orally or in writing. If given orally, it must be written downby the police officer. It has to be signed by the informant. The substance of the informationmust be entered in the Station House Register. A copy of the information as recordedmust be given to the informant free of cost.

The FIR is an important document as it is the starting point in an investigation. Hence,the obligation is to speak truly and to avoid exaggeration or falsehood. By itself, it is notsubstantive evidence in a trial to prove the guilt of a person. Yet the first information isa document of considerable importance in criminal trials. It can be used to corroborate(support) or to contradict the testimony of the informant witness, by the accused. FIRhas been discussed under Chapter XII information to the Police and their powers toinvestigate are given in section 154 to 176 of the code of Criminal Procedure, 1973.

Check Your Progress II

Note : a) Use the space provided for your answers. b) Check your answers with those provided at the end of this unit.

1) What is FIR?

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2) What should an FIR contain?

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Basic Understanding ofCriminal Procedure3) To whom should an FIR be given?

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4) What is the importance of FIR?

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b) Investigation

An officer in-charge of a police station can investigate into any cognizable offencecommitted within the local limits of that police station without the order of a magistrate.Police Officers power and procedures to investigate are given in Chapter XII (section154 to section 176) of Criminal Procedure Code. From the information received, if thePolice Officer suspects the commission of an offence, he, either in person or through hissubordinate officer, investigates the facts and circumstances of the case. If necessary,the Police Officer may arrest the offender.

A Police Officer who is investigating a cognizable offence has the power to send anorder in writing to any person, who is acquainted with the facts and circumstances ofthe case, to appear before him. Such a person has a duty to appear before the PoliceOfficer and answer all the questions relating to the case that are put to him.

Every police officer making an investigation must enter its proceedings in a diary (CaseDiary) every day. He must record:

i) the time at which the information reached him;

ii) the time at which he began and closed his investigation;

iii) the place or places visited by him; and

iv) a statement of the circumstances ascertained through his investigation.

The object of keeping case diaries is to enable the Court to be informed of investigationby the police to aid it during trial. It can be used by the Court and the Police Officerand the accused under certain circumstances.

Every investigation is expected to be completed without unnecessary delay. As soon asthe investigation is completed the Police Officer must forward the report to the competentMagistrate in a prescribed form.

c) Charge Sheet

The police report made at the end of investigation is known as charge sheet. It mustcontain---

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Basics of LegalLiteracy ! the name of the offence committed by the accused;

! the law and the section of the law against which the offence is said to have beencommitted;

! the particulars as to the time and place of the alleged offence, the name of theperson against whom (if any), or the thing in respect of which, the offence wascommitted;

! the manner of committing the alleged offence (in some cases).

Any court may alter or add to any charge at any time before judgement is pronounced.Every such alteration or addition should be read before and explained to the accused.There should be separate charge for every distinct offence of which any person isaccused. Every separate charge must be tried separately. Court has power to altercharges. Under chapter XVII of CPC, details are given.

Check Your Progress III


1) Who is authorized to investigate a cognizable offence?

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2) Is a police officer investigating a cognizable offence entitled to arrest the accusedperson?

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3) Whom can an investigating officer call to give statements on the offence allegedto have been committed by an accused person?

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4) What is a charge sheet?

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4.4 ARREST AND WARRANTA person is arrested when a police officer or a citizen takes him into custody or otherwisesubstantially deprives him of his freedom of action so that he may be held to answer fora crime or an offence.

a) Warrant of Arrest

It is a written order issued by a Court to a police officer to arrest and produce anoffender or to search his premises for a particular thing. A police officer who executesthe warrant shall notify the substance thereof to the person to be arrested and if hedemands, shall show him the warrant. He is expected to bring the required personbefore the Court without unnecessary delay.

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Basic Understanding ofCriminal Procedure

b) Valid Warrant

A warrant of arrest should be (i) in writing, (ii) signed by the presiding officer of Court,and (iii) should bear the seal of such Court. It should also contain the name of theaccused, his address and indicate the offence with which he is charged. If any of thesefactors is absent, the warrant is not in order and an arrest made in execution of such awarrant is illegal. Warrants are of two kinds: Bailable and Non-bailable.

A bailable warrant is a Courts order which contains a direction that if the personarrested executes a bail with sufficient sureties for his attendance before the Court, hemay be released from custody. In that case it shall further state the number of sureties,the amount of the bond, and the time for attending the Court.

In case of a non-bailable warrant the direction for bail will not be endorsed on thewarrant.

c) Arrest Without Warrant

A police officer has power to arrest a person without warrant, if he is suspected ofhaving committed a cognizable offence. Normally in non-cognizable offences a policeofficer cannot arrest a person without a warrant from a Magistrate.

A person can be arrested without a warrant:

! if he is concerned in a cognizable offence or if there is a reasonable suspicion,complaint or information that he has committed a cognizable offence;

! if he possesses implements of house breaking;

! if he possesses stolen property;

! if he is a proclaimed offender;

! if he obstructs a police officer on duty;

! if he escapes from a legal custody;

! if he is a deserter from the army, navy or air force;

! when he is out of India and commits an offence punishable under any extraditionlaw or under the Fugitive Offenders Act;

! if he is a released convict who breaks the restrictions imposed by the Court on hismovements;

! if he is suspected of preparing to commit a cognizable offence;

! if he is a habitual criminal;

! if he, after committing a non-cognizable offence in presence of a police officer,refuses to give the police his name and address, gives a false name and address:

! if he is required by a police officer of another police station who suspects that hehas committed a cognizable offence;

Arrest is complete when there is submission to custody by word or action, and in sucha case touching or confining of the body of the person arrested is not necessary, butmere surrounding of a person by the police does not amount to arrest.

d) Fundamental Rights When Arrested

Once any person is arrested by the police officer he/she has following rights:

! To be informed of the reasons for his/her arrest.

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! To consult a lawyer of his/her your choice.

! To be produced before the nearest Magistrate within 24 hours.

According to the Supreme Courts, ruling normally an arrested person should not behandcuffed unless he is violent or he is a desperate character or he is likely to attemptto escape or to commit suicide. Arrest is not a punishment.

Hence unnecessary restraints are not permissible, if there is no necessity for doing so.

A police officer has the right to search a person only after he is arrested. After thesearch the police officer must keep in safe custody all the articles taken from him andgive him a receipt for the same.

A search of an arrested female should be done with strict regard to decency. A womancan be searched only by another women.

e) Detention of An Arrested Person

Article 22 (2) of the Constitution lays down that every person who is arrested anddetained in custody should be produced before the nearest Magistrate within a periodof 24 hours of such arrest exclusive of the time necessary for the journey from the placeof arrest to the Magistrates Court. However, Section 167 of the Cr. P.C. vests thepower in the Magistrate to authorize the detention of the arrested person for more than24 hours if the investigation cannot be completed within that period. In no circumstancescan the accused be detained in custody for a moment more than twenty four hourswithout a special order of a Magistrate who can order his detention for a term notexceeding 15 days on the whole. At the end of the 15 days he must be producedbefore the Magistrate. If there are adequate grounds for further detention in judicialcustody (jail), he can pass an order to that effect, for a period not exceeding 15 days.But the total period of detention cannot exceed 60 days. The order of a Magistratesanctioning the detention for an indefinite period is illegal. If the accused is not able tofurnish bail during the stage of investigation for a bailable offence he may be detained injudicial custody. In case of non-bailable offence the arrested person may be kept in jailuntil the trial is over.

Check Your Progress IV


1) Who is entitled to arrest an accused person who is suspected to have committeda cognizable offence?

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2) What are the different types of warrants?

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3) When can a police officer arrest a person accused of committing a non-cognizable offence?

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Basic Understanding ofCriminal Procedure4) Can an arrested person be handcuffed?

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5) Who is allowed to search a female person after arrest?

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4.5 MEANING OF BAILBail means releasing an arrested person from legal custody until his trial. Bail gives thefreedom to seek advice from friends and to consult a lawyer, to trace witnesses and tocollect evidence for ones defence and to continue his job.

Provisions regarding bail can be classified into two categories: i.e. (i) bailable cases;and (ii) non-bailable cases.

In the case of bailable offences, granting of bail is a matter of legal right. This means thatbail cannot be refused and shall be granted by a police officer in charge of a policestation having the accused in his custody. The release may be ordered on the accusedexecuting a bond, even without sureties.

In non-bailable cases, only the Court can order release of the accused person on bail.However, if the police officer or the Magistrate is of the opinion that there is no sufficientmaterial against the accused and that the complaint needs further investigation he mayalso release the accused on bail. Normally, bail is not granted when the accused personappears, on reasonable grounds, to be guilty of an offence punishable with death orimprisonment for life. But women, children under 15 years of age and sick people canbe released on bail by a Magistrate even if charged with offences punishable withdeath or life-imprisonment.

The discretionary power of the Court to grant bail is a judicial power and is given byestablished principles. Before granting bail the Court must consider the seriousness ofthe charge, the nature of the evidence, the severity of the punishment prescribed for theoffences and in some cases the character, means and the status of the accused.

Following are common objections raised by the Police Officer whenever a bail applicationis moved.

! The accused will not appear at his trial.

! The accused will interfere with witnesses or material evidence.

! The accused will commit further offences while on bail.

! Police enquiries are not complete.

! Further charges might follow.

! Stolen properties have not been recovered.

! The co-accused are absconding.

! The weapons with which crime was committed have not been recovered.

If bail is refused, the Magistrate must record the reasons for the same. Such a record isnecessary to make a proper appeal for bail in higher Courts.

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Appeal: If application for bail is rejected by the Magistrate, the accused person canappeal to a Sessions Court or High Court. Disagreement with the objections raisedby the police in granting bail or the fact of no objection raised in the Court must beincorporated in the application for bail. If ones application is rejected, one may tryagain in ones next Court appearance.

Conditions for Bail: The Magistrate may grant a bail:

! without any condition;

! subject to special conditions;

! subject to bond with or without sureties;

Special conditions usually state that the accused person must report to the police stationat specified time or surrender his passport. One can challenge in a Court anyunreasonable condition imposed by the Magistrate. If the Court refuses to change theconditions, the accused person can reject them. But in that case he will not be releaseduntil his appeal is heard and disposed of in his favour. Before any person is released onbail, a bond or such sum of money as the police officer or court thinks sufficient and onsurety that such person will attend of the time and place mentioned in the bond, willhave to be furnished.

Anticipatory Bail: When a person has reason to believe that he may be arrested for anon-bailable offence, he may apply to the High Court or to the Court of Session for adirection that in the event of such an arrest he may be released on bail.

If such a person is arrested without a warrant by a police officer and if he is prepared togive bail, he must be released on bail. In case a warrant is issued against the accused bya Magistrate, it must be a bailable warrant in conformity with the direction of the HighCourt or the Court of Session. The purpose of the provision is to relieve a person fromdisgrace by being detained in jail for some days before he can apply for bail when he isimplicated in a false case by a rival.

Check Your Progress V

Note : a) Use the space provided for your answers. b) Check your answers with tthose provided at the end of this unit.

1) What is bail?................................................................................................................

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2) From where can you get bail in a bailable case?

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3) Do you have legal right to get bail in a case of bailable offence?

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4) Who is entitled to get bail even in non-bailable cases?

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Basic Understanding ofCriminal Procedure5) From where can a person get anticipatory bail?

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4.6 RIGHT OF THE ARRESTED PERSONSA person arrested by police has following rights:

! The police personnel carrying out the arrest and handling the interrogation of thearrestee should bear accurate, visible and clear identification and name tags withtheir designations. The particulars of all such police personnel who handleinterrogation of the arrestee must be recorded in a register.

! A person who has been arrested or detained and is being held in custody in policestation or interrogation centre or other lock-up, shall be entitled to have one friendor relative or other person known to him or having interest in his welfare beinginformed, as soon as practicable, that he has been arrested and is being detainedat the particular place, unless the attesting witness of the memo of arrest is himselfsuch a friend or a relative of the arrestee.

! The time, place of arrest and venue of custody of an arrestee must be notified bythe police, where the next friend or relative of the arrestee lives outside the districtor town, through the Legal Aid Organisation in the District and the police stationof the area concerned, telegraphically within a period of 8 to 12 hours after thearrest.

! The person arrested must be made aware of this right to have someone informedof his arrest or detention as soon as he is put under arrest or is detained.

! An entry must be made in the diary at the place of detention regarding the arrest ofthe person which shall also disclose the name of the next friend of the person whohas been informed of the arrest and the names and particulars of the police officialsin whose custody the arrestee is.

! The arrestee should, where he so requests, be also examined at the time of hisarrest and major and minor injuries, if any, present on his/her body, must be recordedat that time. The Inspection Memo must be signed both by the arrestee and thepolice officer effecting the arrest and its copy provided to the arrestee.

! The arrestee should be subjected to medical examination every 48 hours duringhis detention in custody by a doctor on the panel of approved doctors appointedby Director, Health Services of the concerned State or Union Territory.

! The arrestee may be permitted to meet his lawyer during interrogation, though notthroughout the interrogation.

The above rights of the arrested person are based on the Supreme Courts directions inD.K. Basu vs. State of West Bengal, AIR 1997 SC 610. These rules have to befollowed in all cases of arrest or detention till a specific law is enacted by Parliament.

a) Specific Rights if Arrested

General provisions regarding arrest are also applicable to a woman. However lawprovides following special rights to a woman to protect her human dignity and modesty.

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! While arresting a woman, a male police officer has no power to touch her body.

! A search of an arrested female should be done with strict regard to decency andmodesty. A woman can be searched only by another woman.

! An arrested female person can demand that she be examined by a female doctor.

! Normally the arresting authority should make all efforts to keep a ladyconstable present while arresting a female person. If a male police officer arrestsa woman for lawful reasons at any time of the day or night in the absence of a ladyconstable, due to her unavailability, the arresting officer must record the reasonsfor doing so.

! If after arrest a woman is detained in police custody or judicial custody she mustbe guarded by female police officer.

! An arrested woman is entitled to get bail even in a non-bailable offence.

! A woman has a right to free legal aid from the State.

b) Specific Rights of Children when arrested

The childhood and vulnerability of children is protected by law. Children havespecific rights consequent upon the arrest. These are :

! When a juvenile in conflict with law is apprehended he should be placed under thecharge of the special juvenile unit or the designated police officer.

! Then the special juvenile police unit or the designated police officer shouldimmediately report the matter to a member of the Juvenile Justice Board.

! When a juvenile accused of a bailable or non-bailable offence is arrested, he mustbe released on bail with or without surety. If he is not released on bail for specificreasons the police officer should send him to an observation home in the prescribedmanner until he can be brought before a Board.

! The Board instead of committing him in prison must make an order to send him toan observation home or place of safety during the pendency of the enquiry regardinghim.

! When a juvenile is arrested and brought before an officer in-charge of a policestation or the special juvenile police unit, he should immediately inform the parentsor guardians of the juvenile about such arrest and direct him to be present at theBoard before which the juvenile will appear.

! He must also inform the Probation Officer of such arrest and request him to makeenquiry about his antecedents and family background.

! A juvenile accused of a crime cannot be tried together with adults involved in thesame crime. The juvenile must be tried separately under the Juvenile Justice Act.

! An arrested child cannot be kept in jail together with adult prisoners.

4.7 LET US SUM UP

Laws confer rights and impose duties. Some laws are known as procedural laws. Theyprescribe rules for getting certain things done in specified manner. The CriminalProcedure Code, 1973 contains various rules related with crime and its trial. Theserules must be observed by all especially law enforcing personnel. Non-observance ofthe rules makes the procedure illegal.

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The objective of Cr. P.C. is to punish the guilty and to give justice to the victim of crime.Police officials are given power to investigate crime and report to the court. Court triesan accused on the basis of evidence and declares him guilty or not guilty. Punishmentsare given to the guilty on the basis of degree of guilt.

The criminal procedure begins when FIR is filed in the nearest police station. If the FIRgives first information about a cognizable offence the police-in-charge of a police stationstarts the investigation to find evidence against the accused. At the end of the investigationthe investigating officer will submit a report to the court to try an accused.

A police officer cannot start the investigation if the offence is non-cognizable for whichthe Magistrate has to issue a warrant of arrest. Warrant can be bailable or non-bailable.

A person accused of a cognizable offence can be arrested by the investigating officer.After arrest he may be kept in police custody or judicial custody. In a case of bailableoffence the accused has a right to get bail from the police station. In non-bailable casescourt has discretionary power to grant bail. To obtain anticipatory bail the accused hasto apply to Sessions Court or High Court.

An arrested person has certain rights guaranteed by the Constitution of India andCr. P.C. The Supreme Court of India in D.K. Basu vs. State of West Bengal case hasalso specified certain rights of the accused. Arrested women and children have specialrights.

4.8 KEY WORDS

Arrest : to rake in custody by authority of law/police.

Crime : an act of commission or omission contrary to law.

Cognizable : offences for which a police officer can arrest a person without

Offence a warrant.

Bail : security taken by the court that a person charged for offencewill attend at a future date to answer to the charge.

Charge-sheet : report made at the end of investigation.

4.9 SUGGESTED READINGS

Basu Durga Das (2001), Introduction to the constitution of India.

Gangrade, K D. (1978), Social Legislation in India, Concept Publishing Company,New Delhi.

Subhash Kashyap (1997), Citizens and Constitution, Publication Division.

4.9 ANSWERS TO CHECK YOUR PROGRESS

Check Your Progress I

1) The important procedural law related to crimes is Criminal Procedure Code. Itsmain objective is to prescribe various procedures related to FIR, investigation,charge sheet, arrest, bail and trial.

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2) It is the legal duty of every person to know the laws of our country, and followtheir obligations, prevent crimes against society and to render assistance to legalauthorities in taking action against those who violate the laws.

3) It is necessary to know the legal procedures to protect ones right and to assistothers in dealing with legal problems.

4) Crimes are divided into 3 categories:

i) Cognizable and non-cognizable;

ii) Bailable and non-bailable;

iii) Compoundable and non-compoundable.

Check Your Progress II

1) FIR is the first information given to a police officer regarding the commission oroccurrence of an offence.

2) It should contain the name and address of the accused, the date, place and time ofthe occurrence of the offence, particulars regarding the offence and identity of thewitnesses, if any.

3) FIR must be given to the officer in-charge of the nearest police station.

4) FIR is an important document. It helps to start the investigation. It can be used tocorroborate (support) or to contradict the testimony of the informant witness orby the accused.

Check Your Progress III

1) An officer in - charge of a police station.

2) Yes.

3) He can call any person who is acquainted with the facts and circumstances of theoffence.

4) The police report of the offence, made at the end of investigation is known ascharge sheet.

Check Your Progress IV

1) Any police officer or any person.

2) Bailable and non-bailable warrants.

3) He can arrest him only when he receives a warrant of arrest from a competentMagistrate.

4) Normally an arrested person should not be handcuffed unless he is violent or he isan habitual offender or a desperate character.

5) Only a female person is allowed to search her.

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Check Your Progress V

1) Bail means release of an arrested person from legal custody until his trial.

2) From the police officer-in-charge of a police station.

3) Yes.

4) Women, children below 15, very old persons and very sick people.

5) From the Sessions Court or High Court.

unit 4 basic understanding of criminal procedure

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