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CRIMINAL PROCEDURE
Basic Understanding of
Criminal Procedure
Contents
4.0
Objectives
4.1
Introduction
4.2
4.3
4.4
4.5
Meaning of Bail
4.6
4.7
Let Us Sum Up
4.8
Key Words
4.9
Suggested Readings
4.0 OBJECTIVES
The 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 and
legal terminology. After reading the unit, you will be able to:
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4.1 INTRODUCTION
The law, besides imposing duties and conferring rights on persons, also lays down
procedure 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 they
are not done in the prescribed manner, the procedure becomes illegal. This is all the
more true in case of criminal procedures. The most important criminal law that deals
with legal procedure in India is the Criminal Procedure Code, 1973. This Code applies
to offences under the Indian Penal Code, as well as to offences under other Central
Acts, and under State Acts except where those special or local laws provide differently
on a particular matter. The main objective of this procedural law is to protect the
procedural rights of the accused during the preliminary stage, trial period and to provide
him a fair trial in accordance with the accepted principles of natural justice, human
rights 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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Basic Understanding of
Criminal Procedure
Which is the most important procedural law related to crime in Indian and
what is its main objective?
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2)
3)
4)
4.3
a)
FIR is the first information given to a police officer regarding the commission or occurrence
of an offence. The offence committed may be cognizable or non-cognizable. In
cognizable cases, the police can investigate upon information received without a
Magistrates order. In non-cognizable cases the police cannot investigate without a
Courts order.
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ii)
iii)
What is FIR?
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2)
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3)
Basic Understanding of
Criminal Procedure
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4)
b) Investigation
An officer in-charge of a police station can investigate into any cognizable offence
committed 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 (section
154 to section 176) of Criminal Procedure Code. From the information received, if the
Police Officer suspects the commission of an offence, he, either in person or through his
subordinate 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 an
order in writing to any person, who is acquainted with the facts and circumstances of
the case, to appear before him. Such a person has a duty to appear before the Police
Officer 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 (Case
Diary) every day. He must record:
i)
ii)
iii)
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the law and the section of the law against which the offence is said to have been
committed;
the particulars as to the time and place of the alleged offence, the name of the
person against whom (if any), or the thing in respect of which, the offence was
committed;
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 is
accused. Every separate charge must be tried separately. Court has power to alter
charges. Under chapter XVII of CPC, details are given.
Check Your Progress III
Note : a) Use the space provided for your answers.
b) Check your answers with those provided at the end of this unit.
1)
2)
3)
Whom can an investigating officer call to give statements on the offence alleged
to have been committed by an accused person?
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4)
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b) Valid Warrant
Basic Understanding of
Criminal Procedure
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 the
accused, his address and indicate the offence with which he is charged. If any of these
factors is absent, the warrant is not in order and an arrest made in execution of such a
warrant 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 person
arrested executes a bail with sufficient sureties for his attendance before the Court, he
may 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 the
warrant.
c) Arrest Without Warrant
A police officer has power to arrest a person without warrant, if he is suspected of
having committed a cognizable offence. Normally in non-cognizable offences a police
officer cannot arrest a person without a warrant from a Magistrate.
A person can be arrested without a warrant:
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if he is a proclaimed offender;
when he is out of India and commits an offence punishable under any extradition
law or under the Fugitive Offenders Act;
if he is a released convict who breaks the restrictions imposed by the Court on his
movements;
if he is a habitual criminal;
Arrest is complete when there is submission to custody by word or action, and in such
a case touching or confining of the body of the person arrested is not necessary, but
mere 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:
!
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According to the Supreme Courts, ruling normally an arrested person should not be
handcuffed unless he is violent or he is a desperate character or he is likely to attempt
to 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 the
search the police officer must keep in safe custody all the articles taken from him and
give him a receipt for the same.
A search of an arrested female should be done with strict regard to decency. A woman
can 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 and
detained in custody should be produced before the nearest Magistrate within a period
of 24 hours of such arrest exclusive of the time necessary for the journey from the place
of arrest to the Magistrates Court. However, Section 167 of the Cr. P.C. vests the
power in the Magistrate to authorize the detention of the arrested person for more than
24 hours if the investigation cannot be completed within that period. In no circumstances
can the accused be detained in custody for a moment more than twenty four hours
without a special order of a Magistrate who can order his detention for a term not
exceeding 15 days on the whole. At the end of the 15 days he must be produced
before the Magistrate. If there are adequate grounds for further detention in judicial
custody (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 Magistrate
sanctioning the detention for an indefinite period is illegal. If the accused is not able to
furnish bail during the stage of investigation for a bailable offence he may be detained in
judicial custody. In case of non-bailable offence the arrested person may be kept in jail
until the trial is over.
Check Your Progress IV
Note : a) Use the space provided for your answers.
b) Check your answers with those provided at the end of this unit.
1)
2)
3)
When can a police officer arrest a person accused of committing a noncognizable offence?
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4)
Basic Understanding of
Criminal Procedure
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5)
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 is
necessary 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 can
appeal to a Sessions Court or High Court. Disagreement with the objections raised
by the police in granting bail or the fact of no objection raised in the Court must be
incorporated in the application for bail. If ones application is rejected, one may try
again in ones next Court appearance.
Conditions for Bail: The Magistrate may grant a bail:
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Special conditions usually state that the accused person must report to the police station
at specified time or surrender his passport. One can challenge in a Court any
unreasonable condition imposed by the Magistrate. If the Court refuses to change the
conditions, the accused person can reject them. But in that case he will not be released
until his appeal is heard and disposed of in his favour. Before any person is released on
bail, a bond or such sum of money as the police officer or court thinks sufficient and on
surety that such person will attend of the time and place mentioned in the bond, will
have to be furnished.
Anticipatory Bail: When a person has reason to believe that he may be arrested for a
non-bailable offence, he may apply to the High Court or to the Court of Session for a
direction 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 to
give bail, he must be released on bail. In case a warrant is issued against the accused by
a Magistrate, it must be a bailable warrant in conformity with the direction of the High
Court or the Court of Session. The purpose of the provision is to relieve a person from
disgrace by being detained in jail for some days before he can apply for bail when he is
implicated 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)
3)
4)
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5)
Basic Understanding of
Criminal Procedure
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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.
A person who has been arrested or detained and is being held in custody in 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.
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.
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.
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.
The arrestee should, where he so requests, be also examined at the time of his
arrest and major and minor injuries, if any, present on his/her body, must be recorded
at that time. The Inspection Memo must be signed both by the arrestee and the
police officer effecting the arrest and its copy provided to the arrestee.
The arrestee may be permitted to meet his lawyer during interrogation, though not
throughout the interrogation.
The above rights of the arrested person are based on the Supreme Courts directions in
D.K. Basu vs. State of West Bengal, AIR 1997 SC 610. These rules have to be
followed 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 law
provides 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 and
modesty. 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 lady
constable present while arresting a female person. If a male police officer arrests
a woman for lawful reasons at any time of the day or night in the absence of a lady
constable, due to her unavailability, the arresting officer must record the reasons
for doing so.
If after arrest a woman is detained in police custody or judicial custody she must
be guarded by female police officer.
b)
When a juvenile in conflict with law is apprehended he should be placed under the
charge of the special juvenile unit or the designated police officer.
Then the special juvenile police unit or the designated police officer should
immediately report the matter to a member of the Juvenile Justice Board.
The Board instead of committing him in prison must make an order to send him to
an observation home or place of safety during the pendency of the enquiry regarding
him.
He must also inform the Probation Officer of such arrest and request him to make
enquiry about his antecedents and family background.
A juvenile accused of a crime cannot be tried together with adults involved in the
same crime. The juvenile must be tried separately under the Juvenile Justice Act.
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 tries
an accused on the basis of evidence and declares him guilty or not guilty. Punishments
are given to the guilty on the basis of degree of guilt.
Basic Understanding of
Criminal Procedure
The criminal procedure begins when FIR is filed in the nearest police station. If the FIR
gives first information about a cognizable offence the police-in-charge of a police station
starts the investigation to find evidence against the accused. At the end of the investigation
the 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 which
the 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 bailable
offence the accused has a right to get bail from the police station. In non-bailable cases
court has discretionary power to grant bail. To obtain anticipatory bail the accused has
to apply to Sessions Court or High Court.
An arrested person has certain rights guaranteed by the Constitution of India and
Cr. P.C. The Supreme Court of India in D.K. Basu vs. State of West Bengal case has
also specified certain rights of the accused. Arrested women and children have special
rights.
Crime
Cognizable
Offence
a warrant.
Bail
Charge-sheet
4.9
SUGGESTED READINGS
The important procedural law related to crimes is Criminal Procedure Code. Its
main 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 follow
their obligations, prevent crimes against society and to render assistance to legal
authorities in taking action against those who violate the laws.
3)
It is necessary to know the legal procedures to protect ones right and to assist
others in dealing with legal problems.
4)
ii)
iii)
FIR is the first information given to a police officer regarding the commission or
occurrence of an offence.
2)
It should contain the name and address of the accused, the date, place and time of
the occurrence of the offence, particulars regarding the offence and identity of the
witnesses, if any.
3)
FIR must be given to the officer in-charge of the nearest police station.
4)
2)
Yes.
3)
He can call any person who is acquainted with the facts and circumstances of the
offence.
4)
The police report of the offence, made at the end of investigation is known as
charge sheet.
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1)
2)
3)
He can arrest him only when he receives a warrant of arrest from a competent
Magistrate.
4)
5)
Bail means release of an arrested person from legal custody until his trial.
2)
3)
Yes.
4)
Women, children below 15, very old persons and very sick people.
5)
Basic Understanding of
Criminal Procedure
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